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FAMILY LAW AMENDMENT RULES 2008 (NO. 1) (SLI NO 62 OF 2008)
EXPLANATORY STATEMENT
Select Legislative Instrument 2008 No. 62
FAMILY LAW AMENDMENT RULES 2008 (No. 1)
Issued by the authority of the Judges of the Family Court of Australia
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. The Judges of the Court made the Family Law Rules 2004, which commenced on 29 March 2004. These amending Rules, the Family Law Amendment Rules 2008, have now been made by the Judges to amend the Family Law Rules 2004.
Section 123(2) of the Act provides that the Legislative Instruments Act 2003 (apart from sections 5-7, 10,11 and16) applies to Rules of Court. In this application, references to a legislative instrument in the Act are to be read as references to Rules and references to a Rule maker as references to the Chief Justice.
The Legislative Instruments Act provides for certain consultation obligations when Rules are made. To fulfil these obligations, the Court consulted with a range of interested parties. In particular, the Principal Registrar of the Court invited comment about the costs changes embodied in the amending Rules from legal practitioners, State and Territory legal professional bodies, the Law Council of Australia and the Attorney General’s Department. Subsequently, comment was sought on the draft amendments from legal aid bodies and representatives of the Community legal sector as well as legal professional associations. The changes in relation to bankruptcy procedures were adopted after consideration of the changes by representatives of the affected courts. The Chief Justice as deemed Rule maker has adopted this consultation.
The major changes introduced by the amendments to the rules are:
Amendments commencing on 1 May 2008
1. These amendments restate the requirement to file an affidavit in connection with certain applications, omit the former special filing rule for chapter 16A appeals and amend the bankruptcy rules to accord with recent amendments to the Federal Court’s rules.
Amendments commencing on 1 July 2008
1. To amend the costs rules so that the Family Court will no longer regulate lawyer/client costs for;
(a) all fresh applications (to be defined in the dictionary) commenced after 30 June 2008;
(b) where a lawyer is first retained by a client after 30 June 2008, even if the case in which the lawyer is retained to act is pending on 30 June 2008;
(c) where a lawyer and client agree in writing, and free from undue influence, that the old costs rules no longer apply to their financial relationship.
2. Provisions for the new arrangements are in a re-worked Chapter 19 and the Rules to operate for all cases pending or ongoing as at 30 June 2008 (subject to certain exemptions), in a new Schedule 6 to the Rules.
3. To include a new formula for calculating the interest rate in Rule 17.03
Rule 1 Name of Rules
The name of the rules is the Family Law Amendment Rules 2008 (No. 1).
The rules amendments commence in three stages. The formal provisions and Schedule 1 commence on 1 May 2008. The bulk of the amendments, set out in Schedule 2, commence on 1 July 2008. A small number of technical drafting changes set out in Schedule 3 but related to those in Schedule 2 are expressed to commence immediately after the commencement of Schedule 2.
Rule 3 Amendment of Family Law Rules 2004
Schedules 1, 2 and 3 amend the Family Law Rules 2004.
Schedule 1 – Amendments commencing on 1 May 2008
Schedule 1, Item 1, Table 2.2 Item 10A
To avoid doubt, this amendment formally states the requirement to file an affidavit in connection with a contravention application under Part VII of the Act.
Schedule 1, Item 2, Subrule 22.03(1)
This item makes a formal amendment consequential on Item 3.
Schedule 1, Item 3, Subrule 22.03(2)
This item repeals the former special filing rule for Chapter 16A appeals.
Schedule 1, Item 4, Subrule 26.22(2)
Notice of an application to annul a bankruptcy is to be served on a Trustee 7 rather than 28 days before the hearing date for the application.
Schedule 1, Item 5, Subrule 26.23(3)
Notice of an application to annul a bankruptcy is to be served on a creditor 7 rather than 14 days before the hearing date for the application. This aligns with the new requirement for service on the Trustee.
Schedule 1, Item 6, Subrule 26.24(1)
Where an annulment application is made, provision of a report by a Trustee will be by direction of the Court, rather than being required automatically in every case.
Schedule 1, Item 7, Paragraph 26.24(3)(b)
This item makes a technical drafting change in describing the date fixed for the hearing of an application.
Schedule 2 – Amendments commencing on 1 July 2008
Schedule 2, Item 1, Subrule 1.08(3), note
The amendment adds to the note to include a reference to subclause 6.10(1) of Schedule 6. This was the original Rule 19.10(1) which is being duplicated in a schedule to the Rules to apply to party/party and lawyer/client costs prior to 30 June 2008.
Schedule 2, Item 2. Table 2.2, items 2A and 10A
The amendment removes the reference to Subsection 60I(5) of the Act which will no longer operate after 1 July 2008 as an exception to the requirement to file a Family Dispute Resolution Practitioner’s certificate when bringing certain applications.
Schedule 2, Item 3, subrule 11.15(3), note 2
The amendment adds to the note to include a reference to subclause 6.41(2) of Schedule 6 which schedule will apply to party/party and lawyer/client costs prior to 30 June 2008.
Schedule 2, Item 4, Part 12.2, note 2
The amendment adds to the note to include a reference to clause 6.04 of Schedule 6 which schedule will apply to party/party and lawyer/client costs prior to 30 June 2008.
Schedule 2, Item 5, Rule 17.03
The amendment provides for a permanent formula for calculating interest under the Rules using the Reserve Bank of Australia target cash rate. The rate struck by the Court is the target cash rate at 1 July in each year plus 5%. Thus, if the target cash rate is 7.5%, the interest rate commencing on that date for the ensuing year is 12.5%. If the rate changes on that date so there are two such rates, the higher of them is to apply. This change does not preclude the making of Rules to deal with special circumstances.
Schedule 2, Item 6, Table 18.5, item 32
The amendment adds a reference to those parts of the new Schedule 6 that mirror the Parts in Chapter 19 under which Deputy Registrars exercise powers.
Schedule 2, Item 7, Chapter 19, heading
The amendment alters the heading from “Costs” to “Party/party costs”.
Schedule 2, Item 8, Chapter 19, summary
The amendment alters the summary to Chapter 19 to make it clear that Chapter 19 now only regulates costs between parties for fresh applications. The summary confirms that other issues of costs are dealt with either under Schedule 6, or the State or Territory legislation governing the legal profession in the State or Territory where the lawyer practices.
Schedule 2, Item 9, Subrule 19.01(1)
The amendment alters the original application of Chapter 19 so that the Chapter now;
(a) applies to costs for work done for a case, or in complying with pre-action procedures, in relation to a fresh application, paid or payable by one party to another; and
(b) creates a duty for lawyers to give information about costs to their clients.
Schedule 2, Item 10, After rule 19.02
This amendment inserts a new heading, namely; “Obligations of a lawyer about costs”.
Schedule 2, Item 11, Rule 19.03
The amendment deletes the previous 19.03(1) and (2) which contain references to lawyer/client costs which are no longer to be covered by the Chapter.
Schedule 2, Item 12, Part 19.4
The amendment deletes the entirety of Part 19.4 – “Lawyer and client costs”.
Schedule 2, Item 13, Subrule 19.18(1)
This amendment removes the previous 19.18(1)(a) so that there is no longer a reference to charges to a client.
Schedule 2, Item 14, Subrule 19.18(3)
This amendment deletes subrule 19.18(3) as it deals with lawyer/client costs.
Schedule 2, Item 15, Rule 19.19, heading
This amendment changes the heading from “Party and Party costs” to “Method of calculation of costs”.
Schedule 2, Item 16, Subrule 19.19(1)
This amendment removes the reference to rule 19.18 as not applying.
Schedule 2, Item 17, Rule 19.20, note
This amendment removes the note to Rule 19.20 which refers to a lawyer giving a costs notice on receiving instructions.
Schedule 2, Item 18, Rule 19.21(1)
This amendment removes the reference to lawyer/client costs. The rule has been redrafted so that it incorporates the service of an itemised costs account for party/party costs only.
Schedule 2, Item 19, Subrule 19.34(1), note
This amendment deletes the note which refers to lawyer/client costs which are no longer to be covered by the Chapter.
Schedule 2, Item 20, Subrule 19.34(2)
This amendment deletes the subrule which relates to a costs agreement for lawyer/client costs which are no longer to be covered by the Chapter.
Schedule 2, Item 21, Subrule 19.34(3)
This amendment is consequential upon the deletion of subrule 19.34(2) in item 20 above and is simply a renumbering of the rules.
Schedule 2, Item 22, Subrule 19.34(4)
This amendment is consequential upon the deletion of subrule 19.34(2) in item 20 above and is simply a renumbering of the rules.
Schedule 2, Item 23, Rule 19.39
This amendment deletes the Rule which is a reference to lawyer/client costs which are no longer to be covered by the Chapter.
Schedule 2, Item 24, Rule 19.40
This amendment is a redrafting of the original rule to apply to party/party costs solely, and not lawyer/client costs which are no longer to be covered by the Chapter.
Schedule 2, Item 25, Subrule 19.45(4), notes 1 and 2
This amendment deletes note 1 which relates to lawyer/client costs which are no longer to be covered by the Chapter.
Schedule 2, Item 26, Rule 19.53
This amendment deletes the rule which relates to lawyer/client costs which are no longer to be covered by the Chapter.
Schedule 2, Item 27, After subrule 20.01(2)
This amendment adds a reference to lawyer/client costs so that the enforcement provisions are not to be used where there is an obligation to pay money by a person to a person’s lawyer for fresh applications.
Schedule 2, Item 28, Subrule 22.49(2)
The amendment adds to the rule to include a reference to Part 6.2 of Schedule 6 which schedule will apply to party/party and lawyer/client costs prior to 30 June 2008.
Schedule 2, Item 29, Schedule 1, Part 1, subclause 2(3)
The amendment adds to the subclause to include a reference to paragraph 6.10(1)(b) of Schedule 6 which schedule will apply to party/party and lawyer/client costs prior to 30 June 2008.
Schedule 2, Item 30, Schedule 1, Part 2, clause 6, note
The amendment adds to the note to include a reference to clause 6.03 of Schedule 6 which schedule will apply to party/party and lawyer/client costs prior to 30 June 2008.
Schedule 2, Item 31, Schedule 1, Part 2, paragraph 6(1)(f)
This amendment adds to the paragraph to include a reference to clause 6.03 of Schedule 6 which schedule will apply to party/party and lawyer/client costs prior to 30 June 2008.
Schedule 2, Item 32, Schedule 3, heading, reference
This amendment adds to the reference so that clause 6.19 of Schedule 6 is included which schedule will apply to party/party and lawyer/client costs prior to 30 June 2008.
Schedule 2, Item 33, After Schedule 5
The new Schedule mirrors the existing Chapter 19 but has been replicated in the rules as a Schedule so that lawyers may refer to that Schedule when dealing with party/party costs and lawyer/client costs in cases that are pending or ongoing as at 30 June 2008.
The Summary to the Schedule has been altered from the previous summary to Chapter 19 so that it is clear that the Schedule regulates;
Clause 6.01 has also been altered from the original rule 19.01 so that it is clear that the schedule only applies for work done for a case, or in complying with pre-action procedures associated with a case, that commenced before 1 July 2008. Such costs include those payable by a client to a lawyer, and one person to another person.
A new clause 6.12 has also been added (under Part 6.4 – Lawyer and client costs) confirming that that Part does not apply for work done for a case, paid or payable by a client to a lawyer:
a. for a fresh application commenced after 30 June 2008;
b. by a lawyer who is first retained by a client on or after 1 July 2008, even if the case in which the lawyer is retained to act is pending on 30 June 2008; or
c. if the lawyer and client agree in writing, and free from undue influence, that these Rules do not apply to the regulation of the costs to be charged.
Schedule 2, Item 34, Dictionary, definition of costs agreement
This amendment changes the definition of costs agreement so that it is broken down into 2 categories, namely;
1. Those costs agreements entered into before 1 July 2008 (being those in accordance with clause 6.15 of Schedule 6, which was the original rule 19.14); and
2. those costs agreements entered into after 1 July 2008 (being those in accordance with the law of a State or Territory).
Schedule 2, Item 35, Dictionary, after definition of financial orders
This amendment inserts the new definition of a fresh application. Fresh applications are those applications listed below, including compliance with pre-action procedures associated with them, made after 30 June 2008:
(a) an Application for Final Orders;
(b) an application that includes an application for final orders;
(c) an Application in a Case filed in connection with a fresh application;
(d) an Application for Divorce;
(e) an application for consent orders;
(f) a contempt, contravention or enforcement application, unless an allegation of the contempt, contravention or breach relates to an interim or interlocutory order made in a pending or ongoing Application for Final Orders filed before 1 July 2008;
(g) an application relating to contempt in the face of the court arising from an event occurring after 30 June 2008;
(h) an appeal, and a re-hearing following an appeal;
(i) an application for review of final orders made by a Registrar or Judicial Registrar.
Schedule 3 – Amendments commencing immediately after Schedule 2
Schedule 3, Item 1, Table 18.5, item 32
This amendment corrects the reference to Part 19.2 to 19.3 and is consequential upon renumbering in the Chapter.
Schedule 3, Item 2, Parts 19.1A, 19.2 and 19.3
This amendment is consequential upon renumbering in the Chapter.
Schedule 3, Item 3, Subrule 22.49(2)
This amendment corrects the reference to Part 19.2 to 19.3 and is consequential upon renumbering in the Chapter.