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FAMILY LAW RULES (AMENDMENT) 1991 NO. 122

STATUTORY RULES 1991 No. 122

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

AMENDMENT OF THE FAMILY LAW RULES

Section 123 of the Family Law Act 1975 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 Family Law Act.

Section 123(2) of the Family Law 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 it references in those sections to regulations were references to Rules of Court.

The present Family Law Rules came into operation on 2 January 1985. They have been regularly reviewed since that date.

DETAILS OF THE PROVISIONS

Rule 1 provides the commencement date.

Rule 2 is a machinery provision.

Rule 3 provides for the definition of the following words and phrases, 'abuse', 'Child Support Registrar', 'member of the Court personnel', 'prescribed child welfare authority' to be inserted in Order 1 rule 4.

Rule 4 provides that the word 'a court' be substituted for the words 'a judge or magistrate' in Order 4 sub rules 8(2) and 8(5).

Rule 5 provides that where a person refuses to accept service of a document, personal service shall be taken to be effected if the document is not only put down but 'left' in the person's presence.

Rule 6 amends Order 18 to ensure that all documents filed in proceedings, other than in proceedings for principal relief, are served in accordance with order 18 paragraph 5(1)(a) or (b).

Rule 7 amends Order 20 rule 7 by substituting the phrase 'book document or thing' in place of the word 'document'.

Rule 8 amends Order 20 rule 8 by substituting the phrase 'book, document or thing' wherever the word 'document' appears.

Rule 9 provides that a new rule 23A is to be inserted after order 23. Order 23A gives effect to the provisions of section 70BA of the Act which requires that a notice must be filed by a party to proceedings where that party alleges that a child to whom the proceedings relate has been abused or is at risk of being abused.

Subrule 23A(1) requires that the notice is to be in accordance with Form 65 and the new Form 66 titled 'Notice of child Abuse or of Risk of Child Abuse' has been inserted in Schedule 1.

Subrules 23A(1) and (2) require that 2 copies of the notice are to be filed, that the Registrar is to forward a scaled copy of the notice to a prescribed welfare authority, and that service of the notice upon the person who is the subject of the allegation is to be by assured service, that is service in accordance with subparagraph 5(1)(a)(i) or (iii), or 5(1)(b)(i) or (ii) of Order 18.

Rule 10 amends the heading to 026 by the addition of the phrase "AND DEBTS DUE TO THE COMMONWEALTH".

Rule 11 provides that a new rule 4 is to be inserted after Order 23 rule 3. The rule enables child support arrears which are deemed to be debts due to the Commonwealth under section 30 of the Child Support (Registration and Collection) Act 1988 to be registered in the Family Court and other courts to the extent set out in section 104 of that Act by the filing of a certificate under subsection 116(2) of that Act.

Rule 12 provides for a new rule 2A to be inserted after Order 30 rule 2. The new rule allows statements made in affidavit or orally to be admitted into evidence at the discretion of the presiding Judge or judicial officer even if the statement offends the common law rule of evidence against hearsay. This rule only applies to evidence in interlocutory proceedings and is similar to the provisions of Order 33 rule 2 of the Federal Court Rules.

Rule 13 omits the definition of 'Child Support Registrar' from Order 31B rule 1.

Rule 14 Amends Order 33 rule 2 as follows:

Inserts paragraph 2(1)(aa) into Order 33 rule 2 to enable the enforcement provisions in Order 33 to apply to child support arrears arising under the Child Support (Registration and Collection) Act 1988.

Inserts a new subrule 2(4A) and provides that where an order is made in proceedings for enforcement of child support arrears and that person is not present or legally represented in court when the order is made the order is to be served on that person in accordance with Order 18 paragraph 5(1)(a). The provision is in similar terms to subrule 2(4) which refers to child maintenance orders and fines.

Rule 15 inserts a new sub rule (3A) in Order 33 Rule 3. It provides the mechanism by which child support arrears can be enforced. The provision applies where a person is alleged to have refused or failed to pay child support under the Child Support (Registration and Collection) Act 1988. The provision enables the Child Support Registrar to file and for the Registrar of the filing registry to issue either a 'Notice Requiring Financial Information - Child Support' in accordance with a new Form 45A or an 'Enforcement Summons - Child Support' in accordance with a new Form 458. Both new forms have been inserted in Schedule 1.

Rule 16 amends 033 Rule 7 by omitting the phrase 'a Judge of the Family Court' and substituting the words 'the court'.

Rule 17 omits O34 Rule 6 and substitutes a new rule 6. The provision simplifies the rules in O34 relating to contempts and offences and provides for new Form 48. The provision follows the wording of section 112AD in the Act and enables an application to be filed in accordance with Form 48 when it is alleged that a person has without reasonable excuse contravened an order under the Act, Regulations or Rules.

Subparagraph 6(1)(b) also enables an application to be filed under Form 48 where a person has intentionally and without reasonable excuse prevented or hindered the execution of a warrant issued under S64 of the Act.

Rule 18 amends O 34 Rule 9 by substituting 'Form 49' wherever 'Form 48' appears. The amendments are consequential amendments arising from the renumbering and amendment of forms in Schedule as set out in Rule 21.

Rule 19 provides for 4 amendments to Order 36A rule 2 including 2 further delegations of powers to Registrars. They are as follows:

1.       Paragraph 2(2)(c) is amended by omitting reference to Order 18 rule 18 which itself was omitted in 1989.

2.       Paragraph 2(2)(j) is amended by the addition of Order 19 rule 6A which places limitations on a Court in making an order under Order 19 rule 6 before a respondent has served an Answer to an Application.

3.       Renumbers paragraph (ma) as (mb).

4.       Inserts paragraph (ma) which delegates to Registrars all powers under 'O30A - Expert Evidence'.

Rule 20 provides for 3 further delegations of powers to Judicial Registrars under order 36A rule 3. They are as follows:

1.       Paragraph (va) is to be inserted and provides that Judicial Registrars have power to make orders under Order 21 being orders for the detention, custody, preservation, insurance or inspection of property.

2.       Paragraph 3(x) is to be inserted being the powers of the Court under Order 31A to make an interlocutory or interim order excluding the court's powers under order 31A subrule 6(3).

3.       Amends paragraph 3(2) by inserting the words 'or appeal' after the words 'any application' thereby enabling Judicial Registrars to make orders in relation to appeals from decisions of the Child Support Registrar.

Rule 21 amends and omits certain existing forms and provides for new forms in Schedule 1 as follows:

A new part in Form 7 relating to 'Application Initiating Proceedings' has been substituted. The amendments in the new part substitutes the period of '21 days' for the period '28 days' in accordance with earlier amendments made to Order 11. The form also provides clarification where orders in a different cause of action are sought by a respondent.

New Forms 7A and 7B have been substituted which amend Part IIIB in both forms by omitting the word 'particulars' and inserting the word 'facts'.

A new Form 12 is substituted which inserts two new paragraphs 2 and 3 into the form. Paragraph 2 provides for a date of separation and paragraph 3 provides for the dates of birth of the child or children. This information is necessary to ensure orders are not made in contravention of section 66BA of the Act.

Form 42 is amended to provide for the name of the Judge appealed against.

A new Form 44 is substituted to provide for the name of the Judicial Registrar or Registrar appealed against.

A new Form 45 is substituted to amend and clarify question 5 in the form and to request further details.

New forms Form 45A and Form 45B are inserted in schedule 1. The new forms enable the Child Support Registrar to file and issue a 'Notice Requiring Financial Information' under Form 45A or an 'Enforcement Summons' under Form 45B. The forms provide the mechanism by which financial information in Child Support matters can be obtained or child support enforcement proceedings brought in the Family Court or other Courts.

A new Form 47 has been substituted to clarity and ensure that the application is in accordance with the provisions of Section 112AP of the Act. Amendments are made to the heading by the inclusion of the words 'Section 112AP' and by the deletion of reference to the orders made or undertaking given to the Court.

The existing Form 43 has been omitted and is subsumed within the new Form 48.

A new form, Form 48, has been inserted in Schedule 1. The form results from a clarification of the rules relating to contempt and other offences as amended in Order 34 rule 6. Form 48 is headed 'Application - Section 112AD' and is the form required to be filed when it is alleged that a person has without reasonable excuse contravened an order under the Act, Regulations or Rules.

A new Form 49 has been substituted for the existing Form 48A. The heading is also amended by omitting the words 'Subsection 70(3)', and substituting 'Summary Access Enforcement'. Minor amendments have been made to the second paragraph of the Application.

The existing Form 49, being an application under subsection 114(4) of the Act, has been omitted following the deletion of subsection 114(4) from the Act.

A new form, Form 66, has been inserted in Schedule 1. It provides the form of notice required to be filed by a party to proceedings when an allegation of child abuse or risk of child abuse is made pursuant to section 70BA of the Act.