FAMILY LAW RULES 2004 2003 NO. 375 - SCHEDULE 5 Experts' Conferences - Guidelines for expert witnesses and those instructing them in cases in the Family Court of Australia
FAMILY LAW RULES 2004 2003 NO. 375 - SCHEDULE 5
Experts' Conferences - Guidelines for expert witnesses and those instructing them in cases in the Family Court of AustraliaPart 1 Introduction
1.1 Purpose of guidelines
-
These guidelines are intended to encourage compliance with the provisions of
Part 15.5 of the Family Law Rules 2004 and should be read with those Rules.
1.2 Effect of Division 15.5.7 of Rules
-
Division 15.5.7 of the Family Law Rules 2004 provides that if 2 or more
parties intend to tender an expert's report or adduce evidence from different
expert witnesses about the same, or a similar, question:
- (a)
- the parties must arrange for the expert witnesses to confer at least 14 days before the pre-trial conference; and
- (b)
- each party must give to the expert witness the party has instructed, a copy of these guidelines.
Part 2 Experts' conference
2.1 Object of experts' conference
-
The objects of an experts' conference include:
- (a)
- the just, quick and cost effective disposal of the case to which the conference relates;
- (b)
- identifying and narrowing issues for determination;
- (c)
- shortening the trial and enhancing the prospects of settlement;
- (d)
- requiring the expert witnesses to reach a conclusion on the evidence (the joint statement given under paragraph 15.69 (3) (e) of the Family Law Rules 2004 may be used in cross-examination of an expert witness at the trial); and
- (e)
- avoiding or reducing the need for the expert witnesses to attend court to give evidence.
2.2 Preparation for an experts' conference
- (1)
- Separate experts' conferences may be required between experts in different specialities in relation to differ ent issues arising in the case.
- (2)
- Subrule 15.69 (2) of the Family Law Rules 2004 provides that the court may, in relation to an experts' conference, order:
- (a)
- which expert witnesses are to attend;
- (b)
- where and when the conference is to occur;
- (c)
- which issues the expert witnesses must discuss;
- (d)
- the questions to be answered by the expert witnesses; and
- (e)
- the documents to be given to the expert witnesses, including:
- (i)
- Part 15.5 of the Family Law Rules 2004 ;
- (ii)
- relevant affidavits;
- (iii)
- a joint statement of the assumptions to be relied on by the expert witnesses during the conference, including any competing assumptions; and
- (iv)
- all expert's reports already disclosed by the parties.
- (3)
- Any questions to be answered by the expert witnesses at an experts' conference should be:
- (a)
- questions specified by the court or agreed to by the parties and any other question a party wishes to submit for consideration; and
- (b)
- framed to resolve an issue or issues in the case.
- (4)
- If possible, questions should be capable of being answered with a `yes' or `no' response or, if not, by a very brief response.
- (5)
- The documents mentioned in paragraph (2) (e) and any other documents agreed to by the parties should be given to the expert witnesses at least 7 days before the experts' conference.
2.3 Convening an experts' conference
- (1)
- If the court has not fixed a place and date for an experts' conference, the parties should fix a mutually convenient date, time and place for the conference.
- (2)
- The party who appointed an expert witness must ensure that the expert witness is given a reasonable opportunity to prepare for the experts' conference and, in particular, the party must ensure that the expert witness is given:
- (a)
- an opportunity to clarify with the instructing lawyers or the court any question put to the expert witness; and
- (b)
- access to any additional material that the parties are able to provide and that the expert witness considers relevant.
- (3)
- The conference should not normally take place until at least 7 days after the expert witnesses have received the documents mentioned in paragraph 2.2 (2) (e) and any other documents agreed to by the parties.
2.4 The role of expert witnesses at an experts' conference
- (1)
- Each expert witness should respond to the questions asked.
- (2)
- Each answer by an expert witness must:
- (a)
- be based on the facts in the witness statements or affidavits; and
- (b)
- set out the assumption on which it is based.
- (3)
- For paragraph (2) (b), if there is an alternative result on a different assumption, the expert witness must state this in his or her answer.
- (4)
- The expert witnesses may specify in the joint statement required by paragraph 15.69 (3) (e) of the Family Law Rules 2004 , other questions that the expert witnesses believe would be useful for them to consider.
- (5)
- If an expert witness has a contrary view to another expert witness, the expert witness should express it.
- (6)
- An expert witness should accept as fact the matters stated in witness statements or assumptions submitted to the expert witness.
- (7)
- It is not an expert witness's role to decide any disputed question of fact or the credibility of any witness.
- (8)
- If there are competing assumptions, alternative answers may have to be given to a question or questions, specifying which of the assumptions are adopted for each answer.
2.5 Conduct of experts' conference
- (1)
- An experts' conference should be conducted in a manner that is flexible, free from undue complexity and fair to all parties.
- (2)
- The expert witnesses may:
- (a)
- appoint one of their number as a chairperson; or
- (b)
- if one of the expert witnesses so requests and the parties agree or the court orders, appoint another person to act as chairperson.
- (3)
- If secretarial or administrative assistance is requested by the expert witnesses, the parties should provide that assistance.
- (4)
- If the expert witnesses agree, one of them or a secretarial assistant may be appointed to take notes at the conference about matters agreed, matters not agreed and reasons for disagreement.
- (5)
- The conference may be adjourned and reconvened as necessary.
(6) Subrule 15.69 (3) of the Family Law Rules 2004 provides that, at the experts' conference, the expert witnesses must:
- (a)
- identify the issues that are agreed and not agreed;
- (b)
- if practicable, reach agreement on any outstanding issue;
- (c)
- identify the reason for disagreement on any issue;
- (d)
- identify what action (if any) may be taken to resolve any outstanding issues; and
- (e)
- prepare a joint statement specifying the matters mentioned in paragraphs
- (a)
- to (d) and deliver a copy of the statement to each party.
2.6 Joint statement
- (1)
- The joint statement required by paragraph 15.69 (3) (e) of the Family Law Rules 2004 should:
- (a)
- be written by the expert witnesses participating in the experts' conference (the participating expert witnesses ); and
- (b)
- be signed by all participating expert witnesses immediately after the conference ends or as soon as practicable after the conference.
- (2)
- The participating expert witnesses should not seek advice or guidance from the parties or their lawyers before signing the joint statement.
- (3)
- Subrule 15.69 (4) of those Rules provides that if the participating expert witnesses reach agreement on an issue, the agreement does not bind the parties unless the parties expressly agree to be bound by it.
- (4)
- Subrule 15.69 (5) of those Rules provides that the joint statement may be tendered by consent as evidence of matters agreed on and to identify the issues on which evidence will be called.
2.7 Role of lawyers
- (1)
- Lawyers attending a conference by order of the court or who are approached for advice by an expert witness participating in an experts' conference should respond jointly and not individually, unless authorised to do so by the lawyers for all other parties with an interest in the conference.
- (2)
- Advice may be provided by:
(c) providing further materials on request; and
- (d)
- correcting any misapprehensions of fact or any misunderstanding concerning the conference process.
Dictionary
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 60D (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 or the Federal Magistrates Court:
(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
Magistrates 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 (Form 20) for the appeal was
filed.
Note
A Form 20 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 Application for
Final Orders (Form 1);
(b) an Application in a Case (Form 2);
(c) an Application for Divorce (Form 3);
(d) an Application for Consent Orders (Form 11);
(e) an Application for Contempt (Form 19);
(f) a Notice of Appeal (Form 20); and
(g) a cross-application set out in a response to an application (see Form
1A or 2A).
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, 16.08 and 22.39 for attendance by electronic communication.
"bankrupt" has the meaning given by subsection 5 (1) of the
Bankruptcy Act 1966 .
"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.
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 representative" means a person appointed under
section 68L of the Act to represent a child.
"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.
"conciliation conference document" means a document in a form approved
by the Principal Registrar 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.
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
section 70NC 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 in accordance with rule 19.14 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.
"costs assessment order" means an
order made by a Registrar fixing the total amount payable for costs
(see rules 19.31 and 19.32).
"costs notice" means a brochure,
approved by the Principal Registrar, setting out a party's rights and
responsibilities under Chapter 19.
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
hearing, trial, conference or mediation.
"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.
"divorce" means dissolution of
marriage (see section 48 of the Act).
"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 order" means
an order requiring a person to comply with an obligation, including an
Enforcement Warrant, a Third Party Debt Notice and an order varying an
enforcement order.
"expedited trial" means a trial that is listed and
heard sooner than it ordinarily would have been (see rule 16.01).
"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.
"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 report means a report
concerning the best interests of a child, prepared under subsection
55A (2), or section 62G or 65G, of the Act (see rule 15.03).
"family
violence" has the meaning given by section 60D of the Act.
"family
violence order" has the meaning given by section 60D of the Act.
"Federal Magistrates Court" means the court of that name created under
the Federal Magistrates Act 1999 .
"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 Application for Final Orders (Form 1).
"final
resolution event "means:
(a) for a property case a
conciliation conference; and
(b) for a parenting case conciliation, counselling or, if
referred for further mediation, that mediation (counselling).
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,
including an application for permission to start a spouse maintenance
case;
(b) relating to the property of the parties to a marriage 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 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; and
(v) an application under section 106B of the Act in relation to a
transaction to defeat a claim;
(c) relating to the maintenance of children;
(d) under section 98, 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 orders includes orders in relation to:
(a) maintenance;
(b) a Child Support Application under section 98, 116, 123 or 129 of the
Assessment Act;
(c) contribution to child bearing expenses; or
(d) property.
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 (Form 2);
(b) an Application for Divorce (Form 3);
(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.
"itemised costs account" means a document
prepared in accordance with rule 19.22.
"judicial officer" includes a
Judge, Judicial Registrar and Registrar.
"lawyer" means a solicitor,
barrister or other legal practitioner who is entitled to practise in a
Family Court.
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
Application for Final Orders (Form 1) 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.
"mediator" includes a family and child
counsellor and family and child mediator, and welfare officer (see
subsection 4 (1) of the Act).
Medical Procedure Application
means an Application for Final Orders (Form 1) 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).
"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.
"parenting case" means a case in
which parenting orders are sought under Part VII of the Act.
"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 section 70NB 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 60D (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 dispute resolution method has the meaning given by
section 14E of the Act.
"primary order" has the meaning given by
section 70NB 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 the property
of the parties to a marriage or of either of them.
"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 section 67Q of the Act.
"Regional Appeal Registrar" means
the Registrar at the Regional Appeal Registry for an appeal.
Regional
Appeal Registry means:
(a) for an appeal other than an appeal from the Federal Magistrates Court
or a court of summary jurisdiction:
(i) from an order in a case heard in the Brisbane, Darwin or Townsville
Registry of the court the Brisbane Registry;
(ii) from an order in a case heard in the Canberra, Newcastle, Parramatta
or Sydney Registry of the court the Sydney Registry; and
(iii) from an order in a case heard in the Adelaide, Dandenong, Hobart,
Launceston or Melbourne Registry of the court the
Melbourne Registry;
(b) for an appeal from the Federal Magistrates Court or a court of summary
jurisdiction:
(i) from an order in a case heard in the Northern Territory or
Queensland the Brisbane Registry;
(ii) from an order in a case heard in the Australian Capital Territory or
New South Wales the Sydney Registry; and
(iii) from an order in a case heard in South Australia, Tasmania or
Victoria the Melbourne Registry; and
(c) for an appeal to the Family Court of 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 Principal Registrar and Deputy Registrar (except in Chapters
18 and 25).
"Registration Act" means the
Child Support (Registration and Collection) Act 1988 .
"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.
"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 section 70B 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 60D (1) of the
Act.
"superannuation information form" means a form approved by the
Principal Registrar 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 mean 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 final determination of a case
commenced by an Application for Final Orders (Form 1), other than an
application mentioned in rule 4.27.
"trial notice" means a document
produced by the court after the final resolution event specifying the
date for the pre-trial conference and setting out the procedural
orders with which the parties must comply to ensure that the case is
ready to proceed to a trial (see rule 12.07).
"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 and the
pre-action procedure.
"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 court counsellor or 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 during the resolution
phase of the court process (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, conciliation conference and pre-trial conference.
Note A conference:
* may be conducted by a Deputy Registrar and mediator; and
* must be attended by the parties and their lawyers (see rule 12.11).
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.
determination phase
the period of case management that starts when a trial notice is
issued (see flow chart in Chapter 12).
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.
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.
information session
a session during which information is given about the
procedures involved in a case in the Family Court.
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 application 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).
opening address the introductory statement made by a
party at the beginning of a hearing or trial, outlining the argument
that will be presented and the evidence that will be introduced (see
rule 16.07).
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 for residence, contact, 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.
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.
pre-trial conference
the event at which the readiness of parties for a trial is
explored and, if a case is ready for trial, a trial date is allocated.
Principal Registrar the most senior legal officer of the
Family Court of Australia.
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.
resolution phase
the period of case management starting on the filing of
an Application for Final Orders (Form 1) (the end of the prevention
phase) and ending when a trial notice is issued (the start of the
determination phase) (see flowchart in Chapter 12).
respondent
a party named in an application or Notice of Appeal (Form
20) 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 (Form 1) Form 1A;
(b) for an Application in a Case (Form 2) Form 2A; and
(c) for an Application for Divorce (Form 3) Form 3A.
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 (Form
2), 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 removed from the list of
cases to be heard on a day, but able to continue with the court's
permission; and
(b) for the contents 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 judgment 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.
undertaking as to damages an undertaking
that may be sought by the court from an applicant seeking orders
without notice to the respondent.
Note
An undertaking as to damages
is usually in the following form:
I, (full name), personally (or by
my solicitor) undertake to the court to abide by any order the court
may make as to damages should the court in the future find that the
respondent (or as the case may be) has sustained any damage by reason
of this order for which I should accept responsibility.
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.