Commonwealth Numbered Regulations - Explanatory Statements

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


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 1975.

Section 123(2) of the Family Law Act 1975 provides that sections 48, 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 apply in relation to the Rules of Court as if references In those sections of that Act 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.


Rule 1 provides the commencement date.

Rule 2 is a machinery provision.

Rule 3 provides that a new rule 23B is to be inserted after Order 23A. Order 21B sets out the procedures to be followed in relation to the approval by the Court of medical procedures for children.

Subrule 235(1) provides that Order 23B applies to applications for a declaration that a person is authorised to consent to a medical or surgical procedure for a child.

Subrule 23B(2) provides that an application may be made to a Family Court for a declaration that the applicant or another named person is authorised to consent to the carrying out of a medical or surgical procedure for a child and any necessary consequential orders, and that the application may be made by a parent, guardian or custodian of the child, or any other person who has an interest in the welfare of the child.

Subrule 23B(3) provides that an application must be made in accordance with Form 8 with any appropriate modifications.

Subrule 233(4) provides that If a parent, guardian or custodian of the child is not an applicant, that parent, guardian or custodian must be joined as a respondent to the application.

Subrule 235(5) provides that the applicant must file with the application an affidavit or affidavits to which are annexed relevant reports by medical, psychological or other experts. An affidavit or report must set out the exact nature and purpose of the proposed medical or surgical procedure, the likely long term social and psychological effects of the procedure on the child, that alternative and less invasive procedures would be, or have proved to be, inadequate, the proposed procedure is necessary for the welfare of the child, the child is incapable of making his or her own decision about undergoing the procedure, and the child is unlikely to develop sufficiently to be able to make an informed judgment within the time in which the procedure should be carried out, or within the foreseeable future, and any other reasons for granting the application.

Subrule 23B(6) provides that an application must be made returnable before a judge of a Family Court as soon as possible, and in any case, if possible, within 14 days after the date of issue.

Subrule 23B(7) provides that on the return day the Court may make the child a party and appoint a person as the next friend of the child, appoint a separate representative of the child, join any other appropriate person as a respondent, direct service of the application and affidavits on any person or persons, as the Court thinks proper, fix a date for the hearing of the application before a Judge of a Family Court, make any orders or give directions, as the Court thinks proper, or hear and determine the application.

Subrule 23B(8) provides that on hearing the application the Court may grant or refuse the application, grant an injunction or any other relief the Court thinks proper, or make any declaration or order the Court thinks proper.

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