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FAMILY LAW AMENDMENT RULES 2005 (NO. 2) (SLI NO 212 OF 2005)

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2005 No. 212

 

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

 

FAMILY LAW AMENDMENT RULES 2005 (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 29 March 2004. Pursuant to the Legislative Instruments Act there has been broad consultation with the Federal Court of Australia, 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.

 

The major changes introduced by the amendments to the rules are as follows:

 

-                     The amendments made by these Acts address longstanding issues concerning the interaction between bankruptcy and family law which have created uncertainty as to the competing rights of creditors and the non-bankrupt spouse.  They clarify the rights of the bankruptcy trustee and the non-bankrupt spouse, and they enable concurrent bankruptcy and Family Law financial proceedings to be brought together to ensure all the issues are dealt with at the same time.

-                     The trustee’s involvement in Family Court proceedings is facilitated and the Family Court will have jurisdiction in bankruptcy in relation to any matter connected with, or arising out of, the bankruptcy of the bankrupt where a party to a marriage is a bankrupt and the trustee of the bankrupt’s estate is a party to property settlement, Section 79A, or spousal maintenance proceedings.

-                     The Bankruptcy and Family Law Legislation Amendment Act 2005 also provides for the Family Law Rules to make provision for a series of notice requirements on a party who is also a bankrupt or a debtor subject to a personal insolvency agreement, or a party to bankruptcy proceedings and the bankruptcy trustee.

 

The balance of the amendments will clarify process, meaning and intent, improve drafting, and correct errors.

 

New Chapter 26 which will set out the rules that will apply in a case in which a Family Court has jurisdiction in bankruptcy under Section 35 or Section 25B of the Bankruptcy Act 1966 was drafted on the basis of ensuring as much consistency as possible with the Bankruptcy Rules of the Federal Court and the Federal Magistrates Court.  The new forms for use in a bankruptcy case are also adapted from the forms used in the Federal Court of Australia. 

 

The major changes introduced by the amendments to the forms are to delete the Form 60 and to introduce new forms for use in bankruptcy matters. The new bankruptcy forms will be placed in a separate Part of Schedule 2.  They are clearly identifiable and this will assist Judicial Officers, staff and clients of the Court.

 

DETAILS OF AMENDMENTS

 

Rule 1 Name of Rules

 

The name of the rules is the Family Law Amendment Rules 2005 (No. 2).

 

Rule 2 Commencement

 

The rules amendments commence on 19 September 2005.

 

Rule 3 Amendment of Family Law Rules 2004

 

Schedule 1 amends the Family Law Rules 2004.

 

Schedule 1, item 1.  Paragraphs 1.05(2)(f) and (g)

 

This amendment is firstly to delete the capitalisation of the expressions “Application for Divorce” and “Child Support Application or Appeal”.  This is in accordance with standard grammatical convention.  Secondly the amendment will ensure that compliance with pre-action procedures is not required in a case which involves a court’s jurisdiction in bankruptcy under section 35 or 35B of the Bankruptcy Act.

 

Schedule 1, items 2 and 3.  Paragraph 1.20(2)(a) and After subrule 1.20(2)

 

These amendments will facilitate the publication of both the given name and family name of a party in a case in which a Family Court has jurisdiction in bankruptcy under section 35 or 35B of the Bankruptcy Act.

 


Schedule 1, item 4 Rule 2.01, Table 2.1, item 10

 

This amendment will insert a new item 10 in table 2.1 .This will clarify that an Application – Contravention (Form 18) is to be used for an application alleging a failure to comply with a bond.

 

Schedule 1, item 5. Rule 2.01, Table 2.1, note 3, paragraph (f)

 

This amendment inserts two new subparagraphs into note 3. They identify the Chapters where information can be obtained about an application relating to a failure of a party to comply with a bond and an application relating to a bankruptcy case.

 

Schedule 1, item 6.  Subrules 4.23(2) and 4.26(1)

 

This amendment is to delete the capitalisation of the expression “Child Support Application”. This is in accordance with standard grammatical convention.

 

Schedule 1, item 7.  Subrule 5.04(4)

 

This amendment will ensure that the restrictions on the filing of a Form 2 application do not apply to a bankruptcy trustee or a trustee of a personal insolvency agreement.

 

Schedule 1, item 8.  Part 6.4, heading

 

This amendment will substitute a new heading at the commencement of Part 6.4 confining Part 6.4 to the progress of a case after death.

 

Schedule 1, item 9.  After rule 6.15

 

This amendment will insert a new Part 6.5 which will deal with the progress of a case after bankruptcy or personal insolvency agreement.

 

Schedule 1, item 10.  Rule 6.16

 

6.16     Interpretation

This amendment will insert definitions for the terms “bankruptcy proceedings”, “relevant case”, andrelevant party. There will also be a note that identifies definitions in the Bankruptcy Act of relevant terms.

 

6.17          Notice of bankruptcy or personal insolvency agreement

This amendment will impose a notice requirement on a relevant party who is also a bankrupt or a debtor subject to a personal insolvency agreement. They must notify all other parties of the bankruptcy or personal insolvency agreement, the bankruptcy trustee or the trustee of the personal insolvency agreement as the case may be about the relevant case, and the court.  This subrule will also provide that a party may apply for procedural orders for the future conduct of the case.

 

6.18          Notice under paragraph 6.17(1)(b)

This amendment will provide how notice is to be given to a bankruptcy trustee or the trustee of a personal insolvency agreement.

 

6.19          Notice under paragraph 6.17(1)(c)

This amendment will provide how notice to the court is to be given.

 

6.20          Notice of bankruptcy proceedings

This amendment will impose a requirement that if a relevant party is a party to bankruptcy proceedings the party must give notice of the bankruptcy proceedings to the court and the other parties to the case.  It also provides how notice is to be given.

 

6.21          Notice of application under section 139A of the Bankruptcy Act

This amendment will require the bankruptcy trustee of a bankrupt party to a marriage to notify the court and the other party to the marriage of an application under section 139A of the Bankruptcy Act in the event that they know there is a relevant case pending.  It also provides how such notice must be given.

 

6.22          Official name of trustee

This amendment will provide that if a bankruptcy trustee or a trustee of a personal insolvency agreement is added as a party then the trustee must be added using the prescribed official name of the trustee.  It also provides a definition of prescribed official name of the trustee

 

Schedule 1, item 11.  Paragraph 7.04(2)(c)

 

This amendment will delete the reference to “decree” from the paragraph.  This results from the change of terminology introduced by the Family Law Amendment Act 2005.

 

Schedule 1, item 12.  Subrules 10.01(1) and (2)

 

This amendment results from Part 2 of the Family Law Amendment Act 2005 which removes the previous requirement to file offers of settlement and withdrawals of offers of settlement.  This amendment will omit the reference to the Form 60 from the rule as this form is no longer required.

 

Schedule 1, item 13.  Subrules 10.01(3) and (4), except the note

 

This amendment will clarify that an offer to settle must now be made in writing but not filed.

 

Schedule 1, item 14.  Subrule 10.02(4)

 

This amendment is twofold. It will delete references to Form 60, withdrawal of offer and acceptance of offer and clarifies that subrule 10.02(2) will not apply to applications relating to an offer or an application for costs.

 

Schedule 1, item 15.  Subrule 10.06 (3), note 2

 

This amendment will substitute a new note 2 at the conclusion of rule 10.06(3).  This note will provide that an offer to settle must be taken into account when the court exercises its discretion in relation to costs.

 

Schedule 1, item 16.  Rule 10.16

 

This amendment will substitute a new rule 10.16.  This amendment is twofold. It will ensure consistency with rule 14.06 and will clarify that only the terms of the order that will be sought to bind the trustee must be provided to the trustee.  This amendment, together with the amendment to rule 14.06, is in part to improve drafting and in part a response to concerns raised by the profession that only the relevant part of the order should be provided to the superannuation trustee.

 

Schedule 1, item 17.  Subrule 12.09(2)

 

This amendment will delete the requirement that where there has been non-compliance the case must be listed before a judge.

 

Schedule 1, item 18.  Rule 14.06

 

This amendment will substitute a new rule 14.06. This amendment will produce consistency with rule 10.06 and allow a party to notify the trustee of the eligible superannuation plan in writing of the terms of the orders that will be sought to bind the trustee.  This addresses the concerns of the profession referred to in item 16.

 

Schedule 1, items 19 and 20.  Rule 15.09, note 1 and Rule 15.09, note 2

 

These amendments will delete note 1 and re-number the remaining note.  In referring to subsection 186(1) of the Evidence Act the note has been causing confusion as to who may witness an affidavit.

 

Schedule 1, item 21.  Paragraph 15.19(2)(c)

 

This amendment will clarify that it is not the form that is being referred to but the divorce case itself.

 

Schedule 1, item 22.  Subrule 18.02(3)

 

This amendment corrects a previous drafting error with respect to delegations. It deletes subparagraph (h) which in effect delegated the power to Judicial Registrars to make orders under the rules mentioned in Table 18.1 until further order, in an undefended case or by consent.

 

Schedule 1, items 23 and 25.  Subrule 18.05(1), Table 18.2, after item 1 and Subrule 18.06 (1), Table 18.4, item 8

 

This amendment corrects a previous drafting error with respect to delegations.  It clarifies that the power to remove a case from a court of summary jurisdiction is delegated to Registrars and not to Deputy Registrars.

 


Schedule 1, item 24.  Subrule 18.06(1), Table 18.4, after item 3

 

This amendment arises from Part 6 of the Family Law Amendment Act 2005.  It provides that the power under section 27A of the Family Law Act is delegated to Deputy Registrars.

 

Schedule 1, items 26, 27 and 28.  Subrule 18.06(1), Table 18.4, item 9, column 3 and Subrule 18.06(1), Table 18.4, item 10, column 3 and Subrule 18.06(1), Table 18.4, item 12, column 3

 

These amendments will address changes in terminology with respect to divorce as a result of the Family Law Amendment Act 2005.

 

Schedule 1, item 29.  Subrule 18.06(1), Table 18.4, item 27

 

This amendment will address an ambiguity in the item in the Table.  It clarifies that the power to make orders as to security for costs are not delegated to Deputy Registrars.

 

Schedule 1, item 30.  Subrule 18.06(1), Table 18.4, after item 30

 

This amendment will address delegations to Deputy Registrars as a result of the Bankruptcy and Family Law Legislation Amendment Act 2005.

 

Schedule 1, item 31.  Subrule 18.06(2), Table 18.5, item 32.

 

This amendment is to clarify that the power delegated to Deputy Registrars does not include the power to determine the validity of costs agreements.

 

Schedule 1, item 32.  Subrule 18.06(2), Table 18.5, after item 37

 

This amendment will provide for new delegations to Deputy Registrars arising from the proposed new Chapter 26.

 

Schedule 1, item 33.  Rule 18.08, Table 18.6, after item 4

 

This amendment will address the review of orders made in a bankruptcy case.  The time specified for review provides consistency with the Federal Court rules.

 

Schedule 1, item 34.  Subrule 18.09(3)

 

This amendment is to address the change in terminology with respect to divorce as a result of the Family Law Amendment Act 2005.

 

Schedule 1, item 35.  Chapter 19, summary

 

This amendment will clarify that Chapter 19 will not regulate the charges of lawyers for that part of a case involving bankruptcy matters.  The provisions which will regulate those charges will be in new Chapter 26.

 

Schedule 1, items 36 and 37.  Subrule 19.01(1) and After subrule 19.01(2)

 

These amendments will clarify that Chapter 19 does not apply to costs in any part of a case in which a Family Court is exercising its jurisdiction under section 35 of 35B of the Bankruptcy Act.

 

Schedule 1, item 38.  Subrule 20.08(2)

 

This amendment is to correct a drafting error.

 

Schedule 1, item 39.  Chapter 21, summary

 

This amendment will include in the summary appropriate references to enforcement of obligations under a community service order and enforcement of a bond, and results from Part 4 of the Family Law Amendment Act 2005.

 

Schedule 1, item 40.  Paragraphs 21.01(b) and (c)

 

This amendment improves the drafting of the paragraphs.

 

Schedule 1, item 41.  Rule 21.01, note 1

 

This amendment improves the drafting of the note and provides substantially more information which will assist the clients of the court.

 

Schedule 1, item 42.  Subrule 21.02(1), Table 21.1, after item 4

 

This amendment will add an additional kind of application to Table 21.1, namely an application for failure to comply with a bond entered into in accordance with the Act.  This results from Part 4 of the Family Law Amendment Act 2005.

 

Schedule 1, item 43.  Paragraph 21.02(2)(b)

 

This amendment will insert reference to a bond as a result of Part 4 of the Family Law Amendment Act 2005.

 
Schedule 1, items 44, 45, and 46.  Rule 21.06 and Paragraph 21.07(b) and
Rule 21.08

 

These are consequential amendments to the amendment at item 42, namely the addition of item 5 in Table 21.1.

 

Schedule 1, item 47.  Rule 21.08, note

 

This amendment inserts a reference to sections 70NN and 112AH as a result of Part 4 of the Family Law Amendment Act 2005.

 

Schedule 1, item 48.  Subparagraph 21.16(1)(a)(iii)

 

This is a consequential amendment to the amendment at item 42.

 

Schedule 1, item 49.  Part 22.2, note 1 after the heading

 

This amendment is to remove the reference to subsection 94AA(2A) which is an amendment consequential upon Part 11 of the Family Law Amendment Act 2005.

 

Schedule 1, item 50.  Subrule 22.22(4)

 

This amendment clarifies that the transcript in an appeal book does have to be numbered consecutively as part of the appeal book.

 

Schedule 1, item 51.  Division 22.7.2, note after the heading

 

This amendment is to remove the reference to subsection 94AA(2A) which is an amendment consequential upon the Family Law Amendment Act 2005.

 

Schedule 1, item 52.  Subrule 22.51(1)

 

This amendment is to improve drafting and will clarify that a hearing de novo is exempt from this subrule.

 

Schedule 1, item 53.  Rule 22.55

 

This rule is to be omitted and results from Family Law Amendment Act 2005 where a specific power is conferred to stay or dismiss an appeal or part of an appeal where the notice of appeal discloses no proper grounds of appeal.

 

Schedule 1, item 54.  Part 22.9

 

This amendment is to omit this Part which results from Part 13 of the Family Law Amendment Act 2005.  A certificate to appeal to the High Court of Australia will no longer be available.

 

Schedule 1, item 55.  Subrule 23.01(2), note 2

 

This amendment is to address the change in terminology with respect to divorce as a result of the Family Law Amendment Act 2005.

 

Schedule 1, item 56.  After Chapter 25

 

This amendment adds a new Chapter 26 to the Family Law Rules entitled “Cases to which the Bankruptcy Act 1966 applies

 

Summary of Chapter 26.

As with each other Chapter of the Family Law Rules a summary of the Chapter is inserted at the commencement of the Chapter.

 


Part 26.1         Introduction

 

26.01      Application of Chapter 26

Rule 26.01 will set out the paramountcy of Chapter 1 of the rules and the fact that Chapter 25 does not apply to a bankruptcy case.

 

26.02      Expressions used in the Bankruptcy Act

This rule will clarify that an expression used in Chapter 26 and in the Bankruptcy Act has the same meaning in Chapter 26 as it has in the Bankruptcy Act.

 

26.03      Forms

This rule will provide that the forms to be used in bankruptcy matters will be set out in Schedule 2 to the Rules.  This rule also addresses the issue of sufficient compliance.

 

Part 26.2         General

 

26.04      Bankruptcy Application and Bankruptcy Application in a Case

This rule will identify when a Form 21 Bankruptcy Application or a Form 22 Bankruptcy Application in a Case is to be used.  The rule will also address the content of each form.

 

26.05      Leave to be heard

This rule will address issues in relation to leave to be heard in a bankruptcy case and cost consequences.

 

26.06      Appearance at application or examination

This rule will provide that a person who intends to appear at the hearing must file a Notice of Appearance in accordance with Form 23.

 

26.07      Opposition to Bankruptcy Application or a Bankruptcy Application in a Case

This rule will provide for what documents have to be filed by a person who intends to oppose an application.

 

Part 26.3         Examinations

 

Division 26.3.1 Interpretation

 

26.08      Definition for Part 26.3

This rule will define a “relevant person” and indicate that “examinable person” is defined in the Bankruptcy Act.

 

Division 26.3.2 Examination of relevant person

 

26.09      Application for summons (Bankruptcy Act s 81)

This rule will identify the form and the accompanying documents that must be filed when making an application for a summons.

 


26.10      Hearing of application

This rule will provide that the application may be heard in the absence of a party or in chambers.

 

26.11      Requirements of summons

This rule will set out that a summons must be in accordance with Form 25 and it will be signed and sealed by a Registry Manager.

 

26.12      Service of summons

This rule will set out the service requirements with respect to a summons.

 

26.13      Failure to attend examination

This rule will set out the consequences of a failure to attend the examination.

 

26.14      Application for discharge of summons

This rule will set out the process and the form required to apply for the discharge of a summons.

 

Division 26.3.3 Examination of examinable person

 

26.15      Application for summons (Bankruptcy Act s 81)

This rule will identify the form and the accompanying documents that must be filed when making an application for a summons.  The rule will also set out what must be included in the supporting affidavit.

 

26.16      Hearing of application

This rule will provide that the application may be heard in the absence of the party or in chambers.

 

26.17      Requirements of summons

This rule will set out that a summons is to be in accordance with Form 25 and it will be signed and sealed by a Registry Manager.

 

26.18      Service of summons

This rule will set out the process and the form required to apply for the discharge of the summons.

 

26.19      Application for discharge of summons

This rule will set out the process and the form required to apply for the discharge of the summons.

 

26.20      Conduct money and witnesses expenses

This rule will provide that a person (other than a relevant person) who attends an examination to give evidence is entitled to conduct money from the applicant to cover “reasonable expenses”.

 


Part 26.4         Annulment of bankruptcy

 

26.21      Application of Part 26.4

This rule will provide that this Part applies to an application under section 153B of the Bankruptcy Act for the annulment of a bankruptcy.

 

26.22      Requirements of application

This rule will provide that an affidavit must accompany the application and must be served on the trustee 28 days before the hearing date.

 

26.23      Notice to creditors

This rule will provide that the applicant must give notice of the application to all known creditors.

 

26.24      Report by trustee

This rule will set out the obligations on the trustee to prepare and file a report and the form and content of such report.

 

26.25      Service of annulment order

This rule will provide for service of the annulment order.

 

Part 26.5         Trustees

 

26.26      Objection to appointment of trustee (Bankruptcy Act s 157(6))

This rule will set out the process and the documents to be filed in the event of there being an objection to the appointment of a trustee.

 

26.27      Resignation or release of trustee (Bankruptcy Act ss 180, 183)

This rule will set out the process and the documents to be filed in the event of resignation or release of the trustee.

 

Part 26.6         Warrants

 

26.28      Arrest of debtor or bankrupt (Bankruptcy Act s 78)

This rule will set out what an application for the arrest of a bankrupt must state, the form that must be used, the supporting documents required and the action required if an arrest occurs.

 

26.29      Apprehension of person failing to attend Court (Bankruptcy Act s 264B(1))

This rule will set out the process for a warrant for the apprehension of a person who fails to comply with a summons.

 

Part 26.7         Costs

 

26.30      Order for costs

This rule will provide that an entitlement to costs will be in accordance with Order 62 of the Federal Court Rules unless the court otherwise orders or unless the court fixes the amount of costs.

 


26.31      Application of Order 62 of Federal Court Rules

This rule will clarify terminology for the purposes of applying Order 62 of the Family Law Rules.  The rule will provide the equivalent in a Family Court of references in the Federal Court Rules.

 

Schedule 1, items 57.  Schedule 2, heading

 

This amendment and the amendment in item 59 will introduce two parts to Schedule 2, the first part comprising the current Family Court forms and the second part comprising the new forms for use in a bankruptcy case.

 

Schedule 1, item 58.  Schedule 2, Form 60

 

The Form 60 is omitted as previously referred to in item 12 above.

 

Schedule 1, item 59.  Schedule 2, after Form 20

 

This amendment will introduce into Part 2 of Schedule 2 the new forms for use in a bankruptcy case as follows:

 

Form 21 – Bankruptcy Application

This form is used by an applicant who is seeking final orders in a bankruptcy case.

 

Form 22 – Bankruptcy Application in a Case

This form is used to make an application to the court once a case has been started by a bankruptcy application.  It is also used to make an application to the court in relation to a bankruptcy case in respect of which final relief has been granted, to make an application for leave to be heard in a bankruptcy case, and to make an application to discharge a summons.

 

Form 23 – Notice of Appearance

This form is used by a person who wishes to oppose the orders sought in an application in a bankruptcy case and/or attend the hearing and/or take part in an examination.

 

Form 24 – Bankruptcy – Notice Stating Grounds of opposition to Application or Application in a Case

This form is used by a person who wishes to oppose the orders sought in an application in a bankruptcy case.

 

Form 25 – Bankruptcy – Summons for Examination

This form requires the person to whom it is addressed to attend before the court to be examined on oath and to give evidence in relation to the examinable affairs of the bankrupt.

 

Form 26 – Bankruptcy – Application for summons to examine relevant person or examinable person

This form is used to apply to the court for an order that a relevant person or an examinable person be summoned for examination.

 

Form 27 – Notice to Creditors of annulment application

This form is used to give notice to creditors of an application under section 153B of the Bankruptcy Act for the annulment of a bankruptcy.

 

Form 28 – Bankruptcy – Arrest Warrant

This form is used for the arrest of a bankrupt under section 78 of the Bankruptcy Act.

 

Form 29 – Bankruptcy – Apprehension Warrant

This form is used for the apprehension of a person who fails to comply with a summons.

 

Schedule 1, item 60.  Dictionary, definition of bankrupt

 

This amendment provides clarification by inserting into the dictionary definitions of “bankrupt”, “Bankruptcy Act” and “bankruptcy case”.

 

Schedule 1, item 61.  Dictionary, definition of divorce

 

This amendment deletes the definition of divorce from the dictionary as it is now defined in the Act.

 

Schedule 1, item 62.  Dictionary, definition of financial case, after paragraph (b)

 

This amendment will insert into the definition a new subparagraph (ba) as a result of the amendments to subsection 4(1) of the Family Law Act by the Bankruptcy and Family Law Legislation Amendment Act 2005.

 

Schedule 1, item 63.  Dictionary, definition of property case

 

This amendment will substitute a new definition of property case as a result of the amendments to subsection 4(1) of the Family Law Act by the Bankruptcy and Family Law Legislation Amendment Act 2005.

 

Schedule 1, item 64.  Further amendments – application for divorce

 

This amendment will substitute the term “application for divorce” in lieu of the term “Application for Divorce” in a number of instances.  The basis of this is referred to in item 6 above.

 

Schedule 1, item 65.  Further amendments – child support application or appeal

 

This amendment will substitute “child support application or appeal” for “Child Support Application or Appeal” in a number of instances.  The basis of this is referred to in item 6 above.


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