FAMILY LAW AMENDMENT RULES 2001 (NO. 2) 2001 NO. 19

FAMILY LAW AMENDMENT RULES 2001 (NO. 2) 2001 NO. 19

STATUTORY RULES 2001 No. 19

Issued by the authority of the Judges of the Family Court of Australia

AMENDMENT OF THE FAMILY LAW RULES

Section 123 of the Family Law Act provides that the Judges of the Family Court of Australia, or a majority of them, may make Rules of Court providing for the practice and procedure to be followed in the Family Court and other courts exercising jurisdiction under the Family Law Act.

Section 123(2) of the Family Law Act provides that Sections 48, 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 apply in relation to the Rules of Court as if reference in those sections to regulations were references to Rules of Court.

The present Family Law Rules came into operation on 2 January 1985. They have been regularly reviewed and amended since that date.

DETAILS OF THE AMENDMENTS

Order 1 Rule 4

Definition of case conference included. (see Orders 8 and 9)

Order 2 rule 2( 5)

Due to the proposed amendments to Order 8 and the abolition of Forms 7, 7A and 7B (see later under 0.8) these Forms are omitted from those that can be handprinted .

Order 2 Rule 7, Order 25 Rule 3 & 5, Orders 25A, 26 (1) and 33 (2)

In line with the policy decision to use the generic term "lawyer" to describe solicitors, barristers, legal practitioners and counsel these Rules are amended accordingly.

Order 7

Rule 6(2) has been amended to make it clear that a photocopy of the marriage certificate can be filed.

Rules 8(2) and 15 (2) have been amended to make it clear that when a Form 13 opposing the divorce is filed the application must proceed in open court (unless otherwise directed) and the parties are required to appear.

Rule 14

Section 98A (2) of the Family Law Act has been amended by the Family Law Act Amendment Act 2000 to enable joint applicants for a divorce, where there are children of the marriage under the age of 18 years, to seek that the divorce be heard in their absence. This rule has been amended accordingly. Note that section 98A (2A) provides that the Registrar may direct that the matter not proceed in the absence of the parties if he/she is not satisfied about the arrangements for the children. Note that section 98A (2B) FLAAA 2000 allows the Registrar to hear these applications (in the absence of the parties) in Chambers .

Order 8 Rules 3, 3AA, 5, 7, 9, 11, 14, 15

Also see Order 19 Rule 1, Order 20 Rule 2, Order 25 Rule 3 and Order 25A Rule 21

Abolition of Forms 7, 7A and 7B

To ensure uniformity between the Family Court and the Federal Magistrates Court, as much as practicable, in June 2000 the two Courts agreed to use a simple initiating application form in almost identical terms. In July 2000 the Family Court introduced the Form 3 and the equivalent FMS Initiating Application Form will be available soon. In order to introduce the Form 3 quickly the Court allowed parties to use either a Form 3 or a Form 7 as an interim measure only. The need for this period of grace has now passed and there will be only one initiating application form in use (to seek final orders). Accordingly the Forms 7, 7A and 7B are abolished and are completely replaced by Forms 3, 3A and 3B.

Apart from the introduction of case conferences (as to which refer later) the applicable procedure has not changed.

Order 8 Rule 3 (6)

Arbitration

Sections 10 to 26 of the Family Law Act Amendment Act 2000 amend the various sections in Division 2 of Part 3 of the FLA in relation to arbitration and provide that the Government may pass Regulations relating to arbitration. This Rule amendment provides that Form 3 is to be filed when a review of an award of arbitration is sought.

Order 8 Rules 9, 16 and Order 9 Division 1A

Introduction of Case conferences

Case conferences are gradually being introduced in all Registries. Orders 8 and 9 are amended to provide for these conferences in the Rules. The Principal Registrar has circulated separately "Guidelines for Case conferences" which set out the practice and procedure to be adopted in full and separate training of staff is being undertaken.

A case conference is the event which occurs on the first return date of a Form 3 instead of a Directions hearing. It comprises 3 parts:

1. Information session

2. Case Conference

3. Directions hearing Some matters will be allocated case conferences whilst others will be allocated a directions hearing as normal. Unless the court or a Registrar otherwise orders:

(a)       a party must attend a case conference in person; and

(b)       if the party is represented by a legal practitioner - the legal practitioner must also attend the case conference.

A conference is held with a Deputy Registrar in property matters, a family and child counsellor or a welfare officer in childrens matters and with both officers, if available in enmeshed matters. At the case conference an attempt will be made to resolve the proceedings by agreement; and the officer running the conference will assess the appropriate future conduct of the matter. If all the issues are not resolved the Deputy Registrar will then conduct a Direction hearing.

Form 69A

At the conclusion of the case conference, the Registrar or family and child counsellor or a welfare officer who conducts the conference must complete a Form 69A for the file and the parties.

Order 8A Division 1

Transfer of proceedings from Federal Magistrates Court

Subrules 1 and 2 provide the procedure to be followed by the Family Court upon receipt of proceedings transferred from the FMS. Once the "tranfer" Order is received then a directions hearing date is allocated and the parties are notified in writing. Rule 3 provides that the Family Court Rules apply to those proceedings as if they were instituted in the Family Court.

Order 8A Division 2 and Order 13 rule 2

Transfer of proceedings to Federal Magistrates Court

Section 33B FLA provides for the discretionary transfer of proceedings pending in the Family Court by order from the Family Court to the Federal Magistrates Court. That section provides that the Rules of Court may make provision for and set out the factors to be taken into account when deciding whether to transfer proceedings. The new Order 8 Division 2 provides that an order for transfer can be made on application from a party or by the court of its own motion. It also sets out the factors to be considered. (Rule 6). Order 13 rule 2 confirms that an application for transfer can be made orally.

Order 9 Division 1A

Introduction of case conferences - refer to explanation under Order 8 Rules 9 & 16

Order 13 Rule 2

See under Order 8A Division 2

Order 19 Rule 1 (2)

This amendment is to make it clear that the procedure of "specific questions" is not available in recovery proceedings.

Order 19 Rule 1, Order 20 Rule 2, Order 25 Rule 3 and Order 25A

Rule 21

These Rules are amended to substitute the Form 3 for Form 7. The requirements in the Rules themselves have not changed. Therefore (unless otherwise directed) parties are unable to obtain an order for discovery or a leave to issue subpoenas until after the conciliation conference. Further the Pamphlet required to be delivered under O25 and O25A is still required in the same circumstances. There are some other minor amendments due to a change in terminology.

Order 26 Rule 1 and Order 33 Rule 2(1) (d)

Section 66SA FLA enables the registration of an agreement varying or revoking an original agreement dealing with child maintenance. These Rules are amended to provide for registration and enforcement of these agreements.

Order 28 Rule 1 (1B)

This Rule has been amended to substitute Form 3 for Form 7. The practice has not changed.

Order 28 rule 7

Power to set aside subpoena

In Hatton v AG (2000) FLC 93038 the Full Court recommended that the Rules be amended to ensure that it was put beyond doubt that the court has the power to set aside a subpoena wholly or in part. This is particularly important for Courts of Summary Jurisdiction.

Order 30 Rule 1D - trial management

This new rule is inserted to codify in the Rules instructions from CJCC as to the appropriate trial management principles to be adopted in a hearing.

Order 31B

A number of amendments to this Rule, were effected in July 2000, due to the change in procedure brought about by the Child Support (Assessment) Act 1998. Part 6B of the Assessment Act provides for internal reconsideration of decisions of the Child Support Registrar before the aggrieved person can apply to the court. The July amendments provided for situations in which Part 6B of the Assessment Act applies. These amendments provide a time limit when the objection procedure (under CS legislation) does not apply, and to amend Rule 12(2) to ensure all relevant documents are filed.

Order 32

Rule 2 (1A) and 3 (1A)

These amendments require that in an appeal from a Federal Magistrate Court the appellant must file a sealed copy of the decree appealed from with the Notice of Appeal and must deliver a copy of the Notice of Appeal to the FMC. The Principle Registrar is circulating guidelines separately which set out the practice and procedure to be followed in these appeals.

Rule 17B

This new rule is introduced at the request of the Appeal Judges.

Rule 18A and Form 42C

s. 94(2A) and s. 94AAA(7) Family Law Act as amended by 143/2000 provide legislative authority for this new rule which enables the Full Court to deliver Reasons for Judgment in short form when the Court is of the opinion that the appeal does not raise any question of general principle. Form 42C is the prescribed Form to be used.

Order 33 Rule 2(1) (d)

Section 66SA FLA enables the registration of an agreement varying or revoking an original agreement dealing with child maintenance. This Rule is amended to provide for enforcement of these agreements.

Order 33 and Order 40 Rule 3 (4)

In line with the move towards the standard use of the terminology "penalty units" in legislation and statutory rules, the Rules are so amended to remove reference to an amount of maximum fine and insert instead the number of penalty units.

Order 34 Rule 6(2)

In line with the policy of minimisation of Forms the decision was made to omit Form 52 on the basis that it is unnecessary and rarely if ever used and in any event is not properly worded for the purpose for which it was intended. It was introduced into the Rules in 1985. Prior to that there was no form provided yet the power to bring a person before the court pursuant to Regulation 114 Family Law Regulations was introduced in 1976. This rule amended accordingly.

Order 35

Enforcement - parenting orders

The Family Law Act Amendment Act 2000 has introduced a new enforcement regime in Division 13A FLA 1975. The Principal Registrar has circulated separately an Impact Statement in respect of the Amendment Act.

Some of the new provisions require Rules amendments and others can be complied with in practice without Rules of Court. S. 63DA requires that certain advice be given in the event of assistance being given to people in making a parenting plan. S 65DA (2) requires that upon the making of an order it is the duty of the court to provide certain particulars.

A pamphlet has been prepared to satisfy the obligations imposed on the Court by these sections.

S65DA(3) requires that upon the making of an order it is the duty of the court to explain to the parties

• obligations created by the order

• consequences of failure to comply with order

• availability of parenting programme

The Court will henceforth include in each order in relation to children a set of proforma orders (which have been circulated separately by the Principal Registrar) and which set out all of the information required by this section.

Rule 1, 2, 5 and 6

There have been consequential amendments to Order 35 to ensure the Rules correctly reflect the provisions of the Act and to make it clear that O35 applies generally to all enforcement proceedings or contravention hearings.

Rule 15

To provide for the requirements set out in S70NG FLAAA 2000, Rule 15 is inserted so that when a court makes an order requiring a person to undergo a parenting programme the Registrar is required to send a sealed copy of the Order to the service provider named in the Order. The Attorney General will circulate a list of providers each 12 months, and this will vary from Registry to Registry.

Rule 16

This rule requires that the provider as soon as practicable notify the court in writing if a person fails to attend or if a person is assessed as unsuitable to take part in the programme.

Rule 17

Due to the provisions of s.70 NIA which enable the court to make further directions in the event that a person fails to attend a parenting programme they have been ordered to attend, it was necessary for the Rules to provide for a method of relisting. Therefore R 17 provides that the court of its own motion or at the request of either party may relist the matter upon receipt of the notice from the provider.

Order 36A

Judicial Registrar powers

O36A R2 (2) (ha) and (jc) - This amendment has been deemed necessary to ensure that the JR's have delegated to them the necessary powers of the court to enforce parenting orders pursuant to the recent amendments to the legislation.

O36A R3 (o) - This amendment is necessary because s. 85 FLA was repealed by FLAA 143/2000 and effectively became s. 106B FLA 2) O36A R3 (u) - The Family Law Regulations were amended by SR 81/000. These amendments are necessary to ensure that the delegations to the JR's are corrected accordingly.

Registrars powers

O36A Rule 2 (1A) (k) is amended as S. 84 FLA was repealed by FLAA 143/2000 and effectively became s. 106B FLA 1975. O36A R 2(2) (da) - delegates to Registrars the power of the Court to make an order transferring proceedings to the FMS of its own motion.

O38 r4AA and Schedule 2 Scale of costs

At the recommendation of the Federal Costs Advisory Committee the scale has been increased by 9.5% so that it is GST inclusive. O38 R4AA which was introduced as an interim measure in July 2000 is therefore repealed.

Order 40

"penalty units" - Refer to explanation under Order 33

Schedule 1 Forms

Form 3

The box "interim orders only" has been deleted from this form. It was never intended that the Form 3 could be used for this purpose and this box was included in the Form in July 2000 in error.

Form 4

This form is amended to enable joint applicants for a divorce, where there are children of the marriage under the age of 18 years, to seek that the divorce be heard in their absence as provided in O 7 R 14.

Forms 7, 7A and 713 are omitted

Form 12A

Minor amendment to Form 12A to insert a provision so that parties can indicate whether there is an existing financial agreement.

Form 17

The amendments to this form comprise:

•       In the income column at item 9 delete "personal exertion" and insert "Pension/benefit"

•        Expiry date and number of credit card deleted wherever they appear

Form 26A Parenting plans

A slight amendment to Part J in Form 26A as a result of a change in terminology in FLAAA 2000.

Form 42C

See under Order 32 R 18A

Form 46

This form is amended to ensure that the Form properly reflects the provisions of the Act/Rules.

Form 49 and 49A

Reference to sections in heading amended to Division 13A. and other amendments as required to ensure that the form properly reflects the provisions of the Rules.

Form 52

Repealed in line with the policy of minimisation of Forms. See Order 34.

Form 69A

At the conclusion of a case conference, the Registrar or family and child counsellor or a welfare officer who conducts the conference must complete a Form 69A for the file and the parties see O9r113.

Schedule 2 Scale of Costs

See under Order 38