FAMILY LAW RULES 2004 - SCHEDULE 6
Costs--rules before 1 July 2008
FAMILY LAW RULES 2004 - SCHEDULE 6
Costs--rules before 1 July 2008
(Chapter 19)
Summary of Schedule 6
Schedule 6 regulates:
(a) party/party costs for applications that are not covered
by Chapter 19; and
(b) the charges of lawyers in
family law cases that commenced before 1 July 2008 as provided in
subclause 6.01(1), except:
(i) for a fresh application commenced after
30 June 2008;
(ii) under a new agreement between the lawyer
and the client entered into after 30 June 2008;
(iii) under a new retainer entered into by a
client in the client's case after 30 June 2008, if the client instructs a
new lawyer in a new firm; or
(iv) for any part of a case in which a Family
Court is exercising its bankruptcy jurisdiction.
Chapter 26 contains
provisions which regulate the charges of lawyers for a part of a case
involving bankruptcy matters.
The rules in Chapter 1 relating to the
court's general powers apply in all cases and override all other provisions in
these Rules.
A word or expression used in this Schedule may be defined in the
dictionary at the end of these Rules.
Part 6.1 -- General
6.01
Application of Schedule 6
(1) This Schedule only applies to costs for work done for a case,
or in complying with pre-action procedures associated with a case, that
commenced before 1 July 2008.
(2) Subject to subclause (4), this Schedule applies to costs
for work done for a case, or in complying with pre-action procedures, paid or
payable by:
(a) a client to a lawyer;
(b) if paragraph (a) does not apply--one person to another person.
(
3) For work to which this Schedule applies, a party may only
recover costs from another party in accordance with this Schedule or an
order.
Note:
A self-represented party is not entitled to recover costs for work done for a
case (except work done by a lawyer) but, if so ordered, may be entitled to
recover some payments.
(4) This Schedule does not apply to costs in any part of a case in
which a Family Court is exercising its jurisdiction under section 35 or
35B of the Bankruptcy Act.
(5) In this Schedule:
"small claim" means a case that was determined
in accordance with Division 11.2.3 as in force immediately before
1 July 2008.
6.02 Interest on outstanding costs
Interest is payable on outstanding costs at the rate mentioned in
rule 17.03.
6.03 Duty to inform about costs
(1) When a lawyer receives instructions to act for a party (the client )
in a case, the lawyer must give the client:
(a) a costs notice; and
(b) written advice about:
(i) the basis on which costs will be calculated;
(ii) an estimate, if practicable, or a range of estimates of the total
costs of conducting the case;
(iii) how party and party costs may apply in addition to the client's
own costs; and
(iv) whether any other lawyer or an expert witness will be retained and,
if so, the estimated cost.
(2) The lawyer must, when sending an account or itemised costs account
to a client, include in the account a notice referring to the costs notice.
(3) If an offer to settle is made during a property case, the lawyer for
each party must tell the party:
(a) the party's actual costs, both paid and owing, up to the date of the
offer to settle; and
(b) the estimated future costs to complete the case;
to enable the
party to estimate the amount the party will receive if the case is settled in
accordance with the offer to settle, after taking into account costs.
(4) In this clause:
"lawyer" does not include counsel instructed by
another lawyer.
6.04 Notification of costs
(1) This rule applies to the following court events:
(a) conciliation conference;
(b) the first day of the allocated dates mentioned in rule 16.10;
(c) any other court events that the court orders.
(2) Immediately before each court event, the lawyer for a party must
give the party a written notice of:
(a) the party's actual costs, both paid and owing, up to and including
the court event;
(b) the estimated future costs of the party up to and including each
future court event; and
(c) any expenses paid or payable to an expert witness or, if those
expenses are not known, an estimate of the expenses.
(3) At each court event:
(a) a party's lawyer must give to the court and each other party a copy
of the notice given to the party under subclause (2); and
(b) an unrepresented party must give to the court and each other party a
written statement of:
(i) the actual costs incurred by the party up to and including the
event; and
(ii) the estimated future costs of the party up to and including each
future court event.
(4) Immediately before the first day of the trial, an independent
children's lawyer must give to the court and each party a written statement of
the actual costs incurred by the independent children's lawyer up to and
including the trial.
(5) In a financial case, a notice under subclause (2) or a
statement under paragraph (3)(b) must specify the source of the funds for
the costs paid or to be paid unless the court orders otherwise.
Note:
The court may relieve a party from being required to disclose the source of
the funds if, for example, the source is a third party (see rule 1.12).
(6) At the end of a court event, the court must return the copy of the
notice or statement given under this clause to the person who gave it.
(7) In this clause:
"court event" does not include an attendance with
a family counsellor, a family dispute resolution practitioner or a family
consultant in a parenting case.
"lawyer" does not include counsel instructed
by another lawyer.
Part 6.2 -- Security for costs
6.05
Application for security for costs
(1) A respondent may apply for an order that the applicant in the case
give security for the respondent's costs.
Note:
Chapter 5 sets out the procedure for making an application for interim,
procedural, ancillary or other incidental orders.
(2) In deciding whether to make an order, the court may consider any of
the following matters:
(a) the applicant's financial means;
(b) the prospects of success or merits of the application;
(c) the genuineness of the application;
(d) whether the applicant's lack of financial means was caused by the
respondent's conduct;
(e) whether an order for security for costs would be oppressive or would
stifle the case;
(f) whether the case involves a matter of public importance;
(g) whether a party has an order, in the same or another case (including
a case in another court), against the other party for costs that remains
unpaid;
(h) whether the applicant ordinarily resides outside Australia;
(i) the likely costs of the case;
(j) whether the applicant is a corporation;
(k) whether a party is receiving legal aid.
(3) In subclause (1):
"respondent" includes an applicant who has
filed a reply because orders in a new cause of action have been sought in the
response.
6.06 Order for security for costs
If the court orders a party to give security for costs, the court may also
order that, if the security is not given in accordance with the order, the
case of the party be stayed.
Note:
The court may, on application or on its own initiative, dismiss a case for
want of prosecution.
6.07 Finalising security
(1) Security for costs may be applied in satisfaction of any costs
ordered to be paid.
(2) Security for costs may be discharged by order.
(3) If security for costs is paid into court, the court may order that
it be paid out of court.
Part 6.3 -- Costs orders
6.08 Order
for costs
(1) A party may apply for an order that another person pay costs.
(2) An application for costs may be made:
(a) at any stage during a case; or
(b) by filing an Application in a Case within 28 days after the final
order is made.
(3) A party applying for an order for costs on an indemnity basis must
inform the court if the party is bound by a costs agreement in relation to
those costs and, if so, the terms of the costs agreement.
Note
1:
The court may make an order for costs on its own initiative (see
rule 1.10).
Note 2:
A party may apply for an order for costs within 28 days after the filing of a
notice of discontinuance by the other party (see subrule 10.11(4)).
Note 3:
A party may apply for an extension of time to make an application (see
rule 1.14).
(4) In making an order for costs, the court may set a time for payment
of the costs that may be before the case is finished.
6.09 Costs
order for cases in other courts
(1) This clause applies to a case in the Family Court that:
(a) has been transferred from another court; or
(b) is on appeal from a decision of another court.
(2) The Family Court may make an order for costs in relation to the case
before the other court.
(3) The order may specify:
(a) the amount to be allowed for the whole or part of the costs; or
(b) that the whole or part of the costs is to be calculated in
accordance with these Rules or the rules of the other court.
6.10
Costs orders against lawyers
(1) A person may apply for an order under subclause (2) against a
lawyer for costs thrown away during a case, for a reason including:
(a) the lawyer's failure to comply with these Rules or an order;
(b) the lawyer's failure to comply with a pre-action procedure;
(c) the lawyer's improper or unreasonable conduct; and
(d) undue delay or default by the lawyer.
(2) The court may make an order, including an order that the lawyer:
(a) not charge the client for work specified in the order;
(b) repay money that the client has already paid towards those costs;
(c) repay to the client any costs that the client has been ordered to
pay to another party;
(d) pay the costs of a party; or
(e) repay another person's costs found to be incurred or wasted.
6.11
Notice of costs order
(1) Before making an order for costs against a lawyer or other person
who is not a party to a case, the court must give the lawyer or other person a
reasonable opportunity to be heard.
(2) If a party who is represented by a lawyer is not present when an
order is made that costs are to be paid by the party or the party's lawyer,
the party's lawyer must give the party written notice of the order and an
explanation of the reason for the order.
Part 6.4 -- Lawyer and client
costs
6.12 When this Part does not apply
This Part does not apply to costs for work done for a case, paid or
payable by a client to a lawyer:
(a) for a fresh application commenced after 30 June 2008;
(b) by a lawyer who is first retained by a client after 30 June
2008, even if the case in which the lawyer is retained to act is pending on
30 June 2008; or
(c) if the lawyer and client agree in writing, and free from undue
influence, that these Rules do not apply to the regulation of the costs to be
charged.
6.13 Costs not to be charged
(1) A lawyer must not charge:
(a) an amount for costs improperly, unreasonably or negligently incurred
by the lawyer; or
(b) for work done for the administration of the lawyer's office.
(2) A lawyer must not make an agreement with a client to avoid the
requirement under paragraph (1)(a).
(3) Despite any clause in this Schedule, if:
(a) the client instructs the lawyer, in writing, to do work for a case,
or incur an expense of a particular kind or amount, that the lawyer advises
the client would be unreasonable and unlikely to be recovered on a party and
party basis; and
(b) the lawyer does the work, or incurs the expense, in accordance with
the client's instructions;
the lawyer may, as between the lawyer and the
client, charge an amount for the costs incurred.
6.14 Steps before
costs recovery
A lawyer may start or continue a case to recover costs from a client only if:
(a) the lawyer has served on the client an account and a costs notice,
and no request for an itemised costs account has been made under
clause 6.21; or
(b) an itemised costs account has been served on the client and:
(i) a Notice Disputing Itemised Costs Account has not been served under
clause 6.24;
(ii) a Notice Disputing Itemised Costs Account has been served under
clause 6.24 and the dispute has been resolved by agreement between the
parties; or
(iii) a Notice Disputing Itemised Costs Account has been filed under
subclause 6.25(3) and the dispute has been determined or the Notice
Disputing Itemised Costs Account has been withdrawn.
6.15 Costs
agreements
(1) A lawyer may make a written agreement (the costs agreement ) with a
client about the costs to be charged by the lawyer for work done for a case
for the client.
(2) The costs agreement must:
(a) specify the type and amount of work to be done by the lawyer;
(b) set out:
(i) the costs payable by the client for the work as a lump sum; or
(ii) the basis on which the costs will be calculated;
(c) state whether a partner, employed lawyer or clerk will work on the
case and, if so, that person's charge out rate;
(d) be fair and reasonable; and
(e) be signed by the lawyer and the client.
(3) The costs agreement may:
(a) relate to part only of a case; and
(b) be amended by written agreement.
(4) The costs agreement must not include a provision:
(a) preventing the client from taking civil action (including liability
for negligence) against the lawyer;
(b) by which all or part of the costs payable for work done are
calculated by reference to:
(i) an amount ordered by the court;
(ii) the amount of an agreed settlement or consent order; or
(iii) the value of the property or money that may be recovered in a case
to which the work relates; or
(c) that makes the costs payable only if the outcome of the case is in
the client's favour.
6.16 Notice about costs agreement
At the time of making a costs agreement with a client, a lawyer must:
(a) give each other party to the costs agreement a costs notice; and
(b) advise those parties to obtain independent legal advice about the
costs agreement.
6.17 Validity and effect of costs agreement
A party to a costs agreement may apply for an order:
(a) confirming, varying or setting aside the costs agreement; or
(b) determining any question relating to the validity or effect of the
costs agreement.
6.18 Setting aside costs agreement
The court may set aside a costs agreement if:
(a) it is unfair or unreasonable;
(b) it does not comply with this Part;
(c) the client was subject to undue influence or misrepresentation, or
was fraudulently induced to enter the agreement; or
(d) the lawyer has not complied with clause 6.03,
subclause 6.15(2) or (4) or clause 6.16.
Part 6.5 --
Calculation of costs
6.19 Maximum amount chargeable
(1) This clause sets out the maximum amount of costs a lawyer may charge
and recover for work done for a case, or in complying with pre-action
procedures:
(a) for a client;
(b) if the court orders that costs are to be paid and does not fix the
amount; and
(c) if a person is entitled to costs under these Rules.
(2) The maximum amount of costs that a lawyer may charge and recover is
as follows:
(a) for fees--an amount calculated in accordance with Schedules 3
and 4;
(b) for an expense mentioned in Schedule 4 (other than
item 101)--the amount specified in Schedule 4 for that expense;
(c) for any other expenses--a reasonable amount.
(3) However, for lawyer and client costs only, if there is a valid costs
agreement between a lawyer and a client:
(a) subclause (2) does not apply; and
(b) the maximum amount of costs that the lawyer may charge and recover
is the amount calculated in accordance with the costs agreement.
6.20
Party and party costs
(1) The court may order that clause 6.19 does not apply and that a
party is entitled to costs:
(a) of a specific amount;
(b) as assessed on a lawyer and client basis or an indemnity basis;
(c) to be calculated in accordance with the method stated in the order;
or
(d) for part of the case, or part of an amount, assessed in accordance
with Schedule 3.
Example for paragraph (1)(c)
The stated method
may be in accordance with Schedule 3 but with an additional percentage
for complexity.
(2) In making an order under subclause (1), the court may consider:
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness of each party's behaviour in the case;
(c) the rates ordinarily payable to lawyers in comparable cases;
(d) whether a lawyer's conduct has been improper or unreasonable;
(e) the time properly spent on the case, or in complying with pre-action
procedures; and
(f) expenses properly paid or payable.
Part 6.6 -- Claiming and
disputing costs
Division 6.6.1 -- Itemised costs account
Note:
This Division provides that, if an account payable by a person is not in an
itemised form, the person has the right to request an itemised account (an
itemised costs account ). The person may then dispute the itemised costs
account by following the procedures set out in this Division. A person may
apply to extend the time for taking any action required under these Rules (see
rule 1.14).
6.21 Request for itemised costs account
A person who has received an account (except an itemised costs account) and
wants to dispute the account, or any part of it, must, within 28 days after
receiving the account, request the lawyer who sent it to serve an itemised
costs account for the whole or part of the account disputed.
Note:
A lawyer must give a costs notice to a client on receiving instructions and
must, when serving an account or an itemised costs account, include a
reference to the costs notice (see subclause 6.03(2)).
6.22
Service of lawyer's itemised costs account
(1) A person entitled to costs must serve an itemised costs account on
the person liable to pay the costs within 28 days after:
(a) for lawyer and client costs--receiving a request for an itemised
costs account; or
(b) for party and party costs--the end of the case.
Note:
A person entitled to costs may serve an itemised costs account even if the
person liable to pay the costs has not requested it.
(2) For party and party costs, the person entitled to costs must serve a
costs notice at the same time as the itemised costs account is served under
subclause (1).
6.23 Lawyer's itemised costs account
(1) An itemised costs account (the account ) must specify each item of
costs and expense claimed.
(2) Each item specified in the account must be numbered and described in
sufficient detail to enable the account to be assessed.
(3) The account must set out, in columns across the page, the following
information:
(a) in relation to each item for which costs are payable:
(i) the date when the item occurred;
(ii) a description of the item, including whether the work was done by a
lawyer or an employee or agent of a lawyer;
(iii) the amount payable for the item;
(b) at the end of the column setting out the amount payable--the total
amount payable for the items.
(4) For each expense claimed, the account must include:
(a) the date when the expense was incurred;
(b) the name of the person to whom the expense was paid;
(c) the nature of the expense; and
(d) the amount paid.
6.24 Disputing itemised costs account
A person served with an itemised costs account may dispute it by serving on
the person entitled to the costs a Notice Disputing Itemised Costs Account
within 28 days after the account was served.
Note
1:
A person may apply for an extension of time to dispute an account (see
rule 1.14).
Note 2:
If no Notice Disputing Itemised Costs Account is received and the costs are
not paid, the person entitled to the costs may seek a costs assessment order
(see clause 6.38).
Note 3:
If the parties agree on the amount to be paid for costs, they may file a draft
consent order (see Part 10.4 for consent orders).
6.25
Assessment of disputed costs
(1) This clause applies if a Notice Disputing Itemised Costs Account has
been served under clause 6.24.
(2) The parties to a dispute in relation to costs must make a reasonable
and genuine attempt to resolve the dispute.
(3) If the parties are unable to resolve the dispute, either party may
ask the court to determine the dispute by filing in the filing registry of the
court where the case was conducted the itemised costs account and the Notice
Disputing Itemised Costs Account no later than 42 days after the Notice
Disputing Itemised Costs Account was served.
(4) The court may take into account a failure to comply with
subclause (2) when considering any order for costs.
Note
1:
A party may apply for an extension of the time mentioned in subclause (3)
(see rule 1.14).
Note 2:
A person filing a document must serve the document on each person to be served
(see subrule 7.04(4)).
6.26 Amendment of itemised costs account
and Notice Disputing Itemised Costs Account
A party may amend an itemised costs account or a Notice Disputing Itemised
Costs Account by filing the amended document with the amendments clearly
marked:
(a) at least 14 days before the date fixed for the assessment hearing;
or
(b) after that time with the consent of the other party.
Note
1:
A party amending an itemised costs account or Notice Disputing Itemised Costs
Account may apply for an extension of the time mentioned in paragraph (a)
(see rule 1.14).
Note 2:
The only items that may be raised at an assessment hearing are those items
included in the itemised costs account or Notice Disputing Itemised Costs
Account (see subclause 6.33(2)).
Division 6.6.2 -- Assessment
process
6.27 Fixing date for first court event
(1) On the filing of an itemised costs account and a Notice Disputing
Itemised Costs Account under subclause 6.25(3), the Registrar must fix a
date for:
(a) a settlement conference (see clause 6.29);
(b) a preliminary assessment (see clause 6.30); or
(c) an assessment hearing (see clause 6.33).
(2) The date fixed must be at least 21 days after the Notice Disputing
Itemised Costs Account is filed.
6.28 Notification of hearing
A party filing a Notice Disputing Itemised Costs Account must give the party
who served the itemised costs account at least 14 days notice of the
court event and the date fixed for the event under clause 6.27.
6.29
Settlement conference
At a settlement conference for an itemised costs account, the Registrar:
(a) must:
(i) give the parties an opportunity to agree about the amount for which
a costs assessment order should be made; or
(ii) identify the issues in dispute; and
(b) must make procedural orders for the future conduct of the assessment
process.
6.30 Preliminary assessment
(1) At a preliminary assessment of an itemised costs account, the
Registrar must, in the absence of the parties, calculate the amount (the
preliminary assessment amount ) for which, if the costs were to be assessed,
the costs assessment order would be likely to be made.
(2) The Registrar must give each party written notice of the preliminary
assessment amount.
6.31 Objection to preliminary assessment amount
(1) A party may object to the preliminary assessment amount by:
(a) giving written notice of the objection to the Registrar and the
other party; and
(b) paying into court a sum equal to 5% of the total amount claimed in
the itemised costs account as security for the cost of any assessment of the
account;
within 21 days after receiving written notice of the preliminary
assessment amount.
(2) On receiving a notice and security, the Registrar must fix a date
for an assessment hearing for the itemised costs account.
(3) The party objecting may be ordered to pay the other party's costs of
the assessment from the date of giving notice under paragraph (1)(a)
unless the itemised costs account is assessed with a variation in the
objecting party's favour of at least 20% of the preliminary assessment amount.
Note:
The court may order that a party is not required to pay security under
paragraph (1)(b).
6.32 If no objection to preliminary assessment
If:
(a) a Registrar does not receive a notice of objection under
paragraph 6.31(1)(a); and
(b) an amount as security for costs is not paid under
paragraph 6.31(1)(b);
the Registrar may make a costs assessment order
for the amount of the preliminary assessment amount.
6.33 Assessment
hearing
(1) The Registrar conducting an assessment hearing for a disputed
itemised costs account must:
(a) determine the amount (if any) to be deducted from each item included
in the Notice Disputing Itemised Costs Account;
(b) determine the total amount payable for the costs of the assessment
(if any);
(c) calculate the total amount payable for the costs allowed;
(d) deduct the total amount (if any) of costs paid or credited; and
(e) calculate the total amount payable for costs.
(2) At the assessment hearing, a party may only raise as an issue a
disputed item included in the Notice Disputing Itemised Costs Account.
(3) At the end of the assessment hearing, the Registrar must:
(a) make a costs assessment order; and
(b) give a copy of the order to each party.
Note:
At an assessment hearing, the onus of proof is on the person entitled to
costs. That person should bring to the hearing all documents supporting the
items claimed.
(4) Within 14 days after the costs assessment order is made, a party may
ask the Registrar to give reasons for the Registrar's decision about a
disputed item.
6.34 Powers of Registrars
(1) A Registrar may do any of the following at an assessment hearing:
(a) summon a witness to attend;
(b) examine a witness;
(c) require a person to file an affidavit;
(d) administer an oath;
(e) order that a document be produced;
(f) make an interim or final costs assessment order;
(g) adjourn the assessment hearing;
(h) if satisfied that there has been a gross or consistent breach of a
lawyer's obligations under this Schedule--refer an issue to the appropriate
professional regulatory body;
(i) refer to the court any question arising from the assessment;
(j) determine whether costs were reasonably incurred, were of a
reasonable amount and were proportionate to the matters in issue;
(k) make a consent order fixing the amount of costs to be paid;
(l) dismiss an account if:
(i) it does not comply with these Rules or an order; or
(ii) the person entitled to costs does not attend the assessment
hearing;
(m) order costs;
(n) do, or order another person to do, any other act that is required to
be done under these Rules or an order.
Example for paragraph (1)(h)
An example of the kind of issue that may be referred to a professional
regulatory body for a lawyer is if the lawyer grossly overcharged a client or
failed to disclose an important issue.
(2) On being satisfied that the time for reviewing a costs assessment
order has passed, the Registrar must:
(a) determine how any amount paid as security for the costs of
assessment is to be distributed or refunded; and
(b) order that the payment be made out of court.
6.35
Assessment principles
(1) A Registrar must not allow costs that, in the opinion of the
Registrar:
(a) are not reasonably necessary for the attainment of justice; and
(b) are not proportionate to the issues in the case.
Note:
A lawyer may charge an amount for costs unreasonably incurred if the client
gives the lawyer written instructions to do work for a case, or incur an
expense of a particular kind or amount, that the lawyer has advised the client
would be unreasonable and unlikely to be recovered on a party and party basis
(see subclause 6.13(3)).
(2) An itemised costs account for work that is the subject of a costs
agreement must be assessed in accordance with the costs agreement.
(3) If the court has ordered costs on an indemnity basis, the Registrar
must allow all costs reasonably incurred and of a reasonable amount, having
regard to, among other things:
(a) the scale of costs in Schedule 3;
(b) any costs agreement between the party to whom costs are payable and
the party's lawyer; and
(c) charges ordinarily payable by a client to a lawyer for the work.
(4) When assessing costs as between party and party, a Registrar must
not allow:
(a) costs incurred because of improper, unnecessary or unreasonable
conduct by a party or a party's lawyer;
(b) costs for work (in type or amount) that was not reasonably required
to be done for the case; or
(c) unusual expenses.
6.36 Allowance for matters not specified
(1) A Registrar may allow a reasonable sum for work properly performed
that is not specifically provided for in Schedule 3.
(2) When considering whether to allow an amount for costs or an expense,
the Registrar may consider:
(a) any other fees paid or payable to the lawyer and counsel for work to
which a fee or allowance applies;
(b) the complexity of the case;
(c) the amount or value of the property or financial resource involved;
(d) the nature and importance of the case to the party concerned;
(e) the difficulty or novelty of the matters raised in the case;
(f) the special skill, knowledge or responsibility required, or the
demands made, of the lawyer by the case;
(g) the conduct of all the parties and the time spent on the case;
(h) the place where, and the circumstances in which, work or any part of
it was done;
(i) the quality of work done and whether the level of expertise was
appropriate to the nature of the work; and
(j) the time in which the work was required to be done.
6.37
Neglect or delay before Registrar
(1) This clause applies if, after a Notice Disputing Itemised Costs
Account disputing an itemised costs account has been filed under
subclause 6.25(3), a party or a party's lawyer:
(a) fails to comply with these Rules or an order; or
(b) puts another party to unnecessary or improper expense or
inconvenience.
(2) The Registrar may:
(a) order the party to pay costs; or
(b) disallow all or part of the costs in the account.
6.38
Costs assessment order--costs account not disputed
(1) This clause applies to a person entitled to costs who:
(a) has served an itemised costs account under clause 6.22; and
(b) has not received a Notice Disputing Itemised Costs Account under
clause 6.24.
(2) A Registrar may make a costs assessment order if the person has
filed:
(a) a copy of the itemised costs account; and
(b) an affidavit stating:
(i) when the itemised costs account was served on the person liable to
pay the costs;
(ii) the amount (if any) that has been received or credited for the
costs;
(iii) that the person liable to pay the costs has not served a Notice
Disputing Itemised Costs Account under clause 6.24; and
(iv) that the time for serving a Notice Disputing Itemised Costs Account
has passed.
(3) If a costs
assessment order is made under subclause (2), the person entitled to
costs
must serve a copy of the order on the person liable to pay costs.
6.39
Setting aside a costs assessment order
(1) This clause applies to a party who is liable to pay costs and
receives a costs assessment order under clause 6.32 or
subclause 6.38(3).
(2) The party may, within 14 days after receiving the costs assessment
order, apply to have it set aside.
Note:
If a party wishes to object to a costs assessment order after an assessment
hearing has taken place, the party must do so in accordance with
Part 6.8.
Part 6.7 -- Specific costs matters
6.40 Application of Part 6.7
So far as this Part applies to lawyer and client costs, this
Part does not apply if there is a valid costs agreement between a lawyer
and a client.
6.41 Costs in court of summary jurisdiction
(1) This clause applies to a lawyer doing work for a case:
(a) conducted in a court of summary jurisdiction; or
(b) to be determined as a small claim.
Note:
For requirements relating to small claims, see rule 11.15.
(2) The lawyer must not charge for the work a fee that is more than 80%
of the amount mentioned in Schedule 3 that may be charged for the work.
6.42 Charge for each page
(1) A lawyer may charge the amount specified in Schedule 3 for a
document only if it complies with the requirements for documents specified in
rule 24.01.
(2) For Schedule 3, the calculation of the number of words in a
document excludes words that are part of:
(a) an approved form;
(b) the form in Schedule 2; or
(c) a document in a form approved by the Chief Executive Officer.
6.43
Proportion of costs
If the scale in Schedule 3 provides for an amount to be charged that is
based on time or number of words, the amount to be charged is an amount that
is proportionate to the time or number of words actually taken or written.
6.44 Costs for reading
If it is reasonable for a lawyer to read more than 50 pages for a case, the
amount to be charged under item 104 in Schedule 3 is at the
discretion of the Registrar.
6.45 Postage within Australia
The charge mentioned in Schedule 3 for producing a document (including a
letter) includes an allowance for:
(a) preparing one file copy of the document; and
(b) postage of the document in Australia.
6.46 Waiting and
travelling time
(1) Subclause (2) applies if:
(a) a lawyer has travelled less than 100 km from the lawyer's place
of business to attend court; and
(b) it is not appropriate or proper for an agent to attend court instead
of the lawyer.
(2) The lawyer may charge an amount for time reasonably spent attending
a court event if the lawyer was:
(a) at court waiting for the court event to start or resume after the
time allocated; or
(b) travelling to or from court.
(3) A lawyer who attends court for the hearing of 2 or more cases may
charge, for each case, an amount that is reasonable, having regard to the time
spent at each hearing:
(a) travelling to or from court; or
(b) waiting for each hearing to start or resume.
(4) The total amount that may be charged under this clause for all cases
must not be more than the amount that may be charged under Part 1 of
Schedule 3 for one case.
Note 1:
The lawyer may charge a higher amount in certain circumstances (see
subclause 6.13(3)).
Note 2:
This clause applies unless the court orders otherwise (see rule 1.12).
6.47 Agent's fees
The costs claimed by a lawyer for work done by another lawyer as agent of the
lawyer must not be more than the amount the lawyer would have been entitled to
charge under Schedule 3 if the lawyer had personally done the work.
Note:
This clause applies unless the court orders otherwise (see rule 1.12). An
agent may claim for an amount that is specifically authorised by a client (see
subclause 6.13(3)).
6.48 Costs of cases not started together
(1) This clause applies if:
(a) a lawyer starts a case for a client that could reasonably have been
started at the same time, and in the same court, as another case between the
same parties; and
(b) the case was not started at that time in that court.
(2) The lawyer may charge for work done for all the cases only the
amount the lawyer could have charged if the lawyer had started all the cases
at the same time in the same court.
6.49 Certificate as to counsel
The judicial officer hearing a case may certify that it was reasonable to
engage a lawyer (including Queen's Counsel and Senior Counsel) as counsel to
attend for a party.
6.50 Lawyer as counsel--party and party costs
(1) This clause applies to party and party costs for fees paid or to be
paid to a lawyer engaged as counsel.
(2) The fees are a necessary expense for a case if:
(a) either:
(i) the case was heard by the Full Court; or
(ii) in any other case--it was reasonable to engage counsel to attend in
the case;
(b) for a hearing or trial, counsel:
(i) was present for a considerable part of the hearing or trial; and
(ii) gave substantial assistance during the period to which the fees
relate in the conduct of the case; and
(c) the fees are not more than the amount otherwise payable under these
Rules for counsel engaged to attend in a case.
6.51 Lawyer as
counsel--assessment of fees
(1) This clause applies to party and party costs for fees paid or to be
paid to a lawyer engaged as counsel.
(2) The Registrar may allow the costs of engaging more than one counsel,
including counsel who is not Queen's Counsel or Senior Counsel.
(3) If:
(a) counsel is engaged to attend at a trial; and
(b) the trial takes more than one day;
the Registrar may allow a fee
in accordance with Part 2 of Schedule 3 for each further day or part
of a day.
(4) The Registrar must not allow:
(a) a fee paid to counsel as a retainer;
(b) a reading fee, unless:
(i) the case is unusually complex; or
(ii) the amount of material involved is particularly large;
(c) for a case before a court of summary jurisdiction--an amount for
counsel's fees, other than in accordance with item 203 or 204 of
Schedule 3; or
(d) if a daily fee for counsel's attendance is payable in accordance
with Part 2 of Schedule 3--an additional amount for work done for
the case by counsel on any day for which the daily fee applies.
6.52
Lawyer as counsel--lawyer and client costs
(1) This clause applies to costs as between lawyer and client if:
(a) an amount is claimed for counsel's fees; and
(b) the lawyer performing the work of counsel is:
(i) another lawyer instructed by the lawyer for the client; or
(ii) also performing the work of solicitor for the client.
(2) The fees for counsel are properly incurred if:
(a) either:
(i) the case was heard by the Full Court; or
(ii) in any other case:
(A) it was reasonable to engage a lawyer to attend as counsel in the
case; or
(B) the client asked that a lawyer be engaged to attend as counsel in
the case; and
(b) the fees are reasonable and are not more than the amount otherwise
payable under these Rules for counsel to attend.
Part 6.8 -- Review of
assessment
6.53 Application for review
(1) A party may apply to the court to review the decision of a Registrar
under clause 6.33 by filing an Application in a Case.
(2) A party must include in the affidavit filed with the application:
(a) the number of each item in the itemised costs account to which the
party objects to the Registrar's decision;
(b) the reasons for objecting to the decision; and
(c) the decision sought from the court for each objection.
6.54
Time for filing an application for review
An application for review must be filed within 14 days after the applicant
receives the Registrar's reasons given after a request made under
subclause 6.33(4).
6.55 Hearing of application
(1) An application for review must be heard by a Judge.
(2) At the hearing of the application:
(a) the court must not receive any new evidence;
(b) the court may:
(i) exercise all the powers of the Registrar;
(ii) set aside or vary the Registrar's decision; and
(iii) return any item to the Registrar for reconsideration; and
(c) a party may raise an issue only if it:
(i) was identified as a disputed item in the Notice Disputing Itemised
Costs Account;
(ii) concerns the costs of assessing the itemised costs account;
(iii) concerns an alleged error of calculation in, or omission from, the
assessment of the itemised costs account; or
(iv) concerns an alleged error of law or fact by the Registrar, and the
party has made a request under subclause 6.33(4).
(3) A hearing of an application for review does not operate as a stay of
the decision reviewed.
Note:
This clause applies unless the court orders otherwise (see rule 1.12).
Dictionary
(rule 1.16)
Note
1:
This dictionary is part of these Rules. There is also an explanatory guide
that does not form part of these Rules but explains the meaning of other words
and expressions used in these Rules.
Note 2
: Section 18A of the Acts Interpretation
Act 1901 provides that other forms of a word or phrase have a corresponding
meaning, therefore other forms of a word or phrase defined in this dictionary
are not included, for example, file is defined but filed and filing are not.
Those terms are assumed to have a corresponding meaning to file .
Note 3:
An expression used in these Rules has the same meaning as in the Act, unless
these Rules state otherwise (see paragraph 46(1)(b) of the
Acts Interpretation Act 1901 ).
"abuse" , in relation to a child, has the
meaning given by subsection 4(1) of the Act.
"Act" means the
Family Law Act 1975 .
"address for service" means the address given by a
party where documents may be left for the party or to where documents may be
sent for the party (see rule 8.05).
"affidavit" means a document that
complies with rules 15.08, 15.09 and 24.01.
"affirmation -- see the
definition of oath" in this dictionary.
"appeal" includes:
(a) an appeal to the Full Court of the Family Court of Australia from a
Family Court, the Federal Circuit Court or the Magistrates Court of Western
Australia constituted by a Family Law Magistrate of Western Australia:
(i) under subsection 94(1), 94(1AA) or 94AAA(1) of the Act;
(ii) with permission, under section 102 or 102A of the Assessment
Act; or
(iii) with permission, under section 107 or 107A of the
Registration Act;
(b) an appeal to a Family Court from a court of summary jurisdiction:
(i) under section 96 of the Act; or
(ii) with permission, under section 105 of the Assessment Act; or
(iii) with permission, under section 110 of the Registration Act;
and
(c) a cross-appeal.
Note:
An appeal is the procedure that enables a person to challenge an order made in
relation to the person's case.
"Appeal Registrar" , for an appeal, means the
Registrar at the Appeal Registry for that appeal, and includes the Regional
Appeal Registrar.
"Appeal Registry" means:
(a) for an appeal to the Full Court or from a decision of the Federal
Circuit Court--the registry determined by the Regional Appeal Registrar to be
the registry for that appeal; and
(b) for an appeal from a court of summary jurisdiction--the registry in
which the Notice of Appeal for the appeal was filed.
Note:
A Notice of Appeal for an appeal from a decision of a court of summary
jurisdiction must be filed in the registry of a Family Court that is closest
to the court that made the order appealed from (see rule 22.02).
"appellant" includes a cross-appellant.
"applicant" includes a
cross-applicant who is seeking other orders in a response to an application.
"application" includes:
(a) an Initiating Application (Family Law);
(b) an Application in a Case;
(c) an Application for Divorce;
(d) an Application for Consent Orders;
(e) an Application for Contempt;
(f) a Notice of Appeal; and
(g) a cross-application set out in a response to an application
(Response to an
Initiating Application (Family Law) or Response to an Application in a Case) .
"approved form" , for a provision of these Rules, means a form approved under
subrule 24.04 (1) for the purposes of the provision.
"arbitration
agreement" has the same meaning as in Part 5 of the Regulations.
"Assessment Act" means the Child Support (Assessment) Act 1989 .
"assessment hearing" means a hearing conducted by a Registrar at which the
amount to be paid on an itemised costs account is assessed (see
rule 19.32).
"attend" means present at a court event, including by
electronic communication.
Note:
See rules 5.06, 12.12, 16.05 and 22.39 for attendance by electronic
communication.
"balance sheet" means a balance sheet prepared in accordance
with subrules 12.06(2), (3) and (4).
"bankrupt" has the meaning given
by subsection 5(1) of the Bankruptcy Act.
" Bankruptcy Act" means the
Bankruptcy Act 1966 .
"bankruptcy case" means a case in which a court has
jurisdiction in bankruptcy under section 35, 35A or 35B of the
Bankruptcy Act.
"case" :
(a) means a proceeding under the Act, the Regulations, these Rules
or any other law that vests jurisdiction in the Family Court; and
(b) for Part 10.2--see rule 10.10.
Note: A case
does not include arbitration: see the definitions of arbitration and
proceedings in the Act.
"case guardian" means a person appointed by
the court under rule 6.10 to manage and conduct a case for a
child or a person with a disability, and includes a next friend,
guardian ad litem, tutor or litigation guardian (see Part 6.3).
"certified copy" means a copy of a document certified to be an exact
copy by the person having custody or control of the document, or by
another person at the direction of that person, and includes a copy of
the document bearing the seal of a court or other form of
authentication.
"child-related proceedings" has the meaning given by
subsection 4(1) of the Act.
"Child Responsive Program" means
an early intervention program with a focus on children, feedback to parents
about the needs of children and the provision to the court of a Children and
Parents Issues Assessment.
"Child Support Agency" means the part of the
Department of Family and Community Services known by that name that
administers the Assessment Act and the Registration Act.
"child support
agreement" has the meaning given by section 81 of the Assessment Act.
"Child Support Application or Appeal" means an application or appeal in which
the only orders sought are under the Assessment Act or the Registration Act
(see Division 4.2.5).
"child support assessment" includes:
(a) an administrative assessment for child support under Part 5 of
the Assessment Act; and
(b) an amended assessment to give effect to an order.
"child support
liability" means an amount owing under the Assessment Act or the Registration
Act (including a child support assessment or registered child support
agreement) that may be registered for collection by the Child Support Agency.
"Child Support Registrar" means the Child Support Registrar under
section 10 of the Registration Act.
"child welfare record" means a
record relating to child welfare held by an agency mentioned in
Schedule 9 to the Regulations.
"conciliation conference document" means
a document in a form approved by the Chief Executive Officer that is required
to be completed and exchanged by the parties before a conciliation conference.
"conduct money" means money paid by a party to a witness, before the witness
appears at a court event for the party, for:
(a) travel between the witness's place of residence or employment and
the court; and
(b) if necessary, reasonable accommodation expenses for the witness; and
(c) in the case of a subpoena for production--the reasonable costs of
complying with the subpoena.
"contact" has the same meaning as in
Part VII of the Act.
"contravened" an order under the Act affecting
children has the meaning given by subsection 4(1) of the Act.
"corporation" includes:
(a) a company;
(b) a body corporate; and
(c) an unincorporated body that may sue or be sued or hold property in
the name of its secretary or of an officer of the body appointed for that
purpose.
"Corporations Rules" means the
Federal Court (Corporations) Rules 2000 .
"costs" means an amount paid
or to be paid for work done by a lawyer, and includes expenses.
"costs
agreement" means a written agreement between a party and the party's lawyer,
about the costs to be charged by the lawyer for work done for a case for the
party, in accordance with:
(a) for an agreement entered into before
1 July 2008--clause 6.15 of Schedule 6; or
(b) for an agreement entered into after 30 June 2008--the law of a
State or Territory.
"costs assessment order" means an order made by a
Registrar fixing the total amount payable for costs (see rules 19.31,
19.32 and 19.37).
"costs notice" means a brochure, approved by the Chief
Executive Officer, about costs under Chapter 19 or Schedule 6.
"counsel" includes a barrister and a solicitor acting as a barrister.
Note: See
section 122 of the Act and sections 55A and 55B of the
Judiciary Act 1903 .
"court" means a court that:
(a) has jurisdiction under the Act; and
(b) is presided over by a judicial officer who has, or has been
delegated, the power to exercise the jurisdiction.
"court event" includes:
(a) a hearing or part of a hearing;
(b) a trial or part of a trial;
(c) a conference;
(d) an attendance with a family consultant performing the functions of a
family consultant; and
(e) an attendance with a single expert witness performing the functions
of a single expert witness.
"court of summary jurisdiction" means a
magistrates' or local court of a State or Territory.
"Cross-vesting Act"
means the Jurisdiction of Courts (Cross-vesting) Act 1987 .
"cross-vesting
law" means a law relating to cross-vesting jurisdiction of:
(a) the Commonwealth, other than Part 9 of the
Corporations Act 2001 ; or
(b) a State or Territory.
"declaration as to validity" , of a
marriage, divorce or annulment, means an order that the marriage, divorce or
nullity order is valid or invalid.
"discontinue" , for a case, means to
withdraw all or part of the case.
"draft consent order" means a document
that complies with subrule 10.15(2).
"each person to be served" --see
subrule 7.04(4).
"earnings" includes:
(a) wages, salary, fees, bonus, commission or overtime pay;
(b) other money payable in addition to or instead of wages or salary;
(c) a pension, annuity or vested superannuation money;
(d) money payable instead of leave;
(e) royalties;
(f) retirement benefits due or accruing;
(g) any salary sacrifice arrangement; and
(h) performance-based incentives and non-monetary benefits.
"electronic communication" means:
(a) video link;
(b) audio link; or
(c) another appropriate electronic means of communication.
Examples of
electronic communication
Telephone or video conferencing; closed circuit
television; facsimile; e-mail.
"eligible carer" has the meaning given by
section 7B of the Assessment Act.
"enforcement officer" includes the
Marshal, a delegate of the Marshal or any other officer of the court, or a
person appointed by the court for the purpose of enforcing an order.
"enforcement order" means an order requiring a person to comply with an
obligation, including an Enforcement Warrant, a Third Party Debt Notice, an
order for the seizure and sale of real or personal property and an order
varying an enforcement order.
"excluded child order" has the meaning given
by subsection 37A(2A) of the Act.
"expense" means an amount paid to a
third party, other than a lawyer, for work done in a case or services provided
for a party.
"expert" means an independent person who has relevant
specialised knowledge, based on the person's training, study or experience.
"expert witness" means an expert who has been instructed to give or prepare
independent evidence for the purpose of a case.
"family consultant" has the
meaning given by subsection 4(1) of the Act.
"family counselling" has
the meaning given by subsection 4(1) of the Act.
"family counsellor"
has the meaning given by subsection 4(1) of the Act.
"Family Court"
means:
(a) in a reference to the Family Court--the Family Court of Australia;
or
(b) in a reference to a Family Court--the Family Court of Australia or a
Family Court of a State.
"family dispute resolution" has the meaning given
by subsection 4(1) of the Act.
"family dispute resolution practitioner"
has the meaning given by subsection 4(1) of the Act.
"Family Law
Magistrate of Western Australia" means the Magistrates Court of Western
Australia constituted by a Family Law Magistrate of Western Australia.
"family report" means a report concerning the best interests of a child,
prepared under subsection 55A(2) or section 62G of the Act.
"family violence" has the meaning given by subsection 4AB(1) of the Act.
"family violence order" has the meaning given by subsection 4(1) of the
Act .
"file" means to lodge in a court registry (see Part 24.2).
"filing registry" means the registry of a court in which a case is started or
to which a case is transferred.
"final order" means the order of the court
that finally decides a case commenced by an Initiating Application (Family
Law).
"financial agreement" means an agreement that is a financial agreement
under section 90B, 90C or 90D of the Act, other than an ante-nuptial
(pre-marriage) or post-nuptial (after marriage) settlement to which
section 85A of the Act applies.
"financial case" means a case (other
than an appeal) involving an application:
(a) relating to the maintenance of one of the parties to a marriage, or
of a de facto relationship after the breakdown of the
relationship, including an application for permission to start a spouse
maintenance case;
(b) relating to the property of the parties to a marriage, or of
a de facto relationship after the breakdown of the
relationship , or of either of them, including:
(i) an application for permission to start a property case;
(ii) an application to set aside an order altering property interests
under section 79A
or 90SN of the Act;
(iii) an application under section 85A of the Act in relation to a
financial agreement;
(iv) an application under section 90K of the Act in relation to a
financial
agreement;
(iva) an application under section 90UM of the Act in relation to a
Part VIIIAB financial agreement or a Part VIIIAB termination
agreement; and
(v) an application under section 106B of the Act in relation to a
transaction to defeat a claim;
(ba) relating to the vested bankruptcy property
in relation to a bankrupt party to a marriage, or of
a de facto relationship after the breakdown of the
relationship ;
(c) relating to the maintenance of children;
(d)
under section 116, 123 or 129 of the Assessment Act;
(e) relating to child bearing expenses (see section 67B of the
Act); or
(f) for the purposes of Part 13.1 that includes an application for
the enforcement of a financial obligation.
"financial matters" has the
meaning given by subsection 4(1) of the Act.
"financial orders"
includes orders in relation to:
(a) maintenance;
(b) a Child Support Application under section 116, 123 or 129 of
the Assessment Act;
(c) contribution to child bearing expenses; or
(d) property.
"first day before the Judge" means the trial management
hearing referred to in rule 16.08.
"fresh application" means any of the
following applications, including compliance with pre-action procedures
associated with them, made after 30 June 2008:
(a) an Application for Final Orders;
(b) an application that includes an Application for Final Orders;
(c) an Application in a Case filed in connection with a fresh
application;
(d) an Application for Divorce;
(e) an application for consent orders;
(f) a contempt, contravention or enforcement application, unless an
allegation of the contempt, contravention or breach relates to an interim or
interlocutory order made in a pending or ongoing Application for Final Orders
filed before 1 July 2008;
(g) an application relating to contempt in the face of the court arising
from an event occurring after 30 June 2008;
(h) an appeal, and a re-hearing following an appeal;
(i) an application for review of final orders made by a Registrar or
Judicial Registrar.
"gross value" , of property, means
the value of the property excluding any mortgage, lien, charge or other
security over the property.
"hearing" means the process, other
than a trial, of determining:
(a) an Application in a Case;
(b) an Application for Divorce;
(c) an application mentioned in rule 4.27;
(d) part of a case; or
(e) an enforcement application.
"holding period" , for a person
arrested in accordance with a warrant, has the meaning given by
subsection 65S(4) of the Act.
"independent children's lawyer" has the
meaning given by subsection 4(1) of the Act.
"itemised costs account "
means a document prepared in accordance with rule 19.22.
"items on the
balance sheet" means assets, liabilities, superannuation, financial resources
and add backs.
"judicial officer" includes a Judge, Judicial Registrar and
Registrar.
"lawyer" means a person who is enrolled as a legal practitioner
of:
(a) a federal court; or
(b) the Supreme Court of a State or Territory.
Note:
See section 122 of the Act and sections 55A and 55B of the
Judiciary Act 1903 .
"legislative provision" includes a provision in an
applicable Act, these Rules, the Regulations, any other regulations made under
the Act and any conventions mentioned in a regulation made under the Act.
"Maintenance Application" means an Initiating Application (Family Law) in
which the only orders sought are for maintenance (including a variation of a
previous maintenance order) or a contribution towards child bearing expenses
(see section 67B of the Act).
"Marshal" has the same meaning as in
section 38P of the Act.
"Medical Procedure Application" means an
Initiating Application (Family Law) seeking an order authorising a major
medical procedure for a child that is not for the purpose of treating a bodily
malfunction or disease.
Example: An example of a major
medical procedure for a child that is not for the purpose of treating a bodily
malfunction or disease is a procedure for sterilising or removing the child's
reproductive organs.
"non-convention country" means a country with which
Australia does not have a convention as to service of documents (see
rule 7.19).
"Notice of Child Abuse, Family Violence or Risk" means the
form set out in Schedule 2, with any variations that are necessary or as
the Chief Justice directs.
"notice of contention" means a notice of
contention referred to in rule 22.08A.
"oath includes affirmation (see
the definition of sworn" and sections 21 to 25 of the Evidence Act 1995
).
Note:
Subject to sections 4 and 5 of the Evidence Act 1995 , that Act does not
apply to the Family Court of Western Australia or any other court of a State.
"order" includes:
(a) a decree, decision, declaration and judgment; and
(b) for an appeal or review of a decision--a refusal to grant an
application or make an order.
"order" , relating to a passport, includes:
(a) an order permitting a child to leave Australia; and
(b) an order relating to the issue, control or surrender of a passport.
"overseas child order" has the meaning given by subsection 4(1) of the
Act.
"parenting case " means a case in which the application seeks a
parenting order or a child related injunction under Part VII of the Act,
other than an application for child maintenance.
"payee " means a person who
is entitled to take action against a payer to enforce an obligation to pay
money, created by an assessment, order or agreement, with which the payer has
not complied.
Note:
The Child Support Registrar is a payee in relation to a registered child
support liability.
"payer " means a person who has an obligation to pay
money to, or do an act to financially assist, a payee under an assessment,
order or agreement.
"penalty unit " has the meaning given by
section 4AA of the Crimes Act 1914 .
Note:
The amount of a penalty unit at the commencement of these Rules is $110.
"permission" means the leave or consent of the court.
"person " includes a
corporation, authority or party.
"person with a disability" , in relation to
a case, means a person who, because of a physical or mental disability:
(a) does not understand the nature or possible consequences of the case;
or
(b) is not capable of adequately conducting, or giving adequate
instruction for the conduct of, the case.
"post-separation parenting
program" has the meaning given by subsection 4(1) of the Act .
"pre-action procedure " means the set of principles and procedures, the text
of which is set out in Schedule 1, with which the parties must comply
before starting a case.
"pre-argument statement" means a document in an
appeal in which an appellant must state concisely the issues to be raised at
the hearing of the appeal (see rule 22.14).
"prescribed child welfare
authority " has the meaning given by subsection 4(1) of the Act.
"prescribed property" , for a person, means:
(a) clothes, bed, bedding, kitchen furniture (not including an automatic
dishwasher or microwave) and washing machine; and
(b) ordinary tools of trade, plant and equipment, professional
instruments and reference books, the combined value of which is not more than
$5 000.
"primary order " has the meaning given by
subsection 4(1) of the Act.
"property " includes real and personal
property and superannuation.
"property case " means a case in which orders
(other than consent orders) are sought relating to:
(a) the property of the parties to a marriage , or of
a de facto relationship after the breakdown of the
relationship, or of either of them; or
(b) the vested bankruptcy property in relation to a bankrupt party to a
marriage , or of a de facto relationship after the breakdown
of the relationship.
"protected earnings rate" means the actual threshold
income amount that would apply to a payer under Part VI, Division 4B
of the Bankruptcy Act 1966 if the payer were a bankrupt.
"recovery order"
has the meaning given by subsection 4(1) of the Act .
"Regional Appeal
Registrar" means the Registrar at the Regional Appeal Registry for an appeal.
"Regional Appeal Registry" , for an appeal other than from an order of a court
of summary jurisdiction, means:
(a) from an order in a case heard in Queensland, Lismore or the Northern
Territory--the Brisbane Registry;
(b) from an order in a case heard in the Australian Capital Territory or
New South Wales, except Lismore--the Sydney Registry;
(c) from an order in a case heard in South Australia, Tasmania or
Victoria--the Melbourne Registry; or
(d) from an order made in Western Australia--the Registry of the Family
Court of Western Australia.
"registered" , for a document, means accepted
for filing (see rule 24.05).
"Registrar" includes the Chief Executive
Officer and a Deputy Registrar (except in Chapters 18 and 25).
"Registration Act" means the
Child Support (Registration and Collection) Act 1988 .
"Registry Manager"
has the meaning given by subsection 4(1) of the Act.
"Regulations"
means the Family Law Regulations 1984 .
"seal " means a stamp or other
impression that the court puts on a document to indicate that the document has
been issued by the court.
"sealed copy" means a document that bears a court
seal.
"security for costs" means the security that a respondent may ask the
court to order the applicant to pay for costs that may be awarded to the
respondent.
"serve " means to give or deliver a document to a person in the
manner required by these Rules.
"service by electronic communication"
includes service by facsimile, e-mail or any
other form of electronic transmission.
"sign " means write a person's name,
including a mark by a person who is unable to write his or her name.
"single
expert witness" means
an expert witness who is appointed by agreement between the parties or by the
court to give evidence or prepare a report on an issue.
"special federal
matter" has the
meaning given by subsection 3(1) of the
Jurisdiction of Courts (Cross-vesting) Act 1987 .
"State child order" has the
meaning given by subsection 4(1) of the Act.
"step" means a
procedural act taken in the conduct or management of a case.
"step-parent"
has the
meaning given by subsection 4(1) of the Act.
"submitting notice" means a
submitting notice referred to in rule 8.07.
"superannuation information
form" means a form approved by the Chief Executive Officer for obtaining
information from the trustee of a superannuation fund in family law cases.
"sworn , for an affidavit or evidence, means an oath by a witness that the
witness is telling the truth (see also affirmation and oath" ).
"termination
agreement" has the meaning given by subsection 90J(1) of the Act.
"Third Party Debt Notice" means a notice given to a third party who holds
money for, or owes money to, a payer demanding that the money be paid to a
payee to satisfy an obligation that the payer owes the payee.
"third party
debtor " means a person from whom a payee claims a debt that is owed to the
payer.
"transcript" means a written record of a hearing or a trial prepared
by a contractor providing transcription services to the court for the case.
"trial" means the process of determining a case started by an Initiating
Application (Family Law).
"undertaking as to damages" --see
subrule 17.06(4).
"unreasonable" , in relation to costs
for work done in a case, means costs for work that would not normally be done
in a case of a particular type.
"work done for a case" includes work done in
relation to the case (including in relation to the pre-action procedure) and
work done in anticipation of starting the case.
"written notice" means a
document (for example, a letter) that complies with subrule 24.01(1).
Note:
A number of words and expressions commonly used in Commonwealth legislation,
and in these Rules, have, unless otherwise stated, the meaning or effect set
out in certain Acts of general application. See, for example, the
Acts Interpretation Act 1901 and the Crimes Act 1914 .
Explanatory Guide
Note:
This explanatory guide, unlike the dictionary, is not part of the Rules and is
offered only as an explanation of the words and expressions mentioned in this
guide.
"adduce" --to bring evidence before a court.
"adjourn" -- to
defer to another time a conference, hearing or trial that has started. Some
events, such as a case assessment conference or trial, will not be adjourned
unless unforeseen or exceptional circumstances arise. Usually, an adjournment
is granted on terms that may include an order that the party who asked for the
adjournment pay the other party's costs thrown away.
"Anton Piller order"
--an interim injunction used to preserve evidence.
Note: See Anton Piller
KG v Manufacturing Processes Ltd [1976] Ch 55.
"application without notice"
-- an application that is heard by the court without first being served on
the respondent.
"arbitration -- a dispute resolution process involving
parties to a case and a neutral third party (an arbitrator" ). If agreement is
not reached, the arbitrator determines the case and the decision (an award )
is binding on the parties (see Part III, Division 5,
Subdivision B of the Act).
"assessor" -- a person specially qualified
in the subject matter in which the assessor is appointed under Part 15.4.
The assessor's function is to assist and advise the court on technical
questions or issues arising in a case. Despite any advice or assistance that
the court may receive from an assessor, the sole responsibility for the final
decision in a case remains with the Judge presiding over the case. The Judge
is not bound by an assessor's advice.
"bond (or recognisance" )--a written
obligation to do or not to do a particular act specified in the obligation.
"business activity statement" -- a statement of a business's activities that
allows the business to report its obligations for:
(a) goods and services tax;
(b) luxury car tax;
(c) wine equalisation tax;
(d) pay as you go (PAYG) withholding and instalments;
(e) fringe benefits tax instalments;
(f) deferred company instalments; and
(g) superannuation fund instalments.
"case assessment conference" --a
conference conducted by a Registrar at the start of a case (see
rule 12.03).
"case stated" --a procedure in which a question of law is
determined by the Full Court (see Part 22.10).
"cause of action" -- a
claim seeking an order, other than for interim or procedural relief, for which
a court has jurisdiction, for example, a claim relating to the property of the
parties, the parenting of a child, child support or maintenance (see
definition of matrimonial cause in subsection 4(1) of the Act).
"chambers" -- a private room other than a court room in which a judicial
officer makes a decision in relation to a case, on the papers, in the absence
of the parties and their lawyers (if any) and without a transcript being taken
of the hearing and determination.
"child" -- a person under the age of 18
years.
"closing address" -- the final statement made by a party to the court
at the end of a hearing or trial in which the party summarises the evidence
for the party's case and states the reasons why the party considers the order
sought should be made (see rule 16.07).
"common law" -- the law
established by precedent from judicial decisions.
"conciliation" --a dispute
resolution process in which an impartial third person assists the parties to
the dispute to reach an agreement in the dispute.
"conciliation conference"
--a conference held with a Registrar (see rules 12.05 and 12.06).
Note
1: The purpose of a conciliation
conference is to give parties an opportunity to resolve a dispute in a
property case. Section 131 of the Evidence Act 1995 (which deals with
exclusion of evidence of settlement negotiations) applies to conciliation
conferences.
Note 2: Subject to
sections 4 and 5 of the Evidence Act 1995, that Act does not apply to the
Family Court of Western Australia or any other court of a State.
"conference" -- includes a case assessment conference and conciliation
conference.
"consent order" --an order that:
(a) is made if all parties:
(i) have reached agreement on an issue; and
(ii) lodge the written agreement in the form of a draft consent order
for approval by the court; and
(b) is as binding as any other order made by the court.
"control" ,
in relation to a document--a person's enforceable right to obtain possession
of a document from another person.
"convention country" -- a country other
than Australia to which a convention for service of documents applies.
"costs
thrown away" -- costs unnecessarily incurred by a party because of an action
or omission by another party.
"counselling" -- a conference held with a
mediator to help parties to a case:
(a) to understand the needs of their children;
(b) to reach agreement about arrangements for their children; or
(c) to adjust to a separation or to court orders.
"court record"
--includes the documents filed by the parties, a family report, orders and the
settled reasons for judgment.
"credit" --reliability having regard to a
witness's honesty and ability to observe or remember the fact or event about
which the witness is giving evidence which is well capable of belief.
"cross-appellant" -- a respondent to an appeal who wishes to appeal against
orders.
"cross-examine" --the questioning of a witness by a party other than
the party who called the witness to give evidence.
"current case" -- a case
in which final orders have not been made on the application.
"deponent" --a
person whose evidence is set out in an affidavit and who swears that the
contents of the affidavit are true.
"e-mail address" -- the mailing address
to and from which an electronic communication may be sent and received using
the Internet, an intranet or other similar network.
"enforcement hearing" --
a hearing conducted on the application of a payee when a payer and any witness
is cross-examined about the payer's financial affairs and ability to pay a
financial obligation.
"Enforcement Warrant" -- a warrant, used to enforce
the payment of a sum of money, by which an enforcement officer is commanded to
seize and sell sufficient of the payer's property to satisfy an obligation
(including interest and costs).
"evidence" -- a statement to a court that is
oral or written and tends to prove or disprove a fact.
"evidence in chief" --
the evidence of a witness set out in an affidavit or given in court on being
questioned by the party who called the witness to give evidence, other than
evidence given in response to questioning on re-examination.
"examination" --
questioning of a witness on oath.
"exhibit" -- a document or thing that is
tendered in evidence during a hearing or trial.
"expediting the first day
before the Judge" -- a process to have a case listed before a Judge sooner
than it ordinarily would be (see rule 12.10A).
"facsimile" -- a copy of
a document that has been sent and reproduced by facsimile transmission.
"financial institution" -- includes a bank, building society and credit
union.
"first court date" -- the first court date set when an application or
appeal is filed.
"foreign court" -- a court of a foreign country (see the
definition in the dictionary to the Evidence Act 1995 ).
Note:
Subject to sections 4 and 5 of the Evidence Act 1995 , that Act does not
apply to the Family Court of Western Australia or any other court of a State.
"frivolous -- not worthy of serious consideration, insupportable in law,
disclosing no cause of action or groundless (see also vexatious" ).
"image"
-- a picture that has been created, copied, stored or transmitted in
electronic form.
"indemnity basis" -- an entitlement to costs, including
costs under a costs agreement, for all costs incurred, other than costs that
are unreasonable in amount or that have been incurred unreasonably.
"injunction" --an order requiring a person to do or refrain from doing a thing
(see section 114 of the Act).
"interim order" -- an order that
operates until a final order is made (see Chapter 5).
"interlocutory
order" -- an order, not being a final order, made before trial (see
regulation 15A of the Regulations).
"intervener" -- a person who is
entitled to, or is given permission to, become a party in a case, for example,
the Attorney-General or any other person intervening under section 91 or
92 of the Act.
"issue" -- includes any question of fact or law or both,
being part of a case.
"joint applicati on" -- an Application for Divorce in
which the husband and wife are the applicants.
"Judicial Registrar" -- see
sections 26A to 26N of the Act.
"lawyer and client costs" -- the costs
payable by a client to the client's lawyer.
"legal personal representative" ,
for a deceased party--the executor or administrator of the party's estate.
"location order" -- an order that requires information to be provided by a
third party about the location of a child (see subsection 67J (1) of
the Act).
"maintenance" --money paid by a person to:
(a) a spouse or former spouse ( spousal maintenance ); or
(b) a child (child maintenance).
"Mareva order" -- an order
preventing a person from removing property from Australia or dealing with
property either in or outside Australia.
"mediation" --a conference,
including counselling, held with a mediator to help parties:
(a) to understand the needs of their children;
(b) to reach agreement about arrangements for their children;
(c) to reach agreement about financial arrangements; or
(d) to adjust to a separation or to court orders.
"Notice to Admit"
-- a notice requiring a party to admit certain facts or the authenticity of
certain documents for a case.
"Notice to Produce" -- a notice requiring a
party to bring certain documents to a hearing or trial.
"nullity" -- nullity
of marriage (see section 51 of the Act and sections 23 and 23B of
the Marriage Act 1961 ).
"open court" -- a court in which a judicial officer
is sitting that is open to the public (see section 97 of the Act).
"parental responsibility" -- all the duties, powers, responsibilities and
authority which, by law, parents have in relation to their children (see
section 61B of the Act).
"parenting order" -- includes orders about the
persons with whom a child lives, spends time or communicates with, child
maintenance and parental responsibility (see subsection 64B(1) of the
Act).
"parenting plan" -- a written plan agreed between parents about
arrangements for the ongoing care, welfare and development of a child (see
subsection 63C(1) of the Act).
"party and party costs" -- the costs
payable by one party to another party under these Rules or by order.
"personal property" -- all property except land and other real estate.
"postpone, for an event" -- to put off or to delay to a future fixed time
before the start of the event.
"practice direction" -- a direction about
procedure that is published with the authority of the Chief Justice.
"privilege from disclosure" -- the right of a party to refuse to disclose a
document or answer a question on the ground of some special interest
recognised by law, for example, legal professional privilege.
"procedural
hearing" -- a hearing at which procedural orders are made to progress a case.
"procedural order" --an order made about the practice or procedure to be taken
by a party to progress a case.
"producing, for disclosure of a document" --
includes searching for, arranging, copying and providing the document, if
necessary.
"proportionate, for a case" -- balancing the costs and expenses
of the case with achieving a satisfactory outcome.
"public interest" -- the
importance of the outcome of a case to the public.
"real property" -- land,
structures and rights arising from land.
"reasons for judgment" -- the
reasons given by a judicial officer for the making of orders.
"re-examination" --the questioning of a witness by the party who called the
witness to give evidence after the cross-examination of the witness.
"registry" -- the office of the court, including the courtrooms.
"Registry
Manager" -- the officer of the court who is responsible for the management of
a Registry.
"respondent" --a party named in an application or Notice of
Appeal as a respondent.
"response" , in relation to an application--a form
that a respondent uses to answer the orders sought in the application,
including:
(a) for an Application for Final Orders -- Response to an Application
for Final Orders ;
(b) for an Application in a Case -- Response to an Application in a
Case ; and
(c) for an Application for Divorce -- Response to an Application for
Divorce .
"security" -- a form of guarantee of or safeguard for compliance,
for example, the payment of a sum of money into court that is returned if the
obligation is met and forfeited if it is not.
"self-executing order" -- an
order, a term of which requires an act to be done and provides that
non-compliance will automatically result in a stated consequence.
"sequestration" --temporary possession or occupation of property and
collection of income.
"sequestrator" -- a person appointed by the court
under rule 20.43.
"set aside" -- cancelled.
"specialist family court
program" -- a specific program offered by a Family Court to help people, for
example, parenting after separation, group program or intractable contact
program.
"specific questions" -- written questions relevant to an issue in a
case served by a party to the case on another party.
"statement made on
information and belief" -- a statement, in an affidavit filed in an
Application in a Case, made on information received from another source that
is believed to be true.
"stay" , for a case--to suspend the case.
"struck
out" :
(a) for a case--r emoved from the list of cases to be heard on a day,
but able to continue with the court's permission; and
(b) for the content s of a document--not considered or relied on by the
court in the determination of a case.
"subpoena" --a witness summons issued
by the court that requires a named person to attend the court to give evidence
or bring documents, books or other things to the court.
"subpoena for
production" -- a witness summons requiring a named person to attend as
directed and produce a document or other thing.
"subpoena to give evidence"
--a witness summons requiring a named person to attend as directed for the
purpose of giving evidence.
summary judgmen t --a judgment given in favour
of an applicant if there is evidence to prove the claim and the respondent has
no real defence.
"tender" , for a hearing or trial--to hand a document to the
judicial officer during the hearing or trial with a request that the document
be filed or admitted into evidence.
"trial Judge" -- the Judge listed to
determine a trial or who finally determines a case.
"undefended basis" --the
court may order that a hearing or trial may proceed, because of the
respondent's failure to comply with a rule or order, as if a response has not
been filed. The court may make the orders set out in the application on being
satisfied by evidence that the orders should be made.
"vest" -- to pass
legal ownership, rights or powers to another person.
"vexatious" , in
relation to an application--having no reasonable prospect of success (see
section 118 of the Act for the court's powers in relation to a vexatious
case; see also frivolous ).
"without prejudice" , in relation to an offer to
settle--an offer made, orally or in writing, during settlement negotiations
between parties that may not be revealed to the court (unless the parties
agree otherwise) until the only outstanding issue is costs (see
section 131 of the Evidence Act 1995 ).
Note:
Subject to sections 4 and 5 of the Evidence Act 1995 , that Act does not
apply to the Family Court of Western Australia or any other court of a State.
"witness" --a person who gives evidence, orally or by affidavit, to the court.