Commonwealth Numbered Regulations - Explanatory Statements

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FAMILY LAW AMENDMENT RULES 2003 (NO. 2) 2003 NO. 183

STATUTORY RULES 2003 No. 183

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

Family Court of Australia

FAMILY LAW AMENDMENT RULES 2003 (NO. 2)

Section 123 of the Family Law Act 1975 (the 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 Act.

Section 123(2) of the 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.

NOTES ON PROPOSED AMENDMENTS

1.1       General overview

In July 2000 Justice Ellis visited various courts and judicial centres in the USA and UK to investigate the appellate procedures in the superior courts in those countries. Based on recommendations made by Justice Ellis in a report he prepared at the conclusion of the study tour, the Chief Justice and the Appeal Division Judges have recommended a substantial overhaul of the appeals rules.

The amendments take into account contemporary practice and procedure in appeals in the courts of other counties and remove some of the problems in the existing procedure. The amendments also codify the process for Federal Magistrates Court (FMC) appeals whether heard by the Full Court or by a single Judge.[1] To make this easier to follow, the rules relating to each process have been separated into different Orders so that each Order is a complete code in relation to that subject matter.

The appeals rules are now contained in 4 Orders:

Order 32:       All appeals to Full Court (except appeals from the FMC to be heard by a single Judge) and appeals from courts of summary jurisdiction

Order 32A:       Application for leave to appeal to Full Court pursuant to s. 94AA(1) & 94AA (2A)

Order 32B:       Procedure for appeal from FMC when jurisdiction of Full court is to be exercised by a single Judge

Order 32C:       Application for leave to appeal from FMC when the appeal is to be heard by a single Judge

1.2       Process for appeals to the Full Court

The process for appeals to the Full Court has changed significantly. The steps in the new process are:

1.       Notice of Appeal filed

2.       Pre-argument statement to be filed by appellant within 14 days of Notice of Appeal

3.       Directions hearing/settlement conference conducted by a Judge

4.       Transcript to be obtained by appellant

5.       Appeal Books to be filed

6.       Hearing date to be allocated

1.2.1       Significant changes

•       No steps are taken by the court to progress an appeal until the pre-argument statement is filed. If no pre-argument statement is filed then the appeal does not proceed further.

•       The appeal Judges are assuming responsibility for case management of appeals. The first return date will be before a Judge not an Appeal Registrar. The Judge will settle the contents of the appeal books and impose time limits for filing of documents and applications.

•       On the first return date, the Judge may hold a settlement conference before hearing any applications and making any directions.

•       Although the Judge may adjourn a conference or directions hearing to an Appeal Registrar, the intention is that in most cases these events will be conducted by a Judge.

•       The role of an Appeal Registrar (not Regional Appeal Registrar) is much less - eg appointment to settle appeal papers has been abolished.

•       An application can be made for a conference or hearing including the appeal hearing itself to be conducted by electronic means.

•       A hearing date is not allocated until the Regional Appeal Registrar is satisfied that the appeal is ready to proceed.

•       Time limits and standards have tightened up as follows:

Procedure	Old time standard	New time standard
Filing of notice of appeal or application for leave to appeal	One month	28 days (O32 r 2(5))
Amendment of notice of appeal without permission	Not later than 14 days before sittings (O32 r 6)	Up to and including the date of the directions hearing (and after that only with leave) (O32 r 6 (2))
Cross appeal to be filed	Not later than 21 days after service of the notice of appeal (O32 r 7(2))	Not later than 14 days after service of the notice of appeal (O32 r 7(2))
Draft index to appeal papers to be filed	7 days before appointment to settle appeal books (O32 r 11)	3 days before the directions hearing (O32 r 11)
Appeal taken to be abandoned if appeal papers not filed	28 days after the date they were required to be filed (O32 r 15(5))	21 days after the date they were required to be filed (O32 r 15(5))
Notice to be given of the sittings of Full Court in which the appeal will be listed	21 days beforehand (O32 r 16)	28 days beforehand (O32 r 16)
Application for leave to adduce further evidence to be filed	14 days before hearing (O32 r 16A (2)(c))	21 days before hearing (O32 r 16A(2)(c))
Response to application for leave to adduce further evidence to be filed	24 hours before hearing	7 days before hearing (O32 r 16A(4))
Application to dismiss appeal to be filed	To be filed 28 days before return date(O32 r 19)	To be filed 14 days before return date
Summary of argument and list of authorities in relation to a special case to be filed Appellant Respondent Child rep (if any)	(O32 r 21 ) 5 days before hearing 2 days before hearing 2 days before hearing	14 days before commencement of sittings 7 days before commencement of sittings 3 days before commencement of sittings

1.3       Process for FMC appeals

1.       Notice of appeal filed.

2.       Notice of appeal is referred to the Chief Justice (or delegate) to consider whether it is appropriate for the jurisdiction in relation to the appeal to be exercised by a single Judge.

3.       If Full Court is to hear the appeal the procedure in O32 applies.

4.       If a single Judge is to hear the appeal (O32A applies)

(i)       A Judge is appointed to hear the appeal.

(ii)       A Directions hearing is held (Judge may hold a settlement conference before making necessary directions).

(iii)       Appellant obtains transcript and Reasons for judgment.

(iv)       Appellant to arrange for relevant appeal documents to be available for the Judge.

(v)       Appeal is heard.

1.4       What has not changed

The amendments to the Rules have not changed

•       the process in appeals from courts of summary jurisdiction;

the process in reviews of Judicial Registrar's, Registrar's or Deputy Registrar's decisions.

2.       Details of Amendments

Rule 1 cites the Rules as the Family Law Amendment Rules 2003 (No. 2 ).

Rule 2 provides that the Rules commence on gazettal.

Rule 3 provides that Schedule 1 amends the Family Law Rules 1984 (the Rules).

Schedule 1 sets out the amendments

Amending item [1]: O31B r 25 & 26

These Rules relate to:

•       an appeal; and

•       an application for leave to appeal;

from a decision of a court under the Child Support legislation.

Due to the separation of the appeals rules into 4 Orders these Rules are amended to clarify which Orders apply to these appeals:-

•       Order 32: All appeals to Full Court (except appeals from the FMC to be heard by a single Judge) and appeals from courts of summary jurisdiction.

•       Order 32A: Application for leave to appeal to Full Court pursuant to s. 94AA(1) & 94AA (2A).

•       Order 32B: Procedure for appeal from FMC when jurisdiction of Full court is to be exercised by a single Judge.

•       Order 32C: Application for leave to appeal from FMC when the appeal is to be heard by a single Judge.

Amending item [2] ORDER 32 heading       APPEALS TO THE FULL COURT

Amended to reflect that this Order only relates to Full Court appeals.

Amending item [3] Order 32, before rule 1

New rule O32 r 1A is to be inserted before rule 1 and will reflect that this Order only relates to Full Court appeals.

Amending items [4] and [5] O32 R 1       Definitions

Definition of appeal is amended so that O32 is applicable to all appeals except a FMC appeal to be heard by a single Judge (see s94AAA(3), s 102A(2) Assessment act, s 107A(2) Registration Act).

The other amendments to definitions are machinery only and make no change to existing practice.

Amending item [6] O32 R 2       Institution of appeal

This rule is amended to:

•       Allow for a notice of appeal to be filed by e-mail as well as fax, ie, by sending the notice of appeal in an approved electronic format to an approved e-mail address;

•       Change the time for filing an appeal from 1 month to 28 days in line with the decision to amend all time limits within the Rules to 28 days for consistency with other Commonwealth Legislation;

•       Provide when a notice of appeal received by e-mail or fax is taken to have been filed by the court.

A party who sends a document for filing by fax or e-mail must send the original and copies to the court for sealing for the service copies.

O32 r 2AA       Referral to Chief Justice

This rule sets out the process to be followed by the court on the filing of a notice of appeal in which a decision of a Federal Magistrate is appealed. Upon the filing of the notice of appeal the Regional Appeals Registrar sends the relevant documents to The Honourable Justice Ellis to determine whether the jurisdiction of the Family Court is to be exercised by the Full Court or a single Judge. (s. 94AAA(3) of the Act; s102A (2) of the Assessment Act and s 107A(2) of the Registration Act). As soon as possible after the notice of appeal is filed, the parties are then advised which part of the Rules applies.

If the appeal is to be heard by a Full Court -- Order 32 and O32A, if relevant, apply to the appeal. If the appeal is to be heard by a single Judge -- O32B and O32C, if relevant, apply to the appeal.

Amending item [7] O32 r 3A(1)        Service on child representative

A time limit of 14 days has been included for service of the notice of appeal upon any child representative.

Amending item [8] O32 r 6 & 7

O32 r 6        Amendment

This rule is amended to provide that a notice of appeal may be amended without leave up to and including the date of the directions hearing (as to which see O32 rule 7B) but after that, only with the leave of the court. It also provides for filing by fax or e-mail.

O32 r 7       Cross appeal

This rule has been amended to:

•       enable a cross-appeal to be filed by e- mail or fax, and

•       reduce the time in which a cross-appeal must be filed to 14 days from date of service of the notice of appeal.

O32 r 7A       Pre-argument statement

This is a new rule. An appellant in an appeal to be heard by the Full Court must file a pre-argument statement in the regional appeal registry not later than 14 days after the appeal is started. (As an appeal includes a cross-appeal, this rule also applies to a cross-appellant.)

The pre-argument statement must state, in a concise form, the actual issues to be raised at the hearing of the appeal.

This is a significant change to existing process and nothing else will happen in an appeal to the Full Court until this is filed.

O32 r 7B to 7F       Directions hearing/Settlement conference

These provisions are new. They introduce the new process for all Full Court appeals, namely that of a first return date which is conducted by a Judge of the Appeal Division (or another Judge). In some circumstances, this might be adjourned to a Registrar but the intention is that the Judges of the Appeal Division will manage appeals from their commencement.

The new process is that after the pre-argument statement is filed, the Regional Appeal Registrar notifies the parties of the appeal registry and the date fixed for the settlement conference/directions hearing. The appellant (cross-appellant) and the appellant's (cross-appellant's) lawyer (if any) are required to appear at the directions hearing and if a settlement conference is to be held the respondent (and lawyer, if any) is also required to appear.

When the matter is first called on, the Judge may decide to conduct a settlement conference before hearing any applications or making directions in relation to the future conduct of the appeal.

The directions that must be made at the directions hearing include those which were previously considered at the appointment to settle the appeal papers, ie, the contents of the appeal books. In deciding what directions to make, the interests of justice are paramount.

A party may seek to attend the first return date by electronic means (rule 7E).

Amending item [9] O32 r 8 Appeal Registry

This rule is omitted as the procedure is now set out in new O32 r 7B(2) (a) and O32B r 13 (a)

Amending item [10] O32 r 10        Appointment to settle index to appeal books

This rule is omitted as directions about the appeal books are made at the Directions hearing under rule O32 r 7F (2)

Amending item [11] O32 r 11        Draft Index

This rule has been amended to require the appellant is to file a draft index to the appeal papers 3 days before the directions hearing.

Amending item [12] O32 r 12        Settling index

The appointment to settle the appeal books is abolished because the necessary directions are now made at the Directions hearing or provided for in rule 7F.

Amending items [13], [14] & [15] O32 r 13(1), 14(1)(c), 15 (1),(2),(3), (4)       Transcript and appeal books - directions about

The substantive requirements in these rules have not changed. The rules are amended to provide that it may be a Judge or an Appeal Registrar who makes the relevant directions about the transcript or the preparation of the appeal books.

Amending items [16] & [17]O32 r 15 (5)       Abandonment of appeal

An appeal is taken to have been abandoned at the end of 21 days from the date that the appeal books are directed to be filed under O32 r 7F(2)(g) (if not filed by that date). Otherwise there is no change to existing practice.

Amending item [18] O32 r 16       Hearing date for appeal

The amendments to this rule bring about 2 changes to existing practice -

•       the parties are advised of the sittings of the Full Court in which the appeal will be listed rather than the exact date of the hearing, and

•       notice to the parties must be given 28 days before the sittings starts compared to 21 days.

It is intended that a Regional Appeals Registrar will only list an appeal after the appeal books have been filed and the appeal is ready to proceed.

O32 r 16A       Further evidence

The amendments to this rule change the time limits for filing material in an application for leave to adduce further evidence on appeal. The application must now be filed 21 days before the appeal sittings and the respondent's material must be filed 7 days before the appeal sittings. Otherwise there is no change to existing practice.

Amending item [19] O32 r 17        Expediting an appeal

This rule has been amended to provide that an application for an appeal to be expedited must be determined by a Judge of the Appeal Division (compared to a Judge of the Family Court).

Amending item [20] O32 r 17B       Electronic means

This amendment is to change the terminology from technical medium to electronic means due to proposed amendments to the Family Law Act (FLAB 2003) otherwise there is no substantive change.

O32 r 18 (2) & (3)       Dismissal

This rule is amended to provide that the court can dismiss an appeal for want of prosecution of its own motion as well as upon application, provided due notice is given to the appellant.

Amending item [21] O32 r 18A       Short form reasons

This rule has been omitted because it is to be replaced by O32 r 19AA.

Amending item [22] O 32 r 19 (1)       Application for dismissal

The time limit within which an application to dismiss an appeal must be filed before the return date is reduced from 28 days to 14 days.

Amending item [23] Insertion of new rule O32 r 19AA       Short form reasons

Although this is a new rule, it does not change substantive law. It provides that Form 42C is to be used when the Full Court dismisses an appeal and is satisfied that the appeal does not raise any question of general principal. The rule now refers to the relevant sections in the Act and the Child Support legislation.

Amending item [24] O32 r 19A       Costs on withdrawal of appeal

This rule has been amended to make it clear that an appellant who discontinues an appeal can apply for an order discharging the requirement that he/she pay the costs occasioned by the appeal.

Amending item [25] O32 r 21 (1)        Case stated

This amendment is to correct a typographical error.

Amending item [26] O32 r 21 (8)        Special case - time limits

The time limits within which the parties must file the summary of argument and list of authorities for a special case have changed -

Appellant       14 days before the commencement of the sittings

Respondent       7 days before the commencement of the sittings

Child representative (if any)       3 days before the commencement of the sittings

Amending item [27] O32 r 21A, 21AA, 21B

These rules have been redrafted and renumbered as follows

O32 r 21A see O32 r 22       Application to the court

O32 r 21AA see O32 r 23        Hearing an application

O32 r 21B - omitted as administrative only and unnecessary.

O32 r 21C see O32 r 24        Withdrawal of application

However the main amendments to these rules are:

•       to make it clear that an application to the court under the Act and the Child Support legislation in connection with an appeal is brought by filing a Form 42A and an affidavit ;

•       provide for filing of an application by e-mail and fax.

There is no substantive change to the law.

O32 r 22 to 25

The previous rules numbered O32 r 22 to 25 in relation to appeals from courts of summary jurisdiction have been omitted and moved to new Order 32D.

Amending item [28] ORDER 32A, heading

Amended to reflect that this Order only relates to leave to appeal in Full Court appeals.

Amending items [29], [30], [31] O32A r 1A , 1

This Order of the Rules has been amended so that it only applies to an application for leave to appeal to the Full Court which is to be heard by the Full Court. The process for an application for leave to appeal a FMC decision which is to be heard by a single Judge is set out in Order 32C.

The amendment to remove the terminology "prescribed decree", is because the rules in which it was contained have been redrafted to remove it. It was considered to be too confusing because it was defined in a different way to that term in the Act.

The substantive law in relation to the procedure to be followed by an applicant has not changed significantly from current practice.

Amending item [33] O32A r 2        Institution of an application

An application for leave is made by filing a Form 67 and an affidavit. The change to existing procedure set out in these amendments is to provide for filing by e-mail as well as fax, ie, by sending the documents in an approved electronic format to an approved e-mail address. The rule sets out when a document sent by e-mail is taken to have been filed by the court.

A party who sends a document for filing by fax or e-mail must send hard copies to the court for sealing for the service copies.

O32A r 2A

This rule sets out the process to be followed by the court on the filing of an application for leave to appeal a decision of a Federal Magistrate. The Regional Appeal Registrar must send the relevant documents to Ellis J to determine whether the jurisdiction of the Family Court is to be exercised by the Full Court or a single Judge.

If the appeal is to be heard by a Full Court -- Order 32 and O32A apply to the appeal. If the appeal is to be heard by a single Judge -- O32B and O32C apply to the appeal.

O32A r 3       Time for filing

This rule has been amended to change the time for filing of the Form 67 and affidavit to 28 days from date of decree complained of.

Amending items [33], [34], [35] & [36] O32A r 4 (2) O32A r 5

This amendment is to remove the terminology "prescribed decree" because it is confusing in that it has a different meaning to that term in the Act.

Amending item [37] O32A r 5(3)       Child Support registrar

This rule has been amended as a consequence of amendments to the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988 (the Child Support legislation) to omit references to 'Deputy Child Support Registrar'.

Amending items [38] - [42] O32A r 5A heading and rule 5A(1) paragraph 1 (a) & (b) and 5A(2)

These rules are amended to remove the terminology "prescribed decree" because it is confusing in that it has a different meaning to that term in the Act.

Amending items [43] & [44]: O32A r 6(2), 8 & 9       Hearing of application

The amendment to these rules reflects the separation of the rules into different Orders for the different procedures applicable when the application is in relation to an appeal from the FMC which is to be determined by a single Judge see O32C.

There is no change to existing practice.

Amending item [45] inserts new Orders 32B, 32C and 32D.

ORDER 32B       APPEALS FROM FEDERAL MAGISTRATES COURT WHERE APPEAL IS TO BE HEARD BY A SINGLE JUDGE

O32B r 1        Application of O32B

The main purpose of this Order is to separate the requirements in relation to appeals to be heard by a single Judge into a discrete Order to make it easier to follow.

The majority of the requirements in O32B such as how to start an appeal, documents to be filed with an appeal, service, stay, cross-appeals, appeal registry, etc are the same as the requirements in O32 for appeals heard by the Full Court. For differences in procedure see the overview and below.

O32B r 2       Definitions

This definition section provides that O32B is applicable to all appeals which are to be heard by a single Judge where a determination to that effect has been made by the Chief Justice or delegate pursuant to s94AAA(3) of the Act, s 102A(2) of the Child Support (Assessment) Act 1989 (the Assessment Act) or s 107A(2) of the Child Support (Registration and Collection) Act 1988 (the Registration Act).

Otherwise the definitions are similar to those in Order 32.

O32B r 3       Institution of appeal

The process for appellants is the same as set out in Order 32 for appeals to be heard by the Full Court -

•       A notice of appeal (Form 42) is filed in the regional appeals registry. It may be filed by delivery to the Registry or by fax or e-mail. A copy of the order appealed is to be attached to the notice of appeal. The provisions set out what to send with documents filed by fax and e-mail and sub rule (4) provides when the documents are taken to be filed.

•       The appeal must be filed no later than 28 days after the order appealed was made.

•       The requirements as to the contents of the notice of appeal are set out in O32B r 3 (7) and are the same as O32 r 2(7).

O32B r 4       Referral to Chief Justice

This rule sets out the process to be followed by the court on the filing of a notice of appeal in which a decision of a Federal Magistrate is appealed. The Regional Appeal Registrar sends the relevant documents to the Chief Justice or delegate (Ellis J.) to determine whether the jurisdiction of the Family Court is to be exercised by the Full Court or a single Judge. (s. 94AAA(3) of the Act; s 102A (2) of the Assessment Act and s 107A(2) of the Registration Act). As soon as possible after the notice of appeal is filed, the parties are then advised which part of the rules applies.

If the appeal is to be heard by a Full Court -- Order 32 and O32A, if relevant, apply to the appeal. If the appeal is to be heard by a single Judge -- O32B and O32C, if relevant, apply to the appeal.

O32B r 5       Documents to be filed

A Form 41C (cover sheet) is to be attached to an affidavit and any other document (which is not in the new format) which is filed in relation to an appeal.

O32B r 6        Service of Notice of appeal

The notice of appeal is to be served no later than 14 days after filing. A copy of the notice of appeal is to be served on the Registrar of the FMC. A Federal Magistrate may direct service on another person.

O32B r 7       Child representative - child welfare appeals

The notice of appeal is to be served on a child representative, if any, (no later than 14 days after filing) who may appear at the hearing of the appeal.

O32B r 8       Stay

There is no change to substantive law and this provision is the same as O32 r 4 which provides that an appeal does not stay the operation of the order appealed. The Federal Magistrate or the Judge conducting the directions hearing in the appeal may order a stay of operation and execution of the order under appeal.

O32B r 9       Security for costs

Upon application a Judge may order Security for costs.

O32B r 10        Amendment of Notice of appeal

The notice of appeal may be amended before the directions hearing without leave or after the directions hearing only with leave. The amended notice may be filed by delivery, e-mail or fax and must be served.

O32B r 11       Cross appeals

A party may cross-appeal by filing a notice of appeal within 14 days after service of the notice of appeal

It can be filed by delivery, fax or e-mail.

O32B r 12        Exhibits

The obligation upon the appeals registrar in relation to exhibits remains the same as current practice set out in O32 r 9.

O32B r 13 & 14       Appeal registry and directions hearing

After the appeal has been filed and it is determined that the appeal is to be heard by a single Judge, a date will be fixed for a directions hearing by a Judge and the Regional Appeal Registrar must notify the parties of the appeal registry and the date of the directions hearing. This notice will also advise who is required to attend the directions hearing but this will ordinarily be the appellant and any cross-appellant. A Judge may decide to make the necessary directions in chambers without an appearance by the parties.

At the directions hearing the Judge may conduct a settlement conference before making directions in relation to the future conduct of the appeal.

The directions to be made are those that will enable the appeal to be heard as soon as practicable and include what documents are to be before the Judge at the hearing of the appeal, who is to arrange that, who is to obtain the reasons for judgment from the FMC, timetable for filing of documents for hearing and a date for hearing.

The directions hearing can be adjourned and a request can be made for it to be conducted by electronic means. This request would need to be in writing and made an appropriate time before the date fixed for the directions hearing.

Order 32B r 15       Reasons for Judgment

This rule imposes an obligation on the appellant to obtain, file and serve the Reasons for Judgment of the Federal Magistrate by a date fixed by the Judge at the directions hearing.

Order 32B r 16       Settlement conference

The Judge conducting the directions hearing may decide to conduct a settlement conference or direct such a conference be conducted by an Appeal Registrar and either may adjourn the conference.

Order 32B r 17       Electronic means

A party may apply and the court may of its own initiative order that the directions hearing or settlement conference be conducted by electronic means.

O32B r 18        Transcript

Any transcript obtained for the appeal must be that prepared by the contractor providing transcription services to the FMC.

O32B r 19       Further evidence

Any application to adduce further evidence must be made by filing a Form 42A and an affidavit not later than 14 days before the hearing. Any responding affidavit is to be filed 7 days before the hearing.

O32B r 20       Expedition of appeal

A party can seek that an appeal be expedited.

O32B r 21       Determining application without an oral hearing

Where the Act allows, the court may order that an application be dealt with without an oral hearing and make directions as to the conduct of the application in that event.

O32B r 22        Dismissal of appeal

This procedure is the same for Full Court appeals and provides a mechanism for the dismissal of an appeal for want of prosecution.

O32B r 22 & 23        Application to dismiss

A party may apply to dismiss an appeal for want of prosecution by filing a Form 42A and an affidavit. The court may, of its own initiative, dismiss an appeal for want of prosecution provided 14 days notice has been given to the appellant.

O32B r 24       Short reasons

Form 42C is to be used when the Court dismisses an appeal and it is satisfied that the appeal does not raise any question of general principal. The rule refers to the relevant sections in the Act and the Child Support legislation.

O32B r 25        Withdrawal of appeal

An appellant may withdraw an appeal by filing a Form 42B. The appellant must then pay the costs of each other party unless the court orders otherwise.

O32B r 26        Application for certificate to appeal to High Court

This is in the same terms as existing O32 r 20.

O32B r 27        Application to court

This is in the same terms as O32 r 22 and provides that an application to the court under the Act and the Child Support legislation in connection with an appeal is brought by filing a Form 42A and an affidavit under this Rule. These documents may be filed by delivery, fax or e-mail.

Order 32B r 28       Withdrawal of application

This is in the same terms as O32 r 24 and provides that an application may be withdrawn by filing a Form 42B. The applicant must then pay the costs of each other party unless the court orders otherwise.

ORDER 32C       APPLICATIONS FOR LEAVE TO APPEAL FROM FEDERAL MAGISTRATES COURT WHERE JURISDICTION OF FULL COURT IS TO BE EXERCISED BY A SINGLE JUDGE

O32C r 1 & 2       Application of Order 32C Definitions

The main purpose of this Order is to separate the requirements, in relation to applications for leave to appeal where the appeal is to be heard by a single Judge, into a discrete Order to make it easier to follow.

The requirements in O32C are the same as the requirements in O32A for applications which are to be heard by the Full Court and there has been no change to substantive law or practice.

O32C r 3        Application for leave to appeal

A person can apply for leave to appeal by filing a Form 67 and an affidavit in the regional appeal registry no later than 28 days after the date of the order complained of. The application can be filed by delivery or by fax or e-mail. (cf O32A r 2 - 4)

O32C r 4       Referral to Chief Justice

When the application is received the Regional appeals registrar refers the application to the Chief Justice or delegate for a decision to be made about whether the jurisdiction of the court is to be exercised by a Full Court or a single Judge. If a single Judge - this Order applies.

O32C r 5        Time for filing application

The Form 67 must be filed within 28 days of the date on which the order sought to be appealed was made.

O32C r 6        Affidavit in support

This is in the same terms as O32A r 4 and prescribes the contents of the affidavit in reply.

O32C r 7       Service

The application must be served on all parties to the case within 7 days of filing. The Regional Appeal Registrar must send a copy of the application to the Child Support Registrar if it is an appeal under the Child Support legislation. The court can require service on another person. (cf O32A r 5)

O32C r 8       Stay

A party may apply for an order staying the order sought to be appealed and the Federal Magistrate or a Judge may make that order. (cf O32A r 5A)

O32C r 9        Directions before hearing

The application for leave to appeal is listed for directions before it is heard, which directions are about the conduct of the application, including the fact that it can proceed without an oral hearing. (cf O32A r 6)

O32C r 10       Written submissions required in some cases

If the Judge directs that the application is to be dealt with without an oral hearing, it will direct that the parties prepare supporting submissions. This rule provides the timing and contents of supporting submissions. (cf O32A r 7)

O32C r 11       Leave may be on terms

When the application for leave to appeal is heard the court may grant leave to appeal on terms.

O32D        APPEALS FROM COURTS OF SUMMARY JURISDICTION

O32D r 1 & 2       Application of Order 32D & Definition

The main purpose of this Order is to separate the requirements in relation to appeals from courts of summary jurisdiction into a discrete Order to make it easier to follow. These provisions replace former O32 r 22 to 25. There is no change to existing practice. (For leave to appeal provisions, relevant to applications under the Child Support legislation, namely s 105 of the Assessment Act and section 110 of the Registration Act - see O31B rr 18 to 24).

O32D r 3       Institution of appeal

An appeal from a court of summary jurisdiction may be started by filing a Form 43. The Form may be filed by delivery, fax or e-mail and must be filed in the Registry of the court closest to the court of summary jurisdiction from which the appeal is made.

O32D r 4       Time for filing notice of appeal

The notice of appeal must be filed within 28 days of the date of the order being appealed or such other time as allowed by the court.

O32D r 5       Fixing of hearing date

When the Form 43 is filed it is listed for hearing on a date as near as practicable to 28 days from the date of filing.

O32D r 6       Service

The appellant has to serve the Form 43 on the other parties and the court of summary jurisdiction within 2 days of filing.

O32D r 7       Stay of proceedings

This was formerly O32 r 24. There is no change to existing practice.

O32D r 8       Transmission of papers

This was formerly O32 r 25. There is no change to existing practice.

Amending items [46] - [55]        Schedule 1 Forms 41C, 42, 42A, 42B, 42C, 43

These amendments to the Forms are necessitated by the change to the Rule numbers. There is no substantive change to any of these forms.

Amending items [56] to [59} Form 67

Form 67 is amended to reflect the fact that the Form is used for applications for leave to appeal under Order 32A and Order 32C; can be listed before a Judge of the appeal division if the former, and a single Judge if the latter; and to amend the date reference from 19 to 20.

Amending item [60] Further amendments

These amendments are typographical only.