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FAMILY LAW RULES (AMENDMENT) 1993 NO. 160

FAMILY LAW RULES (AMENDMENT) 1993 NO. 160

EXPLANATORY STATEMENT

STATUTORY RULES 1993 No. 160

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

AMENDMENT OF THE FAMILY LAW RULES

Section 123 of the Family Law Act 1975 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 references in those sections to regulations ware references to Rules of Court.

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

OVERVIEW OF PROVISIONS

These provisions contain a series of miscellaneous rules some of which are merely minor amendments to existing provisions and others, which constitute more significant changes to the Family Law Rules, are set out below.

Filing by Facsimile - Order 2

These amendments to order 2 enable documents other than dissolution proceedings or subpoenas to be filed by facsimile if a matter is urgent and an unrepresented party or solicitor is located more than 20 kilometres from a Family Court registry. The provisions arise out of representation from the Family Law section of the Law Council of Australia to enable filing and service by facsimile an the basis that facsimile machines are now an integral part of modern communication and are used by most attorneys and the court.

The restriction placed by the rules on filing by facsimile arise out of the administrative difficulties and resource implication of allowing all documents to be filed by facsimile. They do allow such filing where the documents are unable to be filed over the counter in urgent matters and especially benefit country solicitors and parties who are disadvantaged by distance from a Family court registry.

Consent Orders - Order 9A

Provisions in order 9A have been introduced to provide a more streamlined and less costly method of filing applications for consent orders In the court where no application has been previously filed. Instead of a requirement for the filing of a Form 7 and in financial matters a Form 17, the procedure is simplified for those matters where both parties are represented but requires more financial information where one or both parties are unrepresented. This enables a Judge, Judicial registrar, Registrar or Magistrate to decide whether the agreed adjustment of property is just and equitable pursuant to S79 of the Family Law Act. In accordance with current administrative arrangements these consent orders will ordinarily be dealt with by a Registrar of a Family court in chambers.

Pre-hearing Conferences - Order 24A

These provisions have been inserted to formalise the arrangements in relation to pre-hearing conferences which are contained in the court's case management guidelines. Pre-hearing conferences have been conducted for many years and were included as part of the management of cases by Registrars in guidelines first issued by the court in 1986.

The conferences are conducted by Family Court Registrars at or after the completion of an order 24 conference in property matters as well as in childrens' matters. Their purpose is to provide a further conciliation conference for parties but if the conciliation conference is unsuccessful to list the matter for hearing and to provide a timetable for the filing of affidavits and the preparation of the matter for trial.

Evidence of Experts - Order 30A

The provisions in order 30A division 2 have been omitted as being unnecessary, as orders In relation to filing and exchange of expert reports will be made by Registrars' at a Pre-hearing conference (new order 24A).

Also the normal rules as to evidence in chief being by affidavit apply to experts and the timetable for service is set by the Registrar at the Pre-hearing conference.

Evidence in Chief by Affidavit - Order 30R2

These provisions replace earlier provisions and provide a timetable for the filing of affidavits in the event that such orders have not been made by a Registrar at a pre-hearing conference.

Undertakings - Order 31(R10)

These provisions provide that most undertakings given to the court will be in writing signed by the party or solicitor concerned. This provision follows the practice in the circuit court in the United Kingdom and has been introduced to record the precise wording of an undertaking given in court and to ensure that the person giving the undertaking understands the nature and terms of the undertaking and its Implication In legal terms.

Details of the Provisions

Rule 1 provides the commencement date.

Rule 2 is a machinery provision.

Rule 3 provides the definition of the words 'Chief Justice' 'conciliation conference' and 'pre-hearing conference'.

Rule 4 amends Order 2 by the addition of a new rule allowing documents to be lodged for filing by way of facsmile transmission in certain circumstances. New sub rule 5(1) enables documents other than divorce proceeding or subpoenas to be lodged by facsimile If the matter Is urgent and the legal representatives' principal office or an unrepresented party's residence is located more than 20 kilometres from the nearest registry and it is not practicable to lodge the document in any other way.

Sub rule 2 provides that documents cannot be lodged by fax in circumstances other than as set out In sub rule 1 without the leave of the court.

Sub rule 3 provides that a taxed document must be accompanied by a letter to the Registrar signed by an unrepresented party or by a party's legal representative explaining the nature and immediacy of the damage or harm that may result if the documents is not lodged by facsimile and any other circumstances that justify lodging the document by fax instead of lodging it in the registry.

Sub rule 4 provides that if a document is lodged by tax the party filing the document must lodge the original document in the registry within 7 days.

Sub rule 5 provides (for administrative reasons) that the cover sheet of the original document must be endorsed to the effect that the document is the original of the document previously lodged by taxed.

Rule 5 provides a new rule 1A in order 4 to the effect that if a party does not do all things required by the rules or by an order of the court, that the court a or a Registrar may dismiss the application or cross application, or strike out any pleading, or stay a pleading Part of the proceedings, or make any other orders the court thinks fit.

Rule 6 omits order 4 rule 6 as the provision enabling consolidation of applications is now contained in 020 rule 20(2) (t). (See Draft Rule 10).

Rules 7 & 8 substitutes the title 'Chief Justice' for 'Chief Judge' wherever appearing order 5 rule 1 and order 6 rule 1 to accord with the current title of the office.

Rule 9 provides a new order 9A by enabling a separate initiating application for consent orders to be filed notwithstanding any other provisions of the rules. The application must be In accordance with Form 12A.

Rule 2 sets out the requirements for filling In the application. The applicant must swear or affirm the affidavit at the end of Part B and similarly the respondent, or where there Is more than respondent, each respondent, must swear or affirm the affidavit at the end of Part C of the application.

Item 7 of Part B of the application relating to financial information does not have to be filled in it either of the following situations apply. First if the consent, orders which are set out in Part A, relate to non-financial matters such as custody and access. Secondly where the consent orders relate to financial matters and the applicant and respondent (or respondents) each have separate legal representatives and have each been advised by their legal representatives of their rights under the Act and of the affect and consequences of the making of the orders. In all other circumstances the particulars act out in item 7 Part B must be filled in by the applicant and supplied to the respondent or to each respondent where there is more than one respondent.

Rule 3 provides that the respondent's consent to the making of the consent orders set out In Part A of the application, or if there is more than one respondent the consent of the respondents, lapses if the application is not filed within 60 days after the day on which the respondent made the affidavit at the end of Part C of the application.

Rule 4 provides that where an application for consent orders is filed within 60 days of the making of the affidavit the registrar may bring the matter before a Judge, Judicial Registrar or Magistrate in chambers or alternatively a Registrar of a Family Court may make the orders In chambers.

Sub rule 4(2) provides that at any time before the orders are made the Judge, Judicial Registrar, Registrar or Magistrate may require a party to file any additional information required by the Judge, Judicial Registrar, Registrar or Magistrate.

Rule 10 makes additions to the types of order that may be made by a Registrar at the Direction's Hearings as follows.

Rule 10.1 omits the word 'and' as a consequence of the addition of new paragraph (2) (t) of order 11 rule 20.

Rule 10.2 provides a new paragraph (2)(na) and 'the appointment of a pre-hearing conference' as a consequence of the new provisions in order 24A.

Rule 10.3 provides a new sub paragraph 2(t) and (u) enabling the Registrar to order that different applications by the same parties be heard together and to specify which party is to have the conduct of the proceedings.

Rules 11, 12 and 13 amend the heading to order 24, renaming the 'conferences' as conciliation conferences' and by substituting in order 24 rules 1(1) and 2 the words conciliation conference, where indicated.

Rule 14 is a drafting error as there is no order 24 rule 2A. Earlier drafts of the provision which contained rule 2A did not proceed.

Rule 15 provides a new order 24A - pre-hearing conferences. Rule 1 defines court as 'a family court' thereby including the Family Court of Australia and the Family Court of Western Australia.

Rule 2 provides that If at the conclusion of a conciliation conference, final resolution of all the issues has not been reached, a Registrar may conduct a pre-hearing conference immediately, or fix a date and time for a pre-hearing conference.

Rule 3 provides that unless a party is excused from attendance by the court or a Registrar, each party must attend the pre-hearing conference in person and may do so either with or without counsel or solicitor.

Rule 4 provides that at a pre-hearing conference a registrar may attempt to resolve the proceedings or any part of them by agreement, make any necessary order, and if all the issues are not resolved fix a date for hearing and give any appropriate directions to facilitate the hearing of the matter.

Rule 16 amends order 28 rule 7 by substituting the new penalty of $5000.00 for the sum of $500.00 for failure to obey a subpoena without reasonable excuse.

Rule 17 substitutes new sub rule 2 and 3 in order 30 rule 2. These provisions provide a timetable for the filing of affidavits for hearing unless a registrar otherwise directs. Under sub rule 2 the applicant must file and serve an each other party to the proceedings who has an address-for service, within 28 days after a hearing date is fixed an affidavit setting out the applicants evidence in chief and any affidavit evidence in chief of any witness, or If a witness refuses to make an affidavit a notice to that effect setting out the name of the witness.

Rule 3 provides that within a further 14 days or within any other period that the registrar directs each party except the applicant must file and serve an each other party including the applicant an answering affidavit setting out the parties evidence in chief and an affidavit of each other witness whom the party intends to call at the hearing setting out the witnesses evidence In chief or if the witness refuses to make an affidavit a notice to that effect setting out the name of the witness.

Rule 2AA provides that an affidavit is not admissible in evidence at the hearing of the proceedings unless it was filed as directed at a pre-hearing conference or was filed and served under rule 2 or the court orders otherwise. This is to ensure that parties comply with orders as to filing made by a court of Registrar.

Rule 2AB provides that oral evidence in chief is admissible at the hearing only the witnesses refuse to swear an affidavit and a notice to that effect was filed under rule 2 or the court gives leave.

Rule 18 provides that Division 2 of order 30A is omitted. (Exchange of reports of experts).

Rule 19 provides a formal mechanism for undertakings to the court in new order 31 rule 10. Rule 10 provides that an undertaking to the court must be in accordance with Form 41A must be signed by the person giving the undertaking, or. if the person is not available to sign it personally, by the person's legal representative unless the court allows otherwise.

Rule 11 provides that person's legal representative may give an undertaking on behalf of the person if that persons not available to give the undertaking personally and the person has authorised the legal representative to give an undertaking on his or her behalf.

Sub rule 11(2) provides that if a person who proposes to give an undertaking to the court is legally represented, the person's legal representative must before the undertaking is given explain to the person the nature and terms of the proposed undertaking and the possible consequences of breaching it and, unless the court otherwise orders certify, In writing to the court that he or she has complied with that provision.

Rule 20 amends order 36A rule 2 by the delegation of the power to conduct pre-hearing conferences under order 24A.

Rule 20.2 amends paragraph 2(2)(m) of order 36A rule 2 by omitting rule 2 from paragraph 2(2)(m). (Delegation to Registrars of power to vary affidavit requirments - power now given by new order 24A rule 15).

Rule 21 amends order 38 rule 4 by increasing the basic composite amount that may be charged for undefended dissolution proceedings by 2.92% being the increase set by the Federal Costs Advisory committee in its most recent determination (11.12.1992). This amendment also moves the actual statement of the amount from 038 R4 to the second schedule of the rules where the other costs are sat out. They were increased by a previous amendment.

Rule 22 provides a new Form 12A being an application for consent orders. The purpose of the new form and the requirements for filling In the form have already been dealt with in the overview and in draft rule 9.

Rule 23 provides a note to Form 39 Decree Nisi of Dissolution of Marriage by way of information noting that dissolution of marriage may revoke, or otherwise affect the operation of, the will of a party. Further, that parties should seek legal advice about their position under law of the State or Territory concerned.

Rule 24 provides a new Form 41A for undertaking to the court. The purpose of the provision and the requirements for filling out the undertaking have been sat out in draft rule 19.

Rule 25 amends schedule 2 Scale of Costs (Including counsel fear.) with addition of Part 3 Basic composite Amounts For Undefended Dissolution Proceedings which have previously been set out in order 38 rule 4, and Increase the amounts able to be charged by 2.92k as recommended in the Committee's report of 1.12.92.

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