The rules amendments commence in two stages. The formal provisions and Schedule 1 commence on the day after the Rules are registered. Schedule 2 commences on 1 January 2009 and applies to all appeals pending at, or commenced on or after, that day.

Rule 3 Amendment of Family Law Rules 2004

Schedules 1 and 2 amend the Family Law Rules 2004.

Schedule 1 – Amendments commencing on day after registration

Item 1, Table 2.2, Item 5

The amendment omits the reference to applications for step parent maintenance, where the application is unopposed. Such applications are, instead, to be dealt with as ordinary applications rather than consent applications.

Item 2, Table 2.2, item 5

The amendment inserts a reference to section 66 M of the Act.

Item 3, After subrule 2.02(4), before the notes

Section 60 I of the Act provides for the filing of child dispute resolution certificates in certain proceedings before the Court under Part VII of the Act. Certain child support matters before the Court are treated as Part VII matters. In the application of the Act to these matters, the Act applies subject to such modifications as are prescribed by the Rules. This amendment modifies the Act, in that application, by making clear that a child dispute resolution certificate is not required.

Item 4, After subrule 2.02

The amendment deals with notice of Court events in the electronic filing environment. It inserts a new rule 2.02A requiring a person who files a document by electronic communication to ensure that any person on whom the document is served is aware of the details of the next court event so far as the serving party is aware, or has been notified, of them.

Item 5, Division 4.2.5, overview

This amendment omits a reference to proceedings under section 140 of the Child Support (Assessment) act 1989 and is consequential on changes to that Act.

Item 6, Division 4.2.5, overview

This amendment is consequential on changes to the Child Support legislation and updates references in the overview to provisions of that legislation.

Item 7, After paragraph 4.16(b)

The amendment is consequential on changes to the Child Support legislation and inserts into rule 14.16 a reference to an application under section 111C of the Registration Act.

Item 8, Paragraph 4.16(c)

This amendment is a drafting change consequential on the omission of paragraph 4.16(d).

Item 9, Paragraph 4.16(d)

The paragraph is omitted as the regulations to which it refers no longer operate.

Item 10, Table 4.1, item 2

The amendment is consequential on changes to the Child Support legislation. It removes a reference to section 140 of the Assessment Act and inserts a reference to section 111C of the Registration Act.

Item 11, Subrule 4.26(1)

The amendment is consequential on changes to the Child Support legislation. It removes a reference to section 140 of the Assessment Act and inserts a reference to section 111C of the Registration Act.

Item 12, After subrule 7.04(1)

This amendment is one of the changes designed to facilitate electronic filing of documents in the Court. It requires a person serving a document filed by electronic means (currently a secondary document as opposed to an application or response) to make sure that a person on whom the document is served is aware when the document was filed.

Item 13, Paragraph 10.15(1)(b)

This amendment is consequential on the insertion of new subrule 10.15(1A).

Item 14, After subrule 10.15(1)

This amendment inserts new subrule 10.15(1A). In cases where there is no current case and a party files an application for consent orders, the new subrule allows an alternative to lodging a draft consent order. In such a case it will also be permissible to tender a draft consent order during a Court event.

Item 15, Table 18.5, after Item 29

This amendment allows for the delegation to Deputy Registrars of the Court’s power to compel a person to produce a document so as to allow the Court to examine it and rule on an objection to production.

Item 16, Table 18.5, Item 37

Table 18.5 allows for the delegation to Deputy Registrars of certain powers of the Court. The item is amended consequential on new arrangements, adopted in these amendments, for permission to be granted by the Court for inspection of Court records in connection with research.

Item 17, Chapter 19, summary, paragraph (c)

This amendment amends paragraph (c) of the summary to chapter 19 concerning costs, dealing with new retainers to new lawyers, in new firms.

Item 18, Rules 19.18 and 19.19

These rules are reversed.

New Rule 19.18 also clarifies the power of the Court to order costs on a party/party, as well as lawyer and client or indemnity, basis. Where no basis of costs is specified, it is assumed to be party/party.

Item 19, Subrule 19.32(2)

This amendment makes clear that at a costs assessment hearing, a party may only raise a disputed item of costs where notice of the item has been given in the Notice Disputing Itemised Costs Account.

Item 20, Subparagraph 19.56(2)(c)(i)

This amendment is consequential on the amendment made by Item 19.

Item 21, Paragraph 24.05(1)(b)

This amendment is one of the amendments made to facilitate electronic filing. The Rules have previously provided that a document is not treated as filed unless the Registry Manager (or a person acting on his or her behalf) has marked on the filed document the date of filing. This approach, with its implication of marking a hard copy filed document, is unhelpful in a digital environment. Instead, the Registry Manager will record the date of filing according to the court’s operating protocol for the time being. This provides for the maintenance of the required records while ensuring that Registry practice may develop as the digital environment develops.

Item 22, Paragraph 24.05(1)(c)

This amendment omits paragraph 24.05(1)(c) which sets out the requirement to mark, on a filed document, the date of filing.

Item 23, After subrule 24.07(5), before the note

This amendment inserts a new subrule 24.07(6) under which a Registry Manager may send, to a person filing a document, an electronic communication recording the date of filing. It is to be noted that despite the omission of paragraph 24.05(1)(c), a Registry Manager may still determine whether it is appropriate to accept a document for filing. He or she need not do so where, for example, the document does not comply with the Rules or the applicable form, or an applicable fee has not been paid.

Item 24, Rule 24.08

This and the following amendment also make changes to facilitate electronic filing. Where a document is filed electronically, the former requirement to provide additional copies will no longer apply. The court will print the copies it needs from the electronic copy.

Item 25, Rule 24.08 before the note

This amendment inserts a new subrule 24.08(2) which will require additional copies of documents to be lodged where the original is filed by fax. This ensures that the Court will have a good quality original copy of such documents, reflecting the variable quality of faxed documents.

Item 26, subparagraph 24.13(1)(c)(ii)

This is a formal amendment consequential on the insertion of new paragraph 24.13(1)(d).

Item 27, After paragraph 24.13(1)(c)

This amendment inserts a new paragraph allowing researchers, who have the permission of the Court, to search the Court record in connection with specific approved research. The Court has in the past approved research and has facilitated it being undertaken by reputable researchers, such as researchers commissioned by the Attorney General or who are associated with the Institute of family Studies but the Rules were not well adapted to allow this to be done.

New subrules to follow set out, amongst other things, the requirements for permission. The power to grant permission in relation to research will rest with the Chief Justice and in the ordinary course will be exercised by the Court’s Research and Ethics Committee or otherwise as the Chief Justice may authorise. As with any power under express or implied authorization, however, it will be always open to the Chief Justice to exercise the power personally.

Item 28, Subrule 24.13(2), except the note

This amendment omits subrule 24.13(2) and substitutes 3 new subrules.

New subrule 24.13(2) will:

·                    Set out the requirement to specify particular research in relation to which a researcher may inspect the court’s records; and

·                    Ensure that anyone who has a right to inspect the Court record under subrule 24.13(1) (including a researcher) may only, as of right, inspect Court documents (see definition below) on the file – such a person will only be able to inspect any other part of the record if given specific permission to do so by the Court.

The subrule also allows the Court to impose conditions on permissions either in relation to research or the inspection of the wider class of documents. These may include a requirement for the consent of a person mentioned in the record.

New subrule 24.13(3) sets out the matters to which the Court must have regard when deciding whether or not to grant permission to access the wider class of court records. These include the purpose of access and whether it is reasonable for that purpose, the security needs of persons and the proper limits to or conditions on access. The new Note to Rule 24.13 reminds the reader that despite any permission given under the Rule, section 121 of the Act still restricts what may be done with court records to which access has been given.

New subrule 24.13(4) defines “court document” to include a document filed in a case but expressly excludes correspondence in the case. This will therefore prevent the broader class of Court record from being accessed unless express permission under the Rules is given or unless another right of access can be called in aid. Such a right might exist, for example, under the Freedom of Information Act where the documents are not excluded by section 5 of that Act. Section 14 of that Act makes clear that parallel rights of access co-exist with it.

Item 29, subrules 26.22(2) and 26.22(3)

The amendment requires certain documents in bankruptcy proceedings before the Court to be served at least 7 days before the date fixed for the procedural hearing of the application.

Item 30, Rule 26.24

The amendment substitutes a new rule 26.24 relating to the progression of proceedings before the Court in its bankruptcy jurisdiction. The amendment, as with other bankruptcy changes in these amendments, is needed as a result of the recommendations of the Harmonised Bankruptcy Rules Monitoring Committee of the Courts.

The new Rule provides for a procedural hearing in relation to a bankruptcy application and allows the Court to require a Trustee’s report where required, rather than as an invariable requirement. The requirements for such a report are specified.

Item 31, Schedule 1, Part 2, paragraphs 1(1)(b) and (c)

This amendment makes a formal change.

Item 32, Schedule 3, note

A new Note 1 is inserted drawing attention to the continued relevance of superseded costs schedules in connection with work already done during the periods in which they operated. The present note is renumbered as Note 2.

Item 33, Schedule 6, summary, subparagraph (b) (iii)

The amendment substitutes for the subparagraph a new subparagraph referring to the situation where a client in an existing matter instructs a new lawyer in a new firm.

Item 34, Schedule 6, subclause 6.33(2)

This amendment makes clear that at a costs assessment hearing, a party may only raise a disputed item of costs where notice of the item has been given in the Notice Disputing Itemised Costs Account.

Item 35, Schedule 6, subparagraph 6.55(2)(c)(i)

This amendment is consequential on the amendment made by Item 34.

Item 35, Dictionary, definition of costs notice

The definition of “costs notice” is amended to refer to a Brochure approved by the Principal Registrar about costs under Chapter 19 or Schedule 6.

Schedule 2 – Amendments commencing on 1 January 2009

Item 1, Chapter 22

This amendment substitutes a new Chapter 22 concerning Appeals including a new summary of the chapter.

Chapter 22 Appeals

Part 22.1 Introduction

Rule 22.01 Application of Chapter 22

This amendment sets out the appeals to which Chapter 22 applies, being appeals to:

·        the Full Court from the Family Court of Australia, a Family Court of a State or a State or Territory Supreme Court;

·        the Family Court from the Federal Magistrates Court;

·        the Family Court from a Family Law Magistrate of Western Australia;

·        a single Family Court Judge from a court of summary jurisdiction.

The amendment also states that Chapter 22 does not apply to appeals which are:

·        from an assessment or decision under the Assessment Act or the Registration Act where these were not made by a court;

·        a review of an order of a Judicial Registrar or Registrar which is heard by a Judge of the Family Court.

This Rule is substantially the same as the existing Rule 22.01 (Application of Chapter 22).

Part 22.2 Starting an appeal

Rule 22.02 Starting an appeal

This amendment states in which Registry a Notice of Appeal should be filed in order to start an appeal. If the appeal is from a court of summary jurisdiction (other than a Family Law Magistrate of Western Australia), the Notice of Appeal should be filed at the closest Family Court registry. Otherwise, the Notice of Appeal should be filed in the Regional Appeal Registry.

This part of Rule 22.02 is substantially the same as the existing Rule 22.02 (Starting an appeal).

Additionally, this amendment states that if leave to appeal is required, an application for leave to appeal is now to be made in the Notice of Appeal (rather than in a separate application as in the existing Rules).

Rule 22.03 Time for appeal

This amendment specifies that a Notice of Appeal needs to be filed within 28 days after the orders being appealed were made.

This Rule is the same as existing Rule 22.03 (Time for appeal).

Rule 22.04 Parties to an appeal

This amendment states that all persons directly affected by the orders sought in the Notice of Appeal, or who are likely to be interested in maintaining the order under appeal, should be a respondent to the appeal (or application for leave to appeal).

This Rule is the same as existing Rule 22.04 (Parties to appeal).

Rule 22.05 Service

This amendment states that a copy of the Notice to Appeal should be served on the parties to the appeal (in accordance with Rule 22.04) within 14 days of it being filed.

This Rule is slightly different to the existing Rule 22.05 (Service), with the insertion of a cross-reference to Rule 22.04 (which sets out who are to be the parties to the appeal).

Rule 22.06 Notice about appeal to other courts

This amendment provides that if the appeal is not from an order of the Family Court of Australia, the appellant must provide a copy of the Notice of Appeal to the Registrar of the court from which the appeal is brought within 14 days of filing the Notice of Appeal.

The amendment also provides that where a party is seeking leave to appeal (and the appeal is not from an order of the Family Court of Australia), they must give a copy of the Notice of Appeal, in which leave to appeal is sought, to the Registrar of the other court or the Child Support Registrar (if an appeal from a court exercising jurisdiction under the child support legislation).

This Rule is different to existing Rule 22.06 (Notice about appeal to other courts) due to the amendments requiring that leave to appeal is now to be sought in the Notice of Appeal.

Rule 22.07 Cross-appeal

This amendment specifies that if a respondent to an appeal, or an independent children’s lawyer, wishes to argue that an order under appeal should be varied or set aside, they must file a Notice of Appeal endorsed as a cross-appeal.

This rule is the same as existing Rule 22.07 (Cross-appeal).

Rule 22.08 Time for cross-appeal

This amendment sets out the time period for filing a Notice of Appeal for a cross-appeal, that being whichever is the later of:

·        14 days after the Notice of Appeal is served on the party seeking to cross-appeal; or

·        28 days after the date the order appealed from was made.

The existing Rule 22.08 (Time for cross-appeal) states that a Notice of Appeal for a cross-appeal has to be “filed within 14 days after the Notice for the appeal is served on the cross-appellant”.

Rule 22.09 Amendment of Notice of Appeal

This amendment allows the appellant to amend the grounds of appeal and the orders sought in their Notice of Appeal without permission at any stage up to and including the date that has been fixed for the filing of their summary of argument.

Further, if the appellant amends their Notice of Appeal, the respondent/cross-appellant is also able to amend their cross-appeal without permission within 7 days of being served the appellant’s Notice of Appeal.

This Rule amends the existing Rule 22.09 (Amendment of Notice of Appeal) so the time period for amending the Notice of Appeal without permission is not calculated from the date fixed for the procedural hearing for the appeal, but instead from the date fixed for the filing of the appellant’s summary of argument.

Rule 22.10 Documents filed in a current appeal

This amendment states that if an appeal has been started in a particular Registry, then documents should be filed in that same Registry.

This amendment simplifies the drafting of existing Rule 22.10 (Documents filed in a current appeal) but maintains the substance of that Rule.

Rule 22.11 Stay

This amendment states that filing a Notice of Appeal does not automatically stay the orders being appealed (unless otherwise provided by legislation) and specifies how a stay application is to be made.

In particular, the amendment specifies:

·        that a stay application can be made by any party once an appeal has been started (or once there has been an application for leave to appeal);

·        that a stay application can be made with respect to all or parts of the orders being appealed;

·        that the stay application is to be filed in the Registry in which the order under appeal was made;

·        that the stay application is to be heard by the judicial officer who made the order under appeal.

This Rule is substantially similar to the existing Rule 22.12 (Stay).

Rule 22.12 Application for leave to appeal

This amendment sets out procedural orders which can be made by a Judge, a Regional Appeal Registrar or Registrar when considering an application for leave to appeal, including orders that:

·        the applicant file an undertaking to pay any filing fee;

·        the appeal and the application for leave to appeal be argued at the same time;

·        the application be decided without an oral hearing with the provision for further orders in relation to the conduct of the application (including the filing of written submissions).

This is an amended version of the existing Rule 22.48 (Orders about conduct of application) and Rule 22.45 (Decision without an oral hearing). The amended version refers to “leave to appeal” rather than “permission to appeal” to ensure consistency with the Family Law Act 1975 (Cth).

Rule 22.13 Filing draft index to appeal books

This amendment provides that in appeals from the Family Courts and the Federal Magistrates Court (including an appeal from a Family Law Magistrate of Western Australia), the appellant must file a draft appeal book index in the following time period:

·        within 28 days after filing the Notice of Appeal; or

·        within 28 days after the date when the reasons for judgment (relating to the orders being appealed) were certified.

This is a change from the existing Rule 22.16 (Filing draft index to appeal books) which required the filing of a draft index to appeal books at least 7 days prior to the first court date for the appeal.

The new amendment also states that non-compliance with the requirement to file a draft index to the appeal book will result in the application taken to be abandoned (as opposed to the first court date being cancelled and a new date not being fixed until the draft index is filed).

Part 22.3 Appeal to Full Court

Rule 22.14 Application of Part 22.3

This amendment sets out the appeals which are “appeals to the Full Court” and are thus regulated by Part 22.3. These are appeals to the Full Court:

·        from an order of a Judge or Judges exercising the original jurisdiction of the Family Court;

·        under subsection 94(1AA) of the Family Law Act 1975 (Cth) (an appeal from a refusal by a trial judge to disqualify himself or herself);

·        from an order of the Federal Magistrates Court;

·        from an order of a Family Law Magistrate of Western Australia;

·        from a single Judge of a State or Territory Supreme Court.

This amendment is substantially the same as the existing Rule 22.13 (Application of Part 22.3), with the only change being the use of the terminology “Family Law Magistrate of Western Australia” (the existing Rule 22.13 refers to the “Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia”).

Rule 22.15 Procedural Hearing

This amendment specifies that “as soon as is reasonably practical” after a draft appeal book index is filed, the Regional Appeal Registrar is to:

·        fix a date for a procedural hearing for the appeal; and

·        provide the parties with written notice of this date.

This amendment specifies that the procedural hearing can be conducted by a Registrar or a Judge of the Appeal Division or other Judge (if a Judge of the Appeal Division is unavailable).

This is a new Rule.

Rule 22.16 Attendance at first procedural hearing

This amendment specifies that the appellant or the appellant’s solicitor must attend the first procedural hearing in the appeal. It also states that the respondent (and their lawyer, if any) or the independent children’s lawyer may attend the first procedural hearing in the appeal.

This is a variation of existing Rule 22.17 (Attendance on first court date), which required all parties who wished to be heard in the appeal and their lawyers to attend the first court date (though the attendance of independent children’s lawyers was not mandated).

Rule 22.17 Orders to be made at procedural hearing

This amendment firstly allows a Regional Appeal Registrar or Registrar, who is conducting a procedural hearing, to adjourn that hearing to a Judge (where they consider this action to be appropriate).

Secondly, the amendment sets out the types of orders which may be made at procedural hearings, including orders relating to:

·        which documents are to be included in the appeal books;

·        which portions of transcript are to be included in the appeal books;

·        the preparation of the appeal books (including the number of copies);

·        the date for filing and serving the appeal books;

·        the conduct of the appeal, including the expected duration of the appeal;

·        any other matter considered necessary.

This amendment is substantially the same as existing Rule 22.20 (Procedural hearing).

Rule 22.18 Preparation of appeal books

This amendment makes the appellant (or in some cases the cross-appellant) responsible for preparing the appeal books, including obtaining the necessary transcript.

However, the amendment states that in cases where the responsibility to prepare the appeal books “would impose exceptional hardship on the appellant”, a Judge or a Judicial Registrar can order that the appeal books be prepared by a respondent or the Appeal Registrar (though the appellant may still be required to pay the cost of the appeal book preparation).

This amendment is substantially the same as existing Rule 22.24 (Preparation of appeal books).

Rule 22.19 Contents of appeal books

This amendment provides that, unless ordered otherwise at the procedural hearing, appeal books are only to contain the documents which:

·        were in evidence at the trial; and

·        are relevant to the grounds of appeal; and

·        are necessary to enable the court of appeal to reach its decision.

Where the appeal involves a challenge to the exclusion of evidence, the document that the challenge relates to should be included in the appeal books.

This amendment also specifies that the appeal book should not include any reference to (or details of) any offers of settlement which may have been made, unless they are relevant to the appeal.

This amendment is substantially the same as existing Rule 22.21 (Appeal books).

Rule 22.20 Form of appeal books

This amendment specifies the way in which the appeal books should be presented.
First, each volume of the appeal books must have:

·        a title page outlining specific details of the parties and the matter; and

·        an index of the documents in the books, including the date and page number of each document

The appeal books must also include a signed certificate by the person who prepared the appeal books. This must state that the books were prepared in accordance with the Rules and any relevant orders.

This amendment also specifies:

·        the order in which the documents should be arranged in the appeal books;

·        that the appeal book pages be numbered consecutively;

·        that the appeal book be fastened securely, with each volume being a maximum of 25 millimetres thick;

·        that each page comply with subrule 24.01(1) (General requirements for documents).

This amendment is similar to the existing Rule 22.22 (Form of appeal books), with the only substantial change being an alteration in the order which documents in the appeal books must be arranged (including the addition of extra categories or types of documents).

Rule 22.21 Failure to file appeal books by due date

This amendment states that the appeal is taken to be abandoned if the appeal books are not filed by the date ordered.

This amendment changes the existing Rule 22.56 (Abandoning an appeal), which provided that the appeal is abandoned “at the end of the 28^th day after the date for compliance” if appeal books are not filed.

Rule 22.22 Summary of argument and list of authorities

This amendment first provides time limits for the parties to file their summaries of arguments and lists of authorities:

·        for the appellant, the time limit is at least 28 days before the start of the sittings in which the appeal is listed;

·        for the respondent and independent children’s lawyer (if any) the time limit is at least 7 days before the start of the sittings in which the appeal is listed.

The amendment has different time limits to the existing Rule 22.26 (Summary of argument and list of authorities). For an appellant and an independent children’s lawyer, the change will mean that the summary of argument and list of authorities will need to be filed earlier than previously.

Secondly, the amendment sets out that the summary of argument must not exceed 10 pages, have paragraphs consecutively numbered and include:

·        the grounds of appeal as well as the arguments and authorities relied on to support this ground;

·        the orders sought;

·        signature of the party or the lawyer who prepared the summary;

·        details of how the signatory can be contacted.

This part of the amendment is the same as the existing Rule 22.26.

Part 22.4 Appeal from Federal Magistrates court or a Family Law Magistrate of Western Australia heard by single Judge

Rule 22.23 Application of Part 22.4

This amendment states that Part 22.4 applies to appeals from an order of the Federal Magistrates Court or from a Family Law Magistrate of Western Australia, where the Chief Justice has determined that the appeal is to be heard by a single Judge.

This amendment is the same as existing Rule 22.27 (Application of Part 22.4), except that the simplified term “Family Law Magistrate of Western Australia” is used.

Rule 22.24 Procedural hearing

This amendment states that the appeal can be listed for a procedural hearing if the Judge who is to hear the appeal so directs. Such a procedural hearing can be conducted by any Judge or a Regional Appeal Registrar.

Alternatively, procedural orders can be made in chambers (in the absence of the parties and based on the documents filed) by the Regional Appeal Registrar or the Judge who is to hear the appeal.

This amendment is similar to existing Rule 22.28 (Notice of appeal registry and referral to judge) and Rule 22.29 (Fixing of date for procedural hearing). However, the new Rule is different in that it expressly provides for Regional Appeal Registrars to make procedural orders.

Rule 22.25 Attendance at procedural hearing

This amendment specifies that the appellant or the appellant’s solicitor must attend the first procedural hearing in the appeal. It also states that the respondent (and their lawyer, if any) or the independent children’s lawyer may attend the first procedural hearing in the appeal.

This is a variation of existing Rule 22.30 (Attendance at procedural hearing), which required all parties who wished to be heard in the appeal and their lawyers (if any) attend the first court date.

Rule 22.26 Procedural orders for conduct of appeal

This amendment sets out the types of orders which may be made at a procedural hearing by a Judge or Regional Appeal Registrar, including orders relating to:

·        whether an appeal book is necessary and, if so, how it is to be prepared and whether compliance with Rules 22.18, 22.19, 22.20 is required;

·        if an appeal book is not to be prepared, the arrangements to ensure that necessary documents are before the court at the appeal hearing;

·        deadlines for the filing and serving of documents, including:

o       the reasons for judgment of the Federal Magistrate (or the Family Law Magistrate of Western Australia);

o       relevant parts of the transcript;

o       list of documents to be relied on, or an appeal book;

o       summary of argument;

o       list of authorities to be relied on.

This amendment also provides that the summary of argument must comply with Rule 22.22(2).

This Rule is substantially the same as the existing Rule 22.31 (Procedural orders for conduct of appeal).

Rule 22.27 Documents for appeal hearing if appeal book not required

This amendment provides that the following documents should be before the Judge for the hearing of the appeal:

·        Notice of Appeal;

·        the order being appealed;

·        reasons for judgment in relation to the order being appealed;

·        other relevant orders;

·        the original application;

·        response to the original application;

·        relevant affidavits relied on at the trial;

·        any family report received into evidence;

·        relevant exhibits at the trial;

·        relevant parts of the transcript of the trial;

·        if the appeal includes a challenge to the exclusion of evidence, the document to which that challenge relates.

This amendment is similar to Rule 22.32(3) (Documents for appeal hearing).

Part 22.5 Appeal from court of summary jurisdiction other than a Family Law Magistrate of Western Australia

Rule 22.28 Application of Part 22.5

This amendment states that Part 22.5 applies to an appeal from an order of a court of summary jurisdiction, except where the order is from a Family Law Magistrate of Western Australia.

This Rule is the same as Rule 22.35 (Application of Part 22.5) except that the defined term “Family Law Magistrate of Western Australia” is used.

Rule 22.29 Fixing of hearing date

This amendment states that once a Notice of Appeal is filed, the Registry Manager is to fix a date for the appeal hearing that is as close to 56 days after the Notice of Appeal was filed as is practicable.

This rule is the same as existing Rule 22.36 (Fixing of hearing date).

Part 22.6 Power of appeal courts and conduct of appeal

Rule 22.30 Non-attendance by party

This amendment is the first rule in Part 22.6 which is concerned with the powers of appeal courts and the conduct of appeals. It provides the consequences if a party or their legal representative does not attend the hearing of the appeal. If the appellant does not attend, then the court can dismiss the appeal. If the respondent does not attend, then the court may proceed with the appeal.

This amendment is the same as existing Rule 22.38 (Non-attendance by party).

Rule 22.31 Attendance by electronic communication

This amendment provides that a party may request permission to attend the court by electronic communication. The amendment sets out that such a request must be in written form and:

·        if the request relates to an application in relation to an appeal or a procedural hearing, the request must be made at least 14 days before the date fixed for that hearing;

·        if the request relates to an application for leave to appeal or an appeal, the request must be made at least 14 days before the date fixed for the sitting of the Full Court;

·        if applicable, the request must address all the matters mentioned in subrule 16.08(3);

·        the request should set out the notice given to the other parties and whether they object to the request.

The request may be determined in chambers in the absence of the parties. The request is to be determined by an Appeal Division Judge, a Judge hearing the appeal (or application or procedural hearing) or a Registrar, depending upon (i) whether the request relates to an appeal, an application or a procedural hearing and (ii) whether the matter is to be heard by the Full Court or a single judge.

Rule 22.31(4) further provides that in deciding whether to grant the request, the court can consider how far the party is from the court and any physical problems the person may have in attending court (for example illness, disability or security concerns).

Additionally, the Rule allows the court to make orders about who is to pay the cost of electronic communication and specifies that this Rule does not apply in cases where the court of its own motion decides to hear a matter by electronic communication.

This amendment is similar to the existing Rule 22.39 (Attendance by electronic communication) but with some minor changes of a consequential or clarifying nature.

Rule 22.32 Attendance of party in prison

This amendment states that a person in prison should attend court by electronic communication if practicable, although such a party can seek permission from the court to attend in person.

A request to attend in person must be made in writing 14 days before the date fixed for the appeal and must set out the reasons why permission should be granted. In addition to this, the request should contain details of the notice given to the other parties about the request and whether they object to it.

This amendment is the same as existing Rule 22.40 (Attendance of party in prison) except that the time within which a request must be made to attend in person has been extended.

Rule 22.33 Short reasons for decision

This amendment prescribes a format for short reasons explaining the decision to dismiss an appeal (which the court has the power to do under certain Commonwealth legislation).

This amendment is similar to existing Rule 22.41 (Short reasons for decision).

Rule 22.34 Subpoenas

This amendment states that a subpoena can only be issued in an appeal once the court has granted leave for this to be done. Additionally, the subpoenaed document/s once produced can only be inspected with the leave of the Full Court or single Judge hearing the appeal.

This is a new provision.

Part 22.7 Applications in relation to appeals

Division 22.7.1 How to make an application

Rule 22.35 Application of Part 22.7

This amendment states that Part 22.7 applies when a party seeks to make an application in relation to an appeal. It does not, however, apply to an application for leave to appeal.

This amendment is different to existing Rule 22.42 (Application of Part 22.7), as the existing Rule states that an application for permission to appeal (now leave to appeal) is subject to the Rules in Part 22.7.

Rule 22.36 Application in relation to appeal

This amendment sets out how a party may make an application in relation to an appeal, namely by filing an Application in an Appeal with a supporting affidavit. This application is a discreet application which is to be used instead of an application in a case as is required by existing Rule 22.43 (application in relation to appeal).

Rule 22.37 Hearing date for application

Once an Application in an Appeal has been filed, the Regional Appeal Registrar must:

·        fix a date for the application to be heard; or

·        refer the application to a Judge in chambers if:

o       the Regional Appeal Registrar considers it appropriate; or

o       the applicant asked (in the application) that the application be determined without an oral hearing and there has been no objection to the request.

This amendment is similar to existing Rule 22.44 (Hearing date for application).

Rule 22.38 Decision without an oral hearing

The first part of this amendment states that Part 5.4 (Hearing on papers in absence of parties) applies to an application in relation to an appeal.

Secondly, the amendment states what a Judge may do if an application is referred to that Judge in chambers. In these circumstances, the Judge can:

·        make procedural orders relating to the conduct of the application (including the filing of written submissions) without an oral hearing; or

·        determine the application without an oral hearing; or

·        direct that a date for hearing be fixed and require the parties to attend.

This amendment is the same as existing Rule 22.45 (Decision without an oral hearing).

Division 22.7.2 Specific applications relating to appeals

Rule 22.39 Further evidence on appeal

This amendment states that a party to an appeal (except where the appeal is a de novo hearing) who wishes to have the court receive further evidence must file an application. This application must be filed at least 14 days before the commencement of the sittings in which the appeal is listed.

The amendment further provides that the affidavit filed with the application must include the further evidence in question or describe the nature of the further evidence.

Other parties can then file an affidavit in response to the application, providing this is done so at least 7 days before the commencement of the sittings in which the appeal is listed.

The hearing of an application to adduce further evidence is to be held at the same time as hearing of the appeal or application for leave to appeal.

This amendment is slightly different to the existing Rule 22.51 (Further evidence on appeal). For example, the provision allowing a description of the nature of the further evidence is new (the existing Rule requires the actual evidence to be included). Also, the clarification about when the application to adduce further evidence is to be heard is a new addition.

Rule 22.40 Review of Regional Appeal Registrar’s order

This amendment provides for a party to apply to have orders made by a Regional Appeal Registrar reviewed, where those orders relate to the conduct of an appeal. Such an application is made by filing an Application in an Appeal in the Regional Appeal Registry within 14 days after the order in question was made.

This amendment is the same as existing Rule 22.52 (Review of Appeal Registrar’s order).

Part 22.8 Concluding an appeal, an application for leave to appeal or an application in relation to an appeal

Rule 22.41 Consent orders on appeal

This amendment applies when parties to an appeal agree on the orders which they would like the court to make in the appeal. If the parties do so agree, they may file a draft consent order which sets out the terms of their agreement.

In a case where the parties agree about the orders they would like the court to make in the appeal, but disagree as to the orders about cost, then the Appeal Registrar may fix a date for hearing the arguments about costs. In such a case, there is no need for appeal books to be prepared or for a procedural hearing to be held.

This amendment is substantially the same as Rule 22.53 (Consent orders on appeal).

Rule 22.42 Discontinuance of appeal or application

This amendment provides that an appeal, an application for leave to appeal, or an application in relation to an appeal can be discontinued by filing a notice of discontinuance, although a party who discontinues may be ordered to pay the costs of the other parties. The amendment also states that any such application for costs must be filed within 28 days after the filing of the notice of discontinuance.

This amendment is different to the existing Rule 22.54 (Discontinuance of appeal) as the existing Rule only contains a cross-reference to Part 10.2, stating that this Part “applies to an appeal as if it were a case”. Therefore, the new Rule provides more explicitly how an appeal is discontinued and the possible effects of such discontinuance.

Rule 22.43 Abandoning an appeal

This amendment provides that the appellant may be ordered to pay the costs of the other parties if the appeal is taken to be abandoned. Further, the amendment states that if an appeal has been abandoned, any applications for costs are to be filed within 28 days after the date the appeal was abandoned.

This Rule is different to the existing Rule 22.56 (Abandoning an appeal) as the new amendment deals only with the costs implications of abandoning an appeal. This is due to the fact that earlier Rules (see, for example, Rules 22.13 and 22.21) provide the situations in which an appeal (or application for leave to appeal) will be deemed to be abandoned.

Rule 22.44 Application for reinstatement of appeal

This amendment states that in cases where the appeal has been taken to be abandoned, a party can apply to have it reinstated.

This amendment is different to the existing Rule 22.57 (Application for reinstatement of appeal) as the new Rule does not set out the factors the court may consider in deciding whether to reinstate the appeal.

Rule 22.45 Dismissal of appeal and applications for non-compliance or delay

This amendment applies in cases where the appeal is not taken to be abandoned and where a party (referred to as the defaulting party) has not:

o       complied with a requirement under these Rules or the Regulations; or

o       complied with an order made in relation to the appeal (or in relation to an application for leave to appeal); or

o       shown “reasonable diligence” in proceeding with the appeal or application.

If the defaulting party is the appellant or the applicant, the court can dismiss the appeal or application. Alternatively, the court can order the defaulting appellant or applicant to meet a requirement and specify a date by which this must be done; if the appellant/applicant does not comply with this order, then the appeal will be dismissed. Such an order can be made on the court’s own initiative if the parties have been given 14 days notice that the court will consider whether to make the order.

Similarly, the amendment provides that if the defaulting party is the respondent, the court can set a time by which a requirement must be met; if the respondent does not comply with this order by the specified date, then the appeal or application will proceed. Alternatively, the court may simply proceed to hear the appeal or application without giving the respondent the opportunity to remedy the default. Such an order can be made on the court’s own initiative if the parties have been given 14 days notice that the court will consider whether to make the order.

The amendment also provides that if an appeal or application is dismissed under Rule 22.45, a party may make an application for costs within 28 days after the dismissal.

The remainder of the amendment is similar to existing Rule 22.58 (Dismissal of appeal for non-compliance or delay).

Part 22.9 Case stated

Rule 22.46 Application of Part 22.9

This amendment provides that Part 22.9 applies in cases where the Court and a party want the Full Court to determine a question of law which has arisen in the case. Such a case is termed a “case stated”.

This amendment is the same as existing Rule 22.60.

Rule 22.47 Case stated

This amendment states that if a Judge orders a party to prepare a case stated to the Full Court, the party must firstly confer with all of the other parties about the terms of a draft case stated. The party must then prepare the draft case stated, based on the agreed terms.

The amendment prescribes that the draft case stated is to include a concise statement of the facts of the case and the question of law to be determined.

Once the draft of the case stated is completed, the party who prepared it must:

·        request that the Regional Appeal Registrar list the case for a procedural hearing, the purpose of such a hearing being to have the draft case stated settled by the Judge;

·        serve a copy of the draft case stated on all of the other parties (and to anyone else the Judge directs) and give them notice of the date of the procedural hearing.

This amendment is the same as existing Rule 22.61 (Case stated).

Rule 22.48 Objection to draft case stated

This amendment provides that a party served with a copy of the draft case stated can object to its terms or seek that it be amended. The amendment provides that, in order to do this, the party must give written notice to the party who prepared the draft, outlining any objections or any amendments they seek to have made when the draft is settled by the Judge. This written notice is to be given within 7 days after the draft case stated has been served on that party.

This amendment is the same as existing Rule 22.62 (Objection to draft case stated), save for consequential amendment regarding the numbering of the Rules cross-referenced within.

Rule 22.49 Settlement and signing

This amendment states that the party who prepared the draft case stated must lodge the draft case stated, as well as any objections or amendments sought by the other party, and request that the Judge settle the draft case stated.

The amendment also provides that three days after the Judge has settled the draft case stated, the party who prepared it must file a copy of the settled case stated for the Judge to sign.

This amendment is the same as existing Rule 22.63 (Settlement and signing).

Rule 22.50 Filing of copies of case stated

This amendment states that the party who prepared the draft case stated must:

·        file 5 copies of the case stated in the Regional Appeal Registry; and

·        serve 2 copies of the case stated on all other parties (and any other person, as directed by the Judge).

This must be done within 7 days after the case stated has been signed.

This amendment is the same as existing Rule 22.64 (Filing of copies of case stated), save for consequential amendment regarding the numbering of the Rules cross-referenced within.

Rule 22.51 Fixing of hearing date

This amendment provides that once copies of the signed case stated have been filed, the Regional Appeal Registrar must:

·        fix a date, during a sitting of the Full Court, for the case stated to be heard; and

·        notify all parties in writing about the hearing.

This amendment is the same as existing Rule 22.65 (Fixing of hearing date), save for consequential amendment regarding the numbering of the Rules cross-referenced within.

Rule 22.52 Summary of argument and list of authorities

This amendment provides a timetable for filing and serving of the parties’ summaries of arguments and lists of authorities, specifically prescribing that:

·        the party who prepared the draft case stated must file (and serve) their documents at least 21 days before the commencement of the sittings at which the case stated is to be heard;

·        the other parties are to file (and serve) their documents at least 14 days before the commencement of the sittings at which the case stated is to be heard;

·        if there is a child representative, they are to file (and serve) their documents at least 7 days before the commencement of the sittings at which the case stated is to be heard.

The amendment additionally specifies that the summary of argument must meet the requirements set out in subrule 22.22(2).

This amendment is the same as existing Rule 22.66 (Summary of argument and list of authorities), save for consequential amendment regarding the numbering of the Rules cross-referenced within.

Item 2

Dictionary, after definition of family dispute resolution practitioner

This amendment inserts a definition of “Family Law Magistrate of Western Australia” which is used throughout the Rules and is a simplification of the phrase “Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia” as previously used.

Item 3

Dictionary, definitions of Regional Appeal Registrar and Regional Appeal Registry

This amendment substitutes new definitions of “Regional Appeal Registrar” and “Regional Appeal Registry”. The definition of “Regional Appeal Registrar” is the same as that in the existing Dictionary.

The definition of “Regional Appeal Registry” for appeals other than from an order of a court of summary jurisdiction specifies which Registry is the “Regional Appeal Registry” depending upon where the order being appealed was made.

The definition states that if the appeal is from an order in a case heard in:

·        Queensland, Lismore or the Northern Territory, then the Regional Appeal Registry is the Brisbane Registry;

·        Australian Capital Territory or New South Wales (except Lismore), then the Regional Appeal Registry is the Sydney Registry;

·        South Australia, Tasmania or Victoria, then the Regional Appeal Registry is the Melbourne Registry;

·        Western Australia, then the Regional Appeal Registry is the Registry of the Family Court of Western Australia.

This amendment also removes the distinction between appeals from the Federal Magistrates Court and other appeals in determining where the Regional Appeal Registry is located.