Federal Register of Legislation - Australian Government

Primary content

Family Law Amendment Rules 2004 (No. 3)

Authoritative Version
  • - F2004B00414
  • No longer in force
SR 2004 No. 351 Rules/Court & Tribunal Rules as made
These Rules amend the Family Law Rules 2004.
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 HR08-Feb-2005
Tabled Senate08-Feb-2005
Gazetted 17 Dec 2004
Date of repeal 09 Apr 2013
Repealed by Attorney-General's (Spent and Redundant Instruments) Repeal Regulation 2013
Table of contents.

Family Law Amendment Rules 2004 (No. 3)1

Statutory Rules 2004 No. 3512

We, Judges within the meaning of the Family Law Act 1975, make the following Rules of Court under that Act.

Dated 15 December 2004

DIANA BRYANT C.J.

J. FAULKS

J.M. BOLAND

K.A. MURRAY

RODERICK JOSKE

N.J. BUCKLEY

J. WILCZEK

G.R. MULLANE

N. MUSHIN

M.A. HANNON

SALLY BROWN

LINDA DESSAU

SUSAN MORGAN

CHRISTINE E. DAWE

ROD BURR

HEATHER B. CARTER

 

M. WATT

P. ROSE

S. STRICKLAND

A.R. MONTEITH

PETER YOUNG

DONNA O’REILLY

Judges of the Family Court

of Australia

A.M. FILIPPELLO

Principal Registrar

Family Court of Australia

MICHAEL H. HOLDEN

N. TOLCON

C.E. MARTIN

J.G. BARLOW

J. PENNY

Judges of the Family Court

of Western Australia

DAVID MONAGHAN

Acting Principal Registrar

Family Court of Western Australia


Contents

                        1     Name of Rules                                                                3

                        2     Commencement                                                              3

                        3     Amendment of Family Law Rules 2004                             3

Schedule 1              Amendments commencing on 17 December 2004          4

Schedule 2              Amendment commencing on 31 January 2005             55

Schedule 3              Amendments commencing on 31 March 2005              76

 


1              Name of Rules

                These Rules are the Family Law Amendment Rules 2004 (No. 3).

2              Commencement

                These Rules commence as follows:

                (a)    on 17 December 2004 — rules 1 to 3 and Schedule 1;

               (b)    on 31 January 2005 — Schedule 2;

                (c)    on 31 March 2005 — Schedule 3.

3              Amendment of Family Law Rules 2004

                Schedules 1, 2 and 3 amend the Family Law Rules 2004.


Schedule 1        Amendments commencing on 17 December 2004

(rule 3)

  

[1]           Rule 2.01, Table 2.1, item 1, column 2

omit

·  passport

insert

·  order relating to passport (see Division 4.2.7)

[2]           Paragraph 4.09 (2) (c)

omit

of the procedure

[3]           Rule 4.17, note

substitute

Note   An order made in accordance with this rule for the payment of periodic amounts is subject to the Registration Act. For example, if the payee of the order registers it with the Child Support Agency for collection, the amount will be payable over a period specified by the Child Support Registrar.

[4]           Rule 4.21

omit

receiving:

insert

being served with:

[5]           Rule 4.30

omit

an order relating to

insert

only an order that relates to

[6]           Rule 4.31

substitute

4.31        Fixing hearing date

                On the filing of a Form 1, the Registry Manager must fix a date for hearing that is as soon as practicable after the date when the application was filed.

[7]           Rule 5.06

substitute

5.06        Attendance by electronic communication

         (1)   A party may request permission to do any of the following things by electronic communication at a hearing:

                (a)    attend;

               (b)    make a submission;

                (c)    give evidence;

               (d)    adduce evidence from a witness.

         (2)   Before making a request, the party must ask any other party whether the other party agrees, or objects, to the use of electronic communication for the purpose proposed by the party.

         (3)   A request must:

                (a)    be in writing;

               (b)    be made at least 7 days before the date fixed for the hearing;

                (c)    set out the information required under subrule 16.08 (3);

               (d)    set out details of the notice in relation to the request that has been given to any other party;

                (e)    state whether any other party agrees or objects to the request; and

                (f)    state the expense to be incurred by using the electronic communication.

         (4)   A request may be considered in chambers, on the documents.

         (5)   The court may take the following matters into account when considering a request:

                (a)    the distance between the party’s residence and the place where the court is to sit;

               (b)    any difficulty the party has in attending because of illness or disability;

                (c)    the expense associated with attending;

               (d)    the expense to be incurred, or the savings to be made, by using the electronic communication;

                (e)    any concerns about security, including family violence and intimidation;

                (f)    whether any other party objects to the request.

         (6)   If the court grants the request, the court may:

                (a)    order a party to pay the expense of using the electronic communication; or

               (b)    apportion the expense between the parties.

         (7)   If a request is granted, the party who made the request must immediately give written notice to the other parties.

[8]           Subrule 5.07 (5)

omit

5.06 (3) and (6)

insert

5.06 (4) and (7)

[9]           Rule 5.12

omit

interim order, enforcement order or

insert

interim order or

[10]         Subrule 6.02 (1), at the foot

insert

Example  

If a party seeks an order of a kind mentioned in section 90AE or 90AF of the Act, a third party who will be bound by the order must be joined as a respondent to the case.

[11]         Paragraph 6.02 (2) (b)

substitute

               (b)    any other person in whose favour a parenting order is currently in force in relation to the child;

[12]         After subrule 6.06 (3)

insert

         (4)   The person intervening must give each other party written notice of the procedural hearing.

[13]         Paragraph 6.07 (1) (a)

substitute

                (a)    arises under the Constitution or involves its interpretation, within the meaning of section 78B of the Judiciary Act 1903; and

[14]         Rule 7.03, Table 7.1, item 11

omit

[15]         Rule 7.13

omit

Service of

insert

         (1)   Service of

[16]         Rule 7.13

insert

         (2)   Service of any other document is proved by filing an Affidavit of Service (Form 7).

[17]         Paragraph 8.05 (4) (a)

omit

post; and

insert

post;

[18]         After paragraph 8.05 (4) (a)

insert

              (aa)    must include a telephone number at which the party may be contacted; and

[19]         Subrule 9.01 (2)

substitute

         (2)   A Form 1A must:

                (a)    state the facts in the application with which the respondent disagrees;

               (b)    state what the respondent believes the facts to be; and

                (c)    give full particulars of the orders the respondent wants the court to make.

[20]         Subrule 10.04 (1)

omit

writing.

insert

writing, to the party making the offer.

[21]         After rule 10.16

insert

10.16A   Order or injunction binding a third party

         (1)   This rule applies if a party applies for a consent order:

                (a)    in a case under section 79 of the Act, for an order of a kind mentioned in subsection 90AE (1) or (2) of the Act; or

               (b)    in a case under section 114 of the Act:

                          (i)    for an order of a kind mentioned in paragraph 90AF (1) (a) or subsection 90AF (2) of the Act; or

                         (ii)    for an injunction of a kind mentioned in paragraph 90AF (1) (b) or subsection 90AF (2) of the Act.

         (2)   The party must file with the draft consent order an affidavit setting out the facts relied on to satisfy the court of the matters mentioned in subsections 90AE (3) and (4), or subsections 90AF (3) and (4), of the Act (whichever are applicable).

[22]         Rule 11.01, Table 11.1, item 2, column 3, paragraph (f)

omit

arbitration

insert

arbitration;

[23]         Rule 11.01, Table 11.1, item 2, column 3, after paragraph (f)

insert

   (g)  order a party to provide particulars, or further and better particulars, of the orders sought by that party

[24]         Subrule 11.10 (3), note

omit

[25]         After subrule 11.10 (3)

insert

         (4)   If a date is set for a further procedural hearing, the party amending the Form 1 or Form 1A under subrule (2) must give each other party written notice of the hearing.

[26]         Paragraph 11.15 (1) (b)

omit

(see rule 11.19).

insert

(see rule 11.18).

[27]         Division 11.3.2

substitute

Division 11.3.2      Transferring a case

11.17      Transfer to another court or registry

                A party may apply to have a case:

                (a)    heard at another place; or

               (b)    transferred to another registry or court exercising jurisdiction under the Act.

11.18      Factors to be considered for transfer

         (1)   In making a decision under rule 11.17 or in deciding whether to remove a case from another court under subsection 46 (3A) of the Act, the court may consider:

                (a)    the public interest;

               (b)    whether the case, if transferred or removed, is likely to be dealt with:

                          (i)    at less cost to the parties;

                         (ii)    at more convenience to the parties; or

                        (iii)    earlier;

                (c)    the availability of a judicial officer specialising in the type of case to which the application relates;

               (d)    the availability of particular procedures appropriate to the case;

                (e)    the financial value of the claim;

                (f)    the complexity of the facts, legal issues, remedies and procedures involved;

               (g)    the adequacy of the available facilities, having regard to any disability of a party or witness; and

               (h)    the wishes of the parties.

Note   Subsection 33B (6) of the Act provides that, in deciding whether a case should be transferred to the Federal Magistrates Court, the court must have regard to:

(a)   any rules of the court applying to the transfer of cases;

(b)   whether cases in respect of an associated matter are pending in the Federal Magistrates Court;

(c)   whether the resources of the Federal Magistrates Court are sufficient to hear and determine the case; and

(d)   the interests of the administration of justice.

         (2)   Subrule (1) does not apply to:

                (a)    a case raising, or relying on, a cross-vesting law in which a party objecting to the case being heard in the Family Court applies to have the case transferred to another court;

               (b)    the transfer of a case under the Corporations Act 2001; or

                (c)    a case that must be transferred in accordance with a legislative provision.

Note   Division 4.2.2 deals with cross-vesting laws and Chapter 25 deals with cases under the Corporations Act 2001.

[28]         Paragraph 12.01 (e)

substitute

                (e)    an application in which the only order sought relates to a passport (see Division 4.2.7); and

[29]         Paragraph 12.02 (g), except the note

substitute

               (g)    unless the value is agreed — a market appraisal or an opinion as to value in relation to any item of property in which a party has an interest.

[30]         Rule 12.12

substitute

12.12      Attendance by electronic communication

                Rules 5.06 and 5.07 apply in relation to the use of electronic communication to attend a court event (other than a trial) as if the court event were a hearing.

Note   Rule 16.08 sets out the requirements in relation to attending a trial by electronic communication.

[31]         Subrule 12.14 (1)

substitute

         (1)   If the applicant and any party served agree that a case assessment conference, procedural hearing or conciliation conference should not proceed on the date fixed for it, the applicant and any party served may request the Registry Manager to postpone the conference or hearing.

[32]         Paragraph 12.14 (2) (d)

after

each party

insert

making the request

[33]         Rule 13.12

omit

A party

insert

Subject to rule 15.55, a party

[34]         Subrule 13.15 (4)

omit

                (c)    undertake to the court that, to the best of my knowledge and ability, I have carried out and complied with my duty of disclosure.

insert

                (c)    undertake to the court that, to the best of my knowledge and ability, I have complied with, and will continue to comply with, my duty of disclosure.

[35]         After subrule 13.33 (2)

insert

         (3)   When serving the Form 12 on the non-party, the requesting party must also:

                (a)    serve a brochure called Production of Documents by a Person who is not a Party to the Case, approved by the Principal Registrar; and

               (b)    give written confirmation that the requesting party has complied with the requirements in rule 13.34.

         (4)   The requesting party must not serve a Form 12 for the production of a document that is in the custody of the court or another court.

[36]         Rule 13.34

omit

7 days

insert

14 days

[37]         Paragraph 13.34 (b)

substitute

               (b)    any other person who may be affected by the production of some or all of the documents specified in the Form.

[38]         Rule 13.35

substitute

13.35      Compliance with Form 12

                A non-party who has been served with a Form 12 must:

                (a)    not earlier than 7 days, and within 21 days, of being served with the Form — comply with the requirements of the Form; or

               (b)    within 21 days of being served with the Form — object to the production of some or all of the documents specified in the Form by serving the requesting party with an objection in accordance with Part G of Form 12.

Note 1   Under rule 13.40, the operation of a Form 12 is stayed if a person objects to it.

Note 2   Some legislative provisions prohibit government departments from communicating certain information; for example, see section 150 of the Assessment Act and section 16 of the Registration Act.

Note 3   The court may shorten or extend the time for compliance with a rule (see rule 1.14).

[39]         After rule 13.37

insert

13.37A   Protection in relation to production

                If a non-party served with a Form 12 complies with the requirements of the Form:

                (a)    the production of a document to a requesting party, for inspection or copying, is taken to be expressly authorised by these Rules; and

               (b)    the non-party and any person acting for the non-party have the same protection and immunity they would have had if the production, inspection or copying had been made in accordance with an order.

[40]         Rules 13.39 and 13.40

substitute

13.39      Objection to production

                A person who may be affected by the production of some or all of the documents specified in a Form 12 may, within 21 days of being served with the Form, object to the production of those documents by serving the following people with an objection in accordance with Part G of Form 12:

                (a)    the requesting party;

               (b)    the non-party named in the Form.

13.39A   Service of objection on other parties

                If a requesting party is served with an objection under paragraph 13.35 (b) or rule 13.39, the party must serve a copy of the objection on each other party (other than the party who served the objection).

13.40      Stay of Form 12

                Service of an objection under paragraph 13.35 (b) or rule 13.39 operates as a stay of a non-party’s obligation to produce the documents specified in the Form 12.

[41]         Subrule 14.06 (3), note

substitute

Note 1   Subrule 7.13 (2) sets out how to prove service of a copy of an order.

Note 2   The following terms are defined in section 90MD of the Act:

·      eligible superannuation plan

·      flagging order

·      splitting order

·      superannuation interest.

[42]         Paragraph 15.07 (1) (e)

substitute

                (e)    an application relating to a passport (see Division 4.2.7).

[43]         Subparagraph 15.07 (2) (b) (ii)

omit

summary

insert

statement

[44]         Subparagraph 15.29 (1) (b) (ii)

substitute

                         (ii)    producing photocopies of the documents attached to an affidavit verifying the accuracy of the documents, instead of producing the original documents.

[45]         Subrule 15.29 (2), except the note

substitute

         (2)   The affidavit must:

                (a)    state that is it an affidavit under rule 15.29;

               (b)    have attached to it a copy of the subpoena for production;

                (c)    identify the attached documents as copies of the original documents referred to in the subpoena; and

               (d)    be sworn by the named person.

[46]         Subrule 15.35 (2)

omit

within 42 days

insert

at least 28 days, and no later than 42 days,

[47]         Rule 15.41

substitute

15.41      Application of Part 15.5

                This Part (other than rule 15.55) does not apply to any of the following:

                (a)    evidence from a medical practitioner or other person who has provided, or is providing, treatment for a party or child if the evidence relates only to any or all of the following:

                          (i)    the results of an examination, investigation or observation made;

                         (ii)    a description of any treatment carried out or recommended;

                        (iii)    expressions of opinion limited to the reasons for carrying out or recommending treatment and the consequences of the treatment, including a prognosis;

               (b)    evidence from an expert who has been retained for a purpose other than the giving of advice or evidence, or the preparation of a report for a case or anticipated case, being evidence:

                          (i)    about that expert’s involvement with a party, child or subject matter of a case; and

                         (ii)    describing the reasons for the expert’s involvement and the results of that involvement;

                (c)    evidence from an expert who has been associated, involved or had contact with a party, child or subject matter of a case for a purpose other than the giving of advice or evidence, or the preparation of a report for a case or anticipated case, being evidence about that expert’s association, involvement or contact with that party, child or subject matter;

               (d)    evidence from a mediator employed by a Family Court (including evidence from a person appointed under regulation 8 of the Regulations).

Example

An example of evidence excluded from the requirements of this Part (other than rule 15.55) is evidence from a treating doctor or a teacher in relation to the doctor’s or teacher’s involvement with a party or child.

[48]         Rule 15.43, definition of expert

substitute

expert means an independent person who has relevant specialised knowledge, based on the person’s training, study or experience.

[49]         Rule 15.47, note 2

substitute

Note 2   If there is a dispute about fees, a party or the expert witness may request the court to determine the dispute (see rule 15.46).

[50]         Subrule 15.49 (2)

after

a party to

insert

tender a report or

[51]         Paragraph 15.54 (1) (a)

omit

this Part of these Rules;

insert

Divisions 15.5.4, 15.5.5 and 15.5.6 of these Rules;

[52]         Subrule 15.62 (2)

omit

                        I have read and understand Part 15.5 of the Family Law Rules 2004 and have used my best endeavours to comply with it.

insert

                        I have read and understand Divisions 15.5.4, 15.5.5 and 15.5.6 of the Family Law Rules 2004 and have used my best endeavours to comply with them.

[53]         Subparagraph 15.69 (2) (e) (i)

substitute

                          (i)    Divisions 15.5.4, 15.5.5 and 15.5.6 of these Rules;

[54]         Paragraph 16.08 (3) (d)

omit

paragraph (d)

insert

paragraph (c)

[55]         Rule 17.03

omit

9.55%

insert

10.25%

[56]         After paragraph 18.02 (1) (e)

insert

              (ea)    an order under section 118 of the Act;

[57]         Subrule 18.02 (3)

omit

Paragraphs (1) (b), (c),

insert

Paragraphs (1) (c),

[58]         Subrule 18.05 (1), Table 18.2, item 6, column 2

after

66G,

insert

66M,

[59]         Subrule 18.05 (2), Table 18.3, item 7

omit

[60]         Subrule 18.05 (2), Table 18.3, item 9, column 3

substitute

Power to make an order in relation to a response to a Third Party Debt Notice (Form 17)

[61]         Subrule 18.05 (2), Table 18.3, after item 9

insert

9A

rule 20.39

Power to determine a claim by an affected person under a Third Party Debt Notice (Form 17)

[62]         Subrule 18.06 (1), Table 18.4, item 15, column 3

substitute

Power to register a revocation agreement

[63]         Subrule 18.06 (2), Table 18.5, item 13, column 2

substitute

paragraph 11.02 (2) (d) (except the reference, by incorporation, in that paragraph to paragraphs 3 (d) and (k) of Table 11.1), and paragraphs 11.02 (2) (e) and (g)

[64]         Subrule 18.06 (2), Table 18.5, item 19, column 3

substitute

Power to make an order in relation to a matter  mentioned in Chapter 12

[65]         Subrule 18.06 (2), Table 18.5, item 32, column 2

substitute

Chapter 19 (except rule 19.16 and Parts 19.2 and 19.8)

[66]         Subrule 18.06 (2), Table 18.5, item 33, column 2

substitute

Chapter 20 (except paragraph 20.07 (c) in so far as that paragraph incorporates paragraphs 20.05 (c) and (d), Division 20.3.2, rules 20.37 and 20.39, and Parts 20.5, 20.6 and 20.7)

[67]         After subrule 19.03 (3)

insert

         (4)   In this rule:

lawyer does not include counsel instructed by another lawyer.

[68]         Subrule 19.04 (7), after definition of court event

insert

lawyer does not include counsel instructed by another lawyer.

[69]         Part 19.5

substitute

Part 19.5            Calculation of costs

19.18      Maximum amount chargeable

         (1)   This rule sets out the maximum amount of costs a lawyer may charge and recover for work done for a case:

                (a)    for a client;

               (b)    if the court orders that costs are to be paid and does not fix the amount; and

                (c)    if a person is entitled to costs under these Rules.

         (2)   The maximum amount of costs that a lawyer may charge and recover is as follows:

                (a)    for fees — an amount calculated in accordance with Schedules 3 and 4;

               (b)    for an expense mentioned in Schedule 4 (other than item 101) — the amount specified in Schedule 4 for that expense;

                (c)    for any other expenses — a reasonable amount.

         (3)   However, if there is a valid costs agreement between a lawyer and a client:

                (a)    subrule (2) does not apply; and

               (b)    the maximum amount of costs that the lawyer may charge and recover is the amount calculated in accordance with the costs agreement.

19.19      Party and party costs

         (1)   The court may order that rule 19.18 does not apply and that a party is entitled to costs:

                (a)    of a specific amount;

               (b)    as assessed on a lawyer and client basis or an indemnity basis;

                (c)    to be calculated in accordance with the method stated in the order; or

               (d)    for part of the case, or part of an amount, assessed in accordance with Schedule 3.

Example

For paragraph (1) (c), the stated method may be in accordance with Schedule 3 but with an additional percentage for complexity.

         (2)   In making an order under subrule (1), the court may consider:

                (a)    the importance, complexity or difficulty of the issues;

               (b)    the reasonableness of each party’s behaviour in the case;

                (c)    the rates ordinarily payable to lawyers in comparable cases;

               (d)    whether a lawyer’s conduct has been improper or unreasonable;

                (e)    the time properly spent on the case; and

                (f)    expenses properly paid or payable.

[70]         Subrule 19.24 (3)

after

filing

insert

in the filing registry of the court where the case was conducted

[71]         Rule 19.26, heading

substitute

19.26      Fixing date for first court event

[72]         Rules 19.47 and 19.48

omit

[73]         Rule 20.05

substitute

20.05      Enforcing an obligation to pay money

                An obligation to pay money may be enforced by one or more of the following enforcement orders:

                (a)    an order for seizure and sale of real or personal property, including under an Enforcement Warrant (see Part 20.3);

               (b)    an order for the attachment of earnings and debts, including under a Third Party Debt Notice (see Part 20.4);

                (c)    an order for sequestration of property (see Part 20.5);

               (d)    an order appointing a receiver (or a receiver and manager) (see Part 20.6).

Note   The court may imprison a person for failure to comply with an order (see section 112AD of the Act). Chapter 21 sets out the relevant procedure.

[74]         Rule 20.06, heading

substitute

20.06      Affidavit to be filed for enforcement order

[75]         Paragraph 20.06 (a)

substitute

                (a)    if it is not required to be filed with an application — state the orders sought;

[76]         Paragraph 20.08 (1) (c)

omit

[77]         Subrule 20.11 (3), at the foot

insert

Note   Rule 20.07 sets out the orders that the court may make at an enforcement hearing.

[78]         Rule 20.15, definition of enforcement officer

omit

[79]         Subrule 20.16 (1)

omit everything before paragraph (a), insert

         (1)   A payee may, without notice to the payer, ask a Family Court to issue an Enforcement Warrant (Form 16) by filing:

[80]         Paragraph 20.16 (3) (b)

substitute

               (b)    either or both of the following:

                          (i)    a written undertaking to pay all reasonable fees and expenses associated with the enforcement if they are greater than the amount recovered on the enforcement;

                         (ii)    the amount (if any) required by the enforcement officer to be paid on account for the reasonable fees and expenses of the enforcement.

[81]         Subrule 20.16 (3), at the foot

insert

Note   Although the payee is liable to pay the enforcement officer any reasonable fees and expenses relating to the enforcement, the payee is entitled to recover those fees and expenses under the Enforcement Warrant (see subrule 20.23 (2)).

[82]         Rule 20.17, heading

substitute

20.17      Period during which Enforcement Warrant is in force

[83]         Subrule 20.18 (1), at the foot

insert

Note   For the powers an enforcement officer has in relation to the enforcement of a warrant, see rule 20.60.

[84]         Subrule 20.18 (2)

substitute

         (2)   The enforcement officer may:

                (a)    postpone the sale of the property;

               (b)    refuse to proceed with the sale of the property;

                (c)    seek further information or documents from a payee;

               (d)    defer enforcement until a fee or expense is paid or an undertaking to pay the fee or expense is given;

                (e)    require the payee to indemnify the enforcement officer against any claims arising from the enforcement;

                (f)    sign any documents relating to the transfer of ownership of the property, and any other documents necessary to give title of the property to the purchaser of the property; and

               (g)    recover reasonable fees and expenses associated with the enforcement.

         (3)   For paragraph (2) (g), fees and expenses recovered by an enforcement officer for enforcing a Warrant are taken to be reasonable if the fees and expenses are in accordance with a legislative provision of the Commonwealth, or the State or Territory in which the warrant was enforced.

[85]         Paragraph 20.21 (3) (d)

omit

advertisement.

insert

advertisement;

[86]         After paragraph 20.21 (3) (d)

insert

                (e)    a statement about where a copy of the contract for sale of the property can be obtained.

[87]         After rule 20.21

insert

20.21A   Sale of property at reasonable price

         (1)   An enforcement officer must, in good faith and with reasonable care having regard to all circumstances relevant to the sale of property seized under an Enforcement Warrant, fix a reasonable price for the property.

         (2)   For subrule (1), circumstances relevant to the sale price of real property seized under an Enforcement Warrant include:

                (a)    the current value of the property, as provided to the enforcement officer under subparagraph 20.23 (1) (b) (vi); and

               (b)    the amount of the highest bid received for the property at any auction of the property.

Note   The enforcement officer or payee may apply, after giving notice to the payer, for an order entitling the enforcement officer to sell the property for the best price obtainable (see rule 20.24).

20.21B   Conditions of sale of property

         (1)   This rule applies in relation to the sale by an enforcement officer of property seized under an Enforcement Warrant.

         (2)   The enforcement officer must specify as a condition of the sale of the property that the buyer:

                (a)    must pay:

                          (i)    a deposit of at least 10% of the price fixed for the property when the buyer’s offer for the property is accepted by the enforcement officer; and

                         (ii)    the balance of that price within the period determined by the enforcement officer; or

               (b)    must pay the whole of the price fixed for the property when the enforcement officer accepts the buyer’s offer for the property.

         (3)   The period mentioned in subparagraph (2) (a) (ii) must:

                (a)    be determined before the property is offered for sale; and

               (b)    be a period of no longer than 42 days.

[88]         Rule 20.22

substitute

20.22      Result of sale of property under Enforcement Warrant

         (1)   An enforcement officer must, within 7 days after the day of settlement of a sale of property, file a notice in the court stating the details of the result of the sale and the reasonable fees and expenses of the enforcement.

         (2)   The enforcement officer must pay out of the money received from the enforcement:

                (a)    any amount still owing to the enforcement officer for the reasonable fees and expenses of the enforcement;

               (b)    the balance of any amount owed to the payee under the Enforcement Warrant; and

                (c)    the remaining amount, if any, to the payer.

Note   This rule applies unless the court orders otherwise (see rule 1.12).

[89]         Subrule 20.23 (1)

omit

Before

insert

At least 28 days before

[90]         Paragraph 20.23 (1) (a)

substitute

                (a)    send to the payer, at the payer’s last known address, and to any mortgagor or other person who has an encumbrance registered on the title to the property that has priority over the Enforcement Warrant, written notice stating:

                          (i)    that the Warrant has been registered on the title to the property;

                         (ii)    that the enforcement officer intends to sell the property to satisfy the obligation if:

                                   (A)     the total amount owing is not paid; or

                                   (B)     arrangements considered satisfactory to the payee have not been made by a date specified in the notice; and

                        (iii)    the enforcement officer’s name and address; and

[91]         After subrule 20.23 (1)

insert

      (1A)   The payee is liable to pay to the enforcement officer the reasonable fees and expenses of the enforcement.

[92]         Subrule 20.23 (2)

after

subparagraph (1) (b) (v)

insert

and the fees and expenses mentioned in subrule (1A)

[93]         Subrule 20.23 (2), at the foot

insert

Note   A person affected by an Enforcement Warrant may serve a notice of claim on the enforcement officer (see rule 20.25).

[94]         Before subrule 20.24 (1)

insert

      (1A)   This rule applies to real property in relation to which:

                (a)    an Enforcement Warrant has been requested or issued; or

               (b)    an enforcement order for seizure and sale has been applied for or made.

[95]         Subrule 20.24 (1)

omit everything before paragraph (a), insert

         (1)   A payee, payer or enforcement officer may apply for an order:

[96]         Subparagraph 20.24 (1) (c) (vii)

omit

person; or

insert

person;

[97]         Paragraph 20.24 (1) (d)

omit

property.

insert

property; or

[98]         After paragraph 20.24 (1) (d)

before the note, insert

                (e)    in relation to the reasonable fees and expenses of the enforcement.

[99]         Rule 20.29, note

substitute

Note   Rules 20.07 and 20.24 set out the orders the court may make on the hearing of the application.

[100]       Subrule 20.32 (1)

omit

the court

insert

a Family Court

[101]       Subrule 20.42 (4), at the foot

insert

Note   For the hearing of an application in the absence of the parties, see Part 5.4.

[102]       Paragraphs 20.43 (1) (a) and (b)

substitute

                (a)    if the obligation to be enforced arises under an order — the payer has been served with the order to be enforced;

               (b)    the payer has refused or failed to comply with the obligation; and

[103]       Subrule 20.43 (2), at the foot

insert

Note   For rules relating to the enforcement of obligations other than an obligation to pay money, see Part 20.7.

[104]       Subrule 20.46 (2)

substitute

         (2)   The affidavit must:

                (a)    comply with rule 20.06;

               (b)    include the full name and address of the proposed receiver;

                (c)    include details of the receiver’s fees; and

               (d)    have attached to it the consent to the appointment of receiver, signed by the proposed receiver.

[105]       Subrule 20.46 (3), at the foot

insert

Note   For the hearing of an application in the absence of the parties, see Part 5.4.

[106]       Subrule 20.47 (5), at the foot

insert

Note   For rules relating to the enforcement of obligations other than an obligation to pay money, see Part 20.7.

[107]       Part 20.7, heading

substitute

Part 20.7            Enforcement of obligations other than an obligation to pay money

Note   For the powers an enforcement officer has in relation to the enforcement of a warrant, see rule 20.60.

[108]       Subrule 20.56 (1)

omit

the payer

insert

the respondent

[109]       Subrule 20.56 (2)

omit

the payer,

insert

the respondent,

[110]       After rule 20.59

insert

20.60      Powers of enforcement officer

                An enforcement officer may, when enforcing a warrant (with such assistance as the enforcement officer requires and, if necessary, by force) do any of the following:

                (a)    enter and search any real property:

                          (i)    that is the subject of the warrant; or

                         (ii)    for the purpose of seizing any property the subject of the warrant;

               (b)    if the warrant is for the seizure and sale of real property — enter and eject from the property any person who is not lawfully entitled to be on the property;

                (c)    take possession of or secure against interference any property the subject of the warrant;

               (d)    remove any property the subject of the warrant from the place where it is found, place it in storage or deliver it to another person or place for a purpose authorised by the warrant.

Note   The powers specified in this rule are in addition to, and do not derogate from, any other powers conferred by law on the enforcement officer.

[111]       Subrule 21.02 (1), Table 21.1, after item 1

insert

1A

Contravention of subsection 67X (2) of the Act in relation to a recovery order

Application — Contravention (Form 18)

[112]       Subrule 21.02 (2), example

substitute

Example for paragraph (2) (a)

If a person alleges, in a Form 19, that a party is in contempt because of a contravention of an order that involved a flagrant challenge to the court’s authority (see subsection 112AP (1) of the Act), or alleges in a Form 18 that a person has behaved in a way that showed a serious disregard of his or her obligations under a parenting order (see paragraph 70NJ (1) (c) of the Act), the affidavit must set out the alleged facts necessary to prove this.

[113]       Rule 21.06

substitute

21.06      Response to an application

                A respondent to an application mentioned in item 1A, 2, 3 or 4 of Table 21.1 may file an affidavit but is not required to do so.

[114]       Paragraph 21.07 (b)

substitute

               (b)    for a respondent to an application mentioned in item 1A, 2, 3 or 4 of Table 21.1 — issue a warrant for the respondent’s arrest to bring the respondent before a court; or

[115]       Rule 21.08

omit

item 2, 3 or 4

insert

item 1A, 2, 3 or 4

[116]       Subparagraph 21.16 (1) (a) (iii)

substitute

                        (iii)    an application mentioned in item 1A, 2, 3 or 4 of Table 21.1; and

[117]       Subrule 21.17 (2)

omit

sealed

[118]       Subrule 22.12 (3), notes 2 and 3

substitute

Note 2   An application for a stay may be listed before another judicial officer if the judicial officer who made the order under appeal is unavailable (see rule 1.13).

[119]       Rule 22.14, note 4

substitute

Note 4   If the pre-argument statement is not filed by the date for compliance (as fixed by rule 22.14 or extended by an order), the appeal will be taken to be abandoned at the end of the 28th day after the date for compliance (see rule 22.56).

[120]       Subrule 22.22 (4)

omit

including

insert

excluding

[121]       Rule 22.42, example

substitute

Example

A party may apply for an order:

(a)   that the appeal court receive evidence on the hearing of an appeal that is in addition to the evidence admitted in the case appealed from (see rule 22.51);

(b)   under subsection 94 (2B) or (2D) or 94AAA (8) or (10) of the Act, subsection 102 (6) or (8) or 102A (7) or (9) of the Assessment Act or subsection 107 (5) or (7) or 107A (7) or (9) of the Registration Act; or

(c)   under these Rules, for example, for an extension of time.

[122]       Paragraph 24.01 (1) (f)

omit

fastened; and

insert

fastened;

[123]       Subparagraph 24.01 (1) (g) (iv)

omit

the document.

insert

the document; and

[124]       After paragraph 24.01 (1) (g)

insert

               (h)    for a document to which subrule 2.02 (1) or (2) or rule 2.05 applies, that must be filed in accordance with paragraph (g) — include the information specified in paragraph (g) on a separate page as an attached document.

[125]       Schedule 1, Parts 1 and 2, after subclause 3 (1)

insert

      (1A)   Paragraph (1) (a) does not apply if, within 12 months before filing the application, the person gave to, or received from, a prospective party to the case, a copy of these pre-action procedures.

[126]       Schedule 2, Form 2

substitute

Form 2        Application in a Case

(rule 5.01)

 

[127]       Schedule 2, Form 12

substitute

Form 12      Notice of Non-party Production of Documents

(rule 13.33)

[128]       Schedule 2, Form 60

substitute

Form 60      Offer to settle

(rule 10.01)

[129]       Schedule 3

substitute

Schedule 3        Itemised scale of costs

(rule 19.18)

Note   The amounts in this Schedule include GST.

Part 1          Fees for lawyer’s work done

 

Item

Matter for which charge is made

Charge

101

Drafting documents (other than letters)

$15.55 per 100 words

102

Producing documents in printed form (other than letters)

$5.35 per 100 words

103

Drafting and producing letters (including fax or e-mail transmissions)

$17.85 per 100 words

104

Reading documents

$7.25 per 100 words

105

Scanning of documents (where reading is not necessary)

$2.90 per 100 words

106

For a document or letter mentioned in item 101, 102, 103, 104 or 105 containing more than 3 000 words

The amount allowed by the Registrar

107

Photocopy or other reproduction of a document

50 cents per page

108

Time reasonably spent by a lawyer on work requiring the skill of a lawyer (except work to which any other item in this Part applies)

$182 per hour

109

Time reasonably spent by a lawyer, or by a clerk of a lawyer, on work (except work to which any other item in this Part applies)

$118 per hour

Part 2          Fees for counsel’s work done

 

Item

Matter for which charge is made

Charge

201

Chamber work (including preparing or settling any necessary document, opinion, advice or evidence, and any reading fee (if allowed))

$209–$298 per hour

202

Conferences (including court appointed conferences), if necessary

$209–$298 per hour

203

Short attendances (for example, procedural hearings, summary hearings taking less than 3 hours)

$187–$876

204

A hearing or trial taking at least 3 hours but not more than 1 day

$639–$1 477

205

Other hearings or trials

$1 477–$2 171 per day

206

Reserved judgment

$209–$298 per hour

Part 3          Basic composite amount for undefended divorce

 

Item

Matter for which charge is made

Charge

301

If the lawyer employed another lawyer to attend at court for the applicant and there is a child of the marriage under 18 years old

$793

302

If the lawyer employed another lawyer to attend at court for the applicant and there is no child of the marriage under 18 years old

$590

303

If the lawyer did not employ another lawyer to attend at court for the applicant and there is a child of the marriage under 18 years old

$744

304

If the lawyer did not employ another lawyer to attend at court for the applicant and there is no child of the marriage under 18 years old

$557

305

If the lawyer did not attend at court for the hearing under section 98A of the Act

$479

Part 4          Basic composite amount for application for Enforcement Warrant or Third Party Debt Notice

 

Item

Matter for which charge is made

Charge

401

An Enforcement Warrant under rule 20.16

$479

402

A Third Party Debt Notice under rule 20.32

$479

[130]       Schedule 4, heading

substitute

Schedule 4        Conduct money and witness fees

(rules 15.23 and 19.18)

[131]       Dictionary, definition of conduct money, paragraph (b)

omit

witness.

insert

witness; and

[132]       Dictionary, definition of conduct money, after paragraph (b)

insert

        (c)    in the case of a subpoena for production — the reasonable costs of complying with the subpoena.

[133]       Dictionary, after definition of eligible carer

insert

enforcement officer includes the Marshal, a delegate of the Marshal or any other officer of the court, or a person appointed by the court for the purpose of enforcing an order.

[134]       Dictionary, definition of enforcement order

after

a Third Party Debt Notice

insert

, an order for the seizure and sale of real or personal property

[135]       Dictionary, after definition of order

insert

order, relating to a passport, includes:

        (a)    an order permitting a child to leave Australia; and

       (b)    an order relating to the issue, control or surrender of a passport.

[136]       Dictionary, definition of work done for a case

substitute

work done for a case includes work done in relation to the case (including in relation to the pre-action procedure) and work done in anticipation of starting the case.

Schedule 2        Amendment commencing on 31 January 2005

(rule 3)

[1]           Schedule 2, Form 11

substitute

Form 11      Application for Consent Orders

(rule 10.15)

Schedule 3        Amendments commencing on 31 March 2005

(rule 3)

[1]           Schedule 2, Forms 1 and 1A

substitute

Form 1        Application for Final Orders

(rule 2.01)

Form 1A     Response to an Application for Final Orders

(rule 9.01)

[2]           Schedule 2, Forms 2A to 5

substitute

Form 2A     Response to an Application in a Case

(rule 9.05)

Form 3        Application for Divorce

(rules 2.01 and 3.01)

Form 3A     Response to an Application for Divorce

(rule 3.04)

Form 4        Notice of Child Abuse or Risk of Child Abuse

(rule 2.04)

Form 5        Notice of Intervention by Person Entitled to Intervene

(rule 6.06)

[3]           Schedule 2, Form 8

substitute

Form 8        Notice of Address for Service

(subrule 8.05 (3))

[4]           Schedule 2, Form 10

substitute

Form 10      Notice of Discontinuance

(rule 10.11)

[5]           Schedule 2, Forms 13 to 20

substitute

Form 13      Financial Statement

(rule 13.05)

Form 14      Subpoena

(subrule 15.17 (2))

Form 15      Notice Disputing Itemised Costs Account

(rule 19.23)

Form 16      Enforcement Warrant — Seizure & Sale of Property

(rule 20.16)

Form 17      Third Party Debt Notice

(rule 20.32)

Form 18      Application — Contravention

(rule 21.02)

Form 19      Application — Contempt

(rule 21.02)

Form 20      Notice of Appeal

(rules 22.02 and 22.07)


Notes

1.       These Rules amend Statutory Rules 2003 No. 375, as amended by 2004 No. 53.

2.       Notified in the Commonwealth of Australia Gazette on 17 December 2004.