Commonwealth Numbered Regulations - Explanatory Statements

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FAMILY LAW AMENDMENT RULES 2002 (NO. 1) 2002 NO. 23

STATUTORY RULES 2002 No. 23

Issued by the authority of the Judges of the Family Court of Australia

FAMILY LAW AMENDMENT RULES 2002 (No. 1)

Section 123 of the Family Law Act provides that the Judges of the Family Court of Australia, or a majority of them, may make Rules of Court providing for the practice and procedure to be followed in the Family Court and other courts exercising jurisdiction under the Family Law Act.

Section 123(2) of the Family Law Act provides that Sections 48, 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 apply in relation to the Rules of Court as if reference in those sections to regulations were references to Rules of Court.

The present Family Law Rules came into operation on 2 January 1985. They have been regularly reviewed and amended since that date.

DETAILS OF AMENDMENTS

Order 31B rule 33

This amendment is to make it clear that a party to a child support agreement is able to register the agreement in the court (even if it is not registered in the Child Support Agency) where registration of the agreement is required by the Assessment Act.

Order 32 rule 18

In the decision of Maragopoulos & Syrios EA 77/2000 the Full Court on 21^st September 2001 said " there may however be some question as to whether O32r18 applies to non-compliance with an order or direction made by a Registrar or a court fixing the date for filing and service of appeal books (as opposed to non compliance with a provision of the rules)."

The rule is amended to make it clear that dismissal for want of prosecution does apply to non compliance with an order or direction made by a registrar.

Order 33

The amendments to Order 33 are as a result of the decisions in Hendy v CSA (2001) Fam CA 632 and Kneipp v CSA 2186/2000 (Monteith J. 19 November 2001), which it was considered raised 2 issues to be addressed:

1.       The need to amend O33 r 3 to ensure that the rules clearly make the enforcement summons procedure available to enforce a debt due to the Child Support Agency pursuant to a registered liability under the Child Support (Assessment)Act.

Order 33 is amended to make it clear that it is "an obligation to pay money" which can be enforced by way of enforcement summons and the definition of "obligation" recites all of the debts intended to be enforced under the procedure prescribed, including a registered child support liability.

2.       To confirm that the Order 33 processes are available for use by the Child Support Agency and a payee who opts to collect their own child support (ie where the liability has been administratively assessed but not registered for collection by the agency) by providing that on a summons or other application under O33, the court can first give judgment for the debt before making an order to enforce the debt .

Order 34 rule 3

This amendment refers to s. 67U instead of s. 67Q as it is the former section which provides the court with the legislative power to make a recovery order.

O36Ar 2(2) (t)

This amendment is to delegate to SES Registrars the power to set aside a subpoena and issue a warrant for non -appearance on a subpoena in a matter before them.

Schedule

Form 45B

Form 46

These forms are amended to ensure they are consistent with the provisions of O33 as amended . Those amendments are explained above.