EXPLANATORY STATEMENT

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

 

Select Legislative Instrument 2005 No. 148

 

Family Law Amendment Rules 2005 (No. 1)

 

 

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 29 March 2004 and were amended on 17 December 2004.

 

Pursuant to the Legislative Instruments Act there has been broad consultation with the Family Law Section of the Law Council of Australia and the Attorney General’s Department in the preparation of the following amendments to the Family Law Rules.

 

These amendments to the Rules are to address issues arising from the commencement, on the 15 April 2005, of Schedule 5 of the Bankruptcy and Family Law Legislation Amendment Act 2005.

 

The matters that have been addressed arise from the following amendments to the Family Law Act:

 

• Section 79 is amended by inserting subsection (10), the effect of which is to provide that the following are entitled to become a party to proceedings under Section 79 :

a) a creditor of a party to a proceeding, if the creditor may not be able to recover his or her debt if an order were made,

b) any other person whose interests would be directly affected by the making of an order.

 

• A new Section 79F is inserted allowing applicable rules of court to specify circumstances in which a person who applies for an order under Part VIII, or is a party to proceedings under that Part, is to give notice to a person who is not a party to the proceedings.

 

 DETAILS OF AMENDMENTS

 

Rule 1 Name of Rules

 

The name of the rules is the Family Law Amendment Rules 2005 (No. 1).

 

Rule 2 Commencement

 

The rules amendments commence the day after they are registered pursuant to the provisions of the Legislative Instruments Act.

 

Rule 3 Amendment of Family Law Rules 2004

 

Schedule 1 amends the Family Law Rules 2004.

 

Schedule 1, item 1.  Subrule 6.06(2), note

 

This amendment is to substitute a new note at the conclusion of subrule 6.06(2). The new note includes a reference to subsection 79 (10) as an example of when a person is entitled to intervene in a case without the Court’s permission.

 

Schedule 1, item 2.  Subrule 12.04(1), note 2

 

This amendment is to substitute a new note 2 at the conclusion of subrule 12.04(1).  This note identifies an order that a party serve notice on a person whose interests may be affected as an order that may be made at a procedural hearing.

 

Schedule 1, item 3.  Paragraphs 12.04(2) (b) and (c)

 

This amendment is to substitute a new subparagraph (c).  This new subparagraph will clarify, that at a procedural hearing, the issue of who may be entitled to become a party should be addressed.

 

Schedule 1, item 4.  After rule 14.06

 

This amendment is to insert a new Rule 14.07 headed “Notice about intervention under Part VIII of Act”.  This new rule provides for service of a written notice on a person who may be entitled to become a party to the case, attaching a copy of the application and advising of the date of the next court hearing.