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SR 2004 No. 54 Rules/Court & Tribunal Rules as made
These Rules of Court amend the Federal Magistrates Court Rules 2001.
Administered by: Attorney-General's
General Comments: This instrument was backcaptured in accordance with Section 36 of the Legislative Instruments Act 2003
Registered 01 Jan 2005
Tabling HistoryDate
Tabled HR11-May-2004
Tabled Senate11-May-2004
Gazetted 26 Mar 2004
Date of repeal 09 Apr 2013
Repealed by Attorney-General's (Spent and Redundant Instruments) Repeal Regulation 2013

Federal Magistrates Court Amendment Rules 2004 (No. 1)1

Statutory Rules 2004 No. 542

We, Federal Magistrates, make the following Rules of Court under the Federal Magistrates Act 1999.

Warning:     Please note that the Forms to these Rules are not available in this rtf document although links are provided on pgs 18-20 so that they can be downloaded.  You can also view the image of this document to see the Forms.

Dated 24 March 2004

BRYANT CFM

BAUMANN FM

BREWSTER FM

BROWN FM

COAKES FM

COKER FM

CONNOLLY FM

DONALD FM

DRIVER FM

HARTNETT FM

JARRETT FM

LINDSAY FM

MEAD FM

PHIPPS FM

RIMMER FM

 

ROBERTS FM

RYAN FM

SCARLETT FM

Federal Magistrates

PETER MAY

Chief Executive Officer


1              Name of Rules

                These Rules are the Federal Magistrates Court Amendment Rules 2004 (No. 1).

2              Commencement

                These Rules commence on 29 March 2004.

3              Amendment of Federal Magistrates Court Rules 2001

                Schedule 1 amends the Federal Magistrates Court Rules 2001.


Schedule 1        Amendments

(rule 3)

  

[1]           Subrule 1.05 (2)

omit

the Family Law Rules,

insert

the Family Law Rules 2004 or the Family Law Rules 1984,

[2]           Rule 8.03

substitute

8.03        Proceeding transferred to Federal Court or Family Court

                If a proceeding is transferred to the Federal Court or the Family Court, the Registrar must:

                (a)    send to the proper officer of that court all documents filed and orders made in the proceeding; and

               (b)    retain in the Court a copy of all orders made in the proceeding.

[3]           Subrule 10.06 (2)

omit

or the Family Law Rules

[4]           Rule 15.05

omit

the Family Law Rules or

[5]           After rule 20.00A

insert in Division 20.1

20.00B   Application of Order 36 of Family Law Rules 1984

                Order 36 of the Family Law Rules 1984 applies, with necessary changes, to family law or child support proceedings.

[6]           Paragraph 21.02 (2) (c)

omit

Order 38

insert

Chapter 19

[7]           Subrule 21.09 (2)

omit

Order 38

insert

Chapter 19

[8]           Paragraph 21.11 (2) (a)

omit

Schedule 2

insert

Schedule 3

[9]           Division 23.1, heading

omit the note

[10]         Before rule 23.01

insert

23.01A   Family reports

         (1)   A party to an application for final orders may apply for an order that a family report be prepared.

         (2)   The Court may take the following matters into consideration when deciding whether to order a family report:

                (a)    whether the proceeding involves:

                          (i)    an intractable or complex parenting proceeding; or

                         (ii)    if a child is mature enough for the child’s wishes to be significant in determining the proceeding — a dispute about the child’s wishes; or

                        (iii)    a dispute about the existence or quality of the relationship between a parent, or other significant person, and a child; or

                        (iv)    allegations that a child is at risk of abuse; or

                         (v)    family violence;

               (b)    whether there is any other relevant independent expert evidence available.

         (3)   An application for a family report (whether made orally or in writing), and any order made, must identify the issues to be addressed by the report.

         (4)   When ordering a family report, the Court may order a party or a child to attend for the purposes of preparing the report.

         (5)   If a family report is prepared in accordance with an order made under this rule, the Court may:

                (a)    give copies of the report to each party, or the party’s lawyer, and to any child representative; and

               (b)    receive the report in evidence; and

                (c)    permit oral examination of the person making the report; and

               (d)    order that the report not be released to a person or that access to the report be restricted.

[11]         Paragraph 24.02 (1) (a)

substitute

                (a)    a financial statement in accordance with the form of financial statement set out in Part 1 of Schedule 2; or

[12]         Part 25, heading

omit the note

[13]         Subrule 25.01 (1)

omit

Form 4.

insert

the form of application for divorce set out in Part 1 of Schedule 2.

[14]         Paragraph 25.03 (a)

omit

Form 19;

insert

the form of acknowledgment of service set out in Part 1 of Schedule 2;

[15]         Subrule 25.05 (1)

omit

Form 20 or 21, as appropriate.

insert

the appropriate form of affidavit of service set out in Part 1 of Schedule 2.

[16]         Subrule 25.06 (1)

omit

Form 23.

insert

the form of affidavit of proof of signature set out in Part 1 of Schedule 2.

[17]         Subrule 25.07 (1)

omit

Form 13.

insert

the form of response to an application for divorce set out in Part 1 of Schedule 2.

[18]         Subrule 25.08 (1)

omit

Form 14.

insert

the form of response objecting to jurisdiction set out in Part 1 of Schedule 2.

[19]         After Part 25

insert in Chapter 2

Part 25A             Child support

25A.01   Application of Part 25A

                This Part applies to:

                (a)    an application under the Assessment Act, other than an application for leave to appeal from an order of a court exercising jurisdiction under the Assessment Act; and

               (b)    an appeal under the Assessment Act or Registration Act, other than an appeal from a court.

Note   The Assessment Act provides that the parties to a child support application or appeal should be the liable parent and the eligible carer. The Child Support Registrar does not need to be joined as a party but, after being served with a copy of the application, may intervene in the proceeding.

25A.02   Documents to be filed with applications and appeals

         (1)   A person must file with a child support application or appeal mentioned in an item of Table 25A.1, the documents mentioned in the item.

Table 25A.1   Documents to file with applications and appeals

 

Item

Application or appeal

Documents to be filed with application or appeal

1

All applications and appeals to which this Part applies (other than an application under section 116 of the Assessment Act)

an affidavit setting out the facts relied on in support of the application or appeal, attaching:

   (a)  a schedule setting out:

         (i)   the section of the Assessment Act or Registration Act under which the application or appeal is made; and

        (ii)   the grounds of the application or appeal; and

 

 

       (iii)   the issues to be determined in the proceeding; and

  (b)  a copy of any decision, notice of decision or assessment made by the Child Support Registrar relevant to the application or appeal; and

   (c)  a copy of any document lodged by a party with the Child Support Registrar, or received by a party from the Child Support Registrar, relevant to the decision or assessment

2

Application under section 98, 123 or 129 of the Assessment Act

   (a)  the documents mentioned in this column in item 1; and

  (b)  a completed financial statement in accordance with the form of financial statement set out in Part 1 of Schedule 2; and

   (c)  a copy of any relevant order or agreement

3

Application under section 116 of the Assessment Act

   (a)  an application in accordance with the form of child support application for departure order set out in Part 1 of Schedule 2; and

  (b)  the documents mentioned in this column in item 1; and

   (c)  a completed financial statement in accordance with the form of financial statement set out in Part 1 of Schedule 2

         (2)   For paragraph (c) of item 1 of Table 25A.1, if the applicant does not have a copy of a document lodged by the other party with the Child Support Agency, the applicant may file the summary of the document prepared by the Child Support Agency.

25A.03   Application under Assessment Act s 95 (6)

                A person who makes an application under subsection 95 (6) of the Assessment Act in relation to a child support agreement must register a copy of the agreement with the Court.

25A.04   Time limits for appeals and applications under Assessment Act

                A person must file an application or appeal under subsection 106 (1), 106A (1), 107 (1) or 110 (1) or section 132 of the Assessment Act within 28 days after receiving:

                (a)    for an application under subsection 106 (1), 106A (1) or 107 (1) of the Assessment Act — a notice given under section 34 or subsection 98ZC (2) of that Act; and

               (b)    for an appeal under subsection 110 (1) or section 132 of the Assessment Act — a notice given under subsection 98ZC (2) of that Act.

25A.05   Time limit for appeal under Registration Act s 88

                A person served with a notice under subsection 87 (2) of the Registration Act must file an appeal under section 88 of that Act within 28 days after the day when the notice was served.

25A.06   Service of application or appeal

         (1)   The persons to be served with a child support application or appeal include:

                (a)    a parent or eligible carer of the child in relation to whom the application or appeal is made; and

               (b)    the Child Support Registrar.

         (2)   An applicant in a child support application made under section 98, 116, 123 or 129 of the Assessment Act must serve on the respondent, with the application, a brochure called Child Support Applications approved by the Chief Federal Magistrate.

25A.07   Service by Child Support Registrar

                For rules 25A.04 and 25A.05, if the Child Support Registrar serves a document on a person under the Assessment Act or Registration Act, the document is taken to have been served on the person:

                (a)    on the date when service is acknowledged; or

               (b)    if served by post to an address in Australia — on the third day after it was posted; or

                (c)    if served by airmail to an address outside Australia — on the fourteenth day after it was posted; or

               (d)    if served by electronic communication — on the day when it was sent; or

                (e)    if served by delivery to a document exchange — on the next working day after the day when it was delivered; or

                (f)    on a date fixed by the Court.

25A.08   Evidence to be provided

         (1)   This rule applies to a child support application under section 98, 116, 123 or 129 of the Assessment Act.

         (2)   On the first court date and the hearing date of the application, each party must bring to the Court any of the following documents that are relevant to an issue in the proceeding:

                (a)    a copy of the party’s taxation return for the most recent financial year;

               (b)    the party’s taxation assessment for the most recent financial year;

                (c)    the party’s bank records for the period of 12 months ending on the date when the application was filed;

               (d)    if the party receives wage or salary payments — the party’s 3 most recent pay slips;

                (e)    if the party owns or controls a business — the business activity statements for the business for the previous 12 months;

                (f)    any other document relevant to determining the income, needs and financial resources of the party.

Note 1   Documents that may need to be produced under paragraph (f) include documents setting out the details mentioned in rule 24.03.

Note 2   For variation of a maintenance order, see subsection 66S (3) and section 83 of the Family Law Act.

Part 25B             Enforcement

Division 25B.1      Applications for contravention of orders

25B.01   Application of Division 25B.1

                This Division applies to an application for an order:

                (a)    under Division 13A of Part VII of the Family Law Act, because it is alleged that a person has contravened an order affecting children; or

               (b)    under Part XIIIA of the Family Law Act, because it is alleged that a person has contravened an order not affecting children.

Note 1   Subsection 69C (2) of the Family Law Act specifies who may apply for an order in relation to a child.

Note 2   If a maintenance order is complied with before an application for contravention (Form 18) is heard by the Court, the failure to comply with the order that led to the application being filed does not constitute a contravention of the maintenance order (see subsection 112AP (1A) of the Family Law Act).

Note 3   The Court:

(a)   must not impose a sentence of imprisonment:

(i)    for non-compliance with a maintenance order unless it is satisfied that the contravention was intentional or fraudulent (see subsections 70NJ (6) and 112AD (2A) of the Family Law Act); or

(ii)   if it considers that another consequence is more appropriate (see subsections 70NO (2) and 112AE (2) of the Family Law Act); and

(b)   cannot enforce an order of another court unless the order is registered in the first-mentioned court (see section 105 of the Family Law Act and regulation 17 of the Family Law Regulations).

Note 4   Part 19 sets out the rules relating to contempt.

25B.02   How to apply for an order

         (1)   An application must be in accordance with Form 18 set out in Part 2 of Schedule 2.

         (2)   The applicant must file with the application an affidavit that:

                (a)    states the facts necessary to enable the Court to make the orders sought in the application; and

               (b)    has attached to it a copy of any order, agreement or undertaking that the Court is asked to enforce or that is alleged to have been contravened.

25B.03   Failure of respondent to attend

                If a respondent fails to attend the hearing of the application in person or by a lawyer, the Court may:

                (a)    determine the proceeding; or

               (b)    issue a warrant for the respondent’s arrest to bring the respondent before a court; or

                (c)    adjourn the application.

25B.04   Procedure at hearing

                At the hearing of the application, the Court must:

                (a)    inform the respondent of the allegation; and

               (b)    ask the respondent whether the respondent wishes to admit or deny the allegation; and

                (c)    hear any evidence supporting the allegation; and

               (d)    ask the respondent to state the response to the allegation; and

                (e)    hear any evidence for the respondent; and

                (f)    determine the proceeding.

Note   For the penalties that may be imposed by the Court, see sections 67X, 70NG, 70NJ and 112AD of the Family Law Act.

Division 25B.2      Enforcement of obligations

25B.05   Application of Order 33 of Family Law Rules 1984

         (1)   Order 33 (other than rule 10) of the Family Law Rules 1984 applies, with necessary changes, to family law or child support proceedings.

Note   The text of Order 33 (other than rule 10) of the Family Law Rules 1984 is set out in Note 1 in Schedule 5 (Notes to these Rules).

         (2)   A reference in Order 33 of the Family Law Rules 1984, as applied by subrule (1), to Form 45, 45A, 45B or 46 is a reference to the Form identified by that number, or by that number and letter, set out in Part 2 of Schedule 2.

Division 25B.3      Location and recovery orders

25B.06   Application of Division 25B.3

                This Division applies to the following orders:

                (a)    a location order;

               (b)    a Commonwealth information order;

                (c)    a recovery order.

Note   See sections 67H to 67Q of the Family Law Act.

25B.07   Application for order under Division 25B.3

                An application for an order to which this Division applies must be in accordance with the form of application set out in Part 1 of Schedule 2.

Note   For the requirements for making a Commonwealth information order, see subsection 67N (3) of the Family Law Act.

25B.08   Service of recovery order

         (1)   This rule applies to a person who is ordered or authorised by a recovery order to take the action mentioned in paragraph 67Q (b), (c) or (d) of the Family Law Act.

         (2)   If the person:

                (a)    is ordered to find and recover a child; and

               (b)    finds and recovers the child;

the person must serve the recovery order on the person from whom the child is recovered at the time the child is recovered.

         (3)   For the enforcement of a recovery order:

                (a)    the original recovery order is not necessary; and

               (b)    a copy of the sealed recovery order is sufficient.

25B.09   Application for directions for execution of recovery order

         (1)   The following people may, by written request to the Court, seek procedural orders in relation to a recovery order:

                (a)    a party;

               (b)    a person who is ordered or authorised by a recovery order to take the action mentioned in paragraph 67Q (b), (c) or (d) of the Family Law Act.

         (2)   A request under subrule (1) must:

                (a)    comply with rules 2.01 to 2.03; and

               (b)    set out the procedural orders sought; and

                (c)    be accompanied by an affidavit setting out the facts relied on and the reason for the orders.

         (3)   The Court may determine the request in chambers.

Division 25B.4      Warrants for arrest

25B.10   Application for warrant

         (1)   A party may apply, without notice, for a warrant to be issued for the arrest of a respondent if:

                (a)    the respondent is required to attend court on being served with:

                          (i)    an application for an enforcement hearing; or

                         (ii)    a subpoena or order directing the respondent to attend court; or

                        (iii)    an application for an order that a person be punished for contempt of court; and

               (b)    the respondent does not attend at court on the date fixed for attendance.

         (2)   If a warrant is issued, it must have attached to it a copy of the application, subpoena or order mentioned in paragraph (1) (a).

Note   The Court may issue a warrant on an oral application.

25B.11   Execution of warrant

         (1)   A warrant may authorise:

                (a)    a member of the Australian Federal Police; or

               (b)    a member of the police service of a State or Territory; or

                (c)    the Marshal; or

               (d)    any other person appointed by the Court;

to proceed to enforce the warrant.

         (2)   A person authorised to enforce a warrant may act on the original warrant or a sealed copy.

         (3)   When the warrant is enforced, the person arrested must be served with a copy.

25B.12   Duration of warrant

                A warrant (except a warrant issued under subsection 65Q (2) of the Family Law Act) ceases to be in force 12 months after the date when it is issued.

25B.13   Procedure after arrest

         (1)   If the Court issues a warrant for a person’s arrest, it may order that the person arrested:

                (a)    be held in custody until the hearing of the proceeding; or

               (b)    be released from custody on compliance with a condition, including a condition that the person enter into a bond.

         (2)   A person who arrests another person under a warrant must:

                (a)    arrange for the person to be brought before the court that issued the warrant or another court having jurisdiction under the Family Law Act, before the end of the holding period; and

               (b)    take all reasonable steps to ensure that, before the person is brought before a court, the person on whose application the warrant was issued is advised about:

                          (i)    the arrest; and

                         (ii)    the court before which the person arrested will be brought; and

                        (iii)    the date and time when the person arrested will be brought before the court.

         (3)   When a person arrested under a warrant is brought before a court, the Court may:

                (a)    if the Court issued the warrant:

                          (i)    make any of the orders mentioned in subrule (1); or

                         (ii)    adjourn the proceeding and direct an appropriate officer of the Court to take all reasonable steps to ensure that the person on whose application the warrant was issued is advised about the arrest and the date and time when the person must attend before the Court if the person wishes to bring or continue an application; or

                        (iii)    if the application for which the warrant was issued is before the Court or the Court allows another application — hear and determine the application; or

                        (iv)    if there is no application before the Court — order the person’s release from custody; and

               (b)    if the Court did not issue the warrant:

                          (i)    order that the person be held in custody until the person is brought before the court specified in the warrant; and

                         (ii)    make any of the orders mentioned in subrule (1); and

                        (iii)    make inquiries of the court that issued the warrant, (for example, inquiries about current applications and hearing dates).

         (4)   A person arrested under this rule who is still in custody at the end of the holding period must be released from custody unless otherwise ordered.

         (5)   This rule does not apply to a person who is arrested:

                (a)    under a warrant issued under subsection 65Q (2) of the Family Law Act; or

               (b)    without a warrant, under a recovery order; or

                (c)    without a warrant, under sections 68C and 114AA of the Family Law Act.

Note   The provisions mentioned in subrule (5) are excluded because the procedure on arrest is set out in the Family Law Act.

         (6)   In this rule:

holding period, for a person arrested in accordance with a warrant, has the meaning given by subsection 65S (4) of the Family Law Act.

25B.14   Application for release or setting aside warrant

                A person arrested in accordance with a warrant may apply:

                (a)    for the warrant to be set aside; or

               (b)    to be released from custody.

Warning:     You need to use the links provided on the following pages to download the forms in this document.  Please note that if you save this document to disk you will not be able to access the forms to download them.

[20]         Schedule 2, Part 1, before the form of Application

insert

Acknowledgement of service.pdf

Affidavit by applicant for service by post (divorce).pdf

Affidavit of Proof of Signature.pdf

Affidavit of Service Divorce.pdf

[21]         Schedule 2, Part 1, after the form of Application

insert

Application for Divorce.pdf

[22]         Schedule 2, Part 1, after the form of Application for Review

insert

Child Support Departure Application.pdf

Financial statement.pdf

[23]         Schedule 2, Part 1, after the form of Response

insert

Response Divorce or other principal relief.pdf

Response objecting to jurisdiction.pdf

[24]         Schedule 2, Part 2

substitute

Part 2          Family law and child support

Form 18   Application — Contravention

Form 18.pdf

Form 45   Notice requiring financial information

Form 45.pdf

Form 45A   Notice requiring financial information — Child support

Form 45A.pdf

Form 45B    Summons — Child Support

Form 45B.pdf

Form 46       Enforcement summons

Form 46.pdf

[25]         Schedule 3, Part 1

substitute

Part 1          Family Law Rules 2004

·        rules 1.19 and 1.20

·        Part 2.2

·        Part 2.3

·        rule 3.13

·        rules 4.08 to 4.10

·        rule 16.10

·        Part 21.2

·        Part 23.1

·        rule 24.11.

[26]         After Schedule 4

insert

Schedule 5        Notes to these Rules

(rule 25B.05)

Note 1    Family Law Rules 1984, Order 33

Order 33            Enforcement

1              Definitions

                In this Order:

obligation means an obligation to which rule 2 applies.

prescribed personal property, in relation to a person, means:

                (a)    clothes, bed, bedding and kitchen furniture (including a stove, oven and refrigerator, but not including a washing machine or automatic dishwasher); and

               (b)    ordinary tools of trade, plant and equipment, and professional instruments and reference books, the combined value of which is not more than $1 000.

2              Enforcement of obligations

         (1)   This rule applies to:

                (a)    the recovery of a debt due to the Commonwealth under section 30 or 67 of the Child Support (Registration and Collection) Act 1988; and

               (b)    an order that a party pay maintenance or other money for the benefit of the other party, or of a child, made under:

                          (i)    the Act; or

                         (ii)    the Child Support (Registration and Collection) Act 1988; and

              (ba)    a parenting plan registered under section 63E of the Act that has not been set aside or otherwise ceased to have effect; and

              (bc)    an order made under section 67D of the Act; and

                (c)    a maintenance agreement registered under subsection 86 (1) of the Act that has not been set aside or has not otherwise ceased to have effect; and

               (d)    a maintenance agreement approved under section 87 of the Act in respect of which there is in force an order under paragraph 87 (11) (c) of the Act; and

             (da)    an agreement varying or revoking an original agreement dealing with the maintenance of a child under section 66SA of the Act; and

                (e)    an overseas maintenance order or agreement that, under the Regulations, is enforceable in Australia; and

                (f)    an order under the Act or the repealed Act for the payment of costs; and

               (g)    an order made in the exercise of jurisdiction conferred by the Act, the Regulations or these Rules that a person pay a fine or forfeit a bond; and

               (h)    an order under subsection 82 (7) of the Act for the recovery of moneys; and

              (ha)    a financial agreement under Part VIIIA of the Act in respect of which an order is in force under paragraph 90KA (c) of the Act; and

                (i)    an order under section 117A of the Act for the payment of reparations; and

                (j)    a liability to pay child support under an assessment or order made under the Child Support (Assessment) Act 1989;

and this rule (except subrule (4)) applies in relation to an agreement referred to in paragraph (ba), (c), (d), (da) or (e) as if it were an order of the court in which it is registered or taken to be registered.

      (1A)   A reference in paragraph (1) (d) to a maintenance agreement shall, where an order under paragraph 87 (11) (c) of the Act is in force in respect of a part of the agreement, be read as a reference to that part of the agreement.

         (2)   Where a court by an order referred to in paragraph (1) (g) imposes a fine, the fine shall, unless the court otherwise orders, be payable forthwith into the filing registry.

         (3)   Where in or in relation to proceedings a court orders the forfeiture of a bond, the money forfeited shall, unless the court otherwise orders, be payable forthwith into the filing registry.

         (4)   Subject to subrule (4A), if an obligation arises under an order and the person under the obligation was not present, or represented by a lawyer, in court when the order was made, a sealed copy of the order must be served on the person in accordance with Order 18 by:

                (a)    in case of a fine imposed by a court — the Marshal, an officer of the court, or a person appointed by the Registrar; and

               (b)    in any other case — by a representative or agent of the person for whose benefit the order was made.

      (4A)   If, by an order to which this rule applies:

                (a)    a person:

                          (i)    is liable to pay a registrable maintenance liability under the Child Support (Registration and Collection) Act 1988; or

                         (ii)    is ordered to pay a debt due to the Commonwealth under that Act; and

               (b)    that person is not present or represented by a lawyer in the Court when the order is made;

the Child Support Registrar shall cause a sealed copy of the order to be served on that person in accordance with Order 18, paragraph 5 (1) (a).

      (4B)   If a person seeks to enforce an obligation that is not an order of the court, or is not deemed by the court to be an order of the court, the person may apply to the court for:

                (a)    an order declaring the amount of the obligation; and

               (b)    a second order that the obligation be paid.

         (5)   An obligation may be enforced by one or more of the following means:

                (a)    garnishment;

               (b)    seizure and sale of personal property;

                (c)    sequestration of estate;

               (d)    sale of real property.

         (6)   Where a person ordered to pay maintenance or other money for the benefit of a party or child fails or refuses to make the payment, proceedings for the enforcement of the payment may be taken by the party or child for whose benefit the order was made or on behalf of that party or child by a person entitled to do so under the Act or Regulations.

         (7)   Where proceedings for the enforcement of the payment of maintenance or other money payable under an order for the benefit of a party or child are taken on behalf of that party or child by a person entitled to do so under the Act or Regulations, that maintenance or other money may, unless the court otherwise orders, be paid to that person, and the receipt of that person for any maintenance or other money so paid shall be sufficient discharge of the liability of the person required under the order to pay that maintenance or other money.

         (8)   If a person ordered to pay a fine under an obligation fails to do so, proceedings for the enforcement of the payment of that fine may be taken by a Registrar, the Marshal or an officer of the Attorney-General’s Department, but not by a party.

         (9)   Where a court has ordered that a bond be forfeited, proceedings for the enforcement of that forfeiture may be taken by the Marshal, an officer of a police force, or by an officer of the Attorney-General’s Department designated by the Secretary to that Department, but not by a party.

       (10)   Where, immediately before the date of commencement of the Act, an order that a party to a marriage pay maintenance or other money for the benefit of the other party to the marriage or of a child of the marriage was registered in a court that has jurisdiction under the Act, that order may be enforced in accordance with this order.

       (11)   An application for the enforcement of an obligation shall state whether any other decree is in force for the enforcement of the obligation and whether any other proceedings for the enforcement of the obligation are pending and, if any such proceedings are pending (being proceedings taken by a person referred to in subrule (7)), the name of that person.

       (12)   Where an application for the enforcement of an obligation names a person referred to in subrule (7) as the person who has taken other proceedings that are pending for the enforcement of the obligation, the Registrar shall enquire of the person so named as to the present position with regard to those proceedings and shall file with the court papers relating to the application a memorandum containing any information ascertained as a result of that enquiry.

3              Summary procedures on failure to comply with obligation

         (1)   If a person fails to satisfy an obligation, a person seeking to enforce the obligation may file an affidavit requesting the issue of:

                (a)    in relation to a debt due to the Commonwealth:

                          (i)    a notice in accordance with Form 45A; or

                         (ii)    a summons in accordance with Form 45B; or

               (b)    in any other case:

                          (i)    a notice in accordance with Form 45; or

                         (ii)    a summons in accordance with Form 46.

Note   A reference to Form 45, 45A, 45B or 46 is a reference to that Form set out in Part 2 of Schedule 2.

      (1A)   An affidavit filed under subrule (1) must:

                (a)    contain evidence in support of the request made in the affidavit; and

               (b)    state whether any other order is in force for the enforcement of the obligation; and

                (c)    state whether any other proceedings for the enforcement of the obligation are pending; and

               (d)    if proceedings taken by a person referred in subrule 2 (7) are pending — state the name of the person who has taken the proceedings; and

                (e)    be accompanied by the appropriate form of notice or summons under subrule (1).

      (1B)   If:

                (a)    a person has taken proceedings to enforce an obligation; and

               (b)    before those proceedings are completed, the person is named in an affidavit filed under subrule (1) as the person who has taken proceedings to enforce the obligation;

the Registrar must:

                (c)    ask the person for details in relation to progress of the proceedings; and

               (d)    attach a memorandum containing those details to the affidavit.

         (2)   On receipt of an affidavit filed under subrule (1) and an appropriate form of notice, the Registrar may issue a notice in accordance with Form 45 or 45A.

         (3)   On receipt of an affidavit filed under subrule (1) and an appropriate form of summons, the Registrar may issue a summons in accordance with Form 45B or 46 if:

                (a)    in the case of an obligation, other than an obligation to which paragraph (b) of this subrule applies — the Registrar is satisfied that the person under the obligation has failed to make a payment for a period of at least 2 weeks; and

               (b)    in the case of an order mentioned in paragraph 2 (1) (f), (g), (h) or (i) — the Registrar is satisfied that the person against whom the order was made has failed to comply with the order.

         (4)   A summons under this rule for the enforcement of an order of a kind referred to in paragraph 2 (1) (g) may be issued by the Registrar of the court that imposed the relevant fine or ordered the forfeiture of the relevant bond and not otherwise.

         (5)   A summons under this rule, shall be served on the person to whom it is addressed in a manner referred to in Order 18.

         (6)   A person served with a summons under this rule shall not, without reasonable excuse:

                (a)    fail to attend as required by the summons and then on such days and at such times as the court may direct;

               (b)    refuse or fail to be sworn;

                (c)    refuse or fail to answer a question on any matter relating to the failure to satisfy the obligation sought to be enforced; or

               (d)    refuse or fail to produce a document that is required to be produced by the summons.

Penalty:   50 penalty units.

         (7)   Where a person fails to attend before a court as required by a summons under this rule duly served on that person, or on such days and at such times as the court directs, the court may issue a warrant directing that the person be taken into custody and brought before the court.

         (8)   The Registrar of the court that issues a warrant under subrule (7) shall cause to be attached to the warrant:

                (a)    a sealed copy of the order in relation to which the warrant is issued; or

               (b)    a copy of that order certified by the Registrar to be a true copy of the sealed copy in the custody of the Registrar.

         (9)   If a court is satisfied that a person appearing before it, whether in person or represented by a lawyer, has failed to satisfy an obligation, the court may:

                (a)    order the payment of the amount found to be owing under the obligation; and

               (b)    enforce the obligation by any of the following means:

                          (i)    a garnishment order under rule 4;

                         (ii)    an order under rule 5 for the seizure and sale of personal property belonging to the person;

                        (iii)    an order under rule 6 that the estate of the person be sequestrated;

                        (iv)    an order under rule 7 for the sale of an interest in real property belonging to the person;

                         (v)    any order it considers necessary to enable enforcement of the obligation or to prevent the dissipation of property or the wasting of assets.

4              Garnishment

         (1)   In this rule, unless the contrary intention appears:

applicant means a person or authority instituting proceedings under subrule (2).

garnishee means a person (including a corporation, the Commonwealth, a State or Territory or an authority or institution constituted by or under a law of the Commonwealth, or of a State or Territory) from whom the applicant claims that money is due or accruing to the respondent.

respondent means the person who has failed to satisfy an obligation.

         (2)   If a person fails to satisfy an obligation, a person entitled to take proceedings to enforce the obligation may apply to the court for a garnishment order to enforce the obligation.

         (3)   An application for a garnishment order may be made ex parte.

         (4)   The following moneys may be the subject of a garnishment order:

                (a)    a sum standing to the credit of the respondent in a bank, building society, co-operative housing society or similar society, credit union, credit society or investment fund or corporation, that is payable to the respondent on call or on notice;

               (b)    the earnings of the respondent (being wages or salary and fees, bonus, commission, overtime pay or other emoluments payable in addition to or in lieu of wages or salary), a pension, annuity, moneys payable in lieu of leave, or retirement benefit due or accruing to the respondent;

                (c)    any debt or other sum of money due or accruing to the respondent.

         (5)   Where the application for a garnishment order is made by a person other than the Registrar, it shall be verified by affidavit.

         (6)   An affidavit in support of an application for a garnishment order shall state:

                (a)    particulars of the moneys payable by the respondent;

               (b)    efforts made by the applicant or any other person to obtain payment of those moneys;

                (c)    details of any relevant information furnished by the respondent in response to a notice under paragraph 3 (1) (a) or obtained in an examination pursuant to a summons issued under paragraph 3 (1) (b);

               (d)    particulars of the moneys referred to in subrule (4) in respect of which application is made for garnishment; and

                (e)    the order sought against the garnishee.

         (7)   The court shall, in respect of an application for a garnishment order:

                (a)    make the order sought or such other appropriate order on the application as it thinks fit; or

               (b)    dismiss the application.

         (8)   Prior to the making of an order under subrule (7), the court may, in proceedings on an application for a garnishment order:

                (a)    adjourn the proceedings and require the garnishee and the respondent or either of them to be served with a copy of the application;

               (b)    give directions as to service and the further hearing of the proceedings; and

                (c)    make such other order as it thinks necessary to prevent the moneys that are the subject of the application from disappearing or being dissipated.

         (9)   Where the court makes a garnishment order attaching the earnings of the respondent, it shall:

                (a)    specify the periodic amount to be deducted from the respondent’s earnings in satisfaction of the moneys payable, that is to say, the normal deduction rate;

               (b)    specify an amount fixed by the court as the amount below which the respondent’s earnings shall not be reduced by compliance with the order, that is to say, the protected earnings rate;

                (c)    specify the person to whom, the place at which and the manner in which payment of amounts to be paid by the garnishee under the order is to be made;

               (d)    specify the amount that the garnishee may deduct from the normal deduction rate referred to in paragraph (a) for administrative expenses; and

                (e)    specify the date from which the payments shall commence.

       (10)   A sealed copy of an order under subrule (7) shall be served on the garnishee and on the respondent in accordance with Order 18.

       (11)   A garnishee who has been served with a garnishment order:

                (a)    may apply to the court disputing his liability to make payments under the order; or

               (b)    shall comply with the order.

       (12)   If the garnishee applies to the court disputing the order, the garnishee shall file an affidavit setting out the facts and circumstances upon which the order is disputed, and serve a copy of the affidavit on the applicant and the respondent in accordance with Order 18.

       (13)   On the hearing of an application by a garnishee disputing the liability of the garnishee to make payments under a garnishment order, the court:

                (a)    may proceed with the hearing and determination of the dispute notwithstanding that the respondent has not been served with the application; and

               (b)    shall hear and determine the matter in dispute and make such order, including an order as to costs, as it thinks fit.

       (14)   Where a person complies with an order under paragraph (7) (a), his compliance with the order shall be a valid discharge of the indebtedness of the person to the respondent to the extent of the amount paid under the order.

       (15)   The court may, on application or of its own motion, vary or discharge an order under paragraph (7) (a) upon such conditions as it thinks fit.

       (16)   Where an order is varied or discharged under subrule (15), the court shall make such orders as to service of the order as varied or the order for discharge on the garnishee and other persons as it thinks fit.

       (17)   The provisions of subrule (11) apply, insofar as they are applicable, to an order that has been varied under subrule (15).

       (18)   An amount standing to the credit of a respondent in an account in a bank, building society, co-operative housing society or similar society, credit union or credit society, or investment fund or corporation, that is payable to the respondent on call or on notice shall, subject to subrule (19), for the purposes of this rule, be a debt due to the respondent notwithstanding that any condition relating to the account or a demand or notice for payment under the account is unsatisfied.

       (19)   Where an amount referred to in subrule (18) is made the subject of an order under this rule then, unless the court otherwise orders, the first-mentioned order only operates to require payment of the said amount when any necessary period of notice has expired, but service on the garnishee of the order for payment of the said amount shall be deemed to be the giving of that notice.

       (20)   A garnishee shall not, without reasonable excuse:

                (a)    fail to comply with an order made under subrule (7), (13) or (15); or

               (b)    dismiss a respondent from or injure a respondent in respect of employment, or alter the respondent’s position to the prejudice of the respondent, by reason of an order made under this rule.

Penalty:   50 penalty units.

       (21)   A conviction under subrule (20) does not limit, restrict or otherwise affect any obligation that the garnishee may have in relation to the respondent or any right or remedy that the respondent may have against the garnishee under any other law of the Commonwealth or of a State or Territory.

       (22)   A pension, annuity or allowance that is protected from garnishment or encumbrance under any law shall not be subject to an order under this rule.

       (23)   Where an order under this rule is in force and the respondent ceases to be employed by the garnishee, the respondent and the garnishee shall, within 21 days after the respondent ceases to be so employed, each give notice to the court:

                (a)    notifying that the respondent has ceased employment with the garnishee; and

               (b)    specifying the date on which the employment ceased;

and, if the respondent has a new employer, the respondent shall, in the notice given under this subrule, specify:

                (c)    the name and address of that employer and the place of the respondent’s employment by that employer; and

               (d)    the amount of the respondent’s earnings from employment with that employer.

Penalty:   50 penalty units.

       (24)   Where the Court receives a notice under subrule (23), it shall notify the applicant in writing and, if no written objection is received from the applicant or the respondent within a reasonable time, it may, of its own motion, issue a fresh order in appropriate terms naming the new employer as garnishee.

5              Seizure and sale of personal property

         (1)   If a person fails to satisfy an obligation, a person entitled to take proceedings to enforce the obligation may apply to the court for an order to seize personal property belonging to the first-mentioned person to enforce the obligation.

         (2)   An application under subrule (1) may be made ex parte.

         (3)   An affidavit in support of an application for seizure of property under subrule (1) shall state:

                (a)    particulars of the moneys not paid by the person against whom the order is sought;

               (b)    efforts made by the applicant and any other person to obtain payment of the moneys;

                (c)    details of any relevant information furnished by the respondent in response to a notice under paragraph 3 (1) (a) or obtained in an examination under paragraph 3 (1) (b); and

               (d)    details of personal property owned or believed to be owned by the person against whom the order is sought.

         (4)   Where application is made under this rule by a Registrar or other public authority, verification thereof by affidavit is not required.

         (5)   Where an application is made under subrule (1), the court may order:

                (a)    a Marshal of the court; or

               (b)    any other officer of the court or some other person (such officer or person being an officer or person who is willing and able to execute the order);

to seize and realize some or all of the personal property, not being prescribed personal property, of the person named in the order.

         (6)   An order made under subrule (5) shall specify the amount owing by the person named in the order and may include such further amount to cover the expenses of obtaining and executing the orders as the court thinks fit.

         (7)   If the person named in the order pays to the Marshal, officer of the court or other person specified in the order or into the registry of the court where the order was made the total of the amounts specified under subrule (6), the order shall be deemed to have been complied with and no further steps shall be taken under it.

         (8)   Where it appears to the Marshal, officer or other person specified in the order that the property ordered to be seized in accordance with subrule (5) is substantially greater in value than the amounts specified under subrule (6), the Marshal, officer or other person shall first seize and realize so much of the property as appears to be sufficient.

         (9)   The Marshal, officer or other person specified in the order shall seize or realize the property:

                (a)    in such order as seems to the Marshal, officer or other person best for the speedy execution of the order without undue expense;

               (b)    subject to paragraph (a), in such order as the person named in the order may request; and

                (c)    subject to paragraphs (a) and (b), in such order as appears to the Marshal, officer or other person best for minimizing hardship to the person named in the order and any other person affected.

       (10)   The Marshal, officer or other person specified in the order shall, in relation to all property seized by the Marshal, officer or other person:

                (a)    put the property up for sale as quickly as is consistent with due regard to the interests of the parties and to the desirability of a beneficial realization of the property;

               (b)    put the property up for sale at the place where it seems best for a beneficial realization of the property;

                (c)    advertise the sale in such manner as appears to be adequate; and

               (d)    sell the property by auction or private treaty.

       (11)   The Marshal, officer or other person specified in the order shall pay the proceeds of sale into the registry of the court where the order was made, whereupon the Registrar shall apply the proceeds so paid:

                (a)    firstly, in or towards the discharge of the amount specified under subrule (6) for the expenses of obtaining and executing the order or, if no such amount is so specified or the amount specified is found to have been too great or too small, then in or towards the discharge of such sum as the Registrar may fix as the proper expenses of obtaining and executing the order; and

               (b)    secondly, in or towards the discharge of the amount specified in the order under that subrule as the amount owing by the person named in the order.

       (12)   The Registrar shall:

                (a)    if the Registrar considers that the person named in the order may have a continuing obligation — retain the balance to be dealt with in accordance with the further order of the court; or

               (b)    in any other case — pay the balance, if any, to the person named in the order.

       (13)   Where the Registrar retains money under paragraph (12) (a), the Registrar shall report that fact to the court, whereupon the court, having regard to any continuing obligation the person named in the order may have, may make such orders as to the further disposition of the moneys as it thinks fit.

       (14)   Where the court makes an order under subrule (13), it may make such further orders as to service of the order and other matters related thereto as it thinks fit.

6              Sequestration of estate

         (1)   If a person fails to satisfy an obligation, a person who is entitled to take proceedings to enforce the obligation may apply to the court for an order that the estate of the first‑mentioned person be sequestrated.

         (2)   The affidavit filed by the applicant with an application under subrule (1) shall set out:

                (a)    particulars of the estate sought to be sequestrated; and

               (b)    the reasons for seeking the order, including any attempts to obtain satisfaction of the obligation by other means.

         (3)   Where an application has been made under subrule (1), the court may make an order:

                (a)    sequestrating the estate in part or in whole;

               (b)    appointing the Marshal, an officer of the court or other named person as receiver of the estate; and

                (c)    as to the costs and expenses of the sequestration.

         (4)   In urgent cases, the court may hear the application ex parte and make an order, but such an order shall be expressed to operate only until the further order of the court.

         (5)   Where the court makes an order under subrule (4), it may give such directions as to service and the further hearing of the application as it thinks fit.

         (6)   A court exercising jurisdiction under the Act may, on application by a person whose estate has been sequestrated in pursuance of an order made under this rule by the court, discharge the order upon such terms and conditions as the court thinks fit.

         (7)   A Family Court or the Supreme Court of the Northern Territory may, on the application of a person whose interests the Court is satisfied are materially affected by an act or omission of, or decision made by, a person appointed as receiver of an estate under subrule (3), make such order as it thinks just.

         (8)   A Family Court or the Supreme Court of the Northern Territory may, on the application of:

                (a)    a person who applied to the Court for an order under which the estate of another person has been ordered under paragraph (3) (a) to be sequestrated;

               (b)    a person whose estate has been sequestrated in pursuance of such an order;

                (c)    a creditor of a person whose estate has been so sequestrated; or

               (d)    the Principal Registrar or a Registrar of a Family Court;

make any one or more of the following orders:

                (e)    an order for the examination before the Court of the receiver or any other person in connection with the sequestration;

                (f)    an order removing the receiver from office;

               (g)    such other orders as it thinks fit.

         (9)   In this Rule estate, in relation to a person, does not include the prescribed personal property of that person.

7              Power of sale of real property

         (1)   If a person fails to satisfy an obligation, a person who is entitled to take proceedings to enforce the obligation may apply to the court for an order that any interest in real property of the first-mentioned person be sold to enforce the obligation.

         (2)   On an application under subrule (1), the court may do any of the following:

                (a)    appoint the Marshal or another person (including a party to the proceedings) as trustee for the sale of the interest;

               (b)    order that the interest be transferred or assigned to the trustee, and direct a party to execute a deed or instrument necessary for the transfer or assignment;

                (c)    give any necessary directions for the sale of the interest, including directions about the possession or occupancy of the real property until the sale;

               (d)    give directions about the disposition of the proceeds of the sale of the interest.

8              Certificate as to payments under maintenance order

         (1)   Where a Registrar or a public authority is specified in an order of a court as the person to whom maintenance payable under the order is to be paid, that Registrar or authority shall, at the request of a Registrar or of the person who obtained the order, or of the person liable to make payments under the order, give to that Registrar or person a certificate:

                (a)    stating the amount that, according to the records of the court or authority, has been paid under the order or, in the case of a second or subsequent certificate to be given to the same Registrar or person in respect of the same order, the amount that, according to those records, has been paid under the order since the last certificate was given; and

               (b)    the amount that, according to those records, remains unpaid.

         (2)   Where, under subrule (1), a certificate is to be given by a Collector of Maintenance or by the Director of the Department for Community Welfare of South Australia, it shall be sufficient if the certificate is given by a subordinate of the Collector or Director.

         (3)   When a certificate has been given in accordance with subrule (1) or (2), the Court may receive the certificate in evidence.

9              Certain orders enforceable in South Australia

         (1)   This Rule applies to an order or agreement referred to in subrule 2 (1).

         (2)   Where an order to which this rule applies is enforceable by a court of the State of South Australia having jurisdiction under the Act, all money to be paid under the order is, unless that court otherwise orders, payable, so long as the person required under the order to pay that money resides in that State, to the Collector of Maintenance of that State, and the receipt of that Collector for any amount so paid shall be sufficient discharge of the liability of the person required under the order to pay that amount.

[27]         Dictionary, after definition of child representative

insert

Child Support Agency means the part of the Department of Family and Community Services known by that name that administers the Assessment Act and the Registration Act.

child support agreement has the meaning given by section 81 of the Assessment Act.

child support application or appeal means an application or appeal in which the only orders sought are under the Assessment Act or the Registration Act (see Part 25A).

[28]         Dictionary, after definition of child support proceeding

insert

Child Support Registrar means the Child Support Registrar under section 10 of the Registration Act.

[29]         Dictionary, after definition of discovery

insert

eligible carer has the meaning given by section 7B of the Assessment Act.

[30]         Dictionary, definition of Family Law Rules

substitute

Family Law Regulations means the Family Law Regulations 1984 made under the Family Law Act.

Family Law Rules means the Family Law Rules 2004 made under the Family Law Act.

Family Law Rules 1984 means the Family Law Rules 1984 made under the Family Law Act, as in force on 28 March 2004.

Notes

1.       These Rules amend Statutory Rules 2001 No. 195, as amended by 2002 No. 80; 2003 No. 272.

2.       Notified in the Commonwealth of Australia Gazette on 26 March 2004.