Commonwealth Numbered Regulations Commonwealth Numbered Regulations[1] Rule 5.09, heading
substitute
[2] Rule 5.09, notes 2 and 3
substitute
Note 2 Rule 15.21 provides that a party must not, without the court's permission, request the issue of more than 3 subpoenas for the hearing of an Application in a Case (Form 2). However, a child representative may request the issue of more than 3 subpoenas (see subrule 15.21 (2)).
[3] Before rule 6.08
insert in Part 6 . 3
6.08A Interpretation
In this Part:
"a manager of the affairs of a party" includes a person who has been appointed, in respect of the party, a trustee or guardian under a Commonwealth, State or Territory law .
[4] Rule 6.10
omit
A person may apply
insert
(1) A person may apply
[5] Rule 6.10, after note 2
insert
(2) A person who is a manager of the affairs of a party is taken to be appointed as the case guardian of the party if the person has filed:
(a) a notice of address for service; and
(b) an affidavit which:
(i) provides evidence that the person has been appointed manager of the affairs of the party; and
(ii) states that the person consents to being appointed as the case guardian of the party.
[6] Rule 6.11
substitute
6.11 Attorney‑General may nominate case guardian
(1) If in the opinion of the court a suitable person is not available for appointment as a case guardian of a person with a disability, the court may request that the Attorney‑General nominate, in writing, a person to be a case guardian.
(2) A person nominated by the Attorney‑General to be a case guardian of a person with a disability is taken to be appointed as such if the person files:
(a) a consent to act in relation to the person with a disability;
(b) a copy of the written nomination of the person as a case guardian; and
(c) a Notice of Address for Service (Form 8).
Note A consent to act must comply with subrule 24.01 (1).
[7] Rule 6.16, note
omit
Bankruptcy Act:
insert
Act:
[8] Chapter 7, summary
substitute
Summary of Chapter 7
Chapter 7 sets out the rules for serving documents and proving service. The rules in this chapter apply only to the service of documents in Australia and non‑convention countries. The Regulations deal with service in countries that are party to certain conventions. If there is an inconsistency between the Regulations and these Rules, the Regulations prevail (see subsection 125 (3) of the Act).
When a court determines a case, the judicial officer must be satisfied that all the documents filed that are to be relied on in the case have been served or otherwise brought to the attention of the other parties to the case.
The rules in Chapter 1 relating to the court's general powers apply in all cases and override all other provisions in these Rules.
A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.
[9] Before rule 7.01
insert in Part 7 . 1
7.01A Application
This Chapter does not apply to service of a document in a foreign country that is a party to a convention to which Australia is also a party regarding legal proceedings in civil and commercial matters.
Note Regulation 12 of the Regulations deals with service of documents in convention countries.
[10] Subrules 7.07 (1) and (2)
substitute
(1) A document may be served on a person in Australia by sending a copy of it to the person's last known address by post.
(2) A document may be served on a person in Australia by sending it to the person by electronic communication.
[11] Paragraphs 7.17 (c) to (f)
substitute
(c) if served by delivery to a document exchange -- on the next working day after the day when it was delivered; or
(d) on a date fixed by the court.
[12] Rule 7.19
substitute
7.19 Service in non‑convention country
(1) A person may serve a document on a person in a non‑convention country:
(a) in accordance with the law of the non‑convention country; or
(b) if the non‑convention country permits service of judicial documents through the diplomatic channel -- through the diplomatic channel.
(2) A person seeking to serve a document in a non‑convention country through the diplomatic channel must:
(a) request the Registry Manager, in writing, to arrange service of the document under this Part; and
(b) lodge 2 copies of each document to be served, translated, if necessary, into an official language of that country.
(3) If the Registry Manager receives a request under subrule (2), the Registry Manager must:
(a) seal the documents to be served; and
(b) send to the Secretary of the Department of Foreign Affairs and Trade:
(i) the sealed documents; and
(ii) a written request that the documents be sent to the government of the non‑convention country for service.
[13] Rule 9.04, heading
substitute
9.04 Applicant reply to Form 1A (Form 1B)
[14] After rule 9.04
9.04A Additional party reply to Form 1A (Form 1B)
(1) This rule applies if, in a Response to an Application for Final Orders (Form 1A), a respondent seeks orders against a person other than the applicant ( an additional party ).
(2) An additional party who seeks to oppose the orders sought in the Form 1A, or who seeks different orders, must file a Reply (Form 1B).
[15] Subrule 11.08 (2), note
omit
[16] Subrule 11.08 (3), note
omit
[17] Chapter 12, summary
substitute
Summary of Chapter 12
Chapter 12 sets out rules about the events that parties to an Application for Final Orders (Form 1) may be required to attend during the course of the case. These include a case assessment conference, a procedural hearing, counselling and mediation, a conciliation conference, a pre‑trial conference and a trial. Chapter 16A sets out rules which apply to certain trials to which Division 12A of Part VII of the Act applies.
The rules in Chapter 1 relating to the court's general powers apply in all cases and override all other provisions in these Rules.
A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.
[18] Before rule 12.07
insert in Part 12 . 3
12.07A Application
This Part does not apply to a case to which Chapter 16A applies.
[19] Chapter 15, summary
substitute
Summary of Chapter 15
Chapter 15 sets out rules about evidence generally and in relation to children, affidavits, subpoenas, assessors and expert witnesses. Evidence adduced at a hearing or trial must be admissible in accordance with the provisions of the Act, the Evidence Act 1995 and these Rules. Note, though, that, subject to sections 4 and 5 of the Evidence Act 1995 , that Act does not apply to the Family Court of Western Australia or any other court of a State.
A person may be prosecuted for knowingly making a false statement in evidence (see section 35 of the Crimes Act 1914 ).
Sections 69ZT to 69ZX of the Act apply to a case to which Division 12A of Part VII of the Act applies.
The rules in Chapter 1 relating to the court's general powers apply in all cases and override all other provisions in these Rules.
A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.
[20] Rule 15.12
substitute
(1) A document to be used in conjunction with an affidavit must:
(a) subject to subrules (2) and (5), be attached to the affidavit;
(b) have its pages consecutively numbered beginning on the first page of the document with:
(i) if the document is the first or only document used in conjunction with the affidavit -- the numeral '1'; or
(ii) if the document is not the first document used in conjunction with the affidavit -- the numeral following the numeral appearing on the last page of the preceding document; and
(c) bear a statement, signed by the witness before whom the affidavit is made, identifying it as the document used in conjunction with the affidavit.
(2) A document to be used in conjunction with an affidavit must not be attached to the affidavit if:
(a) the document is more than 2.5 cm in thickness; or
(b) if the document is not more than 2.5 cm in thickness -- the document and the affidavit, including any other documents to be used in conjunction with the affidavit, when combined are more than 2.5 cm in thickness.
(3) If a document to be used in conjunction with an affidavit must not be attached to the affidavit because of subrule (2), the document must be filed:
(a) if the document is not more than 2.5 cm in thickness -- in a separate volume; or
(b) if the document is more than 2.5 cm in thickness -- in as many separately indexed volumes, each not more than 2.5cm in thickness, as are required to contain the document.
(4) An index of contents must be included at the beginning of:
(a) if more than 1 document is attached to an affidavit in accordance with paragraph (1) (a) -- the documents attached to the affidavit; or
(b) if more than 1 volume is filed in accordance with paragraph (3) (b) -- each volume.
(5) If a document to be used in conjunction with an affidavit is unable to be attached to the affidavit, the document must be identified in the affidavit and filed.
(6) Paragraph (1) (c) does not apply to an attachment to an Affidavit of Service (Form 7).
[21] Rule 15.13, notes 1 and 2
omit
[22] Subrule 15.29 (2), note
omit
[23] Rule 15.74, notes 1 and 2
omit
[24] Chapter 16, summary
substitute
Summary of Chapter 16
Chapter 16 sets out how to prepare for and conduct a trial other than a trial to which Chapter 16A applies.
The rules in Chapter 1 relating to the court's general powers apply in all cases and override all other provisions in these Rules.
A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.
[25] Paragraph 16.08 (3) (g)
omit
objection.
insert
objection;
[26] After paragraph 16.08 (3) (g)
insert
(h) if the application relates to evidence to be adduced from a witness in a foreign country -- the matters required to be addressed under rule 16.09;
(i) if the application relates to making a submission, giving evidence or adducing evidence from New Zealand -- the facilities that enable evidence to be given or a submission to be made, as required by Part 4 of the Evidence and Procedure (New Zealand) Act 1994 .
Note Part 4 of the Evidence and Procedure (New Zealand) Act 1994 (the EP Act ) applies to proceedings in a federal court, or a court specified in regulations made under the EP Act, in which a direction is made for the use of video link or telephone to take evidence or make a submission from New Zealand.
Subsection 25 (2) of the EP Act sets out the matters of which a court must be satisfied before it may make a direction under subsection 25 (1) of that Act. The EP Act also provides that evidence is not to be given, or a submission made, from New Zealand unless the place where the court is sitting and the place where the evidence is to be given or a submission made are equipped with facilities enabling the persons at each place to see and hear each other in the case of video link (see section 26), or to hear each other in the case of a telephone conference (see section 27).
[27] After subrule 16.08 (5)
insert
(6) For paragraph 16.08 (3) (h):
"foreign country" has the meaning given by subrule 16.09 (2).
[28] Subrule 16.09 (1)
omit
telephone or video conference or other
[29] Subrule 16.09 (2), note 1
omit
video link.
insert
electronic communication.
[30] After Chapter 16
insert
Chapter 16A Division 12A of Part VII of the Act
Chapter 16A sets out the requirements for consent to the application of Division 12A of Part VII of the Act to a case and the additional procedures for certain trials to which Division 12A of Part VII of the Act applies.
Division 12A of Part VII of the Act applies to proceedings:
* that come wholly or partly under Part VII of the Act, or any other proceedings which involve the court's jurisdiction under the Act if the parties in those proceedings consent to Division 12A applying to those proceedings; and
* that were commenced by application:
(a) on or after 1 July 2006; or
(b) before 1 July 2006 if the parties to the proceedings consent, and the court grants permission (the court's permission may be sought in accordance with rule 12.04 of these Rules).
The rules in Chapter 1 relating to the court's general powers apply in all cases and override all other provisions in these Rules.
If a rule in another Chapter (other than Chapter 1) conflicts with a rule in this Chapter, the rule in this Chapter applies.
A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.
Part 16A.1 Consent for Division 12A of Part VII of the Act to apply to a case
16A.01 Definition
In this Part:
"the prescribed form" means a form authorised by the Principal Registrar for the purposes of a party in a case giving consent to the application of Division 12A of Part VII of the Act to the case.
16A.02 Application of Part 16A.1
This Part applies if the consent of the parties to a case is necessary before Division 12A of Part VII of the Act can apply to the case.
16A.03 Consent for Division 12A of Part VII of the Act to apply
If a party to a case seeks to consent to the application of Division 12A of Part VII of the Act to the case, or part of the case, the party must:
(a) give consent in accordance with the prescribed form; and
(b) file a copy of the form.
16A.04 Application for Division 12A of Part VII of the Act to apply for case commenced by application before 1 July 2006
For the purposes of seeking the leave of the court for Division 12A of Part VII of the Act to apply to a case commenced by an application filed before 1 July 2006, an application for permission may be made to the court at a procedural hearing in accordance with rule 12.04.
Part 16A.2 Trials of certain cases to which Division 12A of Part VII of the Act applies
16A.05 Definitions
In this Part:
trial Judge means the Judge to whom a trial, in a case to which Division 12A of Part VII of the Act applies, is allocated.
trial Judicial Registrar means the Judicial Registrar to whom a trial, in a case to which Division 12A of Part VII of the Act applies, is allocated.
16A.06 Application
(1) Subject to subrules (2) and (3), this Part applies to the trial of a case:
(a) that is pending in the Family Court; and
(b) to which Division 12A of Part VII of the Act applies.
(2) This Part does not apply to the trial of a case which involves 1 or more of the following applications only:
(a) a Medical Procedure Application referred to in Division 4.2.3 of these Rules;
(b) a Maintenance Application referred to in Division 4.2.4 of these Rules;
(c) a child support application referred to in Division 4.2.5 of these Rules;
(d) an application relating to a passport referred to in Division 4.2.7 of these Rules.
(3) This Part does not apply to the trial of a case conducted under the Children's Cases Program described in the following Practice Directions:
(a) No. 2 of 2005;
(b) No. 3 of 2005.
(4) To the extent to which a rule in this Part applies to the trial of a case mentioned in subrule (1), and does not conflict with a rule in Chapter 1, the rule in this Part applies to the case and overrides all other provisions in these Rules.
16A.07 Questionnaire
(1) In a case to which this Part applies, each party to the case must file a completed questionnaire.
(2) A questionnaire mentioned in subrule (1) must be:
(a) in the form approved by the Principal Registrar; and
(b) filed 28 days before the commencement of the trial of the case.
16A.08 Subpoenas etc
(1) This rule applies in a case that has had a trial date fixed.
(2) A party in a case must not do any of the following unless the court has granted permission to the party to do so:
(a) issue a subpoena in the case;
(b) file or serve an application or affidavit in the case.
(3) A request for the court's permission mentioned in subrule (2):
(a) must be made:
(i) to the trial Judge or trial Judicial Registrar in the case if the trial Judge or trial Judicial Registrar is available; or
(ii) if the trial Judge or trial Judicial Registrar in the case is not available -- to any other judicial officer;
(b) may be made orally or in writing;
(c) may be made without giving notice to any other parties in the case; and
(d) may be determined in chambers in the absence of the other parties to the case.
16A.09 Commencement of trial
A trial is taken to have commenced when it first comes before the trial Judge or trial Judicial Registrar for that trial.
16A.10 Parties to be sworn etc
(1) On the first day of a trial, all parties, and any mediator, must be administered an oath or affirmation.
(2) A person is bound by the oath or affirmation administered under subrule (1) until the conclusion of the trial.
[31] Rule 17.03
omit
10.25%
insert
10.75%
[32] Chapter 18, summary
substitute
Summary of Chapter 18
Chapter 18 sets out:
* the powers of the court that are delegated to Judicial Registrars, Registrars and Deputy Registrars of the Family Court of Australia; and
* the process for reviewing an order made by a Judicial Registrar or Registrar.
Note A power or function expressed by these Rules to be conferred on a Registrar may also be exercised in the Family Court by a Judge or a Judicial Registrar.
The rules in Chapter 1 relating to the court's general powers apply in all cases and override all other provisions in these Rules.
A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.
[33] Before rule 18.01
insert in Division 18 . 1 . 1
18.01A Definitions
In this Chapter:
"Deputy Registrar" means a Deputy Registrar of the Family Court of Australia.
"Registrar" means a Registrar of the Family Court of Australia.
[34] Subrule 19.18 (3)
omit
However, if there is a valid costs agreement
insert
However, for lawyer and client costs only, if there is a valid costs agreement
[35] Paragraph 20.23 (1) (a)
omit
mortgagor
insert
mortgagee
[36] Rule 21.01, note 2
substitute
Note 2 If a maintenance order is complied with before an Application for Contempt (Form 19) is heard by the court, the failure to comply with the order that led to the Form 19 being filed does not constitute a contempt of court (see subsection 112AP (1A) of the Act).
[37] Rule 21.02, table 21.1, items 2 and 3
substitute
|
2 |
Contravention of an order (of a kind included in the definition of an order under this Act affecting children under section 70NB of the Act) under Division 13A of Part VII of the Act affecting children, for example, a breach of a contact order |
Application -- Contravention (Form 18) |
|
3 |
Contravention of an order (of a kind included in the definition of an order under this Act under section 112AA of the Act) under Part XIIIA of the Act not affecting children, for example, a breach of a property order |
Application -- Contravention (Form 18) |
[38] Rule 22.03
substitute
(1) Subject to subrule (2), a Form 20 must be filed within 28 days after the date the order appealed from was made.
Note 1 Rule 17.01 sets out when an order is made.
Note 2 A person may apply for an extension of time to appeal (see paragraphs 94 (2D) (a) and 94AAA (10) (a) of the Act, paragraphs 102 (8) (a) and 102A (9) (b) of the Assessment Act, paragraphs 107 (7) (a) and 107A (9) (b) of the Registration Act and Division 22.7.1 of these Rules).
(2) An appeal may only be lodged against an order made in, or arising out of, a trial to which Chapter 16A applies if the appeal is lodged within 28 days after the last order, other than a costs order, is made in the trial.
[39] Schedule 3
substitute
Schedule 3 Itemised scale of costs
(rule 19.18)
Note The amounts in this Schedule include GST.
Part 1 Fees for lawyer's work done
|
Item |
Matter for which charge is made |
Charge |
|
101 |
Drafting documents (other than letters) |
$16.50 per 100 words |
|
102 |
Producing documents in printed form (other than letters) |
$5.65 per 100 words |
|
103 |
Drafting and producing letters (including fax or e‑mail transmissions) |
$18.90 per 100 words |
|
104 |
Reading documents |
$7.70 per 100 words |
|
105 |
Scanning of documents (where reading is not necessary) |
$3.05 per 100 words |
|
106 |
For a document or letter mentioned in item 101, 102, 103, 104 or 105 containing more than 3 000 words |
The amount allowed by the Registrar |
|
107 |
Photocopy or other reproduction of a document |
50 cents per page |
|
108 |
Time reasonably spent by a lawyer on work requiring the skill of a lawyer (except work to which any other item in this Part applies) |
$192.90 per hour |
|
109 |
Time reasonably spent by a lawyer, or by a clerk of a lawyer, on work (except work to which any other item in this Part applies) |
$125.10 per hour |
Part 2 Fees for counsel's work done
|
Item |
Matter for which charge is made |
Charge Senior counsel |
Charge Junior counsel |
|
201 |
Chamber work (including preparing or settling any necessary document, opinion, advice or evidence, and any reading fee (if allowed)) |
$371--$636 per hour |
$221.55--$315.90 per hour |
|
202 |
Conferences (including court appointed conferences), if necessary |
$371--$636 per hour |
$221.55--$315.90 per hour |
|
203 |
Short attendances (for example, procedural hearings, summary hearings taking less than 3 hours) |
$371--$2 650 |
$198.20--$928.55 |
|
204 |
A hearing or trial taking at least 3 hours but not more than 1 day |
$689--$5 300 |
$677.35--$1 565.60 |
|
205 |
Other hearings or trials |
$1 749--$5 300 per day |
$1 565.60 -- $2 301.25 per day |
|
206 |
Reserved judgment |
$371--$636 per hour |
$221.55--$315.90 per hour |
Part 3 Basic composite amount for undefended divorce
|
Item |
Matter for which charge is made |
Charge |
|
301 |
If the lawyer employed another lawyer to attend at court for the applicant and there is a child of the marriage under 18 years old |
$840.60 |
|
302 |
If the lawyer employed another lawyer to attend at court for the applicant and there is no child of the marriage under 18 years old |
$625.40 |
|
303 |
If the lawyer did not employ another lawyer to attend at court for the applicant and there is a child of the marriage under 18 years old |
$788.65 |
|
304 |
If the lawyer did not employ another lawyer to attend at court for the applicant and there is no child of the marriage under 18 years old |
$590.40 |
|
305 |
If the lawyer did not attend at court for the hearing under section 98A of the Act |
$507.75 |
Part 4 Basic composite amount for application for Enforcement Warrant or Third Party Debt Notice
|
Item |
Matter for which charge is made |
Charge |
|
401 |
An Enforcement Warrant under rule 20.16 |
$507.75 |
|
402 |
A Third Party Debt Notice under rule 20.32 |
$507.75 |