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FAMILY LAW AMENDMENT REGULATIONS 2001 (NO. 1) 2001 NO. 31 - SCHEDULE 1
Amendments
(regulation 3)
[1] Subregulation 3 (1), after definition of intervener
insert
"legal practitioner "means a person enrolled as a barrister, a
solicitor, a barrister and solicitor, or a legal practitioner, of the High
Court of Australia, or of the Supreme Court of a State or Territory.
[2] After regulation 12A
insert
12AB Appeal division prescribed
number of members (Act s 22 (2AC))
For subsection 22 (2AC) of the Act, the prescribed number of members is
9.
[3] After regulation 14
insert
14A Prescribed maximum
period sentence or order (Act s 70NK (5),
112AG (6))
For the definitions of maximum period in subsections 70NK - (5)
- and
112AG (6) of the Act, 200 hours is prescribed in relation to each
State and Territory.
[4] After regulation 15
insert
15A Leave to
appeal prescribed decrees (Act s 94AA)
- (1)
- For
subsection 94AA (1) of the Act, a decree of the kind mentioned in
subsection 94 (1) of the Act that is an interlocutory decree (other than
a decree in relation to a child welfare matter) is prescribed.
- (2)
- For
subsection 94AA (2A) of the Act, a decree of the kind mentioned in
subsection 94AAA (1) of the Act that is an interlocutory decree (other
than a decree in relation to a child welfare matter) is prescribed.
(3) In
this regulation:
"child welfare matter" means a matter relating to:
- (a)
- the person or persons with whom a child is to live; or
- (b)
- contact between a child and another person or persons; or
- (c)
- any other aspect of parental responsibility, within the meaning of Part
VII of the Act, for a child.
[5] Regulation 18A
omit
[6] Paragraph 65 (1) (a)
omit
approved
[7] Part 5, after Division 2
insert
Division 2A Arbitration
67A
Definitions for Division 2A
In this Division, unless the contrary intention appears:
"arbitration"
means arbitration under section 19D of the Act or private arbitration.
"arbitration agreement" means an agreement made under regulation 67F between
the parties to an arbitration.
67B Prescribed requirements for arbitrator (Act s 4 (1))
For the definition of arbitrator in subsection 4 (1) of the Act, a person
meets the requirements for an arbitrator if:
- (a)
- the person is a legal
practitioner; and
(b) either:
- (i)
- the person is accredited as a family law specialist by a
State or Territory legal professional body; or
- (ii)
- the person has practised as a legal practitioner for at least 5 years and
at least 25% of the work done by the person in that time was in relation to
family law matters; and
- (c)
- the person has completed specialist arbitration training conducted by a
tertiary institution or a professional association of arbitrators; and
- (d)
- the person's name is included in a list, kept by the Law Council of
Australia or by a body nominated by the Law Council of Australia, of legal
practitioners who are prepared to provide arbitration services under the Act.
67C Matters that may not be arbitrated
A Part VIII proceeding, a part of a Part VIII proceeding, or a matter arising
in a Part VIII proceeding, with respect to property to which an approved
maintenance agreement under section 87 of the Act applies, must not be
dealt with by arbitration under the Act.
67D Application for referral to
arbitration (Act s 19D)
An application for an order under section 19D of the Act in relation to a Part
VIII proceeding, a part of a Part VIII proceeding, or a matter arising in a
Part VIII proceeding, must be:
- (a)
- in accordance with Form 6; and
- (b)
- made jointly by all parties to the proceeding; and
- (c)
- accompanied by a financial statement in accordance with Form 17 of the
Family Law Rules 1984 .
67E Application relating to private arbitration (Act s 19E)
- (1)
- An
application, under subsection 19E (1) of the Act, for an order to
facilitate the effective conduct of the private arbitration of a dispute must
be in accordance with Form 7.
- (2)
- For the avoidance of doubt, an
application may be made:
- (a)
- by a party to the arbitration; or
- (b)
- jointly by all parties to the arbitration.
67F Arbitration agreement
- (1)
- The parties to an arbitration may make an
agreement in relation to the arbitration (an arbitration agreement ).
- (2)
- An arbitration agreement must:
- (a)
- be in writing; and
- (b)
- set out the information mentioned in subregulation (3) in relation to the
arbitration; and
- (c)
- give details of the arrangements agreed by the parties in relation to the
payment of the costs of the arbitration; and
- (d)
- include a statement to the effect that each party agrees to pay his or her
agreed share of the costs of the arbitration within 28 days, or another
specified period agreed by the parties and the arbitrator, after an award has
been made; and
- (e)
- be signed by each party to the arbitration.
- (3)
- For paragraph (2) (b) the information is as follows:
- (a)
- the name,
address and contact details of each party to the arbitration;
- (b)
- the name of the arbitrator;
- (c)
- the date, time and place at which the arbitration is to be conducted;
- (d)
- the issues to be dealt with in the arbitration;
- (e)
- the estimated time needed for the arbitration;
- (f)
- information about how the arbitration will be conducted (for example,
information about the exchange of documents and witness statements, scheduling
and receiving expert evidence);
- (g)
- the circumstances in which the arbitration may be suspended or terminated;
- (h)
- the estimated costs of the arbitration, including the costs of any
disbursements that may be incurred in respect of the arbitration (for example,
hire of a venue for the arbitration).
67G Notice of arbitration
- (1)
- This regulation does not apply if the parties
to an arbitration have made an arbitration agreement in relation to the
arbitration.
- (2)
- Before conducting an arbitration, the arbitrator must give
to each party to the arbitration a written notice setting out:
- (a)
- the
information mentioned in subregulation 67F (3) in relation to the
arbitration; and
- (b)
- in relation to the costs of the arbitration, information explaining the
effect of regulation 67H.
- (3)
- The notice must also state that any party to the arbitration may attend,
and be heard at, the arbitration.
- (4)
- The notice must be given at least 28 days before the arbitration is
conducted, unless the parties have agreed on another period of notice.
67H
Costs of arbitration
- (1)
- The costs of an arbitration are to be shared
equally between the parties to the arbitration unless the parties agree, in
writing, otherwise.
- (2)
- If the parties have not made an arbitration
agreement, each party must inform the arbitrator, in writing, before the
arbitration starts, that he or she agrees to pay his or her equal or agreed
share of the costs of the arbitration, within 28 days, or another period
agreed by the parties and the arbitrator, after an award has been made.
(3)
If the parties have not made an arbitration agreement, and do not comply with
subregulation (2), the arbitrator must:
- (a)
- proceed no further with the
arbitration; and
- (b)
- for an arbitration under section 19D of the Act, refer the matter to
the court that ordered the arbitration.
67I Duties of arbitrator
- (1)
- In an arbitration, an arbitrator must determine
the issues in dispute between the parties to the arbitration in accordance
with the Act.
- (2)
- An arbitrator must conduct an arbitration with procedural
fairness (for example, giving each party to the arbitration a reasonable
opportunity to be heard and to respond to anything raised by another party).
- (3)
- An arbitrator must inform each party, in writing, if during the
arbitration, the arbitrator becomes aware of anything that could lead to
direct or indirect bias in favour of or against any party.
67J Oath or
affirmation by arbitrator
For section 19L of the Act, an oath or affirmation made by an arbitrator must
be in the following form:
I [ name of arbitrator ] do swear by Almighty God [ or solemnly and sincerely
affirm and declare] that I will not disclose to any person any communication
or admission made to me in my capacity as arbitrator, unless I reasonably
believe that it is necessary for me to do so:
- (a)
- to protect a child; or
(b) to prevent or lessen a serious and imminent threat to:
- (i)
- the life or
health of a person; or
- (ii)
- the property of a person; or
(c) to report the commission, or prevent the likely commission, of an offence
involving:
- (i)
- violence or a threat of violence to a person; or
- (ii)
- intentional damage to property of a person or a threat of damage to
property; or
- (d)
- to enable me to discharge properly my functions as an arbitrator; or
- (e)
- if a child is separately represented by a person under an order under
section 68L of the Act to assist the person to represent the child
properly.
67K Suspension of arbitration failure to comply with direction
If a party to an arbitration does not comply with a procedural direction given
by the arbitrator, the arbitrator:
- (a)
- may suspend the arbitration; and
- (b)
- if the failure to comply exceeds 28 days, must, for an arbitration under
section 19D of the Act, refer the matter to the court that ordered the
arbitration.
67L Termination of arbitration lack of capacity
- (1)
- If an
arbitrator considers that a party to an arbitration does not have the capacity
to take part in the arbitration, the arbitrator must:
- (a)
- terminate the
arbitration; and
- (b)
- for an arbitration under section 19D of the Act, refer the matter to the
court that ordered the arbitration.
(2) For subregulation (1), a person who is a party to an arbitration does not
have the capacity to take part in the arbitration if:
- (a)
- the person does
not understand the nature and possible consequences of the arbitration; or
(b) the person is not capable of:
- (i)
- giving adequate instruction to his or
her representative for the conduct of the arbitration; or
- (ii)
- satisfactorily appearing in person in the arbitration.
67M Appearance in arbitration
In an arbitration, a party may appear in person, or be represented by a legal
practitioner.
67N Attendance of persons to give evidence
- (1)
- An arbitrator
conducting an arbitration may require a person (whether a party to the
arbitration or not):
- (a)
- to attend the arbitration to give evidence; or
- (b)
- to produce documents; or
- (c)
- to attend the arbitration to give evidence and produce documents.
- (2)
- A party to an arbitration may apply to the court for the issue of a
subpoena requiring a person (whether a party to the arbitration or not):
- (a)
- to attend the arbitration to give evidence; or
- (b)
- to produce documents; or
- (c)
- to attend the arbitration to give evidence and produce documents.
- (3)
- An application under subregulation (2) must be made in accordance with
Form 3 of the Family Law Rules 1984 .
Note
If a person does not comply with
a requirement under subregulation (1), or a subpoena issued under
subregulation (2), in relation to an arbitration, a court may make such orders
as it considers appropriate to facilitate the effective conduct of the
arbitration see subsection 19D (3) of the Act in relation to
arbitration under section 19D of the Act, and subsection 19E (1) of the
Act in relation to private arbitration.
67O Application of rules of evidence
- (1)
- Subregulation (2) applies to an arbitration if all parties to the
arbitration consent to its application.
- (2)
- In conducting an arbitration,
an arbitrator is not bound by the rules of evidence but may inform himself or
herself on any matter in any way that he or she considers appropriate.
67P
Making an award
- (1)
- At the end of an arbitration, the arbitrator must make
an award.
- (2)
- The award must include a concise statement setting out:
- (a)
- the arbitrator's reasons for making the award; and
- (b)
- the arbitrator's findings of fact in the matter, referring to the evidence
on which the findings are based.
- (3)
- The award must:
- (a)
- be mechanically or electronically printed; and
- (b)
- be contained in a single document.
- (4)
- The arbitrator must:
- (a)
- give a copy of the award to each party to the
award; and
- (b)
- if the award was made in an arbitration under section 19D of the
Act inform the court that ordered the arbitration that:
- (i)
- the arbitration has ended; and
- (ii)
- an award has been made in relation to all, or part, of the proceeding to
which the arbitration relates.
67Q Registration of award (Act s 19D, s 19E)
- (1)
- For subsections
19D (5) and 19E (2) of the Act, an application to register an award
made in an arbitration must be in accordance with Form 8.
- (2)
- The applicant
must serve a copy of the application on each other party to the award.
- (3)
- A party on whom an application is served may, within 28 days after
service, bring to the attention of the court any reason why the award should
not be registered.
Note
An example of a way of bringing a matter to the
attention of the court is by filing an affidavit.
- (4)
- If nothing is brought
to the court's attention under subregulation (3), the court must register
the award.
- (5)
- If a party brings a matter to the court's attention under
subregulation (3), the court must, after giving all parties a reasonable
opportunity to be heard in relation to the matter, determine whether to
register the award.
Note
For the effect of registration, see subsections
19D (5) and 19E (2) of the Act.
67R Notice of registration of award
- (1)
- If a court registers an award, the court must give notice of the
registration to each party to the award.
- (2)
- The notice must state:
- (a)
- the date when the award was registered; and
- (b)
- the place where the award was registered.
67S Enforcement of registered awards
A party to a registered award may apply for enforcement of the award as if the
award were an order made under Part VIII of the Act.
67T Registration of
decree affecting registered award
- (1)
- If a decree is made by a court under
section 19F, 19FA, 19G or 19GA of the Act in relation to a registered
award, the party who registered the award must apply for registration of the
decree in the court in which the award is registered.
- (2)
- The application
must be in accordance with Form 9.
[8]
Subparagraph 68 (1) (a) (iii)
omit
approved
[9] Part 5,
Division 3, Subdivision 4, heading
substitute
Subdivision 4
Advertising: arbitrators
[10] Regulation 73, heading
substitute
73
Content of advertising arbitrator
[11] Subregulations 73 (1)
and (2)
omit
approved
[12] Schedule 1, after Form 5
insert
Form 6
Application for arbitration
(regulation 67D)
[name of court]
Application
for arbitration
Form 6 Family Law Regulation 67D
| Fill in box A
(file numbers)
|
| A File Number
|
|
| B Filed at
|
|
| C Hearing date Hearing
time
| AM PM
|
Application
|
The parties seek an order referring the matter,
details of which are given below, to arbitration
|
Notice
|
Take notice that:
< this application is set down for hearing before the Court sitting at the
time and place in box C above < if you do not appear at the hearing,
the Court may hear and decide the matter in your absence
|
Details of parties
|
|
|
|
|
|
|
|
1 Names of parties making this application
|
| family name (surname)
|
| given
names
|
|
|
|
|
|
give details for each
|
| family name (surname)
|
| given names
|
|
|
|
|
|
|
| family name (surname)
|
| given names
|
|
|
|
|
|
attach extra page if you need
more space
|
| family name (surname)
|
| given names
|
|
|
|
2 Postal address for
|
|
service of documents on each applicant
|
|
|
Applicant 1
| send
to solicitor/s in 3 c other c give details:
|
|
|
postcode
tel ( ) fax ( )
|
Applicant 2
| send
to solicitor/s in 3 c other c give details:
|
Attach separate sheet for any others
|
|
postcode
tel ( ) fax ( )
|
|
|
3 Solicitor for each applicant
|
|
Applicant 1
- name
- firm name
- address
- phone/fax/DX Applicant 2
- name
- firm name
- address
- phone/fax/DX Attach separate sheet for any others
|
|
code
postcode
tel ( ) fax ( ) DX and suburb/town
code
postcode
tel ( ) fax ( ) DX and suburb/town
|
Details of issue(s) to be arbitrated
|
4
|
|
Details of arbitrator
|
|
5 If the
parties have agreed on an arbitrator, give brief details of the proposed
arbitrator, including name and address
|
|
Signature
|
|
Signed
|
| Date
|
|
|
|
applicant(s) c solicitor for applicant(s) c
|
This
application was prepared by applicant c solicitor c
counsel c
|
( print name if solicitor/counsel)
|
|
Form 7 Application relating
to private arbitration
(regulation 67E)
[name of court]
Application
relating to private arbitration
Form 7 Family Law Regulation 67E
|
Fill in box A (file numbers)
|
| A File Number
|
|
| B Filed at
|
|
| C Hearing
date Hearing time
| AM PM
|
Application
|
The parties seek an order,
details of which are given below, in relation to the private arbitration of a
dispute
|
Notice
|
Take notice that: < this application is set down for
hearing before the Court sitting at the time and place in box C above
< if you do not appear at the hearing, the Court may hear and decide the
matter in your absence
|
Details of parties
|
|
|
|
|
|
|
|
1 Names of parties
making this application
|
| family name (surname)
|
| given names
|
|
|
|
|
|
give
details for each
|
| family name (surname)
|
| given names
|
|
|
|
|
|
attach extra
page if you need more space
|
| family name (surname)
|
| given names
|
|
|
|
2
Postal address for
|
|
service of documents on each applicant
|
|
|
Applicant 1
| send
to solicitor/s in 3 c other c give details:
|
|
|
postcode
tel ( ) fax ( )
|
Applicant 2
| send
to solicitor/s in 3 c other c give details:
|
Attach separate sheet for any others
|
|
postcode
tel ( ) fax ( )
|
|
|
3 Solicitor for each applicant
|
|
Applicant 1
- name
- firm name
- address
- phone/fax/DX Applicant 2
- name
- firm name
- address
- phone/fax/DX Attach separate sheet for any others
|
|
code
postcode
tel ( ) fax ( ) DX and suburb/town
code
postcode
tel ( ) fax ( ) DX and suburb/town
|
Details of order sought
|
4
|
|
Details of arbitration
|
|
5 Give brief details
of the arbitration or proposed arbitration, including the name and address of
the arbitrator (if already appointed), whether any arbitration proceedings
have already taken place (and, if so, when and where)
| Attach copy of any
award made
|
Signature
|
|
Signed
|
| Date
|
|
|
|
applicant(s) c solicitor for
applicant(s) c
|
This
application was prepared by applicant c solicitor c
counsel c
|
( print name if solicitor/counsel)
|
|
Form 8 Application to
register arbitration award
(regulation 67Q)
[name of court]
Application
to register arbitration award
Form 8 Family Law Regulation 67Q
| Fill
in box A (file numbers)
|
| A File Number
|
|
| B Filed at
|
|
| Hearing date (if
hearing needed) Hearing time
| AM PM
|
Notice
|
Take notice that: < the
applicant seeks registration of the award described below < within 28 days
of service of this application, another party to the award may bring to the
court's attention any reason why the award should not be registered < if
nothing is brought to the court's attention, the court must register the award
|
Application
|
The applicant seeks registration of the award described below
|
Details of parties
|
|
|
|
|
|
|
|
1 Name(s) of applicant(s) making this application
|
| family name (surname)
|
| given names
|
|
|
|
|
|
give details for each
|
| family
name (surname)
|
| given names
|
|
|
|
|
|
attach extra page if you need more
space
|
| family name (surname)
|
| given names
|
|
|
|
|
|
2 Name(s) of
respondent(s)
|
| family name (surname)
|
| given names
|
|
|
|
|
|
(other parties
to the award, if any)
|
| family name (surname)
|
| given names
|
|
|
|
|
|
give
details for each
|
| family name (surname)
|
| given names
|
|
|
|
3 Postal
address for
| send
to solicitor in 4 c other c give details:
|
service of documents on applicants
|
|
postcode
tel ( ) fax ( )
|
|
|
4 Solicitor for applicant(s)
|
|
- name
- firm name
- address
- phone/fax/DX
|
|
code
postcode
tel ( ) fax ( ) DX and suburb/town
|
|
|
Details of award
|
|
5 Give brief details of the award, including date made and
name and address of arbitrator
| Attach a copy of the award
|
Signature
|
|
Signed
|
| Date
|
|
|
|
applicant(s) c solicitor for applicant(s) c
|
This
application was prepared by applicant c solicitor c
counsel c
|
( print name if solicitor/counsel)
|
|
Form 9 Application to
register decree affecting registered arbitration award
(regulation 67T)
[name of court] Application to register decree affecting registered
arbitration award Form 9 Family Law Regulation 67T
| Fill in box A
(file numbers)
|
| A File Number
|
|
| B Filed at
|
|
Application
|
The applicant
seeks registration of the decree described below
|
Details of parties
|
|
|
|
|
|
|
|
1 Name(s) of applicant(s) making this application)
|
| family name (surname)
|
| given names
|
|
|
|
|
|
give details for each
|
| family name (surname)
|
| given
names
|
|
|
|
|
|
attach extra page if you need more space
|
| family name
(surname)
|
| given names
|
|
|
|
|
|
2 Name(s) of respondent(s)
|
| family name
(surname)
|
| given names
|
|
|
|
|
|
(other parties to the award, if any)
|
|
family name (surname)
|
| given names
|
|
|
|
|
|
give details for each
|
| family
name (surname)
|
| given names
|
3 Postal address for
| send
to solicitor in 4 c other c give details:
|
service of documents on applicants
|
|
postcode
tel ( ) fax ( )
|
|
|
4 Solicitor for applicant(s)
|
|
- name
- firm name
- address
- phone/fax/DX
|
|
code
postcode
tel ( ) fax ( ) DX and suburb/town
|
|
|
Details of decree
|
|
5 Give brief details of the decree and the award affected
by the decree, including date the decree made and name and address of
arbitrator who made the award
| Attach a copy of the decree
|
Signature
|
|
Signed
|
| Date
|
|
|
|
applicant(s) c solicitor for applicant(s) c
|
This
application was prepared by applicant c solicitor c
counsel c
|
( print name if solicitor/counsel)
|
|
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