The rules amendments commence on the day after they are registered.

Rule 3 Amendment of Family Law Rules 2004

Schedules 1 amends the Family Law Rules 2004.

Schedule 1

Schedule 1, Item 1, Sub-rule 1.05 (1)

This amendment omits the requirement to attempt to resolve the dispute by using dispute resolution methods. This is consequential upon the commencement of Section 60(I) of the Family Law Act 1975 on 1 July 2007.

Schedule 1, Item 2, Paragraph 1.05 (2) (a)

This amendment includes in the exceptions to when compliance with the pre-action procedures is required parenting cases where there are the allegations of the risk of child abuse or family violence.

Schedule 1, Item 3, Paragraph 1.05 (2) (b)

This amendment includes in the exceptions to when compliance with pre-action procedures is required property cases where there are allegations of the risk of child abuse or family violence.

Schedule 1, Item 4, Rule 1.05, note 3

This amendment includes a note about the requirement in subsection 60I (7) to (12) for parties to attend family dispute resolution before applying for a parenting order. These subsections commence on 1 July 2007.

Schedule 1, Item 5, Table 2.2, after item 2

This amendment is consequential upon the commencement of Section 60I of the Family Law Act 1975 on 1 July 2007.

Table 2.2 is amended to include Item 2A, which provides that either of the following documents must be filed with an Application for Final Orders seeking a parenting order:

·        a certificate of a Family Dispute Resolution Practitioner (Subsection 60I(8)),or

·        if no certificate is required because of paragraph 60I(9)(b), (c), (d), (e) or (f), an affidavit setting out the factual basis of the exception claimed

Schedule 1, Item 6, Table 2.2, item 5

This amendment is consequential upon the omission of Rule 4.16 from Division 4.2.4.

Schedule 1, Item 7, Table 2.2, item 6

This amendment is consequential upon the substitution of new Rule 4.18 for current Rule 4.19.

Schedule 1, Item 8, Table 2.2, after item 6

This amendment is consequential upon the commencement of Section 60I of the Family Law Act 1975 on 1 July 2007.

Table 2.2 is amended to include Item 6A, which provides that one of the following documents must be filed with an Application in a Case seeking a parenting order, if no application for a Part VII order in relation to the child has been filed prior to 1 July 2007:

·        a certificate of a Family Dispute Resolution Practitioner (Subsection 60I (8)),or

·        if no certificate is required because of paragraph 60I (9)(b), (c), (d), (e) or (f), an affidavit setting out the factual basis of the exemption claimed.

Schedule 1, Item 9, Table 2.2, item 7

This amendment is consequential upon the inclusion of Item 6A.

Schedule 1, Item 10, Table 2.2, item 10

This amendment is consequential upon the inclusion of Item 10A.

Schedule 1, Item 11, Table 2.2, after item 10

This amendment is consequential upon the commencement of section 60I of the Family Law Act 1975 on 1 July 2007.

Table 2.2 is amended to include Item 10A, which provides that either of the following documents must be filed with an Application for Contravention of a parenting order, if no application for a Part VII order in relation to a child has been filed prior to 1 July 2007:

·        a certificate of a Family Dispute Resolution Practitioner (Subsection 60I(8)),or

·        if no certificate is required because of paragraph 60I(9)(b), (c), (d), (e) or (f), an affidavit setting out the factual basis of the exemption claimed.

Schedule 1, Item 12, Rule 2.03, note

This amendment is consequential upon the omission of current Rules 4.13 and 4.23 (2). The decision has been made to no longer have brochures for child support, child maintenance or spousal maintenance.

Schedule 1, Item 13, After Division 4.2.4 heading

This amendment omits the heading Maintenance and substitutes Spousal Maintenance.

The rules pertaining to Child Maintenance have been deleted from Division 4.2.4 and incorporated into Division 4.2.5.

This amendment also incorporates Practice Direction 4 of 2004 into the Rules to insert a note to firstly clarify that applications under this division (Spousal Maintenance) should not be made in the Family Court unless an associated matter is pending or that filing in the Federal Magistrate’s Court is not available, and secondly to confirm that the Family Court may transfer the proceedings to the Federal Magistrate’s Court, pursuant to Section 33B of the Family Law Act 1975, without notice to the parties.

Schedule 1, Item 14, Rule 4.13

This amendment omits Rule 4.13. Brochures for Spousal Maintenance applications will no longer be published and distributed.

Schedule 1, Item 15, Sub-rule 4.14 (1)

This amendment omits Maintenance Application and substitutes an application for Spousal Maintenance, which is consequential upon the omission of Child Maintenance Applications from Division 4.2.4. and incorporation into Division 4.2.5.

Schedule 1, Item 16, Rule 4.15

This amendment sets out firstly the documents which each party must bring to Court on the first court date and the hearing date of an Application for Spousal Maintenance, and secondly, if a written request for production is made, the documents that must be produced for inspection by the other party within 7 working days of the request being received.

Schedule 1, Item 17, Rules 4.16 and 4.17

This amendment omits Rules 4.16 and 4.17. This is consistent with the deletion of Child Maintenance Applications from Division 4.2.4. and incorporation into Division 4.2.5.

Schedule 1, Item 18, Division 4.2.5

This amendment inserts a new Division 4.2.5 providing for child support and child maintenance as follows:

·        There is a new summary box providing an overview of the proceedings to which the Division applies. The summary includes a list of the provisions of the Child Support Assessment Act 1989 under which applications may be made to the court and a note which incorporates Practice Direction 4 of 2004. This clarifies that applications under this Division should not be made in the Family Court unless an associated matter is pending or that filing in the Federal Magistrate’s Court is not available and confirms that the Family Court may transfer the proceedings to the Federal Magistrate’s Court, pursuant to Section 33B of the Family Law Act 1975, without notice to the parties.

·        The summary includes a statement that section 110B of the Child Support (Registration & Collection) Act 1989 allows appeals from the Social Security Appeals Tribunal on questions of law and that applications may also be made under the Child Support (Assessment) (Overseas-related Maintenance Obligations) Regulations 2000.

·        Rule 4.16 - Application of Division 4.2.5

This amendment clarifies that Division 4.2.5 also applies to applications under the Assessment Act, an appeal under the Registration Act other than an appeal from a court, an application under Division 7 of Part VII of the Family Law Act, applications under the Child Support (Assessment) (Overseas-related Maintenance Obligations) Regulations 2000 and an application under Parts III and IV of the Family Law Regulations.

• Rule 4.17 - Commencing Proceedings

This amendment clarifies that an application under this Part must be made in accordance with an Application for Final Orders and an appeal under this Part must be in accordance with a Notice of Appeal (Child support)

• Rule 4.18 - Documents to be filed with applications and appeals

Item 1 of Table 4.1 has been amended to delete reference to an appeal and to clarify the list of attachments to the affidavit filed in support of a child support application.

Item 2 of Table 4.1 has been amended firstly, to include additional provisions of the Child Support Assessment Act 1989 which provide for applications to be made to the court and secondly to delete the reference to a Form 13 and substitute with Financial Statement, which is consequential upon the repeal of Schedule 2 of the Rules.

Item 3 of Table 4.1 has been added to provide that a completed Financial Statement must be filed with all applications for child maintenance.

• Rule 4.19 - Child Support agreements

This amendment provides that a person who makes an application in relation to a child support agreement must register a copy of the agreement with the court by filing either an affidavit attaching the original agreement, an affidavit attaching a copy of the agreement and stating that the copy is a true copy of the original, or an affidavit stating that the original agreement has been lost and the steps taken to locate the agreement and attaching a copy of a document from the Child Support Agency setting out the terms of the agreement as registered by the Child Support Agency.

• Rule 4.20 - Time Limits for applications under Assessment Act

This amendment firstly omits the reference to appeals, secondly omits references to repealed sections of the Child Support Assessment Act 1989 and thirdly, provides that an application for a paternity declaration made under Section 106A(2) and Section 107 of the Child Support Assessment Act 1989, must be filed within 60 days after being served with a notice under Section 33 or Section 34 of that Act.

The omission of the reference to appeals is a consequence of the amendments to the child support legislation amendments, which now provide for appeals to be made under the Child Support (Registration & Collection) Act 1989.

Note 1 to the Rule has been amended to delete the reference to the Form 2 and substitute Application in a Case, which is consequential to the repeal of Schedule 2 of the Rules.

• Rule 4.21 - Appeals on questions of law

This amendment firstly provides that an appeal on a question of law from the Social Security Appeals Tribunal may be made by filing a Notice of Appeal (Child Support) and secondly, a copy of the Statement of Reasons of the Social Security Appeals Tribunal must be filed with a Notice of Appeal (Child Support).

• Rule 4.22 - Time Limit for appeals on questions of law

This amendment provides for an appeal to be filed within 28 days of the publication of the Statement of Reasons by the Social Security Appeals Tribunal.

This amendment provides firstly for those persons who have to be served with a copy of the application or the notice of appeal.

Secondly, this amendment provides that an application or notice of appeal must be served at least 28 days prior to the hearing date, except for an application staying a decision or an urgent order for child maintenance.

Thirdly, this amendment provides that a person seeking to appeal a decision of Social Security Appeals Tribunal must serve a notice of appeal on the Executive Director of the Social Security Appeals Tribunal within 7 working days of the day of filing the appeal.

Fourthly, this amendment provides that any documents that are intended to be relied upon must be served at least 21 days before the hearing date.

• Rule 4.24 - Service by Child Support Registrar

This amendment is consequential upon the amendments to division 4.2.5.

• Rule 4.25 - Procedure on first court date.

This amendment provides firstly that on the first court date the Registrar must, if practicable, conduct a case assessment conference and, secondly, if the application is not resolved on the first court date, the Registrar may make orders for the future conduct of the case, including the exchange of affidavits and a listing of the case for hearing.

• Rule 4.26 - Evidence to be provided

This amendment firstly includes reference to additional provisions of the Child Support Assessment Act 1989 under which applications may be made to the court.

Secondly, this amendment clarifies the documentation that each party must bring to court on the first court date and the hearing date.

Thirdly, this amendment provides for the production of documents for inspection before the hearing upon request. If requested the documents must be produced for inspection within 7 working days of the request being received.

Schedule 1, Item 19, Paragraph 5.01 (d)

This amendment is consequential upon the repeal of Schedule 2 of the Rules (other than Form 4). The forms will no longer be prescribed, and will be as approved by the Chief Justice in consultation with the Judges.

Schedule 1, Item 20, After rule 5.01

This amendment incorporates Practice Direction 3 of 2006 into the Rules, to specify that an application for a parenting order during the Christmas school holiday period must be filed before 4.00 pm on the second Friday in November of the application year.

Schedule 1, Item 21, Sub-rule 5.09 (1)

This amendment is consequential upon the omission of sub-rule 5.09 (2).

Schedule 1, Item 22, Sub-rule 5.09 (2)

This amendment omits sub-rule 5.09 (2), to remove the mandatory use of a proforma affidavit in interim applications for a parenting order. Usage of the proforma affidavit will be optional.

Schedule 1, Item 23, Table 7.1, item 9

This amendment is consequential upon the amendments to Division 4.2.5. There will no longer be a brochure dealing with child support.

Schedule 1, Item 24, Paragraph 10.15(3)(a)

This amendment is consequential upon the amendments to Division 4.2.4.

Schedule 1, Item 25, After Rule 10.15

This amendment incorporates Practice Direction 6 of 2004 into the Rules.

It provides that before the making of a parenting order by consent, in the course of an oral application, each party, or if represented, the party’s lawyer, must advise the court that no allegations of child sexual or other physical abuse or risk of abuse, have been made in:

(i)                 any document filed or exhibited in the proceedings

(ii)               any report prepared for the proceedings; or

(iii)             any document subpoenaed to the court in the proceedings

or, if such allegations have been made, must explain to the court how the order attempts to deal with the allegations.

For all other applications, other than an application under paragraph 10.15 (1) (b) each party, or if represented, the party’s lawyer, must certify in an annexure to the draft consent order, that no allegations of child sexual or other physical abuse or risk of abuse have been made in;

(i)                 any document filed or exhibited in the proceedings

(ii)               any report prepared for the proceedings; or

(iii)             any document subpoenaed to the court in the proceedings

or, if such allegations have been made, must in the annexure identify each document containing them and explain to the court how the order attempts to deal with the allegations.

Schedule 1, Item 26, 27 and 28, Sub-rule 11.04 (1), Paragraph 11.04 (1)(a) and paragraph 11.04 (1)(b)

These amendments substitute party for applicant to expand the application of the rule to all parties and not just applicants.

Schedule 1, Item 29, Rule 13.07, note 1, paragraph (b)

This amendment is consequential upon amendments to Division 4.2.5.

Schedule 1, Item 30, Division 15.5.6

This amendment creates a new Division 15.5.6 and heading, Clarification of single expert witness reports.

• Rule 15.64A Purpose

This amendment creates firstly a purpose clause for the new Division 15.5.6, and secondly provides that clarification about a report of a single expert witness may be obtained by either a conference or by means of questions in accordance with existing rule 15.65.

• Rule 15.64B Conference

This amendment provides for parties within 21 days of the receipt of the report of the single expert witness to agree to confer with the single expert witness to clarify the report. That conference may be joint or with one party, the arrangements for the conference must be agreed, the expert must be advised of the arrangements and in seeking to clarify the report the parties must not interrogate the expert witness. If the parties are unable to agree about conferring with the single expert witness, a party may apply to Court for an order that a conference be held on such conditions that the Court determines.

• Rule 15.65 Questions to single expert witness

This amendment provides firstly that the parties may ask questions of the expert witness within 7 days after a conference, or if there is no conference within 21 days of the receipt of the single expert report.

Secondly, the amendment provides that the questions must be in writing and put once only, be only for the purpose of clarifying the expert’s report and not be vexatious or oppressive, or require the expert to undertake an unreasonable amount of work to answer.

Thirdly, the amendment provides that a party must give a copy of any questions to each other party.

• Rule 15.66 Single expert witness’s answers

Rule 15.66 relating to the single expert witness’s answers has not been amended.

• Rule 15.67 Single expert witness’s costs

This amendment provides firstly that the fees and expenses of the single expert witness in relation to a conference convened under Rule 15.64B, are to paid by the party attending the conference if only one party attends, and to paid jointly if more than one party attends.

Secondly, the amendment provides that a single expert witness is not required to undertake any work in relation to a conference or the provision of answers until fees and expenses for that work are paid or secured

• Rule 15.67A Application for directions

This amendment enables the parties to apply to the Court for directions relating to a conference with or the answering of questions by a single expert witness.

Schedule 1, Item 31, Table 18.4, after item 16

This amendment provides for the delegation to Deputy Registrars of the powers under subsection 60I (9), 60I (10) and 60J (1) of the Family Law Act 1975.

Schedule 1, Item 32 and 33, Sub-rules 19.01 (1) and 19.18 (1), Paragraph 19.19 (2) (e)

These amendments clarify that Chapter 19 applies to costs for work done in complying with pre-action procedures.

Schedule 1, Item 34, Rule 19.21(1)(b)

This amendment clarifies that a person entitled to costs must serve an itemized costs account on the person liable to pay the costs, in relation to party and party costs, within 28 days after the end of the case.

The amendment is in response to concerns raised by the profession about from when the 28 days should run.

Schedule 1, Item 35, After sub-rule 19.32(3), including the note

This amendment provides that within 14 days after a costs assessment order is made, a party may ask the Registrar to give reasons for the Registrar’s decision about a disputed item. This is to address concerns raised by the Full Court in BROTT and ABELES [2007] Fam CA 28.

Schedule 1, Item 36, Sub-rule 19.41 (2)

This amendment is consequential upon the repeal of Schedule 2 of the Rules (other than Form 4), and adds a reference to an approved Form.

Schedule 1, Item 37, Rule 19.55

This amendment provides that an application for a review of a costs order must be filed within 14 days after the applicant receives the Registrar’s reasons given after a request is made under sub-rule 19.32 (4). This is an amendment consequential upon item 35.

Schedule 1, Item 38, Subparagraph 19.56(2) (c) (iv)

This amendment provides that at the hearing of a review of a costs order, a party may only raise an issue concerning an alleged error of law or fact by a Registrar, if that party has made a request for the Registrar to provide reasons, under sub-rule 19.32 (4). This is an amendment consequential upon item 35.

Schedule 1, Item 39, Paragraph 20.03 (2) (b)

This amendment provides that a payee who seeks to recover a child support liability in his or her own name, pursuant to Section 113A of the Child Support (Registration and Collection) Act 1988, is required to file a certificate pursuant to Section 116 of that Act.

Schedule 1, Item 40, Sub-rule 20.03 (2), before the note

This amendment provides that a payee who seeks to recover a child support liability in his or her own name, pursuant to Section 113A of the Child Support (Registration and Collection) Act 1988, must attach to an affidavit filed with the application, a copy of the notice provided to the Child Support Agency, pursuant to Section 113A of that Act, of his or her intention to institute proceedings to recover the debt due.

Schedule 1, Item 41, Sub-rule 20.03 (3), note 2

This amendment inserts a note that a payee who seeks to recover a child support liability in his or her own name, pursuant to Section 113A of the Child Support (Registration and Collection) Act 1988, must notify the Registrar in writing of his or her intention to institute proceedings to recover the debt due.

Schedule 1, Item 42, Rule 20.04, at the foot

This amendment inserts a note to clarify that Section 113 of the Child Support (Registration and Collection) Act 1988, enables a payee to seek recovery of a child support liability.

Schedule 1, Item 43, Rule 20.07, at the foot

This amendment inserts a note to clarify that Section 111B of the Child Support (Registration and Collection) Act 1988 confers on the court general powers of enforcement.

Schedule 1, Item 44, Chapter 21, summary

This amendment incorporates Practice Direction 4 of 2004 into the Rules to firstly clarify that applications under this Chapter (Enforcement of Parenting Orders, Contravention of Orders and Contempt) should not be made in the Family Court unless an associated matter is pending or filing in the Federal Magistrate’s Court is not available, and secondly to confirm that the Family Court may transfer the proceedings to the Federal Magistrate’s Court, pursuant to Section 33B of the Family Law Act 1975, without notice to the parties

Schedule 1, Item 45, Rule 22.46(2) (a)

This amendment provides that an appeal from the Family Law Magistrates Court of Western Australia to the Family Court is to be filed in the Regional Appeals Registry. This is to rectify an error in the 1 July 2006 rule amendments.

Schedule 1, Item 46, Rule 22.46(3), note

This amendment inserts a note that an appeal from the Family Law Magistrates Court of Western Australia to the Family Court will be referred to the Chief Justice for a decision about whether the court’s jurisdiction in relation to the appeal is to be exercised by a Judge or the Full Court.

This is to rectify an error in the 1 July 2006 rule amendments.

Schedule 1, Item 47, after rule 23.01

This amendment provides firstly that for Section 70C of the Act, a State or Territory child order may be registered in the court having jurisdiction under Part VII of the Act by filing a sealed copy of the order in the registry of the court.

Secondly, this amendment provides that for Section 70D of the Act, a State or Territory child order made by a court of the State or a Territory may be registered in another State or Territory, in a court having jurisdiction under the Act, by filing a sealed copy of the order in the registry of the court of the other State or Territory.

Schedule 1, Item 48, Rule 24.04

This amendment is consequential upon the repeal of Schedule 2 of the Rules (other than Form 4). It provides for the Chief Justice in consultation with the Judges to approve a form for the purposes of these rules, that strict compliance with an approved form is not required, and substantial compliance is sufficient, and a document in a form approved for the Federal Magistrates Court is taken to be substantial compliance.

Schedule 1, Item 49, Rule 24.08, note

This amendment is consequential upon the amendments to Division 4.2.5.

Schedule 1, Item 50, Rule 24.13 (2), at the foot

This amendment adds a notation to the rule to refer to the National Security Information (Criminal and Civil Proceedings) Act 2004 which imposes restrictions in certain circumstances on access to the Court record and documents filed in proceedings.

Schedule 1, Item 51, Rule 26.03

This amendment is consequential upon the repeal of Schedule 2 of the Rules (other than Form 4).

Schedule 1, Items 52, 53, 54, 55, 56, 57 and 58, Schedule 1, Part 2, paragraphs 1 (1) (a), 1 (4) (b), 1 (4) (c), 3 (1) (b) and (c), sub-clause 3 (2), sub-clause 3 (4) and sub-clause 3 (4) (a) (b) and (c).

These amendments are consequential upon the commencement of Section 60I of the Family Law Act 1975 on 1 July 2007.

Schedule 1, Item 59, Schedule 1, Part 2, sub-clause 6 (4), at the foot

This amendment inserts a note consequent upon the commencement of Section 12E of the Family Law Act, 1975. This is to correct an omission from the Rules amendments introduced on 1 July 2006.

Schedule1, Item 60, Schedule 2, Part 1, heading

This amendment is consequential upon the repeal of Schedule 2 of the Rules (other than Form 4).

Schedule1, Item 61, Schedule 2, forms 1 – 3A and 5 to 20

This amendment omits Forms 1 to 3A and 5 to 20 from Schedule 2 of the Rules leaving only the Form 4. This is to enable the forms to be administratively amended and new forms introduced as approved by the Chief Justice in consultation with the Judges.

Schedule1, Item 62, Schedule 2, Part 2

This amendment omits Schedule 2, Part 2. This will also enable the forms to be administratively amended and new forms introduced as approved by the Chief Justice in consultation with the Judges.

Schedule1, Item 63, Dictionary, after definition of application

This amendment includes in the dictionary, a definition of approved form.

It is consequential upon the repeal of Schedule 2 of the Rules (other than Form 4)

Schedule 1, Item 64 Dictionary, definition of Regional Appeal Registry paragraph (c)

This amendment is to clarify that the Regional Appeal Registry, for an appeal from a case heard in Western Australia is the Perth Registry of the Family Court of Western Australia.

Schedule 1, Item 65, Further amendments – approved forms

This amendment omits references to a form number wherever referred to in the rules and substitutes the form title.

This amendment is consequential upon the repeal of Schedule 2 of the Rules (other than Form 4).

Schedule 1, Items 66 and 67, Explanatory Guide

These amendments are to correct oversights in the Rules Amendments introduced on 1 July 2006. They are consequential upon the commencement of the amendments to the Family Law Act on 1 July 2006.