Commonwealth Numbered Regulations - Explanatory Statements

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FAMILY LAW AMENDMENT RULES 2002 (NO. 2) 2002 NO. 151

STATUTORY RULES 2002 No. 151

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

AMENDMENT OF THE FAMILY LAW RULES

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 1 Subrule 4(1), Order 2 paragraphs 3(4)(b),Order 31A Rule 1 and Order 41

These amend outdated references in the Rules to the Corporations law and Corporations Act 1989 to the Corporations Act 2001

Order 20 Rule 4A

This amendment gives the Court power to order exchange of documents by electronic means. Information for the electronic exchange of documents has been prepared and are to be published as Guidelines rather than as Rules.

Order 28 Rule 7(2)

In the decision in Fitzgerald (2001) FamCA 1280 the Full Court said "where a subpoena has been issued for the purpose of an appeal, and any application to set aside the subpoena, or any objection is taken to inspection of the subpoenaed documents, it would be more appropriate as a matter of practice and procedure if those matters were left to be determined by the Full Court before which the appeal is listed for hearing, and we suggest that the Rules of the Court should be amended to make that clear". The Rule has been amended accordingly.

Order 41

Order 41(3) of the Family Law Rules provides that; Order 71 of the Federal Court Rules applies to applications under the Corporations Law in the Family Court as if it were a provision of these Rules. Order 71 was repealed in January 2000 and replaced by the Federal Court (Corporations) Rules 2000. This amendment corrects this and adopts the Federal Court (Corporations) Rules.

Order 40 Rule 1

The penalty interest rate has been amended to 10.1%

Schedule 1

Form 36 Subpoena

There was some confusion that the address in paragraph 4 of the Form was the address where the subpoenaed documents were to be delivered rather than the address of the person issuing the subpoena. This form has been amended to avoid this confusion.

Form 55 Notice To Court That Solicitor Has Ceased to Represent Party

This Form has been amended so that the Court is advised of the last known details of the Party the solicitor has ceased to represent.

Forms 39 (Decree Nisi of Dissolution of marriage) and Form 41 (Memorandum of Certificate That Decree Nisi has Become Absolute) have been abolished

The Rules Revision Committee has determined that there should be prescribed forms only for forms which are used by clients. Therefore any forms produced by the court such as decrees and warrants will not be prescribed forms but will be in the form of a certificate contained in a manual for use by the court. Thus the present Forms 39 and 41 are replaced by a certificate issued by the court. It had been intended to effect these changes when the revised rules come into operation. However, because of the requirements of Casetrack, this particular amendment comes into effect at this time.

Form 51

This form has been amended at the request of the Federal Police to clarify that s122A (the power to enter and search) is applicable to a Warrant of Arrest.

Schedule 3

These amendments modify the Federal Court (Corporations) Rules 2000 to accord with the procedural requirements of the Family Law Rules.

Schedule 2

The new Case Management Directions (CMD) will be introduced by Practice Direction as from 1^st August 2002.

As the Rules Revision Committee is addressing the Rules as a whole a wholesale amendment to the Rules at this time is unnecessary. These amendments are to ensure there are no inconsistencies between the CMD and the Rules. Where there are extra powers/issues which are in the CMD and not in the Rules and vice versa, the Rules have not been amended as these provisions are not inconsistent with one another.

Order I Subrule 4

Definitions have been amended to incorporate the new Case Assessment Conference, Pre Trial Conference and Trial Notice and delete the obsolete Pre Hearing Conference.

Order 9

This Amendment refers to correct title of Case Assessment Conference

Order 17 Subrule 4(2)

This amendment ensures that the financial documents required to be exchanged in O17r4(1) are exchanged 3 days prior to the Case Assessment Conference.

Order 20 Subrule 2(2)

This amendment clarifies that in proceedings commenced by an Application in accordance with Form 3, a party may only serve a Request to Make Discovery after the conciliation conference in property matters and the issuing of a Trial Notice in children's matters but not later than 42 days before the pretrial conference or at any time with leave of the Court.

Order 24 Rule 3

O24r3 (and Form 17A) has been abolished and the CMD in relation to the filing of the Case Summary Document will apply.

Order 24 Paragraph 4(2)(j)

This amendment ensures the case Management Directions are referred to in the Rule, not the former Case management Guidelines.

Order 24A

This amendment reflects the change to Pretrial Conference from the former Pre Hearing Conference.

Order 30 Subrule 2(2)

This amendment directs that not later than 14 days before the date fixed for the Pretrial Conference, or as directed by the Registrar, the parties file their affidavit of evidence in chief, witness affidavits and notice of witness.

Order 30 Subrule 2AA(a)

The term pre-hearing conference is replaced by "a court"

Order 30 Subrule 2AAA(2)

This amendment provides that an application fro evidence by a technical medium be made by a Form 8 Application for matters listed for trial and allows a request in writing for interim or proceedural applications.

Order 30 Subrule 2AAA(4A)

This amendment allows an application under O30r2AAA(2)(a) to be heard by telephone.

Order 30 Subrule 2AAA(4B)

This amendment requires an application under O30r2AAA(2)(b) be heard in chambers unless otherwise ordered by the Court.

Schedule 1, Form 17A

Form 17A is removed. It will be replaced under the Case Management Directions's with the Case Summary Document

Further Amendments- Case Assessment

All references in the Rules in brackets (O8r9, O8r16, O9r1A, O9r1B, O38para4(a), O38r6) to "case" is omitted and replaced by the term "case assessment".

Further Amendments- Pre-trial

All references in the Rules in brackets hereafter (O9r2(5)(b)(x), O24r4(1)(b), o24Ar3,O24Ar4, O38r4, O38r6,o38r17(1)(a)) to the term "pre-hearing" is replaced by the term "pre-trial".