Commonwealth Numbered Regulations

FAMILY LAW AMENDMENT RULES 2006 (NO. 1) (SLI NO 177 OF 2006) - SCHEDULE 2

(rule 3)

[1]           Rule 1.05, after note 2

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Note 3    Subsections 60I (2) and (12) of the Act require that a party comply with rule 1.05 and Part 2 of Schedule 1 of these Rules before an application is made for a parenting order.

[2]           Chapter 2, summary

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[3]           Rule 2.03

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2.03         Service of brochures

                A person who files an Application for Final Orders (Form 1) or an Application for Divorce (Form 3) must, when serving the application on the respondent, also serve a brochure prepared by the court for section 12F of the Act.

Note    In addition to the requirements of this rule, an applicant who has filed a Maintenance Application, child support application or appeal, or an Application for an Enforcement Hearing must serve the relevant brochure on the respondent (see rule 4.13 and subrules 4.23 (2) and 20.11 (3)).

[4]           After Part 2.3 heading

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Division 2.3.1         Cases involving allegation of abuse or family violence in relation to a child

[5]           Rule 2.04

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2.04         Definition

                In this Division:

allegation of abuse or family violence means an allegation:

                (a)    that a child has been abused or that there is a risk of a child being abused; or

               (b)    that there has been family violence involving a child or a member of the child's family or that there is a risk of family violence involving a child or a member of the child's family.

"Part VII order" has the same meaning as in subsection 60I (1) of the Act.

2.04A       Application of Division 2.3.1

                This Division applies to a case if an application is made to a court for a Part VII order in relation to a child in the case.

2.04B      Filing and service

         (1)   In a case to which this Division applies, if any of the following persons makes an allegation of abuse or family violence the person must file a Notice of Child Abuse or Family Violence (Form 4):

                (a)    a party in the case;

               (b)    an independent children's lawyer in the case;

                (c)    a person seeking to intervene in the case.

         (2)   A person who files a Form 4 must file an affidavit or affidavits setting out the evidence on which the allegations in the Form 4 are based, no later than the time the Form 4 is filed.

Note    The requirements for service of filed documents are set out in rule 7.04. For service of a notice filed in a case to which section 67Z of the Act applies, subsection 67Z (2) specifically requires that a person alleged in the notice to have abused a child in the case, or to be a person from whom a child in the case is at risk of being abused, must be served with a copy of the notice.

2.04C      Listing case

                If a Form 4 has been filed in a case, a Registrar may list the case for hearing or procedural hearing.

2.04D      Prescribed document and prescribed form

                A Notice of Child Abuse or Family Violence (Form 4) is:

                (a)    the document prescribed for the purposes of paragraph 60K (1) (d) of the Act; and

               (b)    the prescribed form for the purposes of a notice mentioned in subsection 67Z (2) of the Act.

[6]           Before rule 2.06

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Division 2.3.2         Property settlement or spousal maintenance cases

[7]           Rule 3.01, note 2

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(see rule 2.03 and section 17 of the Act).

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(see rule 2.03).

[8]           Rule 4.13, note 2

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brochures required to be served under subrule 2.03 (3).

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brochure required to be served under rule 2.03.

[9]           Rule 4.23, note 1

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brochures required to be served under subrule 2.03 (3).

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brochure required to be served under rule 2.03.

[10]         Paragraph 5.08 (a)

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section 68F

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section 60CC

[11]         Rule 5.09, notes 2 and 3

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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, an independent children's lawyer may request the issue of more than 3 subpoenas (see subrule 15.21 (2)).

[12]         Rule 6.01, note

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Note    An independent children's lawyer is not a party to a case but must be treated as a party (see rule 8.02).

[13]         Rule 7.01, note

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the brochure mentioned in subrule 2.03 (3);

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the brochure mentioned in rule 2.03;

[14]         Chapter 8, summary

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[15]         Rule 8.02

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8.02         Independent children's lawyer

         (1)   A party may apply for the appointment or removal of an independent children's lawyer by filing an Application in a Case (Form 2).

Note    A party may ask for a procedural order orally (see paragraph (h) of item 3 of Table 11.1 in rule 11.01).

         (2)   If the court makes an order for the appointment of an independent children's lawyer:

                (a)    it may request that the representation be arranged by a legal aid body that is a relevant authority within the meaning of subsection 116C (5) of the Act; and

               (b)    it may order that the costs of the independent children's lawyer be met by a party.

Note    Section 68L of the Act provides for the independent representation of children.

         (3)   A person appointed as an independent children's lawyer:

                (a)    must file a Notice of Address for Service (Form 8);

               (b)    must comply with these Rules and do anything required to be done by a party; and

                (c)    may do anything permitted by these Rules to be done by a party.

         (4)   If an independent children's lawyer is appointed, the parties must conduct the case as if the independent children's lawyer were a party.

         (5)   The appointment of an independent children's lawyer ceases:

                (a)    when the Application for Final Orders (Form 1) is determined or withdrawn; or

               (b)    if there is an appeal -- when the appeal is determined or withdrawn.

Note 1    If a document or notice is served on or given to a party under these Rules, the document or notice must also be served on or given to any independent children's lawyer (see subrule 7.04 (4)).

Note 2    This rule applies unless the court orders otherwise (see rule 1.12).

[16]         Subrule 10.15 (4), note

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Note    If an independent children's lawyer has been appointed in a case, the court will not make a consent order unless the independent children's lawyer has also signed the draft consent order (see subrule 8.02 (4)).

[17]         Rule 11.01, Table 11.1, item 1

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[18]         Chapter 12, summary

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[19]         Chapter 12, flowchart

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[20]         Subrule 12.03 (1)

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         (1)   A case assessment conference must be held in the presence of:

                (a)    a Registrar; or

               (b)    a family consultant.

[21]         Subrule 12.04 (1), note 1

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mediation in a parenting case,

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family counselling or family dispute resolution in a parenting case,

[22]         Subrule 12.06 (1)

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a mediator.

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a family consultant.

[23]         Subrule 15.02 (2)

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         (2)   The interview may be conducted in the presence of a family consultant or another person specified by the judicial officer.

[24]         Rule 15.04

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[25]         Rule 15.30

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15.30       Right to inspect and copy

         (1)   This rule applies if:

                (a)    the issuing party serves the named person and the other parties, including the independent children's lawyer (if any), in accordance with rule 15.28 at least 21 days before the court date; and

               (b)    the named person complies with the subpoena at least 7 days before the court date.

         (2)   The written notice mentioned in subparagraph 15.28 (1) (a) (iii) must state that:

                (a)    if the named person:

                          (i)    complies with the subpoena at least 7 days before the court date; and

                         (ii)    does not object to a party or any independent children's lawyer inspecting or copying the document; and

               (b)    if no other party or person objects to the document being inspected and copied by the parties or any independent children's lawyer;

each party and any independent children's lawyer is entitled, without an order, to inspect and take copies of the document from 7 days before the court date.

         (3)   The issuing party must file an Affidavit of Service (Form 7), setting out the details of the party's compliance with paragraph (1) (a).

         (4)   If the named person, a party or an independent children's lawyer has not made an objection under rule 15.31 by the seventh day before the court date, each party and any independent children's lawyer is entitled, after the seventh day and without an order, to inspect and take copies of the document.

Note    Some legislative provisions prohibit government departments from communicating certain information; for example, see section 150 of the Assessment Act and section 16 of the Registration Act.

[26]         Rule 15.41

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This Part (other than rule 15.55)

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         (1)   This Part (other than rule 15.55)

[27]         Paragraph 15.41 (d)

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mediator

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family consultant

[28]         Rule 15.41, after the example

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         (2)   Nothing in this Part prevents an independent children's lawyer communicating with a single expert witness.

[29]         Subrule 15.44 (1), at the foot

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Note    Subrule 15.54 (3) sets out the requirements that apply to instructions to a single expert witness appointed by agreement between the parties.

[30]         After subrule 15.54 (2)

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         (3)   All instructions to a single expert witness appointed by agreement between the parties must be provided jointly by the parties and, if an independent children's lawyer has been appointed in the case, the independent children's lawyer.

[31]         Subrule 16A.10 (1)

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mediator,

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family consultant,

[32]         Paragraph 18.02 (1) (b)

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section 19G

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section 13K

[33]         Paragraph 18.02 (1) (d)

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section 70NL

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section 70NFD

[34]         Paragraph 18.02 (1) (d)

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paragraph 70NJ (3) (a)

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paragraph 70NFB (2) (a)

[35]         Rule 18.05, Table 18.2, items 4 and 5

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[36]         Rule 18.05, Table 18.2, item 14

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[37]         Subrule 18.06 (1), Table 18.4

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Table 18.4   Powers delegated to Deputy Registrars

[38]         Subrule 18.06 (2), Table 18.5, after item 31

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[39]         Subrule 19.04 (7), definition of court event

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"court event" does not include an attendance with a family counsellor, a family dispute resolution practitioner or a family consultant in a parenting case.

[40]         Subparagraphs 20.01 (2) (a) (iii) to (vii)

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                         (iii)    an award made in arbitration and registered under section 13H of the Act;

                        (iv)    a maintenance agreement registered under subsection 86 (1) of the Act;

                         (v)    a maintenance agreement approved under section 87 of the Act;

                        (vi)    a financial agreement or termination agreement under Part VIIIA of the Act;

                        (vii)    an agreement varying or revoking an original agreement dealing with the maintenance of a child under section 66SA of the Act; or

                       (viii)    an overseas maintenance order or agreement that, under the Regulations, is enforceable in Australia;

[41]         Chapter 21, summary

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[42]         Rule 21.01, note 3, subparagraph (a) (i)

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70NJ (6)

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70NFB (4)

[43]         Rule 21.01, note 3, subparagraph (a) (ii)

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70NO (2)

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70NFG (2)

[44]         Rule 21.02, Table 21.1, item 2

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[45]         Rule 21.02, Table 21.1, example

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Example for item 1 of Table 21 . 1

A party may use an Application in a Case (Form 2) if:

(a)   the party does not want the other party to a parenting order to be punished for a failure to comply with the order but wants to be compensated for time not spent with a child as a result of the failure to comply; or

(b)   before the time due to be spent with a child, the other party refuses to comply with the handover arrangements.

[46]         Subrule 21.02 (2), example

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paragraph 70NJ (1) (c)

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paragraph 70NFA (2) (b)

[47]         Rule 21.05, note

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counselling

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family counselling, family dispute resolution

[48]         Rule 21.08, note

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Note    For the orders that may be made by the court, see sections 67X, 70NBA, 70NCB, 70NDB, 70NDC, 70NEB, 70NFB, 70NFF, 112AD, 112AH and 112AP of the Act.

[49]         Subrule 21.09 (1)

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         (1)   The provider of a post‑separation parenting program required to inform the court of a matter under section 70NED of the Act must do so by notice in accordance with subrule (2).

[50]         Rule 21.10

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section 70NIA

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section 70NEG

[51]         Rule 21.11, note

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Note    See sections 67J to 67W of the Act.

[52]         Schedule 1, Part 1, paragraph 1 (1) (a)

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mediation,

[53]         Schedule 1, Part 2, paragraph 1 (1) (a)

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mediation,

[54]         Schedule 2, Forms 1 to 2

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[55]         Schedule 2, Form 3

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[56]         Schedule 2, Form 4

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[57]         Schedule 2, Forms 10 to 12

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[58]         Schedule 2, Form 14

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[59]         Schedule 2, Form 18

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[60]         Schedule 2, Form 20

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[61]         Dictionary, definition of abuse

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subsection 60D (1)

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subsection 4 (1)

[62]         Dictionary, definition of child representative

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child‑related proceedings has the meaning given by subsection 4 (1) of the Act.

[63]         Dictionary, definition of contravened

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section 70NC

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subsection 4 (1)

[64]         Dictionary, definition of court event

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or mediation.

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or family dispute resolution.

[65]         Dictionary, after definition of expense

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family consultant has the meaning given by subsection 4 (1) of the Act.

family counselling has the meaning given by subsection 4 (1) of the Act.

family counsellor has the meaning given by subsection 4 (1) of the Act.

[66]         Dictionary, after definition of Family Court

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family dispute resolution has the meaning given by subsection 4 (1) of the Act.

family dispute resolution practitioner has the meaning given by subsection 4 (1) of the Act.

[67]         Dictionary, definition of family report

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subsection 55A (2), or section 62G or 65G, of the Act

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subsection 55A (2) or section 62G of the Act

[68]         Dictionary, definitions of family violence and family violence order

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section 60D

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subsection 4 (1)

[69]         Dictionary, definition of final resolution event , paragraph (b)

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       (b)    for a parenting case -- the final court event in the resolution phase.

[70]         Dictionary, after definition of financial case

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financial matters has the meaning given by subsection 4 (1) of the Act.

[71]         Dictionary, after definition of holding period

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independent children's lawyer has the meaning given by subsection 4 (1) of the Act.

[72]         Dictionary, definition of lawyer , except the note

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lawyer means a person who is enrolled as a legal practitioner of:

        (a)    a federal court; or

       (b)    the Supreme Court of a State or Territory.

[73]         Dictionary, definition of mediator

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[74]         Dictionary, before definition of parenting case

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overseas child order has the meaning given by subsection 4 (1) of the Act.

[75]         Dictionary, definition of post‑separation parenting program

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section 70NB

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subsection 4 (1)

[76]         Dictionary, definition of prescribed child welfare authority

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subsection 60D (1)

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subsection 4 (1)

[77]         Dictionary, definition of primary dispute resolution method

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[78]         Dictionary, definition of primary order

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section 70NB

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subsection 4 (1)

[79]         Dictionary, definition of recovery order

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section 67Q

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subsection 4 (1)

[80]         Dictionary, after definition of Registration Act

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Registry Manager has the meaning given by subsection 4 (1) of the Act.

[81]         Dictionary, definition of State child order

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section 70B

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subsection 4 (1)

[82]         Dictionary, definition of step‑parent

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subsection 60D (1)

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subsection 4 (1)

[83]         Further amendments