FAMILY LAW AMENDMENT RULES 2002 (NO. 4) 2002 NO. 322
FAMILY LAW AMENDMENT RULES 2002 (NO. 4) 2002 NO. 322
EXPLANATORY STATEMENTSTATUTORY RULES 2002 No. 322
Issued by the authority of the Judges of the Family Court of Australia
FAMILY LAW AMENDMENT RULES 2002 (No. 4)
Section 123 of the Family Law Act 1975 (the 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 Act.
Subsection 123 (2) of the 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.
Family Law Rules 1984 (the Rules) came into operation on 2 January 1985. They have been regularly reviewed and amended since that date.
NOTES ON PROPOSED AMENDMENTS
These amendments to the Rules are required as a result of the amendments made to the Act by the Family Law Legislation Amendment (Superannuation) Act 2001, which commences on 28th December 2002 and the Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002, which commences on 1 January 2003.
The details of the proposed amendments are as follows:
Rule 1 cites the Rules as the Family Law Amendment Rules 2002 (No. 4).
Rule 2 provides that rules 1 to 3 and Schedules 1 and 2 commence on 28 December 2002 and Schedule 3 commences on 1 January 2003
Rule 3 provides that Schedules 1, 2 and 3 amend the Rules.
Schedule 1, items [1] to [5]: amendment of Schedule 1, Forms 3, 3A and 3B
Forms 3, 3A and 3B are to be amended by Schedules 2 and 3 to insert a number of new provisions as a result of the amendments to the Act by the Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002 and the Family Law Legislation Amendment (Superannuation) Act 2001 (as to which see explanation under the Forms in Schedules 2 and 3).
These items amend Forms 3, 3A and 3B by renumbering some provisions to allow the amendment of those Forms by Schedules 2 and 3 to occur without confusion about the numbering of provisions.
Schedule 1, items [6] to [8]: amendment of Schedule 1, Form 12A, Parts F and G
Form 12A is to be amended by Schedules 2 and 3 to insert a number of new provisions as a result of the amendments to the Act by the Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002 and the Family Law Legislation Amendment (Superannuation) Act 2001 (as to which see explanation under the Form 12A in Schedules 2 and 3).
These items amend Form 12A by renumbering some provisions to allow the amendment of Form 12A by Schedules 2 and 3 to occur without confusion about the numbering of provisions.
Schedule 1, items [9] to [12]: amendment of Schedule 1, Form 17
Form 17 is to be amended to insert a number of new provisions as a result of the amendments to the Act by the Family Law Legislation Amendment (Superannuation) Act 2001 (as to which see explanation under the Form 17 in Schedule 2). As a result of the insertion of these new provisions some of the Part headings in the Form are renamed and certain items are renumbered.
Schedule 2, item [1]: amendment of Order 1 rule 4 (1)
A definition is inserted for "Superannuation Information Form".
This form is to replace the existing "Superannuation Information required in Family Law matters form" which up until now, parties have, under the Case Management Directions, been required to exchange prior to a conciliation conference. The form has been amended to collect the information necessary to enable parties to identify the type of superannuation interest and calculate its value and to inform the court of various matters which may affect the order that the court might wish to make in relation to the interest.
The Form provides for the attachment of a declaration (Regulation 6 Family Law (Superannuation) Regulations 2001). The form has been prepared in consultation with the Superannuation Industry and is to be approved by the Principal Registrar. It will be available at Family Court Registries and on the court's web-site.
Parties will now be required to file this Form by attaching it to the Form 17 (see amendment to Order 17 rule 2).
Schedule 2, item [2]
Three new notes are inserted at the foot of Order 1 rule 4(1) to refer the reader to the definitions in the Act and the Acts Interpretation Act 1901 of various terms introduced by these rules amendments. This is to avoid repeating these definitions in the Rules.
Schedule 2, item [3]: amendment of Order 14 rule 3A
This is a new rule inserted to put in place a process to address the issue raised by section 90 MZD of the Act which requires that before the court may make any order binding on a trustee of a superannuation plan, the court must be satisfied that the trustee has been accorded procedural fairness. This rule applies where parties seek a consent order which will impose an obligation on the trustee of a superannuation fund to take some action in relation to a superannuation interest for example:
(a) a split or flag order; or
(b) an order setting aside an earlier order dealing with a superannuation interest.
If the rule applies the parties must at least 28 days before the date of filing of the application serve on the trustee of the elgible superannuation plan:
(a) a signed copy of the draft consent order it is intended to seek; and
(b) a written notice to the trustee that it is the intention of the parties to seek an order in the terms of the draft consent order unless the trustee objects to that course of action within 28 days of receiving the notice.
If the trustee of the eligible superannuation plan does not object to the orders sought in relation to superannuation the parties may then proceed to file the application attaching the draft consent order in those terms. If the trustee does object then the parties will have to resolve the issue with the trustee before they are able to file the application.
Schedule 2, item [4]: amendment of Order 17 rule 2
This rule is amended to require an applicant and respondent in property settlement proceedings to attach to the Form 17 a completed Superannuation Information form for all superannuation interests of that party.
This will extend to a situation where a respondent raises property as a new cause of action in the Form 3A and the applicant is entitled to reply under O8 r 15 (because reply is included in the definition of application in Order 1).
The Financial Statement is amended to require the Superannuation Information Form to be attached.
Schedule 2, item [5]: amendment of Order 17 paragraph 3 (a)
Order 17, paragraph 3 (a) is to be amended to specify that full and frank disclosure is required in relation to any superannuation interest of a party.
Schedule 2, item [6]: amendment of Order 17, paragraph 4 (1)(c)
Order 17 rule 4 (1)(c) is to be amended to set out what documents are required to be exchanged by the parties before a case assessment conference in relation to a superannuation interest.
Schedule 2, item [7]: Insertion of Order 18 rule 8A
This item inserts a new rule after rule 8 to put in place a process to address the issue raised by section 90MZD of the Act which requires that before the court may make any order binding on a trustee of a superannuation fund the court must be satisfied that the trustee has been accorded procedural fairness. This rule requires the parties to give notice to the trustee of an eligible superannuation plan where:
(a) a split or flag order is sought in relation to a superannuation interest; or
(b) an application is made under section 79A of the Act to set aside an earlier order made in relation to the superannuation interest.
This notice is to be given by serving the Application, Response or Reply (as applicable ) on the trustee of the plan. The Superannuation Information Form will set out the address for service of the relevant trustee for the purpose of the case.
The purpose of O18 subrule 8A (3) is to ensure that a trustee of an eligible superannuation plan receives timely notice of any order made imposing an obligation upon the trustee such as a splitting or flagging order.
Schedule 2, item [8]: amendment of Order 24 paragraph 2 (2) (b)
This item amendsOrder 24 paragraph 2 (2) (b) to set out the documents required to be exchanged by the parties before a conciliation conference in relation to a superannuation interest.
Schedule 2, items [9] & [10]: amendment of Order 36A rule 3A
This item amends Order 36A rule 3A to add a new subrule (2) which provides that superannuation is to be treated as property for the purposes of assessing whether the case is within the jurisdiction of a Judicial Registrar - see sections 90MC and 90MS of the Act
Schedule 2, items [11] to [13]: amendment of Schedule 1, Forms 3, 3A and 3B
These items amend Forms 3, 3A and 3B to require the applicant/respondent to advise, in property proceedings, if the parties have entered into a binding financial agreement under Part VIIIA of the Act or a superannuation agreement under Part VIIIB of the Act in relation to a superannuation interest. This is so that the existence of these agreements is brought to the notice of the court at an early stage of a case. Section 90MO of the Act provides that the court is unable to make an order in relation to superannuation interest if it is covered by a superannuation agreement.
Schedule 2, items [14] to [27]: amendment of Schedule 1, Form 12A
These items amend Form 12A to insert a new Part in relation to superannuation to ensure that:
1. parties take action to accord procedural fairness to any trustee of a superannuation interest dealt with by a draft consent order;
2. the parties provide sufficient information to the court about any superannuation interest so that the judicial officer considering the application for a consent order can be satisfied that the order is one that should be made. The parties must advise the court of the taxation consequences of any orders sought; they are required to attach a completed Superannuation Information Form for each superannuation interest; and when they swear the affidavit at the end of the Form they will in effect be certifying that the trustee of the superannuation fund has been accorded procedural fairness and that they agree that the value of the superannuation as is set out in the Form and that where paragraph 90MT (2) (a) of the Act applies, the valuation has been calculated in accordance with the regulations.
There are consequential amendments to the headings and numbering in the form to enable these provisions to be inserted in the appropriate place in the form and to remove reference to superannuation as a financial resource.
Schedule 2, items [28] to [32]: amendment of Schedule 1, Form 17
These items amend Form 17 to require a deponent with a superannuation interest to:
(a) identify the type of superannuation,
(b) include the gross value of the superannuation interest;
(c) attach the superannuation information form
There is consequential amendment to the form to enable these provisions to be inserted in the appropriate place in the form and to remove reference to superannuation as a financial resource.
Schedule 3, item [1]: amendment of Order 1, subrule 4 (1)
This item amends Order 1, subrule 4 (1) to replace Note 1 at the foot of the subrule in relation to include reference to more terms used in the rules and Act that are being inserted in relation to proceeds of crime.
Schedule 3, item [2]: amendment of Order 8 subrule 3 (2A)
Under sections 79C and 90N of the Act (which are to be inserted by the Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002 or the POC Act), the DPP may apply to the court for a stay of property settlement and spousal maintenance proceedings where the property of the parties or one of them is covered by the POC Act regime. Under sections 79D and 90P of the Act, the DPP may apply to the court to lift the stay. Sections 79E and 90Q of the Act provide that the DPP may intervene in a case in these limited circumstances.
This item inserts a new subrule in rule 3 to provide that a party or the DPP must file a Form 8 to seek a stay order under or to lift a stay under of the Act.
Schedule 3 items [3] and [4]: amendment of Order 8 Rule 3A
These items amend Order 8 Rule 3A to make it clear that the DPP is excluded from the requirement of having to seek orders on a final basis in a case before seeking an order for a stay under the proceeds of crime provisions.
Schedule 3 items [5] and [6]: of Order 8 paragraphs 12(1) (e) and (f)
These items amend Order 8 subrule 12 (1) to insert 2 new paragraphs that set out the documents that must be filed when the DPP or a party applies for a stay of a case under section 79C or 90N of the Act or for the stay to be lifted under section 79D or 90P of the Act.
Schedule 3 item [7]: insertion of new Division in Order 8
Sections 79B and 90M of the Act require that after a property settlement case or spousal maintenance case has started, a party must notify the court if they become aware that there is a proceeds of crime order or forfeiture application covering any of their property. This item inserts a new Division 3A and new rule 13A to provide that the notice in writing must be given as soon as possible and must be accompanied by a sealed copy of the proceeds of crime order or forfeiture application.
Schedule 3 items [8] to [16]: Amendment of Schedule 1, Forms 3, 3A, 3B, 12, 12A and 12B
Subsections 79B (1) and 90M (1) of the Act require that a person making an application for property settlement or spousal maintenance disclose in the application if the property of the parties of the marriage or either of them is covered by a proceeds of crime order (POC order) or forfeiture application. Under sections79C and 90N, it is mandatory for the Court to stay an application upon the application of the DPP or when the court becomes aware pursuant to section.79B or 90M that the property of the parties to a marriage or of either of them is the subject of a proceeds of crime order or forfeiture application.
These items amend Forms 3, 3A, 3B, 12, 12A and 12B to require the applicant/respondent to indicate whether there is an existing order or pending application under the proceeds of crime regime.