Commonwealth Numbered Regulations

FAMILY LAW AMENDMENT RULES 2007 (NO. 1) (SLI NO 207 OF 2007) - SCHEDULE 1

(rule 3)

[1]           Subrule 1.05 (1)

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Schedule 1, including attempting to resolve the dispute using dispute resolution methods.

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Schedule 1.

[2]           Paragraph 1.05 (2) (a)

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violence;

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violence, or the risk of child abuse or family violence;

[3]           Paragraph 1.05 (2) (b)

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violence

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violence, or the risk of family violence,

[4]           Rule 1.05, note 3

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Note 3    Subsections 60I (7) to (12) provide for attendance at family dispute resolution before applying for an order under Part VII of the Act in relation to a child.

[5]           Table 2.2, after item 2

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[6]           Table 2.2, item 5

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4.16,

[7]           Table 2.2, item 6

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rule 4.19

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rule 4.18

[8]           Table 2.2, after item 6

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[9]           Table 2.2, item 7, column 2

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Judicial Registrar

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or an application to which item 6A applies

[10]         Table 2.2, item 10, column 2

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Contravention (Form 18)

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Contravention, other than an application to which item 10A applies

[11]         Table 2.2, after item 10

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[12]         Rule 2.03, note

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Note    In addition to the requirements of this rule, an applicant who has filed an application for enforcement must serve the relevant brochure on the respondent (see paragraph 20.11 (3) (b)).

[13]         Division 4.2.4, heading

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Division 4.2.4         Spousal maintenance

[14]         Rule 4.13

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[15]         Subrule 4.14 (1)

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a Maintenance Application

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an Application for Spousal Maintenance

[16]         Rule 4.15

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4.15         Evidence to be provided

         (1)   On the first court date and the hearing date of an Application for Spousal Maintenance, each party must bring to the court the following documents:

                (a)    a copy of the party's taxation returns for the 3 most recent financial years;

               (b)    the party's taxation assessments for the 3 most recent financial years;

                (c)    the party's bank records for the period of 3 years ending on the date on which the application was filed;

               (d)    if the party receives wages or salary payments -- the party's payslips for the past 12 months;

                (e)    if the party owns or controls a business, either as sole trader, partnership or a company -- the business activity statements and the financial statements (including profit and loss statements and balance sheets) for the 3 most recent financial years of the business; and

                (f)    any other document relevant to determining the income, needs and financial resources of the party.

Note 1    Documents that may need to be produced under paragraph (f) include documents setting out the details mentioned in rule 13.04.

Note 2    For variation of a maintenance order, see section 83 of the Act.

         (2)   Before the hearing date, a party must produce the documents mentioned in subrule (1) for inspection, if the other party to the proceedings makes a written request for their production.

         (3)   If a request is made under subrule (2), the documents must be produced within 7 working days of the request being received.

[17]         Rules 4.16 and 4.17

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[18]         Division 4.2.5

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Division 4.2.5         Child support and child maintenance

4.16         Application of Division 4.2.5

                This Division applies to:

                (a)    an application under the Assessment Act, other than an application for leave to appeal from an order of a court exercising jurisdiction under the Assessment Act;

               (b)    an appeal under the Registration Act, other than an appeal from a court;

                (c)    an application under Division 7 of Part VII of the Family Law Act;

               (d)    an application under the Child Support (Assessment) (Overseas‑related Maintenance Obligations) Regulations 2000 ; and

                (e)    an application under Parts III and IV of the Family Law Regulations.

Note 1    Chapter 2 provides for the form to be used to make an Application for Final Orders and the documents to be filed with that form.

Note 2    Chapter 22 sets out the procedure for appealing from a decision of a court.

Note 3    The Assessment Act provides that the parties to a child support application should be the liable parent and the eligible carer. The Child Support Registrar does not need to be joined as a party but, after being served with a copy of the application, may intervene in the case.

4.17         Commencing proceedings

         (1)   An application under this Part must be made in accordance with an Application for Final Orders.

         (2)   An appeal under this Part must be made in accordance with a Notice of Appeal (Child Support).

4.18         Documents to be filed with applications

         (1)   A person must file with an application mentioned in an item of Table 4.1, the documents mentioned in the item.

Table 4.1   Documents to file with applications

Note    The documents required to be filed with an application under this rule are in addition to the documents required to be filed under rule 2.02.

         (2)   For paragraph (c) of item 1 of Table 4.1, if the applicant does not have a copy of a document lodged by the other party with the Child Support Agency, the applicant may file the summary of the document prepared by the Child Support Agency.

4.19         Child support agreements

                A person who makes an application in relation to a child support agreement must register a copy of the agreement with the court by filing one of the following:

                (a)    an affidavit attaching the original agreement;

               (b)    an affidavit attaching a copy of the agreement and stating that the copy is a true copy of the original agreement;

                (c)    an affidavit stating that the original agreement has been lost and the steps taken to locate the agreement, and attaching a copy of a document received from the Child Support Registrar setting out the terms of the agreement as registered by the Child Support Agency.

4.20         Time limits for applications under Assessment Act

                A person must file an application for a declaration under subsection 106A (2) or 107 (1) of the Assessment Act within 60 days after being served with a notice given under section 33 or 34 of that Act.

Note 1    A person may apply for an extension of time to file after the time limit mentioned in this rule by filing an Application in a Case and an affidavit (see rules 1.14 and 5.01).

Note 2    For information about when a document is taken to be served, see rule 7.17.

4.21         Appeals on questions of law

         (1)   An appeal on a question of law from the Social Security Appeals Tribunal may be made by filing a Notice of Appeal (Child Support).

         (2)   A person must file with a Notice of Appeal (Child Support) a copy of the Statement of Reasons of the Social Security Appeals Tribunal.

4.22         Time limit for appeals on questions of law

                A party to a proceeding before the Social Security Appeals Tribunal under Part VIIA of the Registration Act may file an appeal, on a question of law, from any decision of the Social Security Appeals Tribunal in that proceeding, within 28 days of the publication of the Statement of Reasons.

4.23         Service of application or notice of appeal

         (1)   The persons to be served with an application or notice of appeal under this Part are:

                (a)    each respondent;

               (b)    a parent or eligible carer of the child in relation to whom the application or appeal is made;

                (c)    the Child Support Registrar; and

               (d)    for appeals from the Social Security Appeals Tribunal -- the Executive Director of the Social Security Appeals Tribunal and any other parties to the appeal.

         (2)   Except for an application for an order staying a decision or an urgent order for child maintenance, an application or notice of appeal must be served at least 28 days before the hearing date.

         (3)   A person seeking to appeal a decision of the Social Security Appeals Tribunal must serve a notice of the appeal on the Executive Director of the Social Security Appeals Tribunal within 7 working days of the day of filing the appeal.

         (4)   Any documents on which the applicant or appellant intends to rely must be served on the persons mentioned in subrule (1) at least 21 days before the hearing date.

4.24         Service by Child Support Registrar

                For rule 4.20, if the Child Support Registrar serves a document on a person under the Assessment Act or Registration Act, the document is taken to have been served on the person on the day specified in rule 7.17.

4.25         Procedure on first court date

         (1)   On the first court date of a child maintenance application or a child support application or appeal, the Registrar must, if practicable, conduct a case assessment conference.

Note    The Registry Manager fixes the first court date (see rule 4.03).

         (2)   If the application or appeal is not resolved on the first court date, the Registrar may make orders for the future conduct of the case, including the exchange of affidavits between the parties and the listing of the case for hearing.

4.26         Evidence to be provided

         (1)   This rule applies to a child support application under section 98, 111, 116, 123, 129, 136, 139, 140 or 143 of the Assessment Act or a child maintenance application.

         (2)   On the first court date and the hearing date of the application, each party must bring to the court the following documents:

                (a)    a copy of the party's taxation returns for the 3 most recent financial years;

               (b)    the party's taxation assessments for the 3 most recent financial years;

                (c)    the party's bank records for the period of 3 years ending on the date on which the application was filed;

               (d)    if the party receives wages or salary payments -- the party's payslips for the past 12 months;

                (e)    if the party owns or controls a business, either as sole trader, partnership or a company -- the business activity statements and the financial statements (including profit and loss statements and balance sheets) for the 3 most recent financial years of the business; and

                (f)    any other document relevant to determining the income, needs and financial resources of the party.

Note 1    Documents that may need to be produced under paragraph (f) include documents setting out the details mentioned in rule 13.04.

Note 2    For variation of a maintenance order, see subsection 66S (3) of the Act.

         (3)   Before the hearing date, a party must produce the documents mentioned in subrule (2) for inspection, if the other party to the proceedings makes a written request for their production.

         (4)   If a request is made under subrule (3), the documents must be produced within 7 working days of the request being received.

[19]         Paragraph 5.01 (d)

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prescribed

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approved

[20]         After rule 5.01

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5.01A       Filing of applications seeking parenting orders during the Christmas school holiday period

         (1)   This rule applies to an application for a parenting order relating in whole or part to the school holiday period beginning in December in a year (the application year ) and extending to January in the following year.

         (2)   The application must be filed before 4.00 pm on the second Friday in November of the application year.

Note   Except in cases of urgency (where the usual criteria for an urgent hearing will apply), an application filed after the deadline under subrule (2) will be allocated the next available date in the usual way. That date may be after Christmas. In other words, if the deadline has passed, the fact that an application relates to the school holiday period will not of itself justify a listing before Christmas. In urgent cases, applications to abridge times and to list a matter on short notice can be made to the Registry.

[21]         Subrule 5.09 (1)

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         (1)   The following

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                The following

[22]         Subrule 5.09 (2), except the notes

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[23]         Table 7.1, item 9, column 2

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4.23 (2),

[24]         Paragraph 10.15 (3) (a)

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rule 4.16

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section 66M of the Act

[25]         After rule 10.15

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10.15A    Consent parenting orders and allegations of abuse

         (1)   This rule applies if an application is made to the court for a parenting order by consent.

         (2)   If the application is made orally during a hearing or trial each party, or if represented by a lawyer, the party's lawyer:

                (a)    must advise the court that no allegations of child sexual or other physical abuse or risk of abuse ( abuse ) have been made in:

                          (i)    any document filed or exhibited in the proceedings;

                         (ii)    any report prepared for the proceedings; or

                         (iii)    any document subpoenaed to the court in the proceedings; or

               (b)    if allegations of abuse have been made -- must explain to the court how the order attempts to deal with the allegations.

         (3)   For any other application other than an application under paragraph 10.15 (1) (b), each party, or if represented by a lawyer, the party's lawyer:

                (a)    must certify in an annexure to the draft consent order that no allegations of abuse have been made in:

                          (i)    any document filed or exhibited in the proceedings;

                         (ii)    any report prepared for the proceedings; or

                         (iii)    any document subpoenaed to the court in the proceedings; or

               (b)    if allegations of abuse have been made -- must, in the annexure, identify each document containing them and explain how the order attempts to deal with them.

[26]         Subrule 11.04 (1)

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an applicant

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a party

[27]         Paragraph 11.04 (1) (a)

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applicant's

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party's

[28]         Paragraph 11.04 (1) (b)

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applicant

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party

[29]         Rule 13.07, note 1, paragraph (b)

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rule 4.19

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rule 4.26 (2)

[30]         Division 15.5.6

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Division 15.5.6      Clarification of single expert witness reports

15.64A    Purpose

         (1)   The purpose of this Division is to provide ways of clarifying a report prepared by a single expert witness.

         (2)   Clarification about a report may be obtained at a conference under rule 15.64B or by means of questions under rule 15.65.

15.64B    Conference

         (1)   Within 21 days after receipt of the report of a single expert witness, the parties may enter into an agreement about conferring with the expert witness for the purpose of clarifying the report.

         (2)   The agreement may provide for the parties, or for one or more of them, to confer with the expert witness.

         (3)   Without limiting the scope of the conference, the parties must agree on arrangements for the conference.

         (4)   It is intended that the parties should be free to make any arrangements for the conference that are consistent with this Division.

Note    For example, arrangements for a conference might include the attendance of another expert, or the provision of a supplementary report.

         (5)   Before participating in the conference, the expert witness must be advised of arrangements for the conference.

         (6)   In seeking to clarify the report of the expert witness, the parties must not interrogate the expert witness.

         (7)   If the parties do not agree about conferring with a single expert witness, the court, on application by a party, may order that a conference be held in accordance with any conditions the court determines.

15.65       Questions to single expert witness

         (1)   A party seeking to clarify the report of a single expert witness may ask questions of the single expert witness under this rule:

                (a)    within 7 days after the conference under rule 15.64B; or

               (b)    if no conference is held, within 21 days after receipt of the single expert witness's report by the party.

         (2)   The questions must:

                (a)    be in writing and be put once only;

               (b)    be only for the purpose of clarifying the single expert witness's report; and

                (c)    not be vexatious or oppressive, or require the single expert witness to undertake an unreasonable amount of work to answer.

         (3)   The party must give a copy of any questions to each other party.

Note    A party may cross‑examine a single expert witness (see rule 15.50).

15.66       Single expert witness's answers

         (1)   A single expert witness must answer a question received under rule 15.65 within 21 days after receiving it.

         (2)   An answer to a question:

                (a)    must be in writing;

               (b)    must specifically refer to the question; and

                (c)    must:

                          (i)    answer the substance of the question; or

                         (ii)    object to answering the question.

         (3)   If the single expert witness objects to answering a question or is unable to answer a question, the single expert witness must state the reason for the objection or inability in the document containing the answers.

         (4)   The single expert witness's answers:

                (a)    must be:

                          (i)    attached to the affidavit under subrule 15.62 (2);

                         (ii)    sent by the single expert witness to all parties at the same time; and

                         (iii)    filed by the party asking the questions; and

               (b)    are taken to be part of the expert's report.

15.67       Single expert witness's costs

         (1)   The reasonable fees and expenses of a single expert witness incurred in relation to a conference are to be paid as follows:

                (a)    if only one of the parties attends the conference -- by that party; or

               (b)    if more than one of the parties attends the conference -- by those parties jointly.

         (2)   If a single expert witness answers questions under rule 15.66, his or her reasonable fees and expenses incurred in answering any questions are to be paid by the party asking the questions.

         (3)   A single expert witness is not required to undertake any work in relation to a conference or answer any questions until the fees and expenses for that work or those answers are paid or secured.

         (4)   Subrule (3) is not affected by subrule 15.66 (1).

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

         (5)   In this rule:

"attend" includes attendance by electronic communication.

15.67A    Application for directions

                A party may apply to the court for directions relating to a conference with a single expert witness or the asking or answering of questions under this Division.

[31]         Table 18.4, after item 16

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[32]         Subrules 19.01 (1) and 19.18 (1)

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case

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case, or in complying with pre‑action procedures

[33]         Paragraph 19.19 (2) (e)

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case

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case, or in complying with pre‑action procedures

[34]         Paragraph 19.21 (1) (b)

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               (b)    for party and party costs -- the end of the case.

[35]         After subrule 19.32 (3), including the note

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         (4)   Within 14 days after the costs assessment order is made, a party may ask the Registrar to give reasons for the Registrar's decision about a disputed item.

[36]         Subrule 19.41 (2)

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         (2)   For Schedule 3, the calculation of the number of words in a document excludes words that are part of:

                (a)    an approved form;

               (b)    a Form in Schedule 2; or

                (c)    a document in a form approved by the Principal Registrar.

[37]         Rule 19.55

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the costs assessment order is made.

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the applicant receives the Registrar's reasons given after a request made under subrule 19.32 (4).

[38]         Subparagraph 19.56 (2) (c) (iv)

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Registrar.

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Registrar, and the party has made a request under subrule 19.32 (4).

[39]         Paragraph 20.03 (2) (b)

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Agency

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or is seeking to recover a liability under section 113A of the Registration Act

[40]         After subrule 20.03 (2), before the note

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         (3)   A payee who seeks to recover a child support liability in his or her own name under section 113A of the Registration Act must attach to the affidavit filed with the application a copy of the copy notice, given to the Child Support Agency, of his or her intention to institute proceedings to recover the debt due.

[41]         Subrule 20.03 (3), note 2

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Note 2    A payee who is enforcing a child support liability must notify the Registrar in writing of his or her intention to institute proceedings to recover the debt due (see subsection 113A (1) of the Registration Act).

[42]         Rule 20.04, at the foot

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Note    The payee of a liability may enforce an obligation -- see section 113 of the Registration Act.

[43]         Rule 20.07, at the foot

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Note    For the collection of child support, the court has general powers set out in section 111B of the Registration Act.

[44]         Chapter 21, summary

after

recover children.

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Application should not be made under this Chapter unless an associated matter is pending in the court or filing with the Federal Magistrates Court is not available. Under section 33B of the Family Law Act 1975 , the Family Court may transfer the proceeding to the Federal Magistrates Court without notice to the parties.

[45]         Paragraph 22.46 (2) (a)

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jurisdiction

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(other than the Magistrates Court of Western Australia constituted by a Family Law Magistrate)

[46]         Subrule 22.46 (3), note

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Magistrates Court

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or from the Magistrates Court of Western Australia constituted by a Family Law Magistrate

[47]         After rule 23.01

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23.01A     Registration of State child orders under section 70C or 70D of the Act

         (1)   For section 70C of the Act, a State child order made under a law of a prescribed State may be registered in a court having jurisdiction under Part VII of the Act by filing a sealed copy of the order in a registry of the court.

         (2)   For section 70D of the Act, a State child order made by a court of a State may be registered in another State, in a court having jurisdiction under the Act, by filing a sealed copy of the order in a registry of the court of the other State.

         (3)   In this rule:

"State" includes a Territory.

[48]         Rule 24.04

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24.04       Forms

         (1)   The Chief Justice, in consultation with the other judges, may approve a form for the purposes of these Rules.

         (2)   A reference in these Rules to Form 4 is taken to be a reference to Form 4 in Schedule 2.

         (3)   Strict compliance with an approved form or Form 4 is not required, and substantial compliance is sufficient.

Note    A form must be completed in accordance with any directions specified in the form, but the directions may be omitted from the completed document.

         (4)   A document in a form approved for the Federal Magistrates Court is taken to be in substantial compliance with the form approved for the same purpose under these Rules.

[49]         Rule 24.08, note

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4.16,

[50]         Subrule 24.13 (2), at the foot

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Note    Access to court records may be affected by the National Security Information (Criminal and Civil Proceedings) Act 2004 .

[51]         Rule 26.03

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

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[53]         Schedule 1, Part 2, paragraph 1 (4) (b)

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abuse;

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abuse or risk of child abuse;

[54]         Schedule 1, Part 2, paragraph 1 (4) (c)

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violence;

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violence or risk of family violence;

[55]         Schedule 1, Part 2, paragraphs 3 (1) (b) and (c)

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               (b)    comply with the requirements of this Schedule.

[56]         Schedule 1, Part 2, subclause 3 (2)

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[57]         Schedule 1, Part 2, subclause 3 (4)

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case if:

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case.

[58]         Schedule 1, Part 2, paragraphs 3 (4) (a), (b) and (c)

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[59]         Schedule 1, Part 2, subclause 6 (4), at the foot

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Note    Section 12E of the Act requires legal practitioners to give to persons considering instituting proceedings documents containing information about non‑court based family services and court's processes and services.

[60]         Schedule 2, Part 1, heading

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[61]         Schedule 2, forms 1 to 3A and 5 to 20

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[62]         Schedule 2, Part 2

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[63]         Dictionary, after definition of application

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approved form , for a provision of these Rules, means a form approved under subrule 24.04 (1) for the purposes of the provision.

[64]         Dictionary, definition of Regional Appeal Registry , paragraph (c)

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        (c)    for an appeal from a case heard in Western Australia -- the Perth Registry of the Family Court of Western Australia.

[65]         Further amendments -- approved forms

[66]         Explanatory Guide, explanation of parenting order

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for residence, contact,

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about the persons with whom a child lives, spends time or communicates with,

[67]         Explanatory Guide, explanation of parenting plan

after

child

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(see subsection 63C (1) of the Act)