Commonwealth Numbered Regulations

FAMILY LAW AMENDMENT RULES 1999 (NO. 3) 1999 NO. 279 - SCHEDULE 1

(rule 3)

[1] Order 36A, paragraph 2 (1A) (k)

omit

of the Act, to make an order in relation to enforcement proceedings instituted under Order 33;

insert

of the Act;

[2] Order 36A, paragraph 2 (1A) (o)

omit

subsection 114 (1)

insert

subsection 114 (3)

[3] Order 36A, after paragraph 3 (g)

insert

(h)

the power to make an order or grant an injunction under section 68B of the Act;

[4] Order 36A, paragraph 3 (n)

omit

[5] Order 38, after Division 1

insert

This Division applies to defended proceedings.

Immediately before the directions hearing in a proceeding, the legal practitioner for each party to the proceeding must give to the party a written memorandum stating:

(a)

the actual costs incurred by the party up to and including the directions hearing; and

(b)

the estimated future costs of the party up to and including the conciliation conference; and

(c)

the estimated future costs of the party up to and including the pre-hearing conference; and

(d)

the estimated future costs of the party up to the conclusion of the final hearing.

Immediately before the first conciliation conference in a proceeding, the legal practitioner for each party must give to the party a written memorandum stating:

(a)

the actual costs incurred by the party up to and including the conciliation conference; and

(b)

the estimated future costs of the party up to and including the pre-hearing conference; and

(c)

the estimated future costs of the party up to the conclusion of the final hearing.

Immediately before the pre-hearing conference in a proceeding, the legal practitioner for each party to the proceeding must give to the party a written memorandum stating:

(a)

the actual costs incurred by the party up to and including the pre-hearing conference; and

(b)

the estimated future costs of the party up to the conclusion of the final hearing.

Immediately before the commencement of the final hearing in a proceeding (except a proceeding for an interim or procedural order), the legal practitioner for each party to the proceeding must give to the party a written memorandum stating:

(a)

the actual costs incurred by the party up to and including the first day of the hearing (including any costs paid or payable to an expert); and

(b)

the costs payable for each day of the hearing; and

(c)

the estimated length of the hearing.

(1)

At the directions hearing, first conciliation conference, pre-hearing conference and final hearing in a proceeding, the legal practitioner for a party must give the Court or Registrar, and each other party to the proceeding, a copy of the memorandum of costs given to the party under this Division.

(2)

At the directions hearing, first conciliation conference, pre-hearing conference and final hearing in a proceeding, an unrepresented party or separate representative must give the Court or Registrar, and each other party to the proceeding, a statement of the actual costs incurred by the party or separate representative up to and including that stage of the proceeding and of the estimated future costs up to the conclusion of the final hearing.

(3)

The memorandum or statement of costs referred to in subrule (1) or (2) must be accompanied by a statement of the source of the funds for the costs paid or to be paid, unless, where the source is a third party, the Court or Registrar directs that the source not be disclosed to the other party to the proceeding.

(4)

The Court or Registrar must return the copy of the memorandum or statement of costs to the legal practitioner, the unrepresented party or the separate representative, after the directions hearing, conciliation conference, pre-hearing conference or final hearing.

[6] Order 40, rule 6

substitute

(1)

If a court is satisfied that a person has instituted frivolous or vexatious proceedings, the court may order that the person may not, without leave of the court, institute an action, appeal or other proceeding in the court of the kind or kinds specified in the order:

(a)

against a person named as a respondent in the frivolous or vexatious proceedings; or

(b)

in the same cause of action as the frivolous or vexatious proceedings.

(2)

An order under this rule may be made:

(a)

in the case of the Family Court of Australia — of the court's own motion or on the application on the Marshal; or

(b)

in the case of the Family Court of Western Australia — of the court's own motion or on the application of the Executive Officer; or

(c)

in any court having jurisdiction under the Act —on the application of a party.

(3)

An order may not be made in relation to a person unless the court has given the person a reasonable opportunity to be heard.

(4)

A court may discharge or vary an order made under this rule.

(5)

A court must not grant leave under this rule to institute an action, appeal or other proceeding unless the court is satisfied that:

(a)

the action, appeal or other proceeding is not an abuse of the process of the court; and

(b)

there is prima facie ground for the action, appeal or other proceeding.

(1)

If an order has been made under paragraph 118 (1) (c) of the Act or under subrule 6 (1), an application for leave to institute a proceeding must, in the first instance, unless the order otherwise provides, be made ex parte.

(2)

On the return day of an application, the Court may:

(a)

dismiss the application; or

(b)

make orders as the Court thinks fit for service of the application.

[7] Schedule 1, Forms 45B and 46, note 1

omit

$500.

insert

$5,000.

[8] Schedule 2

substitute