Commonwealth Numbered Regulations

1988 No. 9 FAMILY LAW RULES (AMENDMENT) - RULE 6

6. Order 32 of the Family Law Rules is repealed and the following Order
substituted:
                                   "ORDER 32

APPEALS Interpretation

"1. In this Order, unless the contrary intention appears:
'appeal' means an appeal to a Full Court of the Family Court of Australia
under section 94 of the Act;
'appeal registrar', in relation to an appeal, means the Registrar at the
appeal registry for that appeal;
'appeal registry', in relation to an appeal, means the registry determined
under rule 8 to be the registry for that appeal;
'assured service' means service in accordance with paragraph 5 (1) (a) or (c)
of Order 18. Appeal to Full Court

"2. (1) An appeal shall be instituted:

   (a)  by filing in the principal registry an original and 2 copies of a
        notice of appeal in accordance with Form 42; or

   (b)  by providing to the principal registry, by means of a facsimile
        transmission service, a facsimile of a notice of appeal in accordance
        with Form 42.

"(2) An appeal shall be instituted:

   (a)  not later than one month after the day on which the decree appealed
        from was made; or

   (b)  within such further time as a Judge of a court having jurisdiction
        under the Act directs.

"(3) A notice of appeal shall:

   (a)  state whether the appeal is from the whole, or a part, of the decree;

   (b)  if the appeal is from a part of the decree-specify the part appealed
        from;

   (c)  set out briefly but specifically the grounds relied on in support of
        the appeal; and

   (d)  specify the decree sought in the appeal in place of the decree
        appealed from. Service of notice of appeal

"3. (1) Not later than 14 days after instituting an appeal, the appellant
shall provide a sealed copy of the notice of appeal by assured service to each
other party to the appeal.

"(2) Where an appeal has been instituted:

   (a)  the Judge who made the decree appealed from; or

   (b)  if that Judge is not reasonably available-another Judge of the Court
        in which the decree was made; may, on application by a party to the
        appeal, direct the appellant to serve a sealed copy of the notice of
        appeal on a person other than a party to the appeal. Stay of
        proceedings

"4. (1) Subject to subrule (2), an appeal does not operate as a stay of
proceedings or invalidate any intermediate act or proceedings.

"(2) Where an appeal has been instituted:

   (a)  the Judge who made the decree appealed from; or

   (b)  if that Judge is not reasonably available-another Judge of the court
        in which the decree was made; may make an order, on such terms as the
        Judge thinks fit, staying the execution or operation of the decree
        wholly or in part until the appeal is decided.

"(3) Where an order under subrule (2) has been made, a court having
jurisdiction under the Act shall not enforce the decree or entertain
proceedings for the enforcement of the decree, in so far as its execution or
operation has been stayed, until the appeal is decided. Security for costs

"5. Where an appeal has been instituted:

   (a)  the Judge who made the decree appealed from; or

   (b)  if that Judge is not reasonably available-another Judge of the court
        in which the decree was made; may make an order, on such terms as the
        Judge thinks fit, for security for costs. Amendment of notice of
        appeal

"6. (1) Subject to subrule (2), an appellant may amend a notice of appeal:

   (a)  by filing 3 copies of the notice in the principal registry, with the
        amendments clearly marked; or

   (b)  by providing to the principal registry, by means of a facsimile
        transmission service, a facsimile of the notice, with the amendments
        clearly marked.

"(2) An appellant shall not, except with the leave of a Full Court, amend a
notice of appeal later than 7 days before the day listed for the hearing of
the appeal.

"(3) As soon as practicable after making an amendment of a notice of appeal,
the appellant shall provide by assured service a sealed copy of the amended
notice, with the amendments clearly marked, to each other party to the appeal.
Cross appeals

"7. (1) A party to an appeal may institute a cross appeal:

   (a)  by filing in the principal registry an original and 2 copies of a
        notice of appeal in accordance with Form 42 endorsed as a notice of
        cross appeal; or

   (b)  by providing to the principal registry, by means of a facsimile
        transmission service, a facsimile of a notice of appeal in accordance
        with Form 42, endorsed as a notice of cross appeal.

"(2) A cross appeal shall be instituted:

   (a)  not later than 21 days after the day on which a sealed copy of the
        notice instituting the appeal was served on the party instituting the
        cross appeal; or

   (b)  within such further time as a Judge of a court having jurisdiction
        under the Act directs.

"(3) Subrule 2 (3) and rule 3 apply in relation to a notice of cross appeal as
if it were a notice of appeal.

"(4) Rules 4 to 6 (inclusive) and rules 16 to 19 (inclusive) apply in relation
to a cross appeal as if it were an appeal. Appeal registry

"8. As soon as practicable after an appeal has been instituted, the Principal
Registrar shall:

   (a)  determine which registry is to be the appeal registry; and

   (b)  send a copy of the notice of appeal to the appeal registrar. Exhibits,
        etc.

"9. (1) As soon as practicable after an appeal has been instituted, the appeal
registrar shall arrange to obtain:

   (a)  the exhibits in the proceedings in which the decree appealed from was
        made;

   (b)  all other documents that were before the court in those proceedings,
        together with a list of those documents; and

   (c)  a copy of the reasons (if any) for judgment in those proceedings.

"(2) For the purposes of subrule (1), where an exhibit referred to in
paragraph (1) (a) is not immediately available, the appeal registrar shall
find out where it is and arrange to obtain it as soon as practicable.

"(3) The appeal registrar shall retain the documents and exhibits obtained
under subrule (1) until the appeal is decided and then return them to the
officer or person from whom they were obtained. Arrangements to settle index
to appeal papers

"10. Where an appeal has been instituted, the appeal registrar shall fix a
time and place to settle the index to the appeal papers and, in writing:

   (a)  request the parties to the appeal to attend a meeting to settle the
        index accordingly; and

   (b)  notify the parties which registry is the appeal registry. Draft index
        to appeal papers

"11. An appellant shall, not later than 7 days before the day fixed to settle
the index to the appeal papers:

   (a)  file a draft index to the appeal papers in the appeal registry; and

   (b)  serve a sealed copy of the draft index on the respondent and each
        other party to the appeal. Settling index to appeal papers

"12. At a meeting to settle the index to the appeal papers, the appeal
registrar shall:

   (a)  decide which parts of the transcript of the proceedings from which the
        appeal has arisen are relevant to the appeal;

   (b)  decide which documents and other material are to be included in the
        appeal papers, the order of inclusion and other details concerning the
        preparation of copies of the appeal papers, as the appeal registrar
        thinks fit;

   (c)  settle the index;

   (d)  decide how many copies of the appeal papers are required; and

   (e)  estimate how long the hearing is likely to take. Transcript

"13. As soon as practicable after the index to the appeal papers has been
settled, the appeal registrar shall arrange to obtain the original or a copy
of the relevant parts of the transcript of the proceedings from which the
appeal has arisen. Appeal papers

"14. (1) Subject to any direction of:

   (a)  a Full Court;

   (b)  a Judge of the court in which the decree appealed from was made; or

   (c)  the appeal registrar in relation to the relevant appeal; the appeal
        papers shall be prepared in accordance with this rule.

"(2) The appeal papers are to have a title page specifying:

   (a)  the title of the proceedings;

   (b)  the title of the court in which the decree appealed from was made; and

   (c)  the name and address for service of the solicitor for each party to
        the appeal proceedings.

"(3) An index to the documents comprising the appeal papers, specifying the
date and page number of each of those documents, is to appear immediately
after the title page.

"(4) The appeal papers are to comprise each of the following documents
(originals or copies), arranged in the following order:

   (a)  the notice of appeal;

   (b)  the decree appealed from;

   (c)  any relevant subsequent decree;

   (d)  the reasons for judgment;

   (e)  each relevant pleading, affidavit and other document in order of
        filing;

   (f)  any report by a court counsellor or welfare officer that was received
        in evidence in the proceedings from which the appeal has arisen and
        that is relevant to the appeal;

   (g)  the relevant parts of the transcript of those proceedings;

   (h)  a list of the exhibits;

   (i)  each relevant exhibit or relevant part of an exhibit, where
        practicable.

"(5) Pages of the appeal papers are to be numbered consecutively, except for
numbered pages of transcript, which are not to be renumbered when included in
the appeal papers.

"(6) A pleading, an affidavit or any other document is not to be included in
the appeal papers unless it was put in evidence, or tendered but not admitted
as evidence, in the proceedings to which the appeal relates.

"(7) The appeal papers are to be securely fastened to form one or more than
one volume but need not be bound or printed.

"(8) A volume of the appeal papers is not to be more than 25 millimetres in
thickness.

"(9) Each page in a volume of the appeal papers must be clear and legible and
must comply with the requirements referred to in paragraphs 2 (c) and (d) of
Order 2. Preparation of appeal papers

"15. (1) The appellant is responsible for preparing the appeal papers except
in a case where the appeal registrar in relation to the appeal is satisfied
that it would impose hardship on the appellant to do so.

"(2) In a case referred to in subrule (1), the appeal registrar may prepare
the appeal papers or any part of them or, if the matter is a cross appeal, may
direct any cross appellant to do so.

"(3) Subject to subrule (4), a party who prepares the appeal papers shall, as
soon as practicable:

   (a)  file the appeal papers in the appeal registry, together with:

        (i)    a certificate by that party, or the solicitor for that party,
               to the effect that the appeal papers have been examined and are
               correct; and

        (ii)   the number of copies of the appeal papers that the appeal
               registrar directs; and

   (b)  serve 2 sealed copies on each other party to the appeal.

"(4) Where the preparation of the appeal papers is undertaken wholly by the
appeal registrar, or partly by the appeal registrar and partly by a party to
the appeal, the appeal registrar may give reasonable directions in relation to
the filing of the papers and service of copies on the parties. Setting down
appeal

"16. Where the appeal papers have been filed, the appeal registrar shall list
the appeal for hearing at a sitting of a Full Court and, not later than 21
days before the day listed for the hearing, shall notify each party in writing
of the date, time and place for the hearing. Expediting appeals

"17. The court in which a decree appealed from was made, or a Judge of the
Family Court, may at any time make any order that seems just for expediting
the appeal. Dismissal of appeal

"18. (1) Where an appellant has not met a requirement of these Rules or the
Regulations or in some other way has not shown reasonable diligence in
proceeding with the appeal, a Full Court may, subject to this rule:

   (a)  by order, dismiss the appeal;

   (b)  by order, fix a time at which, or within which, the requirement is to
        be met and at the same time make an order that the appeal will be
        dismissed if the requirement is not met at or within the time fixed;
        or

   (c)  make any other order the court thinks just.

"(2) Subject to subrule (3), an order may be made by the court at its
discretion or on application by a respondent or any other party to the appeal.

"(3) The court shall not make an order under this rule (other than an order
arising from an application) unless, not later than 21 days before the making
of the order, the court has given notice to the appellant of the intention to
make the order.

"(4) A Full Court may vary an order at any time before the dismissal of the
appeal to which the order relates and, in special circumstances, may vary or
revoke the order after that time. Procedures on application for dismissal

"19. (1) If the respondent or another party applies for an order under subrule
18 (2), then, unless a Full Court or a Judge of a court having jurisdiction
under the Act directs otherwise, four copies of each of:

   (a)  an application in accordance with Form 42A; and

   (b)  an affidavit setting out concisely the matters relied on in support of
        the application; shall be filed in the appeal registry by or on behalf
        of the applicant not later than 28 days before the return day for the
        application.

"(2) As soon as practicable after the filing of the application, a sealed copy
of the application and of the supporting affidavit shall be provided by or on
behalf of the applicant to each other party to the appeal by assured service.
Application for certificate to appeal to High Court

"20. (1) An application for a certificate referred to in paragraph 95 (b) of
the Act shall, unless the court making the relevant decree orders otherwise,
be filed in the principal registry:

   (a)  not later than 21 days after the day on which the decree was made; or

   (b)  within such further time as a Judge of a court having jurisdiction
        under the Act directs.

"(2) Not later than 7 days after filing the application, the applicant shall
provide a sealed copy by assured service to each other party to the
proceedings in which the relevant decree was made. Case stated

"21. (1) A party to proceedings referred to in section 94A of the Act who
wishes to have a question of law arising in the proceedings determined under
that section by a Full Court shall:

   (a)  confer with each other party to the proceedings to try to reach
        agreement as to the terms of a draft special case;

   (b)  prepare a draft special case;

   (c)  make an appointment to have the draft special case settled before the
        Judge hearing the proceedings; and

   (d)  serve a copy of the draft special case and notice of the appointment
        on each other party to the proceedings and on any other person as a
        Judge of the Family Court may direct.

"(2) A party to proceedings who has been served with a copy of a draft special
case shall at once, in writing, notify the party who prepared it of any
objection to its terms and shall serve on that party a draft of any amendments
which the party who has been served with a copy will seek to have made when
the draft special case is settled by the Judge hearing the proceedings.

"(3) The Judge hearing proceedings in which a question of law has arisen shall
settle the draft special case.

"(4) A special case under section 94A of the Act shall state concisely the
facts and the question of law that has arisen.

"(5) A party to proceedings who prepares a draft special case shall, not later
than 3 days after it has been settled, lodge a copy of the special case, as
settled, for signature by the Judge hearing the proceedings.

"(6) A party to proceedings who prepares a draft special case shall, not later
than 7 days after a copy of the special case has been signed by the Judge
hearing the proceedings:

   (a)  file 5 copies of the special case in the principal registry; and

   (b)  serve 2 copies on each other party to the proceedings and on any other
        person as the Judge may direct.

"(7) Where copies of a special case have been filed, the Principal Registrar
shall, subject to any directions from the Chief Judge, fix a day and place for
the hearing of the special case and shall notify the parties in writing
accordingly. Appeal from court of summary jurisdiction

"22. (1) An appeal under section 96 of the Act shall be instituted by filing
in the court appealed to a notice of the appeal in accordance with Form 43.

"(2) The notice of the appeal shall be filed:

   (a)  not later than one month after the date on which the decree appealed
        from was made; or

   (b)  within such further time as a Judge of a court having jurisdiction
        under the Act directs. Service of notice of appeal

"23. Not later than 14 days after filing a notice of an appeal under section
96 of the Act, the appellant shall:

   (a)  provide a sealed copy of the notice by assured service to each other
        party to the appeal; and

   (b)  file a sealed copy of the notice in the court appealed from. Stay of
        proceedings

"24. (1) Subject to subrule (2), an appeal under section 96 of the Act does
not operate as a stay of proceedings or invalidate any intermediate act or
proceedings.

"(2) Where an appeal under section 96 of the Act has been instituted:

   (a)  the Magistrate who made the decree appealed from; or

   (b)  if that Magistrate is not reasonably available-a Judge of the court in
        which the appeal is instituted; may make an order staying wholly or in
        part the execution or operation of the decree, on such terms as the
        Judge or Magistrate thinks fit, until the appeal is decided.

"(3) Where an order under subrule (2) has been made, a court shall not enforce
the decree or entertain proceedings for the enforcement of the decree, in so
far as its execution or operation has been stayed, until the appeal has been
decided. Transmission of papers

"25. (1) The Registrar of the court in which an appeal under section 96 of the
Act has been instituted may request that the papers relating to the
proceedings in the court appealed from be forwarded to him or her by the
Registrar of that court.

"(2) A Registrar to whom a request under subrule (1) is made shall comply with
the request as soon as practicable. Review of decision of Registrar

"26. (1) A party to proceedings who seeks the review of a decision of a
Registrar made pursuant to the Act, the Regulations or these Rules in those
proceedings may:

   (a)  not later than 7 days after the decision is made; or

   (b)  within such further time as is allowed by that Registrar or a Judge of
        the court in which the proceedings were instituted; file in the filing
        registry for those proceedings a request for a review of that
        decision.

"(2) A request for a review shall be in accordance with Form 44.

"(3) A party to proceedings who files a request for a review shall, not later
than 7 days after the day on which the request is filed, provide a sealed copy
of the request by assured service to each other party to the proceedings.

"(4) A request for a review of a decision of a Registrar shall not operate as
a stay of the order under review unless that Registrar or a Judge of the court
in which the order was made so orders.

"(5) A court reviewing a decision of a Registrar shall proceed by way of a
rehearing and:

   (a)  shall have regard to the proceedings, including the evidence given,
        before the Registrar;

   (b)  may permit other evidence to be given;

   (c)  may affirm, reverse or vary the decision of the Registrar as it thinks
        fit; and

   (d)  may make further orders as it thinks fit.

"(6) A reference in this rule to a decision of a Registrar includes a
reference to a decision made in relation to an appeal by the appeal registrar.
Party and party costs-counsel's fees

"27. Unless a Full Court orders otherwise, the briefing of counsel to appear,
or of a solicitor to act as counsel, on the hearing of an appeal before that
court shall be deemed to have been certified by the court as having been
reasonably required in accordance with subparagraph 13 (a) (i) or 14 (a) (i)
of Order 38, as the case requires.".