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Family Law Rules 2004

Authoritative Version
SR 2003 No. 375 Rules/Court & Tribunal Rules as amended, taking into account amendments up to SLI 2006 No. 177
Administered by: Attorney-General's
Registered 12 Jul 2006
Start Date 01 Jul 2006
End Date 06 Jul 2007

Family Law Rules 2004

Statutory Rules 2003 No. 375 as amended

made under the

This compilation was prepared on 1 July 2006
taking into account amendments up to SLI 2006 No. 177

The text of any of those amendments not in force
on that date is appended in the Notes section

This document has been split into 3 volumes
Volume 1 contains Chapters 1–26 (Rr. 1.01–26.31) and Schedule 1
Volume 2 contains Schedule 2 (Forms 1, 1A, 1B, 2, 2A, 3, 3A and 4–29)
Volume 3 contains Schedules 3‑5, the Dictionary, and the Notes
Each volume has its own Table of Contents

Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra


Contents

Chapter 1          Introduction                                                                  

Part 1.1                 Preliminary                                                                 

                    1.01     Name of Rules                                                               30

                    1.02     Commencement                                                            30

                    1.03     Rules in Chapter 1 prevail                                               31

Part 1.2                 Main purpose of Rules                                            

                    1.04     Main purpose of Rules                                                    32

                    1.05     Pre‑action procedure                                                      32

                    1.06     Promoting the main purpose                                           33

                    1.07     Achieving the main purpose                                            33

                    1.08     Responsibility of parties and lawyers in achieving the main purpose     34

Part 1.3                 Court’s powers in all cases                                   

                    1.09     Procedural orders in cases of doubt or difficulty                36

                    1.10     Court may make orders                                                  36

                    1.11     Court may set aside or vary order                                    36

                    1.12     Court may dispense with Rules                                       36

                    1.13     Judicial officer hearing application                                    37

                    1.14     Shortening or extension of time                                       37

                    1.15     Time for compliance                                                       37

Part 1.4                 Other preliminary matters                                       

                    1.16     Definitions — the dictionary                                            38

                    1.17     Notes, examples etc                                                      38

                    1.18     Sittings                                                                         39

                    1.19     Permission to record court event                                     39

                    1.20     Publishing lists of cases                                                 39

                    1.21     Calculating time                                                             40

Chapter 2          Starting a case                                                             

Part 2.1                 Applications                                                               

                    2.01     Which application to file                                                  41

                    2.02     Documents to be filed with applications                            43

Part 2.2                 Brochures                                                                  

                    2.03     Service of brochures                                                       46

Part 2.3                 Notification in certain cases                                  

Division 2.3.1          Cases involving allegation of abuse or family violence in relation to a child      

                    2.04     Definition                                                                       47

                  2.04A     Application of Division 2.3.1                                            47

                  2.04B     Filing and service                                                           47

                  2.04C     Listing case                                                                   48

                  2.04D     Prescribed document and prescribed form                        48

                    2.05     Family violence order                                                      48

Division 2.3.2          Property settlement or spousal maintenance cases       

                    2.06     Notification of proceeds of crime order or forfeiture application (Act ss 79B and 90M)     49

                    2.07     Proceeds of crime                                                          49

Chapter 3          Divorce                                                                          

Part 3.1                 Application for Divorce                                           

                    3.01     Fixing of hearing date                                                     51

                    3.02     Amendment of Form 3                                                    51

                    3.03     Discontinuance of Form 3                                               51

Part 3.2                 Response                                                                   

                    3.04     Response                                                                      52

                    3.05     Objection to jurisdiction                                                  52

                    3.06     Response out of time                                                     52

                    3.07     Affidavit to reply to information in Form 3                          53

Part 3.3                 Attendance at hearing                                             

                    3.08     Attendance at hearing                                                    54

Part 3.4                 Hearing in absence of parties                               

                    3.09     Seeking a hearing in absence of parties                           55

                    3.10     Hearing in absence of parties — joint application              55

                    3.11     Request not to hear case in parties’ absence                   55

Part 3.5                 Events affecting divorce order                             

                    3.12     Application for rescission of divorce order                         56

                    3.13     Death of party                                                                56

Chapter 4          Application for Final Orders                                     

Part 4.1                 Introduction                                                               

                    4.01     Contents of Application for Final Orders (Form 1)              58

                    4.02     Filing affidavits                                                               58

                    4.03     First court date                                                              59

Part 4.2                 Specific applications                                               

Division 4.2.1          General                                                                          

                    4.04     General provisions still apply                                           60

                    4.05     Application by Attorney‑General for transfer of case          60

Division 4.2.2          Cross‑vesting                                                                  

                    4.06     Cross‑vesting matters                                                     60

                    4.07     Transfer of case                                                             61

Division 4.2.3          Medical procedure                                                         

                    4.08     Application for medical procedure                                    61

                    4.09     Evidence supporting application                                       61

                    4.10     Service of application                                                      62

                    4.11     Fixing of hearing date                                                     63

                    4.12     Procedure on first court date                                           63

Division 4.2.4          Maintenance                                                                  

                    4.13     Information to respondent                                                63

                    4.14     Procedure on first court date                                           63

                    4.15     Evidence to be provided                                                  64

                    4.16     Application for step‑parent to maintain                             64

                    4.17     Maintenance orders                                                        65

Division 4.2.5          Child support                                                                  

                    4.18     Application of Division 4.2.5                                            66

                    4.19     Documents to be filed with applications and appeals         66

                    4.20     Application under Assessment Act s 95 (6)                      67

                    4.21     Time limits for appeals and applications under Assessment Act          68

                    4.22     Time limit for appeal under Registration Act s 88               68

                    4.23     Service of application or appeal                                       68

                    4.24     Service by Child Support Registrar                                   69

                    4.25     Procedure on first court date                                           69

                    4.26     Evidence to be provided                                                  69

Division 4.2.6          Nullity and validity of marriage and divorce                  

                    4.27     Application of Division 4.2.6                                            69

                    4.28     Fixing hearing date                                                         70

                    4.29     Affidavit to be filed with application                                   70

Division 4.2.7          Applications relating to passports                                  

                    4.30     Application relating to passport                                       70

                    4.31     Fixing hearing date                                                         71

Chapter 5          Applications in a case                                                

Part 5.1                 General                                                                        

                    5.01     Applications in a case                                                    72

                    5.02     Evidence in applications in a case                                   73

                    5.03     Procedure before filing                                                    73

                    5.04     Restrictions in relation to applications                              73

                    5.05     Fixing a date for hearing or case assessment conference  74

                    5.06     Attendance by electronic communication                         75

                    5.07     Attendance of party or witness in prison                           76

Part 5.2                 Hearing — interim and procedural applications

                    5.08     Interim orders — matters to be considered                       78

                    5.09     Affidavits                                                                       78

                    5.10     Hearing time of interim or procedural application               79

                    5.11     Party’s failure to attend                                                   79

Part 5.3                 Application without notice                                     

                    5.12     Application without notice                                               80

                    5.13     Necessary procedural orders                                           81

Part 5.4                 Hearing on papers in absence of parties           

                    5.14     Request for hearing in absence of parties                         82

                    5.15     Objection to hearing in absence of parties                        82

                    5.16     Court decision to not proceed in absence of parties           82

                    5.17     Procedure in hearing in absence of parties                       82

Part 5.5                 Postponement of interim hearing                        

                    5.18     Administrative postponement of interim hearing                 84

Chapter 6          Parties                                                                            

Part 6.1                 General                                                                        

                    6.01     Parties                                                                          85

                    6.02     Necessary parties                                                          85

Part 6.2                 Adding and removing a party                                

                    6.03     Adding a party                                                               87

                    6.04     Removing a party                                                           87

                    6.05     Intervention by a person seeking to become a party          87

                    6.06     Intervention by a person entitled to intervene                     88

                    6.07     Notice of constitutional matter                                         89

Part 6.3                 Case guardian                                                           

                  6.08A     Interpretation                                                                 90

                    6.08     Conducting a case by case guardian                               90

                    6.09     Who may be a case guardian                                          90

                    6.10     Appointment, replacement or removal of case guardian      90

                    6.11     Attorney‑General may nominate case guardian                 91

                    6.12     Notice of becoming case guardian                                   91

                    6.13     Conduct of case by case guardian                                   92

                    6.14     Costs of case guardian                                                   92

Part 6.4                 Progress of case after death                                 

                    6.15     Death of party                                                                93

Part 6.5                 Progress of a case after bankruptcy or personal insolvency agreement   

                    6.16     Interpretation                                                                 94

                    6.17     Notice of bankruptcy or personal insolvency agreement     94

                    6.18     Notice under paragraph 6.17 (1) (b)                                  95

                    6.19     Notice under paragraph 6.17 (1) (c)                                  95

                    6.20     Notice of bankruptcy proceedings                                    96

                    6.21     Notice of application under section 139A of the Bankruptcy Act           96

                    6.22     Official name of trustee                                                   97

Chapter 7          Service                                                                           

Part 7.1                 General                                                                        

                  7.01A     Application                                                                    98

                    7.01     Service                                                                          98

                    7.02     Court’s discretion regarding service                                  99

                    7.03     Service of documents                                                     99

                    7.04     Service of filed documents                                             100

Part 7.2                 Special service                                                          

                    7.05     Special service                                                             102

                    7.06     Special service by hand                                                102

                    7.07     Special service by post or electronic communication       102

                    7.08     Special service through a lawyer                                    103

                    7.09     Special service on person with a disability                      103

                    7.10     Special service on a prisoner                                         104

                    7.11     Special service on a corporation                                    104

Part 7.3                 Ordinary service                                                       

                    7.12     Ordinary service                                                           105

Part 7.4                 Proof of service                                                         

                    7.13     Proof of service                                                            106

                    7.14     Proof of special service                                                 106

                    7.15     Evidence of identity                                                      106

Part 7.5                 Other matters about service                                  

                    7.16     Service by electronic communication                             108

                    7.17     When service is taken to have been carried out               108

                    7.18     Service with conditions or dispensing with service           109

Part 7.6                 Service in non‑convention country                     

                    7.19     Service in non‑convention country                                  110

                    7.20     Proof of service in non‑convention country                       110

Chapter 8          Right to be heard and address for service           

Part 8.1                 Right to be heard and representation                 

                    8.01     Right to be heard and representation                              112

                    8.02     Independent children’s lawyer                                        113

                    8.03     Lawyer — conflicting interests                                       114

                    8.04     Lawyer — ceasing to act                                              114

Part 8.2                 Address for service                                                  

                    8.05     Address for service                                                       115

                    8.06     Change of address for service                                        116

Chapter 9          Response and reply                                                   

Part 9.1                 Response to Form 1                                                

                    9.01     Response to Form 1 (Form 1A)                                     117

                    9.02     Filing an affidavit with Form 1A                                      118

                    9.03     Response objecting to jurisdiction                                  118

Part 9.2                 Reply to Form 1A                                                      

                    9.04     Applicant reply to Form 1A (Form 1B)                            119

                  9.04A     Additional party reply to Form 1A (Form 1B)                   119

Part 9.3                 Response to Form 2                                                

                    9.05     Response to Form 2 (Form 2A)                                     120

                    9.06     Affidavit to be filed with Form 2A                                    120

                    9.07     Affidavit in reply to Form 2A                                           120

Part 9.4                 Filing and service                                                     

                    9.08     Time for filing and service of response or reply                 121

Chapter 10        Ending a case without a trial                                    

Part 10.1              Offers to settle                                                           

Division 10.1.1        General                                                                          

                  10.01     How to make an offer                                                    122

                  10.02     Open and ‘without prejudice’ offer                                   123

                  10.03     How to withdraw an offer                                               123

                  10.04     How to accept an offer                                                  124

                  10.05     Counter‑offer                                                                124

Division 10.1.2        Offer to settle — property cases                                     

                  10.06     Compulsory offer to settle                                             124

                  10.07     Withdrawal of offer                                                        125

Part 10.2              Discontinuing a case                                               

                  10.10     Definition                                                                     126

                  10.11     Discontinuing a case                                                    126

Part 10.3              Summary orders and separate decisions          

                  10.12     Application for summary orders                                     128

                  10.13     Application for separate decision                                   128

                  10.14     What the court may order under this Part                       128

Part 10.4              Consent orders                                                         

                  10.15     How to apply for a consent order                                    130

                  10.16     Notice to superannuation trustee                                   131

                10.16A     Order or injunction binding a third party                          131

                  10.17     Dealing with a consent order                                         132

                  10.18     Lapsing of respondent’s consent                                    132

Chapter 11        Case management                                                      

Part 11.1              Court’s powers of case management                 

                  11.01     General powers                                                            133

                  11.02     Failure to comply with a legislative provision or order       135

                  11.03     Relief from orders                                                         135

                  11.04     Frivolous or vexatious case                                           136

                  11.05     Application for permission to start a case                       137

                  11.06     Dismissal for want of prosecution                                   137

Part 11.2              Limiting issues                                                          

Division 11.2.1        Admissions                                                                     

                  11.07     Request to admit                                                          139

                  11.08     Notice disputing fact or document                                  140

                  11.09     Withdrawing admission                                                 140

Division 11.2.2        Amendment                                                                   

                  11.10     Amendment by a party or court order                             141

                  11.11     Time limit for amendment                                              142

                  11.12     Amending a document                                                  142

                  11.13     Response to amended document                                   142

                  11.14     Disallowance of amendment                                          142

Division 11.2.3        Small claims                                                                  

                  11.15     Small claims                                                                143

Part 11.3              Venue                                                                          

Division 11.3.1        Open court and chambers                                              

                  11.16     Cases in chambers                                                      144

Division 11.3.2        Transferring a case                                                        

                  11.17     Transfer to another court or registry                                144

                  11.18     Factors to be considered for transfer                              144

Division 11.3.3        Transfer of court file                                                       

                  11.20     Transfer between courts                                                146

Chapter 12        Court events                                                                 

Part 12.1              Application of Chapter 12                                       

                  12.01     Application of Chapter 12                                              149

Part 12.2              Court events — resolution phase                        

                  12.02     Property case — exchange of documents before first court date          150

                  12.03     Case assessment conference                                       151

                  12.04     Procedural hearing                                                       152

                  12.05     Property case — exchange of documents before conciliation conference          153

                  12.06     Conduct of a conciliation conference                              154

Part 12.3              Court events — determination phase                 

                12.07A     Application                                                                  155

                  12.07     Trial notice                                                                   155

                  12.08     Compliance certificate                                                  155

                  12.09     Non‑compliance                                                           156

                  12.10     Conduct of pre‑trial conference                                      156

Part 12.4              Attendance at court events                                    

                  12.11     Party’s attendance                                                       158

                  12.12     Attendance by electronic communication                       158

                  12.13     Failure to attend court events                                        158

Part 12.5              Adjournment and postponement of court events         

                  12.14     Administrative postponement of conferences or procedural hearings     160

                  12.15     Adjournment of case conference                                    161

                  12.16     Adjournment or postponement of pre‑trial conference       161

Chapter 13        Disclosure                                                                     

Part 13.1              Disclosure between parties                                   

Division 13.1.1        General duty of disclosure                                             

                  13.01     General duty of disclosure                                             164

Division 13.1.2        Duty of disclosure — financial cases                              

                  13.02     Purpose of Division 13.1.2                                             164

                  13.03     Definition                                                                     165

                  13.04     Full and frank disclosure                                               165

                  13.05     Financial statement (Form 13)                                       166

                  13.06     Amendment of Financial Statement (Form 13)                167

Part 13.2              Duty of disclosure — documents                        

Division 13.2.1        Disclosure of documents — all cases                             

                  13.07     Duty of disclosure — documents                                   168

                  13.08     Inspection of documents                                               168

                  13.09     Production of original documents                                   169

                  13.10     Disclosure by inspection of documents                          169

                  13.11     Costs for inspection                                                      169

                  13.12     Documents that need not be produced                           169

                  13.13     Objection to production                                                 170

                  13.14     Consequence of non‑disclosure                                     170

                  13.15     Undertaking by party                                                    171

                  13.16     Time for filing undertaking                                              172

Division 13.2.2        Disclosure of documents — certain applications            

                  13.17     Application of Division 13.2.2                                         173

                  13.18     Party may seek order about disclosure                          173

Division 13.2.3        Disclosure of documents — Applications for Final Orders           

                  13.19     Application of Division 13.2.3                                         173

                  13.20     Disclosure by service of a list of documents                    174

                  13.21     Disclosure by inspection of documents                          175

                  13.22     Application for order for disclosure                                 175

                  13.23     Costs of compliance                                                     177

                  13.24     Electronic disclosure                                                    177

Part 13.3              Answers to specific questions                             

                  13.25     Application of Part 13.3                                                 178

                  13.26     Service of specific questions                                         178

                  13.27     Answering specific questions                                        179

                  13.28     Orders in relation to specific questions                           179

Part 13.4              Information from non‑parties                                

Division 13.4.1        Employment information                                                

                  13.29     Purpose of Division 13.4.1                                             180

                  13.30     Employment information                                               180

Division 13.4.2        Non‑party documents                                                     

                  13.31     Purpose of Division 13.4.2                                             181

                  13.32     Definitions                                                                   181

                  13.33     Notice of Non‑party Production of Documents                 181

                  13.34     Service on others affected by Notice                              182

                  13.35     Compliance with Form 12                                              182

                  13.36     Production of documents                                              182

                  13.37     Copying produced documents                                       183

                13.37A     Protection in relation to production                                 183

                  13.38     Costs of production                                                      183

                  13.39     Objection to production                                                 183

                13.39A     Service of objection on other parties                               184

                  13.40     Stay of Form 12                                                           184

                  13.41     Court’s decision about Form 12                                     184

                  13.42     Orders about non‑party disclosure                                 185

Chapter 14        Property orders                                                           

                  14.01     Orders about property                                                   186

                  14.02     Service of application                                                    187

                  14.03     Inspection                                                                    187

                  14.04     Application for Anton Piller order                                    187

                  14.05     Application for Mareva order                                          188

                  14.06     Notice to superannuation trustee                                   189

                  14.07     Notice about intervention under Part VIII of Act                190

Chapter 15        Evidence                                                                       

Part 15.1              Children                                                                      

                  15.01     Restriction on child’s evidence                                       191

                  15.02     Interviewing a child                                                       192

                  15.03     Family reports                                                              192

Part 15.2              Affidavits                                                                     

                  15.05     Evidence in chief by affidavit                                          194

                  15.06     Reliance on affidavits                                                    194

                  15.07     Filing an affidavit                                                           194

                  15.08     Form of affidavit                                                            195

                  15.09     Making an affidavit                                                        196

                  15.10     Affidavit of illiterate or blind person etc                            196

                  15.11     Affidavit outside Australia                                              197

                  15.12     Documents attached                                                    197

                  15.13     Striking out objectionable material                                 198

                  15.14     Notice to attend for cross‑examination                           198

                  15.15     Deponent’s attendance and expenses                            199

Part 15.3              Subpoenas                                                                 

Division 15.3.1        General                                                                          

                  15.16     Interpretation                                                                200

                  15.17     Issuing a subpoena (Form 14)                                       200

                  15.18     Subpoena not to issue in certain circumstances             201

                  15.19     Time for issuing a subpoena                                          201

                  15.20     Amendment of subpoena                                              202

                  15.21     Limit on number of subpoenas                                       202

                  15.22     Service                                                                        202

                  15.23     Conduct money and witness fees                                  202

                  15.24     When compliance is not required                                   203

                  15.25     Discharge of subpoena obligation                                   203

                  15.26     Objection to subpoena                                                  204

Division 15.3.2        Production of documents and access by parties            

                  15.27     Application of Division 15.3.2                                         204

                  15.28     Service of subpoena for production                                 204

                  15.29     Compliance with subpoena                                            205

                  15.30     Right to inspect and copy                                             206

                  15.31     Objection to inspection or copying of document              207

                  15.32     Court permission to inspect documents                          207

                  15.33     Claim for privilege                                                         207

                  15.34     Production of document from another court                     208

                  15.35     Return of documents produced                                      208

Division 15.3.3        Non‑compliance with subpoena                                     

                  15.36     Non‑compliance with subpoena                                     209

Part 15.4              Assessors                                                                  

                  15.37     Application of Part 15.4                                                 210

                  15.38     Appointing an assessor                                                210

                  15.39     Assessor’s report                                                         210

                  15.40     Remuneration of assessor                                             211

Part 15.5              Expert evidence                                                        

Division 15.5.1        General                                                                          

                  15.41     Application of Part 15.5                                                 212

                  15.42     Purpose of Part 15.5                                                     213

                  15.43     Definitions                                                                   213

Division 15.5.2        Single expert witness                                                    

                  15.44     Appointment of single expert witness by parties              214

                  15.45     Order for single expert witness                                      214

                  15.46     Orders the court may make                                           215

                  15.47     Single expert witness’s fees and expenses                     215

                  15.48     Single expert witness’s report                                        216

                  15.49     Appointing another expert witness                                 216

                  15.50     Cross‑examination of single expert witness                    217

Division 15.5.3        Permission for expert’s evidence                                   

                  15.51     Permission for expert’s reports and evidence                  217

                  15.52     Application for permission for expert witness                   217

Division 15.5.4        Instructions and disclosure of expert’s report                

                  15.53     Application of Division 15.5.4                                         219

                  15.54     Instructions to expert witness                                        219

                  15.55     Mandatory disclosure of expert’s report                          220

                  15.56     Provision of information about fees                                 220

                  15.57     Application for provision of information                            220

                  15.58     Failure to disclose report                                               221

Division 15.5.5        Expert witness’s duties and rights                                  

                  15.59     Expert witness’s duty to the court                                  221

                  15.60     Expert witness’s right to seek orders                             222

                  15.61     Expert witness’s evidence in chief                                  223

                  15.62     Form of expert’s report                                                  223

                  15.63     Contents of expert’s report                                            224

                  15.64     Consequences of non‑compliance                                  225

Division 15.5.6        Questions to single expert witness                                 

                  15.65     Questions to single expert witness                                225

                  15.66     Single expert witness’s answers                                    226

                  15.67     Single expert witness’s costs for answers                      226

Division 15.5.7        Evidence from 2 or more expert witnesses                    

                  15.68     Application of Division 15.5.7                                         227

                  15.69     Conference of expert witnesses                                     227

                  15.70     Conduct of trial with expert witnesses                            228

Part 15.6              Other matters about evidence                               

                  15.71     Court may call evidence                                                229

                  15.72     Order for examination of witness                                    229

                  15.73     Letters of request                                                         230

                  15.74     Hearsay evidence — notice under section 67 of the Evidence Act 1995            231

                  15.75     Transcript receivable in evidence                                    231

                  15.76     Notice to produce                                                         231

Chapter 16        Trial                                                                                 

Part 16.1              Expedited trials                                                         

                  16.01     Expedited trial                                                              232

Part 16.2              Preparation for trial                                                  

                  16.02     Trial information                                                            234

                  16.03     Notice in relation to evidence                                         234

Part 16.3              Conduct of trial                                                         

                  16.04     Conduct of trial — general                                             236

                  16.05     Trial management                                                         236

                  16.06     Sequence of evidence                                                   237

                  16.07     Opening and closing address                                        237

                  16.08     Attendance, submissions and evidence by electronic communication  238

                  16.09     Foreign evidence by electronic communication                240

                  16.10     Exhibits                                                                       241

                  16.11     Party’s failure to attend                                                 241

                  16.12     Vacating trial date                                                        242

Chapter 16A     Division 12A of Part VII of the Act                           

Part 16A.1            Consent for Division 12A of Part VII of the Act to apply to a case     

                16A.01     Definition                                                                     243

                16A.02     Application of Part 16A.1                                              244

                16A.03     Consent for Division 12A of Part VII of the Act to apply    244

                16A.04     Application for Division 12A of Part VII of the Act to apply for case commenced by application before 1 July 2006                                                                  244

Part 16A.2            Trials of certain cases to which Division 12A of Part VII of the Act applies

                16A.05     Definitions                                                                   245

                16A.06     Application                                                                  245

                16A.07     Questionnaire                                                              246

                16A.08     Subpoenas etc                                                             246

                16A.09     Commencement of trial                                                 247

                16A.10     Parties to be sworn etc                                                 247

Chapter 17        Orders                                                                            

                  17.01     When an order is made                                                 248

                  17.02     Errors in orders                                                            248

                  17.03     Rate of interest                                                            249

                  17.04     Order for payment of money                                          249

                  17.05     Order for payment of fine                                               250

Chapter 18        Powers of Judicial Registrars, Registrars and Deputy Registrars      

Part 18.1              Delegation of powers to Judicial Registrars and Registrars  

Division 18.1.1        General                                                                          

                18.01A     Definitions                                                                   251

                  18.01     Exercise of powers and functions                                   252

Division 18.1.2        Delegation to Judicial Registrars                                   

                  18.02     Delegation of powers to Judicial Registrars                     252

                  18.03     Property value exceeding limit — power to determine case 254

Division 18.1.3        Delegation of powers to Registrars and Deputy Registrars          

                  18.04     Application of Division 18.1.3                                         254

                  18.05     Registrars                                                                    254

                  18.06     Deputy Registrars                                                        258

Part 18.2              Review of decisions                                                

                  18.07     Application of Part 18.2                                                 266

                  18.08     Review of order                                                             266

                  18.09     Stay                                                                            267

                  18.10     Power of court on review                                               267

Chapter 19        Costs                                                                              

Part 19.1              General                                                                        

                  19.01     Application of Chapter 19                                              269

                  19.02     Interest on outstanding costs                                        269

                  19.03     Duty to inform about costs                                            270

                  19.04     Notification of costs                                                      270

Part 19.2              Security for costs                                                     

                  19.05     Application for security for costs                                    273

                  19.06     Order for security for costs                                            274

                  19.07     Finalising security                                                        274

Part 19.3              Costs orders                                                              

                  19.08     Order for costs                                                             275

                  19.09     Costs order for cases in other courts                              275

                  19.10     Costs orders against lawyers                                        276

                  19.11     Notice of costs order                                                    276

Part 19.4              Lawyer and client costs                                          

                  19.12     Costs not to be charged                                                277

                  19.13     Steps before costs recovery                                          277

                  19.14     Costs agreements                                                        278

                  19.15     Notice about costs agreement                                       279

                  19.16     Validity and effect of costs agreement                            279

                  19.17     Setting aside costs agreement                                      279

Part 19.5              Calculation of costs                                                 

                  19.18     Maximum amount chargeable                                        280

                  19.19     Party and party costs                                                   280

Part 19.6              Claiming and disputing costs                               

Division 19.6.1        Itemised costs account                                                   

                  19.20     Request for itemised costs account                               282

                  19.21     Service of lawyer’s itemised costs account                     282

                  19.22     Lawyer’s itemised costs account                                   283

                  19.23     Disputing itemised costs account                                  283

                  19.24     Assessment of disputed costs                                      284

                  19.25     Amendment of itemised costs account and Form 15       284

Division 19.6.2        Assessment process                                                       

                  19.26     Fixing date for first court event                                       285

                  19.27     Notification of hearing                                                   285

                  19.28     Settlement conference                                                  285

                  19.29     Preliminary assessment                                               285

                  19.30     Objection to preliminary assessment amount                  286

                  19.31     If no objection to preliminary assessment                       286

                  19.32     Assessment hearing                                                     286

                  19.33     Powers of Registrars                                                    287

                  19.34     Assessment principles                                                 288

                  19.35     Allowance for matters not specified                                289

                  19.36     Neglect or delay before Registrar                                   290

                  19.37     Costs assessment order — costs account not disputed  290

                  19.38     Setting aside a costs assessment order                         291

Part 19.7              Specific costs matters                                             

                  19.39     Application of Part 19.7                                                 292

                  19.40     Costs in court of summary jurisdiction                            292

                  19.41     Charge for each page                                                    292

                  19.42     Proportion of costs                                                       292

                  19.43     Costs for reading                                                          293

                  19.44     Postage within Australia                                               293

                  19.45     Waiting and travelling time                                            293

                  19.46     Agent’s fees                                                                294

                  19.49     Costs of cases not started together                               294

                  19.50     Certificate as to counsel                                               294

                  19.51     Lawyer as counsel — party and party costs                   294

                  19.52     Lawyer as counsel — assessment of fees                      295

                  19.53     Lawyer as counsel — lawyer and client costs                 295

Part 19.8              Review of assessment                                            

                  19.54     Application for review                                                    297

                  19.55     Time for filing an application for review                            297

                  19.56     Hearing of application                                                   297

Chapter 20        Enforcement of financial orders and obligations 

Part 20.1              General                                                                        

                  20.01     Enforceable obligations                                                 299

                  20.02     When an agreement may be enforced                            300

                  20.03     When a child support liability may be enforced                300

                  20.04     Who may enforce an obligation                                      301

                  20.05     Enforcing an obligation to pay money                             301

                  20.06     Affidavit to be filed for enforcement order                         302

                  20.07     General enforcement powers of court                             303

                  20.08     Enforcement order                                                        303

                  20.09     Discharging, suspending or varying enforcement order     304

Part 20.2              Information for aiding enforcement                     

Division 20.2.1        Processes for aiding enforcement                                  

                  20.10     Processes for obtaining financial information                   305

Division 20.2.2        Enforcement hearings                                                    

                  20.11     Enforcement hearing                                                     305

                  20.12     Obligations of payer                                                      306

                  20.13     Subpoena of witness                                                    307

                  20.14     Failure concerning Financial Statement (Form 13) or enforcement hearing        307

Part 20.3              Enforcement warrants                                            

Division 20.3.1        General                                                                          

                  20.15     Definitions                                                                   308

                  20.16     Request for Enforcement Warrant (Form 16)                   308

                  20.17     Period during which Enforcement Warrant is in force       309

                  20.18     Enforcement officer’s responsibilities                              309

                  20.19     Directions for enforcement                                             310

                  20.20     Effect of Enforcement Warrant                                       311

                  20.21     Advertising before sale                                                  311

                20.21A     Sale of property at reasonable price                               312

                20.21B     Conditions of sale of property                                        313

                  20.22     Result of sale of property under Enforcement Warrant      313

                  20.23     Payee’s responsibilities                                                314

                  20.24     Orders for real property                                                 315

Division 20.3.2        Claims by person affected by an Enforcement Warrant 

                  20.25     Notice of claim                                                             316

                  20.26     Payee to admit or dispute claim                                    316

                  20.27     Admitting claim                                                            316

                  20.28     Denial or no response to claim                                      317

                  20.29     Hearing of application                                                   317

Part 20.4              Third Party Debt Notice                                          

                  20.30     Application of Part 20.4                                                 318

                  20.31     Money deposited in a financial institution                        318

                  20.32     Request for Third Party Debt Notice (Form 17)                318

                  20.33     Service of Third Party Debt Notice (Form 17)                   319

                  20.34     Effect of Third Party Debt Notice — general                    319

                  20.35     Employer’s obligations                                                  320

                  20.36     Duration of Third Party Debt Notice                                320

                  20.37     Response to Third Party Debt Notice                             320

                  20.38     Discharge of Third Party Debt Notice                              321

                  20.39     Claim by affected person                                               321

                  20.40     Cessation of employment                                              321

                  20.41     Compliance with Third Party Debt Notice                        322

Part 20.5              Sequestration of property                                      

                  20.42     Application for sequestration of property                         324

                  20.43     Order for sequestration                                                 324

                  20.44     Order relating to sequestration                                       325

                  20.45     Procedural orders for sequestration                                325

Part 20.6              Receivership                                                              

                  20.46     Application for appointment of receiver                            327

                  20.47     Appointment and powers of receiver                               327

                  20.48     Security                                                                      328

                  20.49     Accounts                                                                     328

                  20.50     Objection to accounts                                                   328

                  20.51     Removal of receiver                                                       329

                  20.52     Compliance with orders and Rules                                 329

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

                  20.53     Application for other enforcement orders                         330

                  20.54     Warrant for possession of real property                          330

                  20.55     Warrant for delivery                                                       331

                  20.56     Warrant for seizure and detention of property                  331

Part 20.8              Other provisions about enforcement                  

                  20.57     Service of order                                                            332

                  20.58     Certificate for payments under maintenance order           332

                  20.59     Enforcement by or against a non‑party                           332

                  20.60     Powers of enforcement officer                                        332

Chapter 21        Enforcement of parenting orders, contravention of orders and contempt   

Part 21.1              Applications for enforcement of orders, contravention of orders and contempt of court                                                     

                  21.01     Application of Part 21.1                                                 335

                  21.02     How to apply for an order                                              336

                  21.03     Application made or continued by Marshal                      338

                  21.04     Contempt in the court room                                           338

                  21.05     Fixing of hearing date                                                   338

                  21.06     Response to an application                                           338

                  21.07     Failure of respondent to attend                                      339

                  21.08     Procedure at hearing                                                    339

Part 21.2              Parenting orders — compliance                           

                  21.09     Duties of program provider                                             340

                  21.10     Relisting for hearing                                                      340

Part 21.3              Location and recovery orders                              

                  21.11     Application of Part 21.3                                                 341

                  21.12     Application for order under Part 21.3                              341

                  21.13     Fixing of hearing date                                                   341

                  21.14     Service of recovery order                                               341

                  21.15     Application for directions for execution of recovery order   342

Part 21.4              Warrants for arrest                                                   

                  21.16     Application for warrant                                                  343

                  21.17     Execution of warrant                                                     343

                  21.18     Duration of warrant                                                       344

                  21.19     Procedure after arrest                                                   344

                  21.20     Application for release or setting aside warrant                345

Chapter 22        Appeals                                                                          

Part 22.1              Introduction                                                               

                  22.01     Application of Chapter 22                                              346

Part 22.2              Starting an appeal                                                    

                  22.02     Starting an appeal                                                        347

                  22.03     Time for appeal                                                            347

                  22.04     Parties to appeal                                                          348

                  22.05     Service                                                                        348

                  22.06     Notice about appeal to other courts                                348

                  22.07     Cross‑appeal                                                               349

                  22.08     Time for cross‑appeal                                                   349

                  22.09     Amendment of Notice of Appeal (Form 20)                      349

                  22.10     Documents filed in a current appeal                               349

                  22.11     Exhibits                                                                       350

                  22.12     Stay                                                                            350

Part 22.3              Appeal to Full Court                                                 

                  22.13     Application of Part 22.3                                                 352

                  22.14     Pre‑argument statement                                               352

                  22.15     Fixing of first court date                                                353

                  22.16     Filing draft index to appeal books                                   353

                  22.17     Attendance on first court date                                        353

                  22.18     Procedure on first court date                                         354

                  22.19     Settlement conference                                                  354

                  22.20     Procedural hearing                                                       354

                  22.21     Appeal books                                                               355

                  22.22     Form of appeal books                                                   355

                  22.23     Transcript of hearing                                                     356

                  22.24     Preparation of appeal books                                          357

                  22.25     Fixing a date for appeal                                                 357

                  22.26     Summary of argument and list of authorities                   358

Part 22.4              Appeal from Federal Magistrates Court or Magistrates Court of Western Australia heard by single Judge                           

                  22.27     Application of Part 22.4                                                 359

                  22.28     Notice of Appeal Registry and referral to Judge               360

                  22.29     Fixing of date for procedural hearing                               360

                  22.30     Attendance at procedural hearing                                   360

                  22.31     Procedural orders for conduct of appeal                          361

                  22.32     Documents for appeal hearing                                       361

                  22.33     Transmission of papers                                                 362

                  22.34     Date fixed for appeal hearing                                         362

Part 22.5              Appeal from court of summary jurisdiction other than Magistrates Court of Western Australia constituted by Family Law Magistrate of Western Australia                                                                                       

                  22.35     Application of Part 22.5                                                 363

                  22.36     Fixing of hearing date                                                   363

                  22.37     Transmission of papers                                                 363

Part 22.6              Powers of appeal courts and conduct of appeal           

                  22.38     Non‑attendance by party                                               364

                  22.39     Attendance by electronic communication                       364

                  22.40     Attendance of party in prison                                         365

                  22.41     Short reasons for decision                                             366

Part 22.7              Applications in relation to appeals                      

Division 22.7.1        How to make an application                                          

                  22.42     Application of Part 22.7                                                 367

                  22.43     Application in relation to appeal                                     367

                  22.44     Hearing date for application                                           368

                  22.45     Decision without an oral hearing                                    368

Division 22.7.2        Application for permission to appeal                             

                  22.46     Time for filing application for permission to appeal           369

                  22.47     Notice to others of appeal                                             370

                  22.48     Orders about conduct of application                               370

Division 22.7.3        Other applications relating to appeals                           

                  22.49     Security for costs                                                         371

                  22.50     Expediting an appeal                                                    371

                  22.51     Further evidence on appeal                                            371

                  22.52     Review of Appeal Registrar’s order                                 372

Part 22.8              Concluding an appeal                                             

                  22.53     Consent orders on appeal                                             373

                  22.54     Discontinuance of appeal                                              373

                  22.56     Abandoning an appeal                                                  373

                  22.57     Application for reinstatement of appeal                           374

                  22.58     Dismissal of appeal for non‑compliance or delay             374

Part 22.10            Case stated                                                                

                  22.60     Application of Part 22.10                                               376

                  22.61     Case stated                                                                 376

                  22.62     Objection to draft case stated                                        377

                  22.63     Settlement and signing                                                 377

                  22.64     Filing of copies of case stated                                       377

                  22.65     Fixing of hearing date                                                   377

                  22.66     Summary of argument and list of authorities                   378

Chapter 23        Registration of documents                                       

Part 23.1              Registration of agreements, orders and child support debts

                  23.01     Registration of agreements                                            379

                  23.02     Registration of debt due to the Commonwealth under child support legislation   380

Part 23.2              Parenting plans                                                         

                  23.03     Requirements for registration of an agreement revoking a registered parenting plan        381

                  23.04     Court may require service or additional information          381

                  23.05     Application may be dealt with in chambers                     382

Chapter 24        Documents, filing, registry                                       

Part 24.1              Requirements for documents                               

                  24.01     General requirements                                                   383

                  24.02     Corporation as a party                                                  384

                  24.03     Change of name of party                                               385

                  24.04     Compliance with forms                                                  385

Part 24.2              Filing documents                                                      

                  24.05     How a document is filed                                                386

                  24.06     Filing a document by facsimile                                      387

                  24.07     Filing by e‑mail and Internet                                          387

                  24.08     Additional copies for filing                                              388

                  24.09     Documents filed during a case                                       389

                  24.10     Refusal to accept document for filing                              389

                  24.11     Filing a notice of payment into court                               389

Part 24.3              Registry records                                                       

                  24.12     Removal of document from registry                                390

                  24.13     Searching court record and copying documents              390

Chapter 25        Applications under the Corporations Act 2001   

                  25.01     Application of Chapter 25                                              391

                  25.02     Application of Corporations Rules                                  391

                  25.03     Modification of Corporations Rules                                 391

                  25.04     Application under Corporations Act 2001                        392

                  25.05     Transfer of case under Corporations Act 2001                 392

                  25.06     Fixing a date for hearing                                                392

Chapter 26        Cases to which the Bankruptcy Act 1966 applies

Part 26.1              Introduction                                                               

                  26.01     Application of Chapter 26                                              393

                  26.02     Expressions used in the Bankruptcy Act                        393

                  26.03     Forms                                                                         394

Part 26.2              General                                                                        

                  26.04     Bankruptcy Application and Bankruptcy Application in a Case            395

                  26.05     Leave to be heard                                                         396

                  26.06     Appearance at application or examination                       396

                  26.07     Opposition to Bankruptcy Application or a Bankruptcy Application in a Case    397

Part 26.3              Examinations                                                             

Division 26.3.1        Interpretation                                                                 

                  26.08     Definition for Part 26.3                                                  398

Division 26.3.2        Examination of relevant person                                     

                  26.09     Application for summons (Bankruptcy Act s 81)              398

                  26.10     Hearing of application                                                   398

                  26.11     Requirements of summons                                            398

                  26.12     Service of summons                                                     398

                  26.13     Failure to attend examination                                        398

                  26.14     Application for discharge of summons                            398

Division 26.3.3        Examination of examinable person                               

                  26.15     Application for summons (Bankruptcy Act s 81)              398

                  26.16     Hearing of application                                                   398

                  26.17     Requirements of summons                                            398

                  26.18     Service of summons                                                     398

                  26.19     Application for discharge of summons                            398

                  26.20     Conduct money and witnesses expenses                       398

Part 26.4              Annulment of bankruptcy                                      

                  26.21     Application of Part 26.4                                                 398

                  26.22     Requirements of application                                          398

                  26.23     Notice to creditors                                                        398

                  26.24     Report by trustee                                                         398

                  26.25     Service of annulment order                                            398

Part 26.5              Trustees                                                                      

                  26.26     Objection to appointment of trustee (Bankruptcy Act s 157 (6))           398

                  26.27     Resignation or release of trustee (Bankruptcy Act ss 180 and 183)      398

Part 26.6              Warrants                                                                     

                  26.28     Arrest of bankrupt (Bankruptcy Act s 78)                        398

                  26.29     Apprehension of person failing to attend Court (Bankruptcy Act s 264B (1))      398

Part 26.7              Costs                                                                           

                  26.30     Order for costs                                                             398

                  26.31     Application of Order 62 of Federal Court Rules                398

Schedule 1             Pre‑action procedures                                               398

Part 1                      Financial cases (property settlement and maintenance)   398

Part 2                      Parenting cases                                                           398

 

 


Chapter 1    Introduction

Summary of Chapter 1

Chapter 1 sets out the rules relating to:

·   the main purpose of these Rules, and the obligations of parties, lawyers and the court;

·   the court’s general powers that are to apply in all cases; and

·   other preliminary matters, including sittings, definitions, calculation of time and publication.

These Rules are not, and should not be read as if they were, a complete code of the court’s powers. Other powers are found in the provisions of various Acts, the court’s inherent jurisdiction and the common law.

The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.

A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.

Part 1.1              Preliminary

  

1.01        Name of Rules

                These Rules are the Family Law Rules 2004.

1.02        Commencement

                These Rules commence on 29 March 2004.

Note   The Family Law Rules 1984 (the old Rules), as in force under the Family Law Act 1975 immediately before the commencement of these Rules (the new Rules), are repealed — see the Family Law Repeal Rules 2004. The new Rules apply to a case that was commenced in accordance with the old Rules and not determined before the repeal of those Rules — see rule 4 of the Family Law Repeal Rules 2004.

1.03        Rules in Chapter 1 prevail

         (1)   Chapter 1 sets out the general rules that the court may apply in all cases.

         (2)   If a rule in another Chapter conflicts with a rule in Chapter 1 of these Rules, the rule in Chapter 1 applies.

Part 1.2              Main purpose of Rules

  

1.04        Main purpose of Rules

                The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.

Note   Section 43 of the Act sets out the principles that the court must apply when exercising its jurisdiction under the Act.

1.05        Pre‑action procedure

         (1)   Before starting a case, each prospective party to the case must comply with the pre‑action procedures, the text of which is set out in Schedule 1, including attempting to resolve the dispute using dispute resolution methods.

         (2)   Compliance with subrule (1) is not necessary if:

                (a)    for a parenting case — the case involves allegations of child abuse or family violence;

               (b)    for a property case — the case involves allegations of family violence or fraud;

                (c)    the application is urgent;

               (d)    the applicant would be unduly prejudiced;

                (e)    there has been a previous application in the same cause of action in the 12 months immediately before the start of the case;

                (f)    the case is an application for divorce;

                (g)    the case is a child support application or appeal; or

                (h)    the case involves a court’s jurisdiction in bankruptcy under section 35 or 35B of the Bankruptcy Act.

Note 1   The court publishes a brochure setting out the pre‑action procedures for financial cases and parenting cases.

Note 2   The court may take into account a party’s failure to comply with a pre‑action procedure when considering whether to order costs (see paragraph 1.10 (2) (d)).

Note 3   Subsections 60I (2) and (12) of the Act require that a party comply with rule 1.05 and Part 2 of Schedule 1 of these Rules before an application is made for a parenting order.

1.06        Promoting the main purpose

                The court must apply these Rules to promote the main purpose, and actively manage each case by:

                (a)    encouraging and helping parties to consider and use a dispute resolution method rather than having the case resolved by trial;

               (b)    having regard to unresolved risks or other concerns about the welfare of a child involved;

                (c)    identifying the issues in dispute early in the case and separating and disposing of any issues that do not need full investigation and trial;

               (d)    at an early stage, identifying and matching types of cases to the most appropriate case management procedure;

                (e)    setting realistic timetables, and monitoring and controlling the progress of each case;

                (f)    ensuring that parties and their lawyers comply with these Rules, any practice directions and procedural orders;

                (g)    considering whether the likely benefits of taking a step justify the cost of that step;

                (h)    dealing with as many aspects of the case as possible on the same occasion;

                 (i)    minimising the need for parties and their lawyers to attend court by, if appropriate, relying on documents; and

                (j)    having regard to any barriers to a party’s understanding of anything relevant to the case.

1.07        Achieving the main purpose

                To achieve the main purpose, the court applies these Rules in a way that:

                (a)    deals with each case fairly, justly and in a timely manner;

               (b)    encourages parties to negotiate a settlement, if appropriate;

                (c)    is proportionate to the issues in a case and their complexity, and the likely costs of the case;

               (d)    promotes the saving of costs;

                (e)    gives an appropriate share of the court’s resources to a case, taking into account the needs of other cases; and

                (f)    promotes family relationships after resolution of the dispute, where possible.

1.08        Responsibility of parties and lawyers in achieving the main purpose

         (1)   Each party has a responsibility to promote and achieve the main purpose, including:

                (a)    ensuring that any orders sought are reasonable in the circumstances of the case and that the court has the power to make those orders;

               (b)    complying with the duty of disclosure (see rule 13.01);

                (c)    ensuring readiness for court events;

               (d)    providing realistic estimates of the length of hearings or trials;

                (e)    complying with time limits;

                (f)    giving notice, as soon as practicable, of an intention to apply for an adjournment or cancellation of a court event;

                (g)    assisting the just, timely and cost‑effective disposal of cases;

                (h)    identifying the issues genuinely in dispute in a case;

                 (i)    being satisfied that there is a reasonable basis for alleging, denying or not admitting a fact;

                (j)    limiting evidence, including cross‑examination, to that which is relevant and necessary;

               (k)    being aware of, and abiding by, the requirements of any practice direction or guideline published by the court; and

                 (l)    complying with these Rules and any orders.

         (2)   A lawyer for a party has a responsibility to comply, as far as possible, with subrule (1).

Note   The court recognises that a lawyer acts on a party’s instructions and may be unable to establish whether those instructions are correct.

         (3)   A lawyer attending a court event for a party must:

                (a)    be familiar with the case; and

               (b)    be authorised to deal with any issue likely to arise.

Note   The court may take into account a failure to comply with this rule when considering costs (see subrule 19.10 (1)).

Part 1.3              Court’s powers in all cases

  

1.09        Procedural orders in cases of doubt or difficulty

                If the court is satisfied that:

                (a)    a legislative provision does not provide a practice or procedure; or

               (b)    a difficulty arises, or doubt exists, in relation to a matter of practice or procedure;

it may make such orders as it considers necessary.

1.10        Court may make orders

         (1)   Unless a legislative provision states otherwise, the court may make an order, on application or on its own initiative, in relation to any matter mentioned in these Rules.

         (2)   When making an order, the court may:

                (a)    impose terms and conditions;

               (b)    make a consequential order;

                (c)    specify the consequence of failure to comply with the order; and

               (d)    take into account whether a party has complied with a pre‑action procedure.

1.11        Court may set aside or vary order

                The court may set aside or vary an order made in the exercise of a power under these Rules.

1.12        Court may dispense with Rules

         (1)   These Rules apply unless the court, on application or its own initiative, orders otherwise.

         (2)   The court may dispense with compliance with any of these Rules at any time, before or after the occasion for compliance arises.

         (3)   In considering whether to make an order under this rule, the court may consider:

                (a)    the main purpose of these Rules (see rule 1.04);

               (b)    the administration of justice;

                (c)    whether the application has been promptly made;

               (d)    whether non‑compliance was intentional; and

                (e)    the effect that granting relief would have on each party and parties to other cases in the court.

1.13        Judicial officer hearing application

                Unless a legislative provision states otherwise, if:

                (a)    these Rules provide that an application or appeal is to be heard by a particular judicial officer or particular class of judicial officer; and

               (b)    such a person is unavailable;

the application or appeal may be listed before another judicial officer who has jurisdiction to hear the application or appeal.

1.14        Shortening or extension of time

         (1)   A party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order.

         (2)   A party may make an application under subrule (1) for an order extending a time to be made even though the time fixed by the rule or order has passed.

         (3)   A party who makes an application under subrule (1) for an extension of time may be ordered to pay any other party’s costs in relation to the application.

1.15        Time for compliance

                If a rule or order requires a person to take an action but does not specify a time by which the action is to be taken, the person must take the action as soon as practicable.

Part 1.4              Other preliminary matters

  

1.16        Definitions — the dictionary

         (1)   The dictionary at the end of these Rules defines and explains certain words and expressions.

         (2)   Within a definition, the defined term is identified by bold italics.

         (3)   The dictionary is part of these Rules.

         (4)   A definition of a word or expression in the dictionary applies to each use of the word or expression in these Rules, unless the context does not permit.

1.17        Notes, examples etc

         (1)   The following are explanatory only and are not part of these Rules:

                (a)    chapter summaries;

               (b)    examples;

                (c)    flow charts;

               (d)    notes.

         (2)   The explanatory guide at the end of these Rules is not part of these Rules and is not to be used in interpreting these Rules.

Note 1   See section 13 and paragraph 15AB (2) (a) of the Acts Interpretation Act 1901.

Note 2   In interpreting these Rules:

Specific prevails over the general

In these Rules, if there is a conflict between a general rule and a specific rule, the specific rule prevails.

Use of ‘and’ and ‘or’ between paragraphs etc

A series of paragraphs may be joined by the word and or or, which will appear between the last 2 paragraphs only. The series is to be read as if the same word appears between each paragraph in the series — for example:

(1)     This is:

           (a) a paragraph;

           (b) another paragraph; and

           (c) yet another paragraph.

and

(2)     This is:

           (a) a paragraph;

           (b) another paragraph; or

           (c) yet another paragraph.

If the paragraphs are to be read as a list, the words and or or are not used — for example:

(3)     A provision may include the following:

           (a) a paragraph;

           (b) another paragraph;

           (c) yet another paragraph.

1.18        Sittings

                The Family Court of Australia must sit at the times and places the Chief Justice directs.

1.19        Permission to record court event

                A person must not photograph, or record by electronic or mechanical means, any court event.

Note   Section 121 of the Act restricts publication of information relating to cases.

1.20        Publishing lists of cases

         (1)   A list of cases to be heard in the court prepared by a Registry Manager may be:

                (a)    published in the law list in a newspaper; and

               (b)    made available to members of the legal profession and their employees.

Note   See subsection 121 (2) of the Act.

         (2)   The list may contain:

                (a)    subject to subrule (3), the family name of a party, but not a given name;

               (b)    the file number of a case;

                (c)    the name of the judicial officer for a hearing or trial;

               (d)    the time and place where a named judicial officer will sit; and

                (e)    the general nature of an application.

         (3)   For a case in which a court has jurisdiction in bankruptcy under section 35 or 35B of the Bankruptcy Act, the list may contain the given name of a party.

1.21        Calculating time

         (1)   Time in a case runs during a period when the filing registry is closed.

         (2)   If:

                (a)    the period allowed by these Rules or an order for an action to be validly taken is 5 days or less; and

               (b)    the period includes a day when the filing registry is closed;

that day is not counted.

         (3)   For the calculation of time of one day or more from a particular day, or from the occurrence of a particular event, the particular day, or the day when the event occurs, is not counted.

         (4)   If the last day for taking an action requiring attendance at a filing registry is on a day when the filing registry is closed, the action may be taken on the next day when the filing registry is open.

         (5)   Subsection 36 (2) of the Acts Interpretation Act 1901 does not apply to these Rules.


Chapter 2    Starting a case

Summary of Chapter 2

Chapter 2 sets out rules about:

·   the form of application you must file to start a case in a court;

·   the documents you must file with an application; and

·   the brochures that must be served in a case.

Before starting a case, you must comply with the court’s pre‑action procedures (see subrule 1.05 (1) and Schedule 1).

The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.

A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.

Part 2.1              Applications

  

2.01        Which application to file

                A person starting a case must file an application as set out in Table 2.1.

Table 2.1   Applications

 

Item

Kind of application

Application form to be filed

1

Application for Final Orders (other than a consent order or a divorce), for example:

     ·  property settlement

     ·  parenting

     ·  maintenance

     ·  child support

     ·  medical procedures

Application for Final Orders (Form 1)

 

     ·  nullity

     ·  declaration as to validity of marriage, divorce or annulment

     ·  order relating to passport (see Division 4.2.7)

 

2

Interim order in a case

Application in a Case (Form 2)

3

Procedural, ancillary or other incidental order relating to an order, application or appeal

Application in a Case (Form 2)

4

Enforcement of a financial obligation or parenting order

Application in a Case (Form 2)

5

Review of an order of a Registrar or Judicial Registrar

Application in a Case (Form 2)

6

Divorce

Application for Divorce (Form 3)

7

Consent order when there is no current case

Application for Consent Orders (Form 11)

8

Contravention of an order under Division 13A of Part VII of the Act affecting children, for example, a breach of a contact order

Application — Contravention (Form 18)

9

Contravention of an order under Part XIIIA of the Act not affecting children, for example, a breach of a property order

Application — Contravention (Form 18)

10

Failure to comply with a bond entered into in accordance with the Act

Application — Contravention (Form 18)

11

Contempt of court

Application — Contempt (Form 19)

Note 1   If a party seeks interim orders as well as final orders, the party may file a Form 2 at the same time as a Form 1.

Note 2   A respondent seeking orders in another cause of action may make an application in Form 1A (see paragraph 9.01 (3) (c)).

Note 3   For further information about:

(a)   a divorce application, see Chapter 3;

(b)   starting a case for final orders other than a divorce, see Chapter 4;

(c)   making an Application in a Case, see Chapter 5;

(d)   an application for a consent order, see Chapter 10;

(e)   an application for contempt, enforcement or contravention, see Chapters 20 and 21; and

(f)    an application relating to the failure of a party to comply with a bond, see Chapter 21;

(g)   an appeal or an application relating to an appeal, see Chapter 22; and

(h)   an application relating to a bankruptcy case, see Chapter 26.

Note 4   An application seeking orders under the Act may not be filed in a court of a Territory unless the applicant or respondent ordinarily resides in the Territory at the time the application is filed (see subsection 39 (8) and section 69K of the Act).

2.02        Documents to be filed with applications

         (1)   A person must file with an application mentioned in an item of Table 2.2, the document mentioned in the item if the document has not already been filed.

Table 2.2   Documents to be filed with applications

 

Item

Application

Documents to be filed with application

1

Application for Final Orders (Form 1)

the marriage certificate or divorce or nullity order

2

Form 1, in which parenting orders are sought between parties who have never been married to each other

the child’s birth certificate

3

Form 1, or Response (Form 1A), in which financial orders are sought, for example, property settlement, maintenance, child support

   (a)  for Form 1 only — one of the documents mentioned in this column in item 1 or 2;

   (b)  a completed Form 13 (see rule 13.05)

4

Form 1 or Form 1A in which property settlement orders are sought, and Reply (Form 1B) responding to Form 1A in which property settlement orders are sought as a new cause of action

   (a)  the documents mentioned in this column in item 3;

   (b)  a completed superannuation information form (attached to the Form 13) for a superannuation interest of the party filing the Form 1, 1A or 1B

5

Form 1 or Form 1A relying on a cross‑vesting law, or seeking an order under Part 4.2:

     ·  for a medical procedure;

     ·  for step‑parent maintenance, if there is consent or the application is unopposed;

     ·  for nullity of marriage;

     ·  for a declaration as to validity of a marriage or divorce or annulment; or

     ·  relating to a passport

   (a)  for Form 1 only — one of the documents mentioned in this column in item 1 or 2;

   (b)  an affidavit (see rules 4.06, 4.09, 4.16, 4.29 and 4.30)

6

Form 1 or Form 1A in which a child support application or appeal is made

   (a)  for Form 1 only — one of the documents mentioned in this column in item 1 or 2;

   (b)  the documents mentioned in rule 4.19 for the application

7

Application in a Case (Form 2) other than an application seeking review of a decision by a Registrar or Judicial Registrar

   (a)  an affidavit (see rule 5.02);

   (b)  for a Form 2 permitted by subrule 5.04 (3) — one of the documents mentioned in this column in item 1 or 2

8

Application for Divorce (Form 3)

the marriage certificate

9

Application for Consent Orders (Form 11)

   (a)  one of the documents mentioned in this column in item 1 or 2;

   (b)  for a Form 11 in which orders are sought in relation to a superannuation interest (see rule 10.16) — a completed superannuation information form for the superannuation interest

10

Application — Contravention (Form 18)

an affidavit (see subrules 21.02 (2) and (3))

11

Application — Contempt (Form 19)

an affidavit (see subrule 21.02 (2))

         (2)   If an applicant is required to file a document mentioned in item 1, 2 or 8 of Table 2.2, the applicant may file an image, photocopy or certified copy of the document.

         (3)   If an applicant is unable to file a document mentioned in item 1, 2 or 8 of Table 2.2, the applicant must file:

                (a)    an affidavit setting out the reasons why the document was not filed; or

               (b)    a written notice containing an undertaking to file the document within the time specified in the notice.

         (4)   If a document mentioned in Table 2.2 is not in English, the person filing the document must file:

                (a)    a translation of the document, in English; and

               (b)    an affidavit, by the person who made the translation, verifying the translation and setting out the person’s qualifications to make the translation.

Note 1   A party must not file an affidavit with an Application for Final Orders (Form 1) unless permitted to do so by Chapter 4 or an order (see rules 1.12 and 4.02).

Note 2   A document that is filed must be served (see rules 7.03 and 7.04).

Note 3   For information about filing documents, see Chapter 24.

Part 2.2              Brochures

  

2.03        Service of brochures

                A person who files an Application for Final Orders (Form 1) or an Application for Divorce (Form 3) must, when serving the application on the respondent, also serve a brochure prepared by the court for section 12F of the Act.

Note   In addition to the requirements of this rule, an applicant who has filed a Maintenance Application, child support application or appeal, or an Application for an Enforcement Hearing must serve the relevant brochure on the respondent (see rule 4.13 and subrules 4.23 (2) and 20.11 (3)).

Part 2.3              Notification in certain cases

  

Division 2.3.1        Cases involving allegation of abuse or family violence in relation to a child

2.04        Definition

                In this Division:

allegation of abuse or family violence means an allegation:

                (a)    that a child has been abused or that there is a risk of a child being abused; or

               (b)    that there has been family violence involving a child or a member of the child’s family or that there is a risk of family violence involving a child or a member of the child’s family.

Part VII order has the same meaning as in subsection 60I (1) of the Act.

2.04A      Application of Division 2.3.1

                This Division applies to a case if an application is made to a court for a Part VII order in relation to a child in the case.

2.04B     Filing and service

         (1)   In a case to which this Division applies, if any of the following persons makes an allegation of abuse or family violence the person must file a Notice of Child Abuse or Family Violence (Form 4):

                (a)    a party in the case;

               (b)    an independent children’s lawyer in the case;

                (c)    a person seeking to intervene in the case.

         (2)   A person who files a Form 4 must file an affidavit or affidavits setting out the evidence on which the allegations in the Form 4 are based, no later than the time the Form 4 is filed.

Note   The requirements for service of filed documents are set out in rule 7.04. For service of a notice filed in a case to which section 67Z of the Act applies, subsection 67Z (2) specifically requires that a person alleged in the notice to have abused a child in the case, or to be a person from whom a child in the case is at risk of being abused, must be served with a copy of the notice.

2.04C     Listing case

                If a Form 4 has been filed in a case, a Registrar may list the case for hearing or procedural hearing.

2.04D     Prescribed document and prescribed form

                A Notice of Child Abuse or Family Violence (Form 4) is:

                (a)    the document prescribed for the purposes of paragraph 60K (1) (d) of the Act; and

               (b)    the prescribed form for the purposes of a notice mentioned in subsection 67Z (2) of the Act.

2.05        Family violence order

         (1)   A party must file a copy of any family violence order affecting the parties or a child of the parties:

                (a)    when a case starts; or

               (b)    as soon as practicable after the order is made.

         (2)   If a copy of the family violence order is not available, the party must file a written notice containing:

                (a)    an undertaking to file the order within a specified time;

               (b)    the date of the order;

                (c)    the court that made the order; and

               (d)    the details of the order.

Division 2.3.2        Property settlement or spousal maintenance cases

2.06        Notification of proceeds of crime order or forfeiture application (Act ss 79B and 90M)

                If a party to a property settlement or spousal maintenance case is required to give the Registry Manager written notice under subsection 79B (3) or 90M (3) of the Act of a proceeds of crime order or forfeiture application, the party must:

                (a)    attach to the notice a sealed copy of the proceeds of crime order or forfeiture application, if not already filed; and

               (b)    file the notice as soon as possible after the party is notified by the Director of Public Prosecutions under paragraph 79B (3) (b) or 90M (3) (b) of the Act.

2.07        Proceeds of crime

         (1)   If the Director of Public Prosecutions applies under section 79C or 90N of the Act to stay a property settlement or spousal maintenance case, the Director must, at the same time, file a sealed copy of the proceeds of crime order or forfeiture application covering the property of the parties to the marriage or either of them, if not already filed.

         (2)   An application under section 79D or 90P of the Act to lift a stay of a property settlement or spousal maintenance case must have filed with it:

                (a)    proof that the proceeds of crime order has ceased to be in force or that the forfeiture application has been finally determined; and

               (b)    if made by a party, the written consent of the Director of Public Prosecutions under section 79D or 90P of the Act.

Note   A party seeking a stay of a case or an order lifting a stay under this rule must file an Application in a Case (Form 2) (see Chapter 5).


Chapter 3    Divorce

 Summary of Chapter 3

Chapter 3 sets out the procedure for obtaining a divorce. You may also need to refer to other Chapters in these Rules, particularly Chapters 7 and 24, when applying for a divorce.

The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.

A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.


Part 3.1              Application for Divorce

  

3.01        Fixing of hearing date

         (1)   On the filing of an Application for Divorce (Form 3), the Registry Manager must fix a date for the hearing of the application.

         (2)   The date fixed must be:

                (a)    for a joint application — at least 28 days after the application is filed; or

               (b)    for any other application:

                          (i)    if the respondent is in Australia — at least 42 days after the application is filed; or

                         (ii)    if the respondent is outside Australia — at least 56 days after the application is filed.

Note 1   A Form 3 (other than a joint application) must be served on the respondent (see rule 7.03).

Note 2   When a Form 3 is served, the respondent must also be given a brochure approved by the Principal Registrar (see rule 2.03).

3.02        Amendment of Form 3

                An applicant may amend a Form 3:

                (a)    within 14 days before the hearing; or

               (b)    within any shorter time permitted by the court or consented to by the respondent.

3.03        Discontinuance of Form 3

                An applicant may discontinue an Application for Divorce (Form 3) by filing and serving a Notice of Discontinuance (Form 10) at least 7 days before the date fixed for the hearing.

Note   The court may, at the hearing, give permission for an Application for Divorce (Form 3) to be discontinued.

Part 3.2              Response

  

3.04        Response

         (1)   A respondent to an Application for Divorce (Form 3) who seeks to oppose the divorce or contest the jurisdiction of the court must file a Response to an Application for Divorce (Form 3A):

                (a)    if the respondent is served in Australia — within 28 days after the day when the Form 3 is served on the respondent; or

               (b)    if the respondent is served outside Australia — within 42 days after the day when the Form 3 is served on the respondent.

         (2)   If a respondent files a Form 3A:

                (a)    the hearing must proceed in open court; and

               (b)    each party must attend or be represented by a lawyer.

Note   A document that is filed must be served (see rules 7.03 and 7.04).

3.05        Objection to jurisdiction

         (1)   If, in a Form 3A, a respondent objects to the jurisdiction of the court, the respondent will not be taken to have submitted to the jurisdiction of the court by also seeking an order that the application be dismissed on another ground.

         (2)   The objection to the jurisdiction must be determined before any other orders sought in the Form 3A.

3.06        Response out of time

                If a respondent files a Form 3A after the time allowed under subrule 3.04 (1):

                (a)    the applicant may consent to the late filing; or

               (b)    if the applicant does not consent, the court may continue the case as if the response had not been filed.

Note   The respondent may apply to the court for permission to file a Form 3A after the time allowed by rule 3.04 (see rule 1.14).

3.07        Affidavit to reply to information in Form 3

                A respondent to a Form 3 who disputes any of the facts set out in the application, but does not oppose the divorce, may, at least 7 days before the date fixed for the hearing of the application, file and serve an affidavit setting out the facts in dispute.

Part 3.3              Attendance at hearing

  

3.08        Attendance at hearing

         (1)   A party may apply under rule 5.06 to attend the hearing of an Application for Divorce (Form 3) by electronic communication.

         (2)   Subject to Part 3.4:

                (a)    if the applicant fails to attend the hearing in person or by a lawyer, the application may be dismissed; and

               (b)    if the respondent fails to attend the hearing in person or by a lawyer, the applicant may proceed with the hearing as if the application were undefended.

Part 3.4              Hearing in absence of parties

  

3.09        Seeking a hearing in absence of parties

                If, in an Application for Divorce (Form 3) (other than a case started by a joint Application):

                (a)    no Response (Form 3A) has been filed;

               (b)    at the date fixed for the hearing, there are no children of the marriage within the meaning of subsection 98A (3) of the Act;

                (c)    the applicant has requested that the case be heard in the absence of the parties; and

               (d)    the respondent has not requested the court not to hear the case in the absence of the parties;

the court may determine the case in the absence of the parties.

3.10        Hearing in absence of parties — joint application

                If, in a joint Application for Divorce (Form 3), the applicants request that the case be heard in their absence, the court may so determine the case.

Note   The court must not determine the Application in the absence of the parties if there are any children of the marriage who are under 18 and the court is not satisfied that proper arrangements have been made for their care, welfare and development (see subsection 98A (2A) of the Act).

3.11        Request not to hear case in parties’ absence

                A respondent to a Form 3 who objects to the case being heard in the absence of the parties must, at least 7 days before the date fixed for the hearing, file and serve a written notice to that effect.

Note 1   If a respondent seeks that a case not be heard in the absence of the parties, the court must not determine the case in the absence of the parties (see subsection 98A (1) of the Act).

Note 2   A notice under this rule must comply with subrule 24.01 (1).

Part 3.5              Events affecting divorce order

  

3.12        Application for rescission of divorce order

                A party may, before a divorce order nisi becomes absolute, apply for the order to be rescinded by filing an Application in a Case (Form 2).

Note 1   Sections 57 and 58 of the Act set out the circumstances in which the court may rescind a divorce order nisi.

Note 2   A party filing a Form 2 must file an affidavit (see rule 5.02).

3.13        Death of party

                If a party to an Application for Divorce (Form 3) dies after the divorce order nisi is made but before the order becomes absolute, the surviving party must inform the Registry Manager of the death of the other party by filing:

                (a)    the death certificate of the deceased party; or

               (b)    an affidavit stating the details of the deceased party’s date and place of death.


Chapter 4    Application for Final Orders

  

  

Summary of Chapter 4

Chapter 4 sets out rules about:

·   the general procedure for starting a case by a Form 1 seeking final orders, for example, an Application for Property Settlement or Parenting Orders; and

·   the procedure for starting specific applications such as an Application relying on cross‑vesting laws, for a medical procedure, maintenance, child support or a declaration as to validity of a marriage.

Before starting a case, you must comply with the court’s pre‑action procedures (see subrule 1.05 (1) and Schedule 1).

You may also need to refer to other Chapters in these Rules when making an application, in particular, Chapters 6, 7 and 24. The flow chart at the beginning of Chapter 12 sets out the procedure that applies to an Application for Final Orders, other than applications mentioned in Part 4.2.

Note   This Chapter does not apply to:

(a)   an Application for Divorce (see Chapter 3);

(b)   an Application for an Interim or Procedural Order or other incidental order relating to an Application for Final Orders (see Chapter 5);

(c)   an Application for Review of a Judicial Registrar’s or a Registrar’s Order (see Chapter 18);

(d)   an Application to enforce an obligation to pay money (see Chapter 20);

(e)   an Application resulting from a contravention of an order or in relation to contempt (see Chapter 21);

(f)    an Application relating to an appeal (see Chapter 22); or

(g)   an appeal (see Chapter 22).

The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.

A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.


Part 4.1              Introduction

  

4.01        Contents of Application for Final Orders (Form 1)

         (1)   In an Application for Final Orders (Form 1), the applicant must:

                (a)    give full particulars of the orders sought; and

               (b)    include all causes of action that can be disposed of conveniently in the same case.

Note   Under paragraph 1.08 (1) (a), any orders sought must be reasonable in the circumstances of the case and within the power of the court.

         (2)   A party seeking any of the following must not include any other cause of action in the Application:

                (a)    an order that a marriage be annulled;

               (b)    a declaration as to the validity of a marriage, divorce or annulment;

                (c)    an order authorising a medical procedure under Division 4.2.3.

Note   An application for an order mentioned in subrule (2) may only be made in a Form 1 and must not be made in a Form 1A (see subrule 9.01 (4)).

         (3)   Despite subrule (2), a party may seek the following orders in the same Application:

                (a)    an order that a marriage be annulled;

               (b)    a declaration as to the validity of a marriage, divorce or annulment.

Note   For amendment of an application, see Division 11.2.2.

4.02        Filing affidavits

                A party must not file an affidavit with a Form 1 unless permitted or required to do so by this Chapter or rule 2.02.

Example

A party seeking property settlement or parenting orders must not file an affidavit with a Form 1.

4.03        First court date

                On the filing of a Form 1, the Registry Manager must fix a date:

                (a)    for a case assessment conference or procedural hearing that is as near as practicable to 28 days after the application was filed; or

               (b)    if an earlier date is fixed for the hearing of an Application in a Case (Form 2) filed with the Form 1 — for a procedural hearing on the same day.

Note   Under subrule 5.05 (4), a Registrar may, in exceptional circumstances, allow a Form 2 to be listed for urgent hearing. Chapter 12 sets out the requirements for case assessment conferences and procedural hearings.

Part 4.2              Specific applications

Division 4.2.1        General

4.04        General provisions still apply

                If a rule in this Part specifies particular requirements for an application, those requirements are in addition to the general requirements for an Application for Final Orders (Form 1).

4.05        Application by Attorney‑General for transfer of case

                If the Attorney‑General of the Commonwealth, or of a State or Territory, applies for the transfer of a case under Division 4.2.2 (Cross‑vesting) or Chapter 25 (Corporations Act 2001), the Attorney‑General does not, by that application, automatically become a party to the case.

Division 4.2.2        Cross‑vesting

4.06        Cross‑vesting matters

         (1)   If a party filing an Application for Final Orders (Form 1) or a Response to Application for Final Orders (Form 1A) relies on a cross‑vesting law, the party must specify, in the Form, the particular State or Territory law on which the party relies.

         (2)   A party relying on a cross‑vesting law after a case has started must file an Application in a Case (Form 2) seeking procedural orders in relation to the matter.

         (3)   A party to whom subrule (1) or (2) applies must also file an affidavit stating:

                (a)    that the claim is based on the State or Territory law and the reasons why the Family Court should deal with the claim;

               (b)    the rules of evidence and procedure (other than those of the relevant Family Court) on which the party relies; and

                (c)    if the case involves a special federal matter — the grounds for claiming the matter involves a special federal matter.

4.07        Transfer of case

                A party to a case to which rule 4.06 applies may apply to have the case transferred to another court by filing a Form 2.

Note   An application under this rule must be listed for hearing by a Judge.

Division 4.2.3        Medical procedure

4.08        Application for medical procedure

         (1)   Any of the following persons may make a Medical Procedure Application in relation to a child:

                (a)    a parent of the child;

               (b)    a person who has a parenting order in relation to the child;

                (c)    the child;

               (d)    the independent children’s lawyer;

                (e)    any other person concerned with the care, welfare and development of the child.

         (2)   If a person mentioned in paragraph (1) (a) or (b) is not an applicant, the person must be named as a respondent to the application.

Note 1   Section 65C of the Act sets out who may apply for a parenting order.

Note 2   Chapter 2 provides for a Form 1 to be used to make an Application for Final Orders and the documents to be filed with that application.

4.09        Evidence supporting application

         (1)   If a Medical Procedure Application is filed, evidence must be given to satisfy the court that the proposed medical procedure is in the best interests of the child.

         (2)   The evidence must include evidence from a medical, psychological or other relevant expert witness that establishes the following:

                (a)    the exact nature and purpose of the proposed medical procedure;

               (b)    the particular condition of the child for which the procedure is required;

                (c)    the likely long‑term physical, social and psychological effects on the child:

                          (i)    if the procedure is carried out; and

                         (ii)    if the procedure is not carried out;

               (d)    the nature and degree of any risk to the child from the procedure;

                (e)    if alternative and less invasive treatment is available — the reason the procedure is recommended instead of the alternative treatments;

                (f)    that the procedure is necessary for the welfare of the child;

                (g)    if the child is capable of making an informed decision about the procedure — whether the child agrees to the procedure;

                (h)    if the child is incapable of making an informed decision about the procedure — that the child:

                          (i)    is currently incapable of making an informed decision; and

                         (ii)    is unlikely to develop sufficiently to be able to make an informed decision within the time in which the procedure should be carried out, or within the foreseeable future;

                 (i)    whether the child’s parents or carer agree to the procedure.

         (3)   The evidence may be given:

                (a)    in the form of an affidavit; or

               (b)    with the court’s permission, orally.

4.10        Service of application

                The persons on whom a Medical Procedure Application and any document filed with it must be served include the prescribed child welfare authority.

Note   For service of an Application for Final Orders (Form 1), see rules 7.03 and 7.04.

4.11        Fixing of hearing date

         (1)   On the filing of a Medical Procedure Application, the Registry Manager must fix a date for a hearing before a Judge of a Family Court.

         (2)   The date fixed must be:

                (a)    as soon as possible after the date of filing; and

               (b)    if practicable, within 14 days after the date of filing.

Note   Under subrule 9.08 (1), a Response to an Application (Form 1A) must be filed at least 7 days before the date fixed for the hearing of the application.

4.12        Procedure on first court date

                On the first court date for a Medical Procedure Application, the court must:

                (a)    make procedural orders for the conduct of the case and adjourn the case to a fixed date of hearing; or

               (b)    hear and determine the application.

Division 4.2.4        Maintenance

4.13        Information to respondent

                An applicant in a Maintenance Application must serve with the application a brochure called Maintenance Applications, approved by the Principal Registrar.

Note 1   Chapter 2 provides for a Form 1 to be used to make an Application for Final Orders and the documents to be filed with that application.

Note 2   The brochure required to be served under this rule is in addition to the brochure required to be served under rule 2.03.

4.14        Procedure on first court date

         (1)   On the first court date for a Maintenance Application, the Registrar must, if practicable, conduct a case assessment conference.

         (2)   If the case is not resolved at the case assessment conference, the Registrar may make orders for the conduct of the case, including the exchange of affidavits between the parties and the listing of the case for hearing.

4.15        Evidence to be provided

                Each party to a Maintenance Application must bring the following documents to the court on the first court date and the hearing date:

                (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 Maintenance 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 13.04.

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

4.16        Application for step‑parent to maintain

         (1)   This rule applies to an application for a child maintenance order (including an order under section 66M of the Act) if:

                (a)    the parties are the parent and step‑parent of the child or children to whom the application relates; and

               (b)    the respondent consents to, or does not oppose, the order sought.

         (2)   The applicant must:

                (a)    file with the application and Financial Statement (Form 13), an affidavit setting out the facts relied on in support of the application, including:

                          (i)    whether the parties are separated;

                         (ii)    the financial circumstances of the parties;

                         (iii)    the reason for seeking the order; and

                        (iv)    the obligations, or potential obligations, of each party for child support for any other child; and

               (b)    serve a copy of the documents filed on:

                          (i)    any person mentioned in paragraph (a) or (b) of the definition of each person to be served in subrule 7.04 (4) who is to be served;

                         (ii)    each other person who is a parent or eligible carer of the child in relation to whom the application is made; and

                         (iii)    any other person likely to be affected by the child maintenance order sought.

Example

The parent of a child that the step‑parent has a duty to maintain and the Child Support Agency may be persons affected by the order sought.

4.17        Maintenance orders

                If a court orders a person to pay maintenance or other money for the benefit of a child or a party to a marriage, the court must specify the following information in the order:

                (a)    the name of the person or authority to whom the money must be paid;

               (b)    if the maintenance is to be paid as a lump sum — the time by which it must be paid;

                (c)    if the maintenance is to be paid by instalments:

                          (i)    the date by which the first instalment must be paid; and

                         (ii)    the intervals at which the instalments must be paid;

               (d)    if necessary, the method by which the money must be paid or disbursed;

                (e)    the period for which the maintenance is payable.

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.

Division 4.2.5        Child support

4.18        Application of Division 4.2.5

                This Division 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 1   Chapter 2 provides for a Form 1 to be used to make an Application for Final Orders and the documents to be filed with that Form.

Note 2   Chapter 22 sets out the procedure for appealing from a decision of a court.

Note 3   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 case.

4.19        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 4.1, the documents mentioned in the item.

Table 4.1   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 Division applies

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;

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

       (iii)   the issues to be determined in the case;

   (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, 116, 123 or 129 of the Assessment Act

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

   (b)  a completed Form 13;

   (c)  a copy of any relevant order or agreement

Note   The documents required to be filed with an application under this rule are in addition to the documents required to be filed under rule 2.02.

         (2)   For paragraph (c) of item 1 of Table 4.1, 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.

4.20        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.

4.21        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 being served with:

                (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.

Note 1   A person may apply for an extension of time to file after the time limit mentioned in this rule by filing a Form 2 and an affidavit (see rules 1.14 and 5.01).

Note 2   For information about when a document is taken to be served, see rule 7.17.

4.22        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.

4.23        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 Principal Registrar.

Note 1   The brochure required to be served under subrule (2) is in addition to the brochure required to be served under rule 2.03.

Note 2   For service of an application, see rules 7.03 and 7.04.

4.24        Service by Child Support Registrar

                For rules 4.21 and 4.22, 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 on the day specified in rule 7.17.

4.25        Procedure on first court date

         (1)   On the first court date of a child support application or appeal, the Registrar must conduct:

                (a)    for an application made under section 98, 116, 123 or 129 of the Assessment Act — a case assessment conference; and

               (b)    for any other application or appeal — a procedural hearing.

Note   The Registry Manager fixes the first court date (see rule 4.03).

         (2)   If the application or appeal is not resolved on the first court date, the Registrar may make orders for the future conduct of the case, including the exchange of affidavits between the parties and the listing of the case for hearing.

4.26        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 the documents mentioned in rule 4.15 that are relevant to an issue in the case.

Division 4.2.6        Nullity and validity of marriage and divorce

4.27        Application of Division 4.2.6

                This Division applies to the following applications:

                (a)    an application for an order that a marriage is a nullity;

               (b)    an application for a declaration as to the validity of a marriage;

                (c)    an application for a declaration as to the validity of a divorce or annulment of marriage.

Note   Chapter 2 provides for a Form 1 to be used to make an Application for Final Orders and the documents to be filed with that application.

4.28        Fixing hearing date

         (1)   On the filing of an application under this Division, the Registry Manager must fix a date for the hearing of the application.

         (2)   The date fixed must be:

                (a)    if the respondent is in Australia — at least 42 days after the application is filed; or

               (b)    if the respondent is outside Australia — at least 56 days after the application is filed.

4.29        Affidavit to be filed with application

                An applicant must file with the application an affidavit stating:

                (a)    the facts relied on;

               (b)    for an application for an order that a marriage is a nullity or a declaration as to the validity of a marriage — details of the type of marriage ceremony performed; and

                (c)    for an application for a declaration as to the validity of a divorce or annulment of marriage:

                          (i)    the date of the divorce or order of nullity;

                         (ii)    the name of the court that granted the divorce or order of nullity; and

                         (iii)    the grounds on which the divorce or order of nullity was ordered.

Division 4.2.7        Applications relating to passports

4.30        Application relating to passport

                A party seeking only an order that relates to a passport must file an Application for Final Orders (Form 1) and an affidavit stating the facts relied on.

Note   An application under this rule includes an application under section 67ZD, 68B or 114 of the Act. See also section 7A of the Passports Act 1938.

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.

Chapter 5    Applications in a case

Summary of Chapter 5

Chapter 5 sets out the procedure for making an Application for an Order other than an Application for Final Orders or Divorce. You may also need to refer to other Chapters in these Rules when making an Application, in particular, Chapters 2, 4, 7 and 24.

The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.

A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.

Part 5.1              General

  

5.01        Applications in a case

                A party must file an Application in a Case (Form 2) if:

                (a)    the party seeks an interim order;

               (b)    the party seeks a procedural order, ancillary order, interlocutory order or other incidental order relating to an application or order;

                (c)    these Rules provide for an application to be made in Form 2; or

               (d)    no Form is prescribed under these Rules for the party’s application.

Note 1   A Form 2 is used to make:

(a)   an Application for review of a Judicial Registrar’s or Registrar’s order (see Chapter 18);

(b)   an Application to enforce an obligation to pay money or to enforce a parenting order (see Chapter 20 and rule 21.01); and

(c)   an Application for procedural orders in relation to an appeal (see Chapter 22).

Note 2   A party may ask for a procedural order orally (see paragraph (h) of item 3 of Table 11.1 in rule 11.01).

5.02        Evidence in applications in a case

         (1)   A party who files a Form 2 must, at the same time, file an affidavit stating the facts relied on in support of the orders sought.

         (2)   Subrule (1) does not apply to a Form 2 in which a review of the order of a Judicial Registrar or Registrar is sought.

Note   Some rules require that the affidavit filed with the Form address specific factors (see, for example, rule 5.12).

5.03        Procedure before filing

         (1)   Before filing a Form 2, a party must make a reasonable and genuine attempt to settle the issue to which the application relates.

         (2)   An applicant does not have to comply with subrule (1) if:

                (a)    compliance will cause undue delay or expense;

               (b)    the applicant would be unduly prejudiced;

                (c)    the application is urgent; or

               (d)    there are circumstances in which an application is necessary (for example, if there is an allegation of child abuse, family violence or fraud).

Note   The court may take into account a party’s failure to comply with subrule (1) when considering any order for costs (see subsections 117 (2) and (2A) of the Act).

5.04        Restrictions in relation to applications

         (1)   A party may apply for an interim order in relation to a cause of action only if:

                (a)    the party has made an application for final orders in that cause of action; and

               (b)    final orders have not been made on that application.

Note 1   A Form 2 may be filed at the same time as a Form 1.

Note 2   A reference to application includes a reference to cross‑application (see the dictionary).

         (2)   A party may apply for an ancillary or procedural order only if the order sought relates to a current case.

         (3)   Subrule (2) does not apply if the party is seeking:

                (a)    permission to start a case or extend a time limit to start a case;

               (b)    to start a case for a child or a person with a disability under rule 6.10; or

                (c)    an order for costs.

         (4)   This rule does not apply to restrict the filing of a Form 2 by:

                (a)    an independent children’s lawyer;

               (b)    the Director of Public Prosecutions, when making an application under section 79C, 79D, 90N or 90P of the Act, to stay or lift a stay of a property settlement or spousal maintenance case;

                (c)    a bankruptcy trustee; or

               (d)    a trustee of a personal insolvency agreement.

5.05        Fixing a date for hearing or case assessment conference

         (1)   On the filing of a Form 2, the Registry Manager must fix a date for a hearing, procedural hearing or case assessment conference on a date that is as near as practicable to 28 days after the application was filed.

         (2)   An application in which the only orders sought are procedural orders must be listed for a hearing on the first court date.

         (3)   If a Form 2 is filed:

                (a)    at the same time as the related Application for Final Orders (Form 1) — both applications must be listed for the same first court date (see rule 4.03); or

               (b)    after another related Application, the Form 2 may be listed for the same first court date as the related application if a Registrar considers it to be reasonable in the circumstances.

         (4)   The Registry Manager may fix an earlier date for the hearing of a Form 2 if a Registrar is satisfied that:

                (a)    the reason for the urgency is significant and credible; and

               (b)    there is a harm that will be avoided, remedied or mitigated by hearing the application earlier.

Note   The court may order costs against a party who has unreasonably had a matter listed for urgent hearing.

         (5)   If a date for a hearing is fixed, the application must, as far as practicable, be heard by the court on that day.

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.

5.07        Attendance of party or witness in prison

         (1)   A party who is in prison must attend at a hearing by electronic communication.

         (2)   A party who intends to adduce evidence from a witness in prison must:

                (a)    arrange for the witness to attend and give evidence at the hearing by electronic communication; and

               (b)    advise the court and the other parties about that arrangement at least 2 days before the date fixed for the hearing.

         (3)   A party may seek permission from the court for a party or witness who is in prison to attend the hearing in person.

Example

A party may apply for an order under subrule (3) if a prison or court has no facilities for the hearing to proceed by electronic communication.

         (4)   A request under subrule (3) must:

                (a)    be in writing;

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

                (c)    set out the reasons why permission should be granted; and

               (d)    inform the court whether the other party objects to the request.

         (5)   Subrules 5.06 (4) and (7) apply to a request under this rule.

Part 5.2              Hearing — interim and procedural applications

  

5.08        Interim orders — matters to be considered

                When considering whether to make an interim order, the court may take into account:

                (a)    in a parenting case — the best interests of the child (see section 60CC of the Act);

               (b)    whether there are reasonable grounds for making the order;

                (c)    whether, for reasons of hardship, family violence, prejudice to the parties or the children, the order is necessary;

               (d)    the main purpose of these Rules (see rule 1.04); and

                (e)    whether the parties would benefit from participating in one of the dispute resolution methods.

5.09        Affidavits

         (1)   The following affidavits may be relied on as evidence in chief at the hearing of an interim or procedural application:

                (a)    subject to rule 9.07, one affidavit by each party;

               (b)    one affidavit by each witness, provided the evidence is relevant and cannot be given by a party.

         (2)   If an application is for a parenting order, the affidavit mentioned in paragraph (1) (a) must be in the form approved by the Principal Registrar.

Note 1   Subrule 15.06 (1) provides that an affidavit may be relied on at a hearing or trial only if it was filed and served in accordance with these Rules or an order.

Note 2   Rule 15.21 provides that a party must not, without the court’s permission, request the issue of more than 3 subpoenas for the hearing of an Application in a Case (Form 2). However, a child representative may request the issue of more than 3 subpoenas (see subrule 15.21 (2)).

5.10        Hearing time of interim or procedural application

         (1)   The hearing of an interim or procedural application must be no longer than 2 hours.

         (2)   Cross‑examination will be allowed at a hearing only in exceptional circumstances.

5.11        Party’s failure to attend

         (1)   If a party does not attend when a hearing starts, the other party may seek the orders sought in that party’s application, including (if necessary) adducing evidence to establish an entitlement to the orders sought against the party not attending.

         (2)   If no party attends the hearing, the court may dismiss the Application in a Case (Form 2) and the Response to an Application in a Case (Form 2A), if any.

Note   A reference to application includes a reference to cross‑application (see the dictionary).

Part 5.3              Application without notice

  

5.12        Application without notice

                An applicant seeking that an interim order or procedural order be made without notice to the respondent must:

                (a)    satisfy the court about why:

                          (i)    shortening the time for service of the application and the fixing of an early date for hearing after service would not be more appropriate; and

                         (ii)    an order should be made without notice to the other party; and

               (b)    in an affidavit or orally, with the court’s permission, make full and frank disclosure of all the facts relevant to the application, including:

                          (i)    whether there is a history or allegation of child abuse or family violence between the parties;

                         (ii)    whether there has been a previous case between the parties and, if so, the nature of the case;

                         (iii)    the particulars of any orders currently in force between the parties;

                        (iv)    whether there has been a breach of a previous order by either party to the case;

                         (v)    whether the respondent or the respondent’s lawyer has been told of the intention to make the application;

                        (vi)    whether there is likely to be any hardship, danger or prejudice to the respondent, a child or a third party if the order is made;

                        (vii)    the capacity of the applicant to give an undertaking as to damages;

                       (viii)    the nature of the damage or harm that may result if the order is not made;

                        (ix)    why the order must be urgently made; and

                         (x)    the last known address or address for service of the other party.

Note   The applicant must file any existing family violence order when filing the application (see rule 2.05).

5.13        Necessary procedural orders

                If the court makes an order on application without notice, the order must be expressed to operate:

                (a)    until a time specified in the order; or

               (b)    if the hearing of the application is adjourned — until the date of the hearing.

Part 5.4              Hearing on papers in absence of parties

  

5.14        Request for hearing in absence of parties

                A party applying for an interim order, enforcement order or procedural order may, in the application, ask the court to determine the application in the absence of the parties.

Note   This Part also applies to an Application in an Appeal (see rule 22.45).

5.15        Objection to hearing in absence of parties

                If a respondent objects to an application being determined by the court in the absence of the parties:

                (a)    the respondent must notify the court and the other party, in writing, of the objection at least 7 days before the date fixed for the hearing; and

               (b)    the parties must attend on the first court date for the application.

Note   A notice under this rule must comply with rule 24.01.

5.16        Court decision to not proceed in absence of parties

                Despite parties consenting to a hearing being held in their absence, the court may postpone or adjourn the application and direct the Registry Manager:

                (a)    to fix a new date for hearing the application; and

               (b)    to notify the parties that they are required to attend court for the hearing.

5.17        Procedure in hearing in absence of parties

         (1)   If the application is to be determined in the absence of the parties, each party must file, at least 2 days before the date fixed for hearing the application:

                (a)    a list of documents to be read by the court; and

               (b)    a supporting submission.

         (2)   A supporting submission must:

                (a)    state the reasons why the orders sought by that party should be made;

               (b)    refer to any material in a document filed with the application by the page number of the document, and should not repeat the text of that material;

                (c)    not be more than 5 pages;

               (d)    have all paragraphs consecutively numbered;

                (e)    be signed by the party or the lawyer who prepared the submission; and

                (f)    include the signatory’s name, telephone number, facsimile number (if any) and e‑mail address (if any) at which the signatory can be contacted.

Part 5.5              Postponement of interim hearing

  

5.18        Administrative postponement of interim hearing

         (1)   If the parties agree that the hearing of an interim application should not proceed on the date fixed for the hearing, the parties may request the Registry Manager to postpone it.

         (2)   A request must:

                (a)    be in writing;

               (b)    specify why it is appropriate to postpone the hearing;

                (c)    specify the date to which the hearing is sought to be postponed;

               (d)    be signed by each party or the party’s lawyer; and

                (e)    be received by the Registry Manager no later than 12 noon on the day before the date fixed for the hearing.

         (3)   If a request is made, the Registry Manager must tell the parties:

                (a)    that the event has been postponed; and

               (b)    the date to which it has been postponed.

Chapter 6    Parties

Summary of Chapter 6

Chapter 6 sets out who are the necessary parties to a case and how a person becomes, or ceases to be, a party or a case guardian.

The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.

A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.

Part 6.1              General

  

6.01        Parties

                A party includes the following:

                (a)    an applicant in a case;

               (b)    an appellant in an appeal;

                (c)    a respondent to an application or appeal;

               (d)    an intervener in a case.

Note   An independent children’s lawyer is not a party to a case but must be treated as a party (see rule 8.02).

6.02        Necessary parties

         (1)   A person whose rights may be directly affected by an issue in a case, and whose participation as a party is necessary for the court to determine all issues in dispute in the case, must be included as a party to the case.

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.

         (2)   If an application is made for a parenting order, the following must be parties to the case:

                (a)    the parents of the child;

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

                (c)    any other person with whom the child lives and who is responsible for the care, welfare and development of the child;

               (d)    if a State child order is currently in place in relation to the child — the prescribed child welfare authority.

         (3)   If a person mentioned in subrule (2) is not an applicant in a case involving the child, that person must be joined as a respondent to the application.

Note   The court may dispense with compliance with a rule (see rule 1.12).

Part 6.2              Adding and removing a party

  

6.03        Adding a party

         (1)   A party may include another person as a respondent by naming the person in the application.

         (2)   A party may add another party after a case has started by:

                (a)    amending the application or response, as the case may be, to add the name of the person; and

               (b)    by serving on the new party a copy of the application or response, and any other relevant document filed in the case.

Note 1   For amendment of an application, see Division 11.2.2.

Note 2   If a Form is amended after the first court date, the Registry Manager will set a date for a further procedural hearing (see subrule 11.10 (3)).

Note 3   A reference to application includes a reference to cross‑application (see the dictionary).

6.04        Removing a party

                A party may apply to be removed as a party to a case.

Note   Rule 5.01 sets out the procedure for making an Application in a Case (Form 2).

6.05        Intervention by a person seeking to become a party

                If a person who is not a party to a case (other than a person to whom rule 6.06 applies) seeks to intervene in the case to become a party, the person must file:

                (a)    a Form 2; and

               (b)    an affidavit:

                          (i)    setting out the facts relied on to support the application, including a statement of the person’s relationship (if any) to the parties; and

                         (ii)    attaching a schedule setting out any orders that the person seeks if the court grants permission to intervene.

Note   Part IX of the Act deals with intervention in a case. Once a person has, by order or under rule 6.06, intervened in a case, the person becomes a party with all the rights and obligations of a party (see subsections 91 (2) and 91A (4), paragraph 91B (2) (b) and subsections 92 (3) and 92A (3) of the Act).

6.06        Intervention by a person entitled to intervene

         (1)   This rule applies if the Attorney‑General, or any other person who is entitled under the Act to do so without the court’s permission, intervenes in a case.

         (2)   The person intervening must file:

                (a)    a Notice of Intervention by Person Entitled to Intervene (Form 5); and

               (b)    an affidavit:

                          (i)    stating the facts relied on in support of the intervention; and

                         (ii)    attaching a schedule setting out the orders sought.

Note   The following are examples of when a person is entitled under the Act to intervene in a case without the court’s permission:

(a)   subsection 79 (10) authorises a creditor of a party to a case who may not be able to recover his or her debt if an order is made under section 79, and a person whose interests would be affected by an order under section 79, to become a party to the case;

(b)   section 91 of the Act and section 78A of the Judiciary Act 1903 authorise the Attorney‑General to intervene in a case;

(c)   section 92A of the Act authorises the people mentioned in subsection 92A (2) to intervene in a case without the court’s permission;

(d)   section 145 of the Assessment Act authorises the Child Support Registrar to intervene in a case.

         (3)   On the filing of a Form 5, the Registry Manager must fix a date for a procedural hearing.

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

6.07        Notice of constitutional matter

         (1)   If a party is, or becomes, aware that a case involves a matter that:

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

               (b)    is a genuine issue in the case;

the party must give written notice of the matter to the Attorneys‑General of the Commonwealth, and each State and Territory, and to each other party to the case.

         (2)   The notice must state:

                (a)    the nature of the matter;

               (b)    the issues in the case;

                (c)    the constitutional issue to be raised; and

               (d)    the facts relied on to show that section 78B of the Judiciary Act 1903 applies.

Note   Section 78B of the Judiciary Act 1903 provides that once a court becomes aware that a case involves a matter referred to in that section, it is the court’s duty not to proceed to determine the case unless and until it is satisfied that notice of the case has been given to the Attorneys‑General of the Commonwealth and of the States and Territories.

Part 6.3              Case guardian

  

6.08A      Interpretation

                In this Part:

a manager of the affairs of a party includes a person who has been appointed, in respect of the party, a trustee or guardian under a Commonwealth, State or Territory law.

6.08        Conducting a case by case guardian

         (1)   A child or a person with a disability may start, continue, respond to, or seek to intervene in, a case only by a case guardian.

         (2)   Subrule (1) does not apply if the court is satisfied that a child understands the nature and possible consequences of the case and is capable of conducting the case.

Note 1   For service on a person with a disability, see rule 7.09.

Note 2   If a case is started by a child or person with a disability without a case guardian, the court may appoint a case guardian to continue the case.

6.09        Who may be a case guardian

                A person may be a case guardian if the person:

                (a)    is an adult;

               (b)    has no interest in the case that is adverse to the interest of the person needing the case guardian;

                (c)    can fairly and competently conduct the case for the person needing the case guardian; and

               (d)    has consented to act as the case guardian.

6.10        Appointment, replacement or removal of case guardian

         (1)   A person may apply for the appointment, replacement or removal of a person as the case guardian of a party.

Note 1   Chapter 5 sets out the procedure for making an Application in a Case (Form 2).

Note 2   An application in relation to a case guardian may be made by a party or a person seeking to be made the case guardian or by a person authorised to be a case guardian.

         (2)   A person who is a manager of the affairs of a party is taken to be appointed as the case guardian of the party if the person has filed:

                (a)    a notice of address for service; and

               (b)    an affidavit which:

                          (i)    provides evidence that the person has been appointed manager of the affairs of the party; and

                         (ii)    states that the person consents to being appointed as the case guardian of the party.

6.11        Attorney‑General may nominate case guardian

         (1)   If in the opinion of the court a suitable person is not available for appointment as a case guardian of a person with a disability, the court may request that the Attorney‑General nominate, in writing, a person to be a case guardian.

         (2)   A person nominated by the Attorney‑General to be a case guardian of a person with a disability is taken to be appointed as such if the person files:

                (a)    a consent to act in relation to the person with a disability;

               (b)    a copy of the written nomination of the person as a case guardian; and

                (c)    a Notice of Address for Service (Form 8).

Note   A consent to act must comply with subrule 24.01 (1).

6.12        Notice of becoming case guardian

                A person appointed as a case guardian of a party must give written notice of the appointment to each other party and any independent children’s lawyer in the case.

Note   The case guardian may also need to file a Notice of Address for Service (Form 8) (see rules 8.05 and 8.06).

6.13        Conduct of case by case guardian

         (1)   A person appointed as the case guardian of a party:

                (a)    is bound by these Rules;

               (b)    must do anything required by these Rules to be done by the party;

                (c)    may, for the benefit of the party, do anything permitted by these Rules to be done by the party; and

               (d)    if seeking a consent order (other than an order relating to practice or procedure), must file an affidavit setting out the facts relied on to satisfy the court that the order is in the party’s best interests.

         (2)   The duty of disclosure applies to a case guardian for a child and a person with a disability.

Note 1   The court may order a case guardian to pay costs.

Note 2   Rule 13.01 sets out the elements of the duty of disclosure.

6.14        Costs of case guardian

                The court may order the costs of a case guardian to be paid:

                (a)    by a party; or

               (b)    from the income or property of the person for whom the case guardian is appointed.

Part 6.4              Progress of case after death

  

6.15        Death of party

         (1)   This rule applies to a property case or an application for the enforcement of a financial obligation.

         (2)   If a party dies, the other party or the legal personal representative must ask the court for procedural orders in relation to the future conduct of the case.

         (3)   The court may order that a person be substituted for the deceased person as a party.

Note 1   The court may make other procedural orders, including that a person has permission to intervene in the case (see rules 1.12 and 6.05).

Note 2   For the effect of the death of a party in certain cases, see subsections 79 (1A), 79 (8), 79A (1C) and 105 (3) of the Act.

Part 6.5              Progress of a case after bankruptcy or personal insolvency agreement

  

6.16        Interpretation

                In this Part:

bankruptcy proceedings means proceedings under the Bankruptcy Act, in the Federal Court or the Federal Magistrates Court, in relation to:

                (a)    the bankruptcy of a relevant party; or

               (b)    a relevant party’s capacity as a debtor subject to a personal insolvency agreement.

relevant case means any of the following:

                (a)    a pending case under section 66G, 66S, 74, 78, 79, 79A or 83 of the Act;

               (b)    a pending case under Division 4 or 5 of Part 7 of the Assessment Act;

                (c)    a pending case for enforcement of an order made under a provision mentioned in paragraph (a) or (b).

relevant party means a person who is:

                (a)    a party to a marriage; and

               (b)    a party to a relevant case in relation to that marriage.

Note   The following terms are defined in the Act:

·      bankruptcy trustee (subsection 4 (1))

·      debtor subject to a personal insolvency agreement (section 5)

·      trustee, in relation to a personal insolvency agreement (subsection 4 (1)).

6.17        Notice of bankruptcy or personal insolvency agreement

         (1)   If a relevant party is also a bankrupt or a debtor subject to a personal insolvency agreement, that party must notify:

                (a)    all other parties to the relevant case, in writing, about the bankruptcy or personal insolvency agreement;

               (b)    the bankruptcy trustee or the trustee of the personal insolvency agreement, as the case may be, about the relevant case in accordance with rule 6.18; and

                (c)    the court in which the relevant case is pending, in accordance with rule 6.19.

         (2)   A party may apply for procedural orders for the future conduct of the case.

6.18        Notice under paragraph 6.17 (1) (b)

                For paragraph 6.17 (1) (b), notice to a bankruptcy trustee or a trustee of a personal insolvency agreement must:

                (a)    be in writing;

               (b)    be given within 7 days, or as soon as practicable, after the date on which the party becomes both:

                          (i)    a relevant party; and

                         (ii)    a bankrupt or debtor;

                (c)    attach a copy of the application starting the relevant case, response (if any), and any other relevant documents; and

               (d)    state the date and place of the next court event in the relevant case.

6.19        Notice under paragraph 6.17 (1) (c)

                For paragraph 6.17 (1) (c), notice to the court must:

                (a)    be in writing;

               (b)    be given within 7 days, or as soon as practicable, after the date on which the party becomes both:

                          (i)    a relevant party; and

                         (ii)    a bankrupt or debtor; and

                (c)    attach a copy of the notices given in accordance with paragraphs 6.17 (1) (a) and (b).

6.20        Notice of bankruptcy proceedings

         (1)   If a relevant party is a party to bankruptcy proceedings the party must give notice of the bankruptcy proceedings, in accordance with subrule (2), to:

                (a)    the court in which the relevant case is pending; and

               (b)    the other party (or parties) to the case.

         (2)   The notice must:

                (a)    be in writing;

               (b)    be given within 7 days, or as soon as practicable, after the date on which the party becomes a party to bankruptcy proceedings; and

                (c)    state the date and place of the next court event in the bankruptcy proceedings.

6.21        Notice of application under section 139A of the Bankruptcy Act

         (1)   If the bankruptcy trustee of a bankrupt party to a marriage has applied under section 139A of the Bankruptcy Act for an order under Division 4A of Part VI of that Act, and the trustee knows that a relevant case in relation to the bankrupt party is pending in a court exercising jurisdiction under the Act, the trustee must notify:

                (a)    the court exercising jurisdiction under the Act in the relevant case, in accordance with subrule (2); and

               (b)    if the bankruptcy trustee’s application relates to an entity other than the other party to the marriage — the other party to the marriage, in accordance with subrule (3).

         (2)   For paragraph (1) (a), notice to the court must:

                (a)    be in writing;

               (b)    be given within 7 days, or as soon as practicable, after the bankruptcy trustee makes the application under section 139A of the Bankruptcy Act; and

                (c)    state the date and place of the next court event in the proceedings under section 139A of the Bankruptcy Act.

         (3)   For paragraph (1) (b), notice to the other party to the marriage must:

                (a)    be in writing;

               (b)    be given within 7 days, or as soon as practicable, after the bankruptcy trustee makes the application under section 139A of the Bankruptcy Act;

                (c)    attach a copy of the application, other initiating process and any other relevant documents in the application under section 139A of the Bankruptcy Act; and

               (d)    state the date and place of the next court event in the proceedings under section 139A of the Bankruptcy Act.

6.22        Official name of trustee

         (1)   If a bankruptcy trustee or a trustee of a personal insolvency agreement is added as a party to a relevant case, the trustee must be added using the prescribed official name of the trustee.

         (2)   In subrule (1):

prescribed official name of the trustee has the meaning given by:

                (a)    for a bankruptcy trustee — subsection 161 (2) of the Bankruptcy Act; and

               (b)    for a trustee of a personal insolvency agreement — subsection 219 (2) of the Bankruptcy Act.

Chapter 7    Service

Summary of Chapter 7

Chapter 7 sets out the rules for serving documents and proving service. The rules in this chapter apply only to the service of documents in Australia and non‑convention countries. The Regulations deal with service in countries that are party to certain conventions. If there is an inconsistency between the Regulations and these Rules, the Regulations prevail (see subsection 125 (3) of the Act).

When a court determines a case, the judicial officer must be satisfied that all the documents filed that are to be relied on in the case have been served or otherwise brought to the attention of the other parties to the case.

The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.

A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.

Part 7.1              General

  

7.01A      Application

                This Chapter does not apply to service of a document in a foreign country that is a party to a convention to which Australia is also a party regarding legal proceedings in civil and commercial matters.

Note   Regulation 12 of the Regulations deals with service of documents in convention countries.

7.01        Service

                Service of a document may be carried out by special service (see Part 7.2) or ordinary service (see Part 7.3) unless otherwise required by a legislative provision.

Note   Certain applications must have other documents served with them. For example, an Application for Final Orders (Form 1), when served, must be accompanied by the brochure mentioned in rule 2.03; when a subpoena is served, the witness must be paid conduct money.

7.02        Court’s discretion regarding service

         (1)   A court may find that a document has been served or that it has been served on a particular date, even though these Rules or an order have not been complied with in relation to service.

Note   Rule 7.17 also sets out when a document is taken to have been served.

         (2)   The court may order a party, or a person applying to intervene in a case under rule 6.05, to serve a document or give written notice of a matter or case to a person specified in the order.

7.03        Service of documents

                A person must serve a document in the manner set out in Table 7.1.

Table 7.1   Service of documents

 

Item

Document

Form of service

1

Application for Final Orders (Form 1)

Special service

2

Application in a Case (Form 2) filed at the same time as a Form 1

Special service

3

Form 2 fixing an enforcement hearing

Special service

4

Application for Divorce (Form 3)

Special service

5

Subpoena (Form 14)

Special service by hand

6

Application — Contravention (Form 18)

Special service by hand

7

Application — Contempt (Form 19)

Special service by hand

8

Document mentioned in item 3, 4, 5 or 6 of Table 2.2 in rule 2.02 that must be filed with a Form mentioned in this Table

The form of service set out in this Table for that Form

9

Brochure required by these Rules to be served with a Form mentioned in this Table (see rules 2.03 and 4.13 and subrules 4.23 (2), 15.28 (1) and 20.11 (3))

The form of service set out in this Table for that Form

10

Order made on application without notice (see rule 5.12)

Special service

12

Document that is not required to be served by special service. For example:

     ·  a Form 2 (other than a Form 2 mentioned in item 2 or 3) and any document filed with it

     ·  a document filed after a case is started

     ·  a notice required to be given under these Rules

Ordinary service

7.04        Service of filed documents

         (1)   A document that is filed must be served on each person to be served:

                (a)    as soon as possible after the date of filing and within 12 months after that date; or

               (b)    if a provision elsewhere in these Rules specifies a time for service — within the specified time.

Note   If a document is not served within the time required, service after that time is ineffective unless the court otherwise orders (see rules 1.12, 7.02 and 11.02).

         (2)   Despite subrule (1) and rule 7.03, the following documents do not have to be served on any other party:

                (a)    a joint application;

               (b)    an application without notice;

                (c)    a copy of a marriage or birth certificate or order filed under rule 2.02;

               (d)    an Affidavit of Service (Form 7);

                (e)    a document signed by all parties;

                (f)    an affidavit seeking the issue, without notice, of an Enforcement Warrant under rule 20.16 or a Third Party Debt Notice under rule 20.32.

Note   A draft consent order signed by all parties does not have to be served on the other parties to the application. However, if an order is sought affecting a superannuation interest, it must be served on the trustee of the superannuation fund in which that interest is held (see rule 10.16).

         (3)   If a document or notice is served on or given to a party under these Rules, a copy of the document or notice must also be served on or given to any independent children’s lawyer.

         (4)   For subrule (1):

each person to be served, for a case, includes:

                (a)    all parties to the case;

               (b)    any independent children’s lawyer; and

                (c)    any other person specifically required by a legislative provision or order to be served in the case.

Part 7.2              Special service

Note   Special service of a document may be performed by delivering the document:

·   to the person to be served by hand (see rule 7.06) or by post or electronic communication (see rule 7.07); or

·   if a lawyer representing the person undertakes, in writing, to accept service of the document, by delivering it to the person’s lawyer (see rule 7.08).

  

7.05        Special service

                A document that must be served by special service must be personally received by the person served.

Note   For proof of service, see Part 7.4.

7.06        Special service by hand

         (1)   A document to be served by hand must be given to the person to be served (the receiver).

         (2)   If the receiver refuses to take the document, service occurs if the person serving the document:

                (a)    places it down in the presence of the receiver; and

               (b)    tells the receiver what it is.

         (3)   A party must not serve another party by hand but may be present when service by hand occurs.

7.07        Special service by post or electronic communication

         (1)   A document may be served on a person in Australia by sending a copy of it to the person’s last known address by post.

         (2)   A document may be served on a person in Australia by sending it to the person by electronic communication.

         (3)   A person serving a document by post or electronic communication must include with the document:

                (a)    an Acknowledgement of Service (Form 6) for the person served to sign; and

               (b)    for service by post within Australia — a stamped self‑addressed envelope.

Note   Subrule 24.07 (3) does not apply to a Form 6. If an applicant wants to prove service by electronic communication (other than by facsimile), the applicant must still produce a signed Form 6. This means that the person served will need to print out and sign a hard copy of the Form 6 and arrange for the signed copy to be returned to the applicant in a form in which the applicant is able to identify the signature on the signed copy as that of the person served (see note to rule 7.14).

7.08        Special service through a lawyer

                A document is taken to be served by special service on a person if:

                (a)    a lawyer representing the person agrees, in writing, to accept service of the document for the person; and

               (b)    the document is served on the lawyer in accordance with rule 7.06 or 7.07.

7.09        Special service on person with a disability

         (1)   A document that is required to be served by special service on a person with a disability, must be served:

                (a)    on the person’s case guardian;

               (b)    on the person’s guardian appointed under a State or Territory law; or

                (c)    if there is no one under paragraph (a) or (b) — on an adult who has the care of the person.

         (2)   For paragraph (1) (c), the person in charge of a hospital, nursing home or other care facility is taken to have the care of a person who is a patient in the hospital, nursing home or facility.

Note   If a person with a disability wants to start, continue or respond to, or seek to intervene in, a case, the person may do so through a case guardian (see rule 6.08).

7.10        Special service on a prisoner

         (1)   A document that is required to be served by special service on a prisoner must be served by special service on the person in charge of the prison.

         (2)   At the time of service of an Application, Subpoena (Form 14) or Notice of Appeal (Form 20) on a prisoner, the prisoner must be informed, in writing, about the requirement to attend by electronic communication under rule 5.07, subrule 12.12 (4) or rule 22.40 (whichever is applicable).

7.11        Special service on a corporation

                A document that is required to be served by special service on a corporation must be served in accordance with section 109X of the Corporations Act 2001.

Note   A subpoena must be served on the proper officer or other person entitled to accept service of a subpoena for a corporation (see subrule 15.17 (3)).

Part 7.3              Ordinary service

  

7.12        Ordinary service

                If special service of a document is not required, the document may be served on a person:

                (a)    by any method of special service;

               (b)    if the person has given an address for service:

                          (i)    by delivering it to the address in a sealed envelope addressed to the person;

                         (ii)    by sending it to the address by post in a sealed envelope addressed to the person; or

                         (iii)    by sending it to the facsimile or e‑mail address stated in the address for service by electronic communication addressed to the person (see rule 7.16);

                (c)    if the person has not given an address for service:

                          (i)    by handing it to the person;

                         (ii)    by delivering it to the person’s last known address or place of business in a sealed envelope addressed to the person; or

                         (iii)    by sending it by post in a sealed envelope addressed to the person at the person’s last known address or place of business;

               (d)    if a lawyer representing the person agrees, in writing, to accept service of the document, by sending it to the lawyer; or

                (e)    if the person’s address for service includes the number of a lawyer’s document exchange box, by delivering it in a sealed envelope, addressed to the lawyer at that box address, to:

                          (i)    that box; or

                         (ii)    a box provided at another branch of the document exchange for delivery of documents to the box address.

Part 7.4              Proof of service

  

7.13        Proof of service

         (1)   Service of an application is proved:

                (a)    by filing an Affidavit of Service (Form 7);

               (b)    by the respondent filing a Notice of Address for Service (Form 8) or a Response; or

                (c)    if service was carried out by giving the document to a lawyer — by filing an Acknowledgement of Service (Form 6) that has been signed by the lawyer.

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

7.14        Proof of special service

         (1)   This rule applies if a document is required to be served by special service and the applicant seeks to prove service by way of affidavit.

         (2)   If service was by post or electronic communication, service is proved by:

                (a)    attaching to a Form 7, a Form 6 signed by the respondent; and

               (b)    evidence identifying the signature on the Form 6 as the respondent’s signature.

Note   If a person serving a document seeks to prove service under this rule, an Acknowledgment of Service (Form 6) must be signed by the person served with the document. However, if the Form 7 with the Form 6 is filed by electronic communication, subrule 24.07 (4) applies to the original affidavit and the signed acknowledgment.

7.15        Evidence of identity

         (1)   A statement by a person of the person’s identity, office or position is evidence of the identity, the holding of the office or position.

         (2)   Another person may give evidence about the identity, office or position of a person served.

Example

A person may give evidence about the identity of another person by identifying:

(a)   the signature of the person served on the Acknowledgment of Service (Form 6);

(b)   the person served from a photograph; or

(c)   the person when accompanying the process server.

Part 7.5              Other matters about service

  

7.16        Service by electronic communication

         (1)   Service of a document may be carried out by facsimile only if the total number of pages (including the cover page) to be transmitted:

                (a)    is not more than 25; or

               (b)    if the person on whom the document is to be served has first agreed to receiving more than 25 pages — is not more than the number of pages agreed to be transmitted.

         (2)   A document served by electronic communication must include a cover page stating:

                (a)    the sender’s name and address;

               (b)    the name of the person to be served;

                (c)    the date and time of transmission;

               (d)    the total number of pages, including the cover page, transmitted;

                (e)    that the transmission is for service of court documents;

                (f)    the name and telephone number of a person to contact if there is a problem with transmission; and

                (g)    a return electronic address.

7.17        When service is taken to have been carried out

                A document is taken to have been served:

                (a)    on the date when service is acknowledged;

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

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

               (d)    on a date fixed by the court.

7.18        Service with conditions or dispensing with service

         (1)   A party who is unable to serve a document may apply, without notice, for an order:

                (a)    to serve the document in another way; or

               (b)    to dispense with service of the document, with or without conditions.

         (2)   The factors the court may have regard to when considering an application under subrule (1) include:

                (a)    the proposed method of bringing the document to the attention of the person to be served;

               (b)    whether all reasonable steps have been taken to serve the document or bring it to the notice of the person to be served;

                (c)    whether the person to be served could reasonably become aware of the existence and nature of the document by advertisement or another form of communication that is reasonably available;

               (d)    the likely cost of service; and

                (e)    the nature of the case.

         (3)   If the court orders that service of a document is:

                (a)    dispensed with unconditionally; or

               (b)    dispensed with on a condition that is complied with;

the document is taken to have been served.

Note   An application under this rule is made by filing a Form 2 and an affidavit (see rules 5.01 and 5.02).

Part 7.6              Service in non‑convention country

  

7.19        Service in non‑convention country

         (1)   A person may serve a document on a person in a non‑convention country:

                (a)    in accordance with the law of the non‑convention country; or

               (b)    if the non‑convention country permits service of judicial documents through the diplomatic channel — through the diplomatic channel.

         (2)   A person seeking to serve a document in a non‑convention country through the diplomatic channel must:

                (a)    request the Registry Manager, in writing, to arrange service of the document under this Part; and

               (b)    lodge 2 copies of each document to be served, translated, if necessary, into an official language of that country.

         (3)   If the Registry Manager receives a request under subrule (2), the Registry Manager must:

                (a)    seal the documents to be served; and

               (b)    send to the Secretary of the Department of Foreign Affairs and Trade:

                          (i)    the sealed documents; and

                         (ii)    a written request that the documents be sent to the government of the non‑convention country for service.

7.20        Proof of service in non‑convention country

         (1)   This rule applies if:

                (a)    a document is sent to the Secretary of the Attorney‑General’s Department for service on a person in a non‑convention country; and

               (b)    an official certificate or declaration by the government or court of the country, stating that the document has been personally served, or served in another way under the law of the country, is sent to the court.

         (2)   The certificate or declaration is proof of service of the document and, when filed, is a record of the service and has effect as if it were an affidavit of service.

Note   If service cannot be carried out under this rule, the applicant may apply for an order dispensing with service (see rule 7.18).

Chapter 8    Right to be heard and address for service

Summary of Chapter 8

Chapter 8 sets out rules about:

·   the people who may be heard by the court and the requirements for their address for service;

·   the appointment of an independent children’s lawyer; and

·   lawyer’s conflict of interest and ceasing to act.

The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.

A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.

Part 8.1              Right to be heard and representation

  

8.01        Right to be heard and representation

         (1)   A person (other than a corporation or authority) who is entitled to be heard in a case may conduct the case on the person’s own behalf or be represented by a lawyer.

         (2)   A corporation or authority that is entitled to be heard in a case may be represented by a lawyer, or an officer of the corporation or authority.

Note 1   For the right of a lawyer to appear in a court exercising jurisdiction under the Act, see Part VIIIA of the Judiciary Act 1903.

Note 2   A party may apply to appear at a hearing or trial by electronic communication (see rules 5.06 and 16.08).

Note 3   A party is not entitled to be represented by a person who is not a lawyer unless the court otherwise orders. The court will give permission for representation by a person other than a lawyer only in special circumstances.

8.02        Independent children’s lawyer

         (1)   A party may apply for the appointment or removal of an independent children’s lawyer by filing an Application in a Case (Form 2).

Note   A party may ask for a procedural order orally (see paragraph (h) of item 3 of Table 11.1 in rule 11.01).

         (2)   If the court makes an order for the appointment of an independent children’s lawyer:

                (a)    it may request that the representation be arranged by a legal aid body that is a relevant authority within the meaning of subsection 116C (5) of the Act; and

               (b)    it may order that the costs of the independent children’s lawyer be met by a party.

Note   Section 68L of the Act provides for the independent representation of children.

         (3)   A person appointed as an independent children’s lawyer:

                (a)    must file a Notice of Address for Service (Form 8);

               (b)    must comply with these Rules and do anything required to be done by a party; and

                (c)    may do anything permitted by these Rules to be done by a party.

         (4)   If an independent children’s lawyer is appointed, the parties must conduct the case as if the independent children’s lawyer were a party.

         (5)   The appointment of an independent children’s lawyer ceases:

                (a)    when the Application for Final Orders (Form 1) is determined or withdrawn; or

               (b)    if there is an appeal — when the appeal is determined or withdrawn.

Note 1   If a document or notice is served on or given to a party under these Rules, the document or notice must also be served on or given to any independent children’s lawyer (see subrule 7.04 (4)).

Note 2   This rule applies unless the court orders otherwise (see rule 1.12).

8.03        Lawyer — conflicting interests

                A lawyer acting for a party in a case must not act in the case for any other party who has a conflicting interest.

Note   This rule does not purport to set out all the situations in which a lawyer may not act for a party.

8.04        Lawyer — ceasing to act

         (1)   A lawyer may cease to act for a party:

                (a)    by serving on the party a Notice of Ceasing to Act (Form 9) and, no sooner than 7 days after serving the notice, filing a copy of the notice; or

               (b)    with the court’s permission.

         (2)   If:

                (a)    a party’s address for service is the party’s lawyer’s address; and

               (b)    the lawyer ceases to act for the party;

the party’s last known residential address is the address for service until the party files a Form 8.

Part 8.2              Address for service

  

8.05        Address for service

         (1)   A party must give an address for service if:

                (a)    the party files or responds to an application; or

               (b)    the party seeks to be heard by the court.

         (2)   A party must give only one address for service for each application filed.

         (3)   A party may give an address for service:

                (a)    in the first document filed by the party; or

               (b)    by filing a Notice of Address for Service (Form 8).

         (4)   An address for service:

                (a)    must be an address in Australia where documents may be left or received by post;

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

               (b)    may include a facsimile number and an address for service by electronic communication.

         (5)   A party may include an address for service by electronic communication only if documents sent to or from that address can be read by the computer software of each party and the court.

Note   If an address for service includes a facsimile number or an address for service by electronic communication, documents served on the person by that method are taken by the court to be served on the person on the day when the documents were transmitted to that address (see paragraph 7.17 (d)).

8.06        Change of address for service

                If a party’s address for service changes during a case, the party must file a Form 8 within 7 days after the change.

Note 1   A new address for service will be needed if a party:

(a)   acts in person and changes address;

(b)   initially acts in person and later appoints a lawyer;

(c)   initially appoints a lawyer and later acts in person; or

(d)   changes lawyers during the case.

Note 2   Until a Form 8 is filed and served, the previous address remains on the court record as the address for service and all documents will be served at that address unless subrule 8.04 (2) applies.

Chapter 9    Response and reply

Summary of Chapter 9

Chapter 9 sets out the procedure for:

·   responding to a Form 1 (known as a Response (Form 1A));

·   responding to a Form 2 (known as a Response (Form 2A)); and

·   replying to a Form 1A seeking orders in a cause of action other than one mentioned in the application (known as a Reply (Form 1B)).

Note   A Form 3A is used to respond to a Form 3 (see rule 3.04).

The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.

A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.

Part 9.1              Response to Form 1

  

9.01        Response to Form 1 (Form 1A)

         (1)   A respondent to an Application for Final Orders (Form 1) who seeks to oppose the orders sought in the application or seeks different orders must file a Response to an Application for Final Orders (Form 1A).

         (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.

         (3)   In addition to the matters in subrule (2), a Form 1A may:

                (a)    consent to an order sought by the applicant;

               (b)    ask that the application be dismissed; or

                (c)    ask for orders in another cause of action.

         (4)   A Form 1A must not include a request for any of the following orders:

                (a)    a divorce order;

               (b)    an order that a marriage be annulled;

                (c)    a declaration as to validity of a marriage, divorce or annulment;

               (d)    an order under Division 4.2.3 authorising a medical procedure.

Note   If:

(a)   a Form 1A includes a request for orders in another cause of action; and

(b)   documents would be required to be filed under rule 2.02 to support that cause of action;

the respondent must file with the Form 1A the document required under rule 2.02 to be filed for that cause of action.

9.02        Filing an affidavit with Form 1A

                A respondent must not file an affidavit with a Form 1A unless required to do so by item 5 or 6 of Table 2.2 in rule 2.02.

Note   A Form 1A may be filed to respond to a special application mentioned in Part 4.2, including an Application relying on a Cross‑vesting Law, a Medical Procedure Application, a child support application or appeal, an Application for an Order that a Marriage is a Nullity, an Application for a Declaration as to the Validity of a Marriage, Divorce or Annulment of Marriage, and an application relating to a passport.

9.03        Response objecting to jurisdiction

         (1)   A respondent seeking to object to the jurisdiction of the court:

                (a)    must file a Form 1A; and

               (b)    is not taken to have submitted to the jurisdiction of the court by seeking other orders in the Form 1A.

         (2)   The objection to the jurisdiction must be determined before any other orders sought in the Form 1A.

Part 9.2              Reply to Form 1A

  

9.04        Applicant reply to Form 1A (Form 1B)

                An applicant must file a Reply (Form 1B) if:

                (a)    in the Response to an Application for Final Orders (Form 1A), the respondent seeks orders in a cause of action other than a cause of action mentioned in the application; and

               (b)    the applicant seeks:

                          (i)    to oppose the orders sought in the Form 1A; or

                         (ii)    different orders in the cause of action mentioned in the Form 1A.

9.04A      Additional party reply to Form 1A (Form 1B)

         (1)   This rule applies if, in a Response to an Application for Final Orders (Form 1A), a respondent seeks orders against a person other than the applicant (an additional party).

         (2)   An additional party who seeks to oppose the orders sought in the Form 1A, or who seeks different orders, must file a Reply (Form 1B).

Part 9.3              Response to Form 2

  

9.05        Response to Form 2 (Form 2A)

                A respondent to an Application in a Case (Form 2) who seeks to oppose the Application or seeks different orders must file a Response to an Application in a Case (Form 2A).

9.06        Affidavit to be filed with Form 2A

         (1)   A respondent who files a Form 2A must, at the same time, file an affidavit stating the facts relied on in support of the Form 2A.

         (2)   Subrule (1) does not apply to a Form 2A filed in response to an application to review an order of a Judicial Registrar or Registrar.

9.07        Affidavit in reply to Form 2A

                If:

                (a)    a respondent files a Form 2A seeking orders in a cause of action other than a cause of action mentioned in the Form 2; and

               (b)    the applicant opposes the orders sought in the Form 2A;

the applicant may file an affidavit setting out the facts relied on.

Part 9.4              Filing and service

  

9.08        Time for filing and service of response or reply

         (1)   A party may respond to an application by filing and serving a Response (Form 1A) (and any affidavit filed with it) at least 7 days before the date fixed for the case assessment conference, procedural hearing or hearing to which the response relates.

         (2)   If a party wishes to file a Reply (Form 1B), the party must file and serve the reply as soon as possible after the response is received.

         (3)   All affidavits in a case started by an Application in a Case (Form 2) or a Response to an Application in a Case (Form 2A) must be filed at least 2 days before the date fixed for the hearing.

Note   The affidavits to which subrule (3) applies include those affidavits that must be filed with the application or response and any affidavit by the applicant responding to the orders sought in a new cause of action in a Form 2A.

Chapter 10  Ending a case without a trial

Summary of Chapter 10

Chapter 10 sets out how a party may resolve a case without a trial and the procedure to end a case, if agreement is reached.

The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.

A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.

Part 10.1            Offers to settle

Note   Each party is encouraged at all times to make an offer to settle to the other party in an effort to resolve a case. This Part sets out the rules that apply to offers to settle in the Family Court. Part 10.1 contains two Divisions.

Division 10.1.1 applies to all offers to settle and provides for:

(a)      how an offer is made;

(b)      the form an offer is to take;

(c)      how an offer is accepted or withdrawn;

(d)      the timing of acceptance or withdrawal; and

(e)      what to do when an offer is accepted and a case is resolved.

Division 10.1.2 applies only to offers to settle in property cases in which an offer to settle must be made after a conciliation conference.

Division 10.1.1     General

10.01      How to make an offer

         (1)   A party may make an offer to another party to settle all or part of a case by serving on the other party an offer to settle at any time before the court makes an order disposing of the case.

Note   See also paragraph 117 (2A) (f) and section 117C of the Act in relation to offers to settle.

         (2)   A party may make an offer to settle all or part of an appeal by serving on the other party an offer to settle at any time before the court makes an order disposing of the appeal.

         (3)   An offer to settle:

                (a)    must be in writing; and

               (b)    must not be filed.

Note   A later offer to settle has the effect of withdrawing an earlier offer (see subrule 10.03 (3)).

10.02      Open and ‘without prejudice’ offer

         (1)   An offer to settle is made without prejudice (a without prejudice offer) unless the offer states that it is an open offer.

         (2)   A party must not mention the fact that a without prejudice offer has been made, or the terms of the offer:

                (a)    in any document filed; or

               (b)    at a hearing or trial.

         (3)   If a party makes an open offer, any party may disclose the facts and terms of the offer to other parties and the court.

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

                (a)    an application relating to an offer; or

               (b)    an application for costs.

10.03      How to withdraw an offer

         (1)   A party may withdraw an offer to settle by serving a written notice on the other party that the offer is withdrawn.

         (2)   A party may withdraw an offer to settle at any time before:

                (a)    the offer is accepted; or

               (b)    the court makes an order disposing of the application or appeal to which the offer relates.

         (3)   A second or later offer by a party has the effect of withdrawing an earlier offer.

10.04      How to accept an offer

         (1)   A party may accept an offer to settle by notice, in writing, to the party making the offer.

         (2)   A party may accept an offer to settle at any time before:

                (a)    the offer is withdrawn; or

               (b)    the court makes an order disposing of the application or appeal.

         (3)   If an offer to settle is accepted, the parties must lodge a draft consent order.

Note 1   The draft consent order should set out the orders agreed to by the parties and must be signed by both parties. Once lodged, it will be considered by the court under rule 10.17. The parties may agree to the dismissal of all applications.

Note 2   Paragraph 6.13 (1) (d) requires that, if a party seeks a consent order and a case guardian has been appointed for the party, the case guardian must file an affidavit stating why the consent order is in the best interests of the party, and any other matter the court may require.

10.05      Counter‑offer

                A party may accept an offer to settle even though the party has made a counter‑offer to settle.

Division 10.1.2     Offer to settle — property cases

10.06      Compulsory offer to settle

         (1)   This rule applies to a property case.

         (2)   Each party must make a genuine offer to settle to all other parties within:

                (a)    28 days after the conciliation conference; or

               (b)    such further time as ordered by the court.

         (3)   The offer to settle must state that it is made under this Division.

Example

The offer to settle must include a statement along the following lines:

‘This offer to settle is made under Division 10.1.2 of the Family Law Rules 2004.’.

Note 1   For rules about making, withdrawing and accepting an offer, see Division 10.1.1.

Note 2   An offer to settle is a factor that must be taken into account when the court exercises its discretion in relation to costs (see paragraph 117 (2A) (f) of the Act).

Note 3   Rule 11.02 sets out the consequences of failing to comply with these Rules.

10.07      Withdrawal of offer

                A party who withdraws an offer to settle made under this Division must, at the same time, make another genuine offer to settle.

Part 10.2            Discontinuing a case

  

10.10      Definition

                In this Part:

case includes:

                (a)    part of a case;

               (b)    an order sought in an application; and

                (c)    an application for a consent order when there is no current case (see Part 10.4).

10.11      Discontinuing a case

         (1)   A party may discontinue a case by filing a Notice of Discontinuance (Form 10).

         (2)   A party must apply to the court for permission to discontinue a case if:

                (a)    the case relates to property of the parties, or a party, and one of the parties dies before the case is determined; or

               (b)    in an application for divorce — there are less than 7 days before the date of the hearing.

Note   Under subsection 79 (8) of the Act, a party may continue with an application for property even if one of the parties has died.

         (3)   Discontinuance of a case by a party does not discontinue any other party’s case.

Note   If one or more joint applicants, but not all, discontinue a case, any discontinuing applicant becomes a respondent.

         (4)   If a party discontinues a case, another party may apply for costs within 28 days after the Form 10 is filed.

         (5)   If:

                (a)    a party is required to pay the costs of another party because of the discontinuance of a case; and

               (b)    the party required to pay the costs starts another case on the same, or substantially the same, grounds before paying the costs;

the other party may apply for the case to be stayed until the costs are paid.

Part 10.3            Summary orders and separate decisions

  

Note   An application under this Part is made by filing a Form 2 and an affidavit (see rules 5.01 and 5.02).

10.12      Application for summary orders

                A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:

                (a)    the court has no jurisdiction;

               (b)    the other party has no legal capacity to apply for the orders sought;

                (c)    it is frivolous, vexatious or an abuse of process; or

               (d)    there is no reasonable likelihood of success.

10.13      Application for separate decision

                After the final resolution event, a party may apply for a decision on any issue, if the decision may:

                (a)    dispose of all or part of the case;

               (b)    make a trial unnecessary;

                (c)    make a trial substantially shorter; or

               (d)    save substantial costs.

10.14      What the court may order under this Part

                On an application under this Part, the court may:

                (a)    dismiss any part of the case;

               (b)    decide an issue;

                (c)    make a final order on any issue;

               (d)    order a hearing about an issue or fact; or

                (e)    with the consent of the parties, order arbitration about the case or part of the case.

Note   This list does not limit the powers of the court. The court may make orders on an application, or on its own initiative (see rule 1.10).

Part 10.4            Consent orders

  

10.15      How to apply for a consent order

         (1)   A party may apply for a consent order:

                (a)    in a current case:

                          (i)    orally, during a hearing or a trial;

                         (ii)    by lodging a draft consent order; or

                         (iii)    by tendering a draft consent order to a judicial officer during a court event; or

               (b)    if there is no current case — by filing an Application for Consent Orders (Form 11), and attaching a draft consent order.

Note 1   See rule 24.08 for copies required.

Note 2   A case guardian for a party seeking a consent order (other than an order relating to practice or procedure), must file an affidavit setting out the facts relied on to satisfy the court that the consent order is in the party’s best interests (see paragraph 6.13 (1) (d)).

         (2)   A draft consent order must:

                (a)    set out clearly the orders that the parties ask the court to make;

               (b)    state that it is made by consent; and

                (c)    be signed by each of the parties.

         (3)   Paragraph (1) (b) does not apply if a party applies for a consent order:

                (a)    for step‑parent maintenance under rule 4.16;

               (b)    relying on a cross‑vesting law;

                (c)    approving a medical procedure;

               (d)    for a parenting order when section 65G of the Act applies; or

                (e)    for an order under the Assessment Act or Registration Act.

         (4)   A party applying for a consent order in a case mentioned in subrule (3) must file an Application for Final Orders (Form 1) as soon as the consent is received.

Note   If an independent children’s lawyer has been appointed in a case, the court will not make a consent order unless the independent children’s lawyer has also signed the draft consent order (see subrule 8.02 (4)).

10.16      Notice to superannuation trustee

         (1)   This rule applies in a property case if a party intends to apply for a consent order which is expressed to bind the trustee of an eligible superannuation plan.

         (2)   The party must, not less than 28 days before lodging the draft consent order or filing the Form 11, notify the trustee of the eligible superannuation plan in writing of the following:

                (a)    the terms of the order that will be sought to bind the trustee;

               (b)    the next court event (if any);

                (c)    that the parties intend to apply for the order sought if no objection to the order is received from the trustee within the time mentioned in subrule (3);

               (d)    that if the trustee objects to the order sought, the trustee must give the parties written notice of the objection within the time mentioned in subrule (3).

         (3)   If the trustee does not object to the order sought within 28 days after receiving notice under subrule (2), the party may file the application or lodge the draft consent order.

         (4)   Despite subrule (3), if, after service of notice under subrule (2) on the trustee, the trustee consents, in writing, to the order being made, the parties may file the Form 11 or lodge the draft consent order.

Note   Eligible superannuation plan is defined in section 90MD of the Act.

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).

10.17      Dealing with a consent order

                If a party applies for a consent order, the court may:

                (a)    make an order in accordance with the orders sought;

               (b)    require a party to file additional information;

                (c)    dismiss the application

Note   A party applying for a consent order must satisfy the court as to why the consent order should be made.

10.18      Lapsing of respondent’s consent

                A respondent’s consent to an application that an order be made in the same terms as the draft consent order attached to a Form 11 lapses if:

                (a)    90 days have passed since the date of the first affidavit in the Form 11; and

               (b)    the Form 11 has not been filed.

Chapter 11  Case management

Summary of Chapter 11

Chapter 11 sets out the ways the court may manage a case to achieve the main purpose of these Rules (see rule 1.04), including:

·   making procedural orders;

·   limiting the issues in dispute;

·   permitting amendment of applications or documents to clarify the issues in dispute;

·   using simplified procedures for small claims; and

·   changing the venue of a case.

The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.

A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.

Part 11.1            Court’s powers of case management

  

11.01      General powers

                The court may exercise any of the powers mentioned in Table 11.1 to manage a case to achieve the main purpose of these Rules (see rule 1.04).

Table 11.1   Court’s powers

 

Item

Subject

Power

1

Attendance

   (a)  order a party to attend:

         (i)   an information session;

        (ii)   a procedural hearing;

       (iii)   a family consultant;

       (iv)   family counselling or family dispute resolution;

        (v)   a conference or other court event; or

 

 

       (vi)   a post‑separation parenting program;

   (b)  require a party, a party’s lawyer or an independent children’s lawyer to attend court

2

Case development

   (a)  consolidate cases;

   (b)  order that part of a case be dealt with separately;

   (c)  decide the sequence in which issues are to be tried;

   (d)  specify the facts that are in dispute, state the issues and make procedural orders about how and when the case will be heard or tried;

   (e)  refer a particular case or a part of a case for special management by a judicial officer;

   (f)  with the consent of the parties, order that a case or part of a case be submitted to arbitration;

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

3

Conduct of case

   (a)  hold a court event and receive submissions and evidence by electronic communication;

   (b)  postpone, bring forward or cancel a court event;

   (c)  adjourn a court event;

   (d)  stay a case or part of a case;

   (e)  make orders in the absence of a party;

   (f)  deal with an application without an oral hearing;

   (g)  deal with an application with written or oral evidence or, if the issue is a question of law, without evidence;

   (h)  allow an application to be made orally;

    (i)  determine an application without requiring notice to be given;

    (j)  order that a case lose listing priority;

   (k)  make a self‑executing order

Note 1   The powers mentioned in this rule are in addition to any powers given to the court under a legislative provision or that it may otherwise have.

Note 2   Rule 1.10 provides that a court may make an order on its own initiative and sets out what other things the court may do when making an order or giving a party permission to do something.

11.02      Failure to comply with a legislative provision or order

         (1)   If a step is taken after the time specified for taking the step by these Rules, the Regulations or a procedural order, the step is of no effect.

Note   A defaulter may apply to the court for relief from this rule (see rule 11.03).

         (2)   If a party does not comply with these Rules, the Regulations or a procedural order, the court may:

                (a)    dismiss all or part of the case;

               (b)    set aside a step taken or an order made;

                (c)    determine the case as if it were undefended;

               (d)    make any of the orders mentioned in rule 11.01;

                (e)    order costs;

                (f)    prohibit the party from taking a further step in the case until the occurrence of a specified event; or

                (g)    make any other order the court considers necessary, having regard to the main purpose of these Rules (see rule 1.04).

Note   This list does not limit the powers of the court. It is an expectation that a non‑defaulting party will minimise any loss.

11.03      Relief from orders

         (1)   A party may apply for relief from:

                (a)    the effect of subrule 11.02 (1); or

               (b)    an order under subrule 11.02 (2).

         (2)   In determining an application under subrule (1), the court may consider:

                (a)    whether there is a good reason for the non‑compliance;

               (b)    the extent to which the party has complied with orders, legislative provisions and the pre‑action procedures;

                (c)    whether the non‑compliance was caused by the party or the party’s lawyer;

               (d)    the impact of the non‑compliance on the management of the case;

                (e)    the effect of non‑compliance on each other party;

                (f)    costs;

                (g)    whether the applicant should be stayed from taking any further steps in the case until the costs are paid; and

                (h)    if the application is for relief from the effect of subrule 11.02 (1) — whether all parties consent to the step being taken after the specified time.

Note 1   This list does not limit the powers of the court. See also subrule 1.12 (3).

Note 2   A party may make an application under this rule by filing a Form 2 or, with the court’s permission, orally at a court event.

11.04      Frivolous or vexatious case

         (1)   If the court is satisfied that an applicant has frequently started a case or appeal that is frivolous, vexatious or an abuse of process, it may:

                (a)    dismiss the applicant’s application; and

               (b)    order that the applicant may not, without the court’s permission, file or continue an application.

         (2)   The court may make an order under subrule (1):

                (a)    on its own initiative; or

               (b)    on the application of:

                          (i)    a party;

                         (ii)    for the Family Court of Australia — a Registry Manager; or

                         (iii)    for the Family Court of a State — the Executive Officer.

         (3)   The court must not make an order under subrule (1) unless it has given the applicant a reasonable opportunity to be heard.

Note   Under section 118 of the Act, the court may dismiss a case that is frivolous or vexatious and, on application, may prevent the person who started the case from starting a further case. Chapter 5 sets out the procedure for making an application under this rule.

11.05      Application for permission to start a case

         (1)   This rule applies if:

                (a)    the court has made an order under subsection 118 (1) of the Act or paragraph 11.04 (1) (b); and

               (b)    the person against whom the order was made applies for permission to start or continue a case.

         (2)   The application must be in Form 2 and must be made without notice to any other party.

Note   An applicant must file an affidavit stating the facts relied on to establish the need for the orders sought (see rule 5.02).

         (3)   On the first court date for the application:

                (a)    the court may dismiss the application; or

               (b)    the court may:

                          (i)    order the person to:

                                   (A)     serve the application and affidavit; and

                                   (B)     file and serve any further affidavits in support of the application; and

                         (ii)    list the application for hearing.

         (4)   The court must not grant permission to start or continue a case unless it is satisfied that the case has a reasonable likelihood of success.

11.06      Dismissal for want of prosecution

         (1)   If a party has not taken a step in a case for one year, the court may:

                (a)    dismiss all or part of the case; or

               (b)    order an act to be done within a fixed time, in default of which the party’s application will be dismissed.

         (2)   The court must not make an order under subrule (1) unless, at least 14 days before making the order, the court has given the parties written notice of the date and time when it will consider whether to make the order.

         (3)   If:

                (a)    an application is dismissed under subrule (1);

               (b)    a party is ordered to pay the costs of another party; and

                (c)    before the costs are paid, the party ordered to pay them starts another application on the same or substantially the same grounds;

the other party may apply for the case to be stayed until the costs are paid.

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

Part 11.2            Limiting issues

Division 11.2.1     Admissions

Note   To reduce cost and delay, parties are encouraged to make admissions in relation to facts and documents. The admission is for the purposes of the case only, in order to narrow the issues in dispute. A party should give the other party written notice of any admissions as early as practicable in the case. For example, if admissions are made before the disclosure process, disclosure may be able to be limited and the costs of the case reduced.

11.07      Request to admit

         (1)   A party may, by serving a Notice to Admit on another party, ask the other party to admit, for the purposes of the case only, that a fact is true or that a document is genuine.

         (2)   A Notice to Admit must include a note to the effect that, under subrule 11.08 (2), failure to serve a Notice Disputing a Fact or Document will result in the party being taken to have admitted that the fact is true or the document is genuine.

         (3)   If a Notice to Admit mentions a document, the party serving the Notice must attach a copy of the document to the notice, unless:

                (a)    the other party has a copy of the document; or

               (b)    it is not practicable to attach the copy to the Notice.

         (4)   If paragraph (3) (b) applies, the party must:

                (a)    in the Notice:

                          (i)    identify the document; and

                         (ii)    specify a convenient place and time at which the document may be inspected; and

               (b)    produce the document for inspection at the specified place and time.

11.08      Notice disputing fact or document

         (1)   If a party who is served with a Notice to Admit seeks to dispute a fact or document specified in the Notice, the party must serve on the party who served the Notice, within 14 days after it was served, a Notice Disputing the Fact or Document.

         (2)   If a party does not serve a notice in accordance with subrule (1), the party is taken to admit, for the purposes of the case only, that the fact is true or the document is genuine.

         (3)   If:

                (a)    a party serves a Notice Disputing a Fact or Document; and

               (b)    the fact or the genuineness of the document is later proved in the case;

the party who served the Notice may be ordered to pay the costs of proof.

11.09      Withdrawing admission

         (1)   A party may withdraw an admission that a fact is true or a document is genuine only with the court’s permission or the consent of all parties.

         (2)   When allowing a party to withdraw an admission, the court may order the party to pay any other party’s costs thrown away.

         (3)   In subrule (1):

admission includes an admission in a document in the case or taken to be made under subrule 11.08 (2).

Note   The court may, on application, order that a party not pay costs (see rule 1.12).

Division 11.2.2     Amendment

11.10      Amendment by a party or court order

         (1)   A party who has filed an application or response may amend the application or response:

                (a)    for a case started by an Application for Final Orders (Form 1):

                          (i)    within 28 days after the final resolution event; or

                         (ii)    at any later time, with the consent of the other parties or by order;

               (b)    for an Application in a Case (Form 2):

                          (i)    at or before the first court date; or

                         (ii)    at any later time, with the consent of the other parties or by order; and

                (c)    for all other applications — at any time, with the consent of the other parties or by order.

Note   An amendment of an application may be necessary to ensure that the court determines the real issues between the parties or to avoid multiple cases.

         (2)   A party who:

                (a)    has filed a Form 1 or Form 1A; and

               (b)    seeks to add or substitute another cause of action or another person as a party to the case;

must amend the Form in accordance with this Division.

         (3)   If an amendment mentioned in subrule (2) is made after the first court date, the Registry Manager must set a date for a further procedural hearing.

         (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.

11.11      Time limit for amendment

                A party who has been given permission by the court to amend an application must do so within 7 days after the order is made.

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

11.12      Amending a document

                A party must amend a document by filing a copy of the document:

                (a)    with the amendment clearly marked; and

               (b)    if the document is amended by order — endorsed with the date when the order and amendment are made.

Example

An amendment may be made by:

(a)   placing a line through the text to be changed; and

(b)   underlining the new text or using a different type‑face to indicate the new text.

Note   Rule 13.06 sets out the requirements for amending a Financial Statement (Form 13).

11.13      Response to amended document

                If an amended document that has been served on a party affects a document (the affected document) previously filed by the party, the party may amend the affected document:

                (a)    in accordance with rule 11.12; and

               (b)    not more than 14 days after the amended document was served on the party.

11.14      Disallowance of amendment

                The court may disallow an amendment of a document.

Example

The court may disallow an amendment if it is frivolous, vexatious or not in accordance with these Rules or an order.

Division 11.2.3     Small claims

11.15      Small claims

         (1)   Subrule (2) applies if the court determines that:

                (a)    a case is to be determined as a small claim; and

               (b)    it is not appropriate to transfer the case to the Federal Magistrates Court for hearing (see rule 11.18).

         (2)   At the trial:

                (a)    the parties must not call witnesses, other than the parties themselves, without the court’s permission;

               (b)    evidence must be given orally; and

                (c)    each party must produce all relevant documents.

         (3)   The following rules do not apply to a case that is to be determined as a small claim:

                (a)    Chapter 12;

               (b)    Chapter 13, except Part 13.1;

                (c)    Parts 15.4 and 15.5;

               (d)    Part 16.2.

Note 1   The type of case that the court may decide to determine as a small claim includes:

(a)     a dispute about an item of property, such as a car or furniture;

(b)     a case in which there is minimal property or only personal property;

(c)   some specific issues in a parenting case; and

(d)   a dispute about the time or place of collection of a child for contact.

Note 2   A lawyer may recover 80% of the scale for costs in a small claim (see subrule 19.40 (2)).

Part 11.3            Venue

Division 11.3.1     Open court and chambers

11.16      Cases in chambers

         (1)   Subject to subrule (2), a court may exercise its jurisdiction in chambers.

         (2)   A trial must be heard in open court.

         (3)   A judicial officer who determines a case in chambers must:

                (a)    record:

                          (i)    the file number;

                         (ii)    the names of the parties;

                         (iii)    the date of the determination; and

                        (iv)    the orders made; and

               (b)    sign the record.

Note 1   An order made in chambers has the same effect as an order made in open court.

Note 2   The court may make orders about who may be present in court during a case (see subsection 97 (2) of the Act).

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.

Division 11.3.3     Transfer of court file

11.20      Transfer between courts

                If an order is made to transfer a case from a court to another court, the Registry Manager, after receiving the file, must:

                (a)    fix a date for a procedural hearing; and

               (b)    give each party notice of the date fixed.


Chapter 12  Court events

Summary of Chapter 12

Chapter 12 sets out rules about the events that parties to an Application for Final Orders (Form 1) may be required to attend during the course of the case. These include a case assessment conference, a procedural hearing, family counselling, family dispute resolution, attendance with a family consultant, a conciliation conference, a pre‑trial conference and a trial.  Rules about the events in the determination phase of a case to which Chapter 16A applies are set out in Chapter 16A.

The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.

A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.

  

  

 

Resolution phase

 

Comply with pre‑action procedures

 

 

 

 

Start of case (Chapter 2)

 

 

 

First court date (hearing, procedural hearing, case assessment conference)

 

 

 

 

Property

 

Parenting order

 

 

 

 

Conciliation conference

Final resolution event

Attendance with family consultant

 

 

 

 

Determination phase

 

Trial notice issues

 

 

 

 

Pre‑trial conference

 

 

 

 

 

 

Trial

 

 



 

Part 12.1            Application of Chapter 12

  

12.01      Application of Chapter 12

                This Chapter applies to all Applications for Final Orders (Form 1), except:

                (a)    a Medical Procedure Application;

               (b)    a Maintenance Application;

                (c)    a child support application or appeal;

               (d)    an application for an order that a marriage is a nullity or a declaration as to the validity of a marriage, divorce or annulment;

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

                (f)    a case to be determined as a small claim under rule 11.15.

Part 12.2            Court events — resolution phase

Note 1   When a Form 1 is filed, the Registry Manager will fix a date (the first court date) for:

(a)   a procedural hearing; or

(b)   a case assessment conference and procedural hearing (see rule 4.03).

Note 2   A lawyer for a party has an obligation to advise the party about costs before the first court date and each subsequent court event (see rule 19.04).

12.02      Property case — exchange of documents before first court date

                At least 2 days before the first court date in a property case, each party must, as far as practicable, exchange with each other party a copy of all of the following documents:

                (a)    a copy of the party’s 3 most recent taxation returns and assessments;

               (b)    if relevant, documents about any superannuation interest of the party, including:

                          (i)    if not already filed, the completed superannuation information form for the superannuation interest; and

                         (ii)    if the party is a member of a self‑managed superannuation fund — a copy of the trust deed and the 3 most recent financial statements for the fund;

                (c)    for a corporation in relation to which a party has a duty of disclosure under rule 13.04:

                          (i)    a copy of the financial statements for the 3 most recent financial years, including balance sheets, profit and loss accounts, depreciation schedules and taxation returns;

                         (ii)    a copy of the corporation’s most recent annual return that lists the directors and shareholders; and

                         (iii)    if relevant, a copy of the corporation’s constitution;

               (d)    for a trust in relation to which a party has a duty of disclosure under rule 13.04:

                          (i)    a copy of the financial statements for the 3 most recent financial years, including balance sheets, profit and loss accounts, depreciation schedules and taxation returns; and

                         (ii)    a copy of the trust deed;

                (e)    for a partnership in relation to which a party has a duty of disclosure under rule 13.04:

                          (i)    a copy of the financial statements for the 3 most recent financial years, including balance sheets, profit and loss accounts, depreciation schedules and taxation returns; and

                         (ii)    a copy of the partnership agreement;

                (f)    for a person or entity mentioned in paragraph (a), (c), (d) or (e) — any business activity statements for the 12 months ending immediately before the first court date;

                (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.

Note   All parties have a general duty of disclosure (see Chapter 13). For examples of the type of property about which disclosure must be made, see rule 13.04.

12.03      Case assessment conference

         (1)   A case assessment conference must be held in the presence of:

                (a)    a Registrar; or

               (b)    a family consultant.

         (2)   The purpose of a case assessment conference is:

                (a)    to enable the person conducting the conference to assess and make any recommendations about the appropriate future conduct of the case; and

               (b)    to enable the parties to attempt to resolve the case, or any part of the case, by agreement.

         (3)   If the case is not settled by the end of the conference, the parties must immediately attend a procedural hearing.

Note 1   A party and a party’s lawyer must attend a case assessment conference and a procedural hearing (see subrule 1.08 (3) and rule 12.11).

Note 2   A party to a parenting case must disclose a copy of an expert’s report no later than 2 days before a case assessment conference (see paragraph 15.55 (1) (a)).

12.04      Procedural hearing

         (1)   At a procedural hearing, the court:

                (a)    may investigate the possibility of settlement of any issue in the case; and

               (b)    must:

                          (i)    consider any recommendations made at the case assessment conference;

                         (ii)    make orders in relation to the future conduct of the case;

                         (iii)    list the case for the next appropriate court event; or

                        (iv)    make a consent order.

Note 1   The next appropriate court event may be a conciliation conference in a property case,  family counselling or family dispute resolution in a parenting case, a procedural hearing, a hearing or a trial.

Note 2   The orders the court may make at a procedural hearing include:

(a)   an order that a party produce a specific document for inspection and copying by the other party before the conciliation conference in a property case (see rule 12.05 and subrule 13.22 (4));

(b)   an order permitting a party to obtain an expert’s report; and

(c)   an order that a party serve notice of the case on a person whose interests may be affected by the case.

         (2)   At a procedural hearing, each party must, as far as practicable, identify:

                (a)    any procedural orders sought;

               (b)    the agreed issues;

                (c)    any person who may be entitled to become a party to the case; and

               (d)    any relevant matters relating to the main purpose of these Rules (see rule 1.04).

12.05      Property case — exchange of documents before conciliation conference

         (1)   This rule applies to a party to a property case in which the parties are required to attend a conciliation conference.

         (2)   At least 7 days before the conciliation conference, each party must, as far as practicable, exchange with each other party:

                (a)    a conciliation conference document;

               (b)    if not already exchanged, a copy of all the documents mentioned in rule 12.02;

                (c)    all documents containing evidence about:

                          (i)    the financial matters mentioned in the party’s Financial Statement (Form 13) and the conciliation conference document completed by the party for the conference;

                         (ii)    financial contributions made when the parties began cohabiting;

                         (iii)    any inheritances, gifts or compensation payments received after the parties began cohabiting;

                        (iv)    any purchase of property since the parties separated;

                         (v)    any disposal of property within the meaning of paragraph 13.04 (1) (g);

                        (vi)    any increase or reduction of liabilities since the parties separated; and

                        (vii)    the value of any superannuation interest of a party, including the basis on which the value has been worked out and any documents used to work out the value; and

               (d)    any other documents ordered at the procedural hearing or otherwise, or agreed between the parties to be exchanged.

         (3)   At least 7 days before the conciliation conference, each party must lodge in the filing registry a copy of the conciliation conference document given to the other party under paragraph (2) (a).

         (4)   At the end of the conciliation conference, the Registrar must return to each party the conciliation conference document lodged by the party.

Note   At a procedural hearing or conciliation conference, the court may make an order for specific documents to be produced or exchanged if it is satisfied that it is required for the purposes of resolving the case (see subrule 13.22 (4)).

12.06      Conduct of a conciliation conference

         (1)   A conciliation conference must be conducted by a judicial officer, who may be assisted by a family consultant.

Note   The parties to a property case will be ordered to attend a conciliation conference unless the conference is dispensed with by order under subsection 79 (9) of the Act.

         (2)   Each party at a conciliation conference must make a genuine effort to reach agreement on the matters in issue between them.

         (3)   If a case is not settled at the end of a conciliation conference, the judicial officer conducting the conference may make orders in relation to the conduct of the case.

Note 1   A party and a party’s lawyer must attend a conciliation conference (see subrule 12.11 (1)).

Note 2   The procedural orders that may be made under subrule (3) include an order about disclosure of documents, obtaining an expert’s report and an extension of time for making a compulsory offer to settle under rule 10.06.

Part 12.3            Court events — determination phase

  

Note   If a case is not settled at the final resolution event, it enters the determination phase of the court’s case management system and a trial notice will be issued.

12.07A   Application

                This Part does not apply to a case to which Chapter 16A applies.

12.07      Trial notice

                If all issues in a case are not resolved at the end of the final resolution event, a trial notice may be issued by the court:

                (a)    after the conclusion of the final resolution event;

               (b)    when an order is made that the parties attend a pre‑trial conference; or

                (c)    if no pre‑trial conference is to be held — when the case is listed for trial.

12.08      Compliance certificate

                Each party must file a written notice at least 14 days before the pre‑trial conference:

                (a)    certifying:

                          (i)    whether the case is ready to proceed to trial and, if not, why not;

                         (ii)    that, to the best of the party’s knowledge, all orders in the trial notice have been complied with;

                         (iii)    if the date of actual compliance with an order differs from the date ordered, the order affected and the date of actual compliance; and

                        (iv)    whether there is a reason why the pre‑trial conference may not be able to proceed on the date fixed for the conference; and

               (b)    acknowledging that if, at the pre‑trial conference:

                          (i)    a party has not complied with a procedural order set out in the trial notice; or

                         (ii)    the case is not otherwise ready to be set down for trial;

                        the case will not be set down for trial and orders may be made, including an order for costs against a defaulting party or the defaulting party’s lawyer.

12.09      Non‑compliance

         (1)   If, within the time specified in a trial notice:

                (a)    the orders in the trial notice are not complied with; or

               (b)    a compliance certificate is not filed;

the Registry Manager may cancel the pre‑trial conference.

         (2)   If the pre‑trial conference is cancelled, the Registry Manager must list the case for further procedural orders.

Note   See rules 11.01 and 11.02 for the court’s powers relating to case management and default.

         (3)   If:

                (a)    a pre‑trial conference is cancelled; and

               (b)    within 12 weeks after the date when the conference was cancelled:

                          (i)    the orders in the trial notice are not complied with; and

                         (ii)    a compliance certificate is not filed;

the court must dismiss the orders sought by the non‑complying party unless there are exceptional circumstances.

12.10      Conduct of pre‑trial conference

         (1)   Each party at a pre‑trial conference must:

                (a)    satisfy the Registrar that the case is ready for trial; and

               (b)    provide information to the Registrar, including:

                          (i)    a reasoned assessment of the likely length of a trial;

                         (ii)    the expected length of opening and closing addresses; and

                         (iii)    a list of witnesses and the time needed for examination and cross‑examination of the witnesses.

         (2)   At the end of the pre‑trial conference, the Registrar may:

                (a)    fix a trial date; and

               (b)    make any orders necessary to ensure the parties have the case ready for trial.

Part 12.4            Attendance at court events

  

12.11      Party’s attendance

         (1)   A party and the party’s lawyer (if any) must attend a procedural hearing, case assessment conference, conciliation conference or pre‑trial conference.

         (2)   Subrule (1) does not apply if the parties are seeking a consent order that will finally dispose of the case.

Note 1   A request under rule 5.14 for an application to be determined in the absence of the parties does not apply to a court event mentioned in Chapter 12 because rule 5.14 applies only to interim, procedural or enforcement orders.

Note 2   If, at a court event mentioned in subrule (1), the parties intend to seek a consent order that will finally dispose of the case, a party or the party’s lawyer may be excused from attending the event.

Note 3   A lawyer attending a court event for a party must be familiar with the case and authorised to deal with any issue in the case (see subrule 1.08 (3)).

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.

12.13      Failure to attend court events

         (1)   If an applicant does not attend a case assessment conference or procedural hearing, the court may:

                (a)    dismiss the application; or

               (b)    make an order for the future conduct of the case.

         (2)   If a respondent does not attend a case assessment conference or procedural hearing, the court may:

                (a)    if respondent has not filed a Response (Form 1A) — make the order sought in the application;

               (b)    list the case for dismissal or hearing on an undefended basis; or

                (c)    make an order for the future conduct of the case.

         (3)   If a party does not attend a conciliation conference or pre‑trial conference, the court may:

                (a)    list the case for dismissal or hearing on an undefended basis; and

               (b)    make an order for the future conduct of the case.

Note   See rules 11.01 and 11.02 for the court’s power to make orders for the conduct of a case.

Part 12.5            Adjournment and postponement of court events

  

12.14      Administrative postponement of conferences or procedural hearings

         (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.

         (2)   A request must:

                (a)    be in writing;

               (b)    specify why it is appropriate to postpone the event;

                (c)    specify the date to which the event is sought to be postponed;

               (d)    be signed by each party making the request or the party’s lawyer; and

                (e)    be received by the Registry Manager:

                          (i)    for a case assessment conference or procedural hearing — no later than 12 noon on the day before the date fixed for the conference or hearing; or

                         (ii)    for a conciliation conference — at least 7 days before the date fixed for the conference.

         (3)   If a request is made, the Registry Manager must tell the parties:

                (a)    that the event has been postponed; and

               (b)    the date to which it has been postponed.

         (4)   The Registry Manager must not postpone a conference more than once or a procedural hearing more than twice.

         (5)   A court event mentioned in subrule (1) must not be postponed to a date that is more than 8 weeks after the date fixed for the event.

12.15      Adjournment of case conference

                A case assessment conference will not ordinarily be adjourned.

Note   If a case assessment conference is unable to proceed, a procedural hearing will be conducted (see subrule 12.03 (3)).

12.16      Adjournment or postponement of pre‑trial conference

                A pre‑trial conference:

                (a)    must not be postponed; and

               (b)    may only be adjourned in exceptional circumstances.


Chapter 13  Disclosure

Summary of Chapter 13

Chapter 13 sets out the rules about:

·   a party’s duty to make early, full and continuing disclosure of all information relevant to the case to each other party and the court; and

·   the timing, extent and method of discharging the duty of disclosure and how the duty can be enforced.

The aim of disclosure is to help parties to focus on genuine issues, reduce cost and encourage settlement, of the case.

The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.

A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.

  

  

 

 

Disclosure between parties
(Parts 13.1, 13.2 and 13.3)

 

General duty of disclosure (Division 13.1.1)

 

Disclosure of documents (Division 13.2.1)

 

 

 


By delivery

 

Exceptions

 

By inspection

(r 13.20)

 

(r 13.12)

 

(rr 13.10, 13.21)

 

Orders relating to disclosure (Division 13.2.2)

 

Duty of disclosure — financial cases (Division 13.1.2)

 

Answers to specific questions (Part 13.3)

 

Information from non‑parties (Part 13.4)

 

 


Employment information (Division 13.4.1)

 

Production of documents (Division 13.4.2)


Part 13.1            Disclosure between parties

Division 13.1.1     General duty of disclosure

13.01      General duty of disclosure

         (1)   Each party to a case has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the case, in a timely manner.

Note   Failure to comply with the duty may result in the court excluding evidence that is not disclosed or imposing a consequence, including punishment for contempt of court. This Chapter sets out a number of ways that a party is either required, or can be called upon, to discharge the party’s duty of disclosure, including:

(a)   disclosure of financial circumstances (see Division 13.1.2);

(b)   disclosure and production of documents (see Division 13.2.1); and

(c)   disclosure by answering specific questions in certain circumstances (see Part 13.3).

         (2)   The duty of disclosure starts with the pre‑action procedure for a case and continues until the case is finalised.

Note   The duty of disclosure applies to a case guardian for a child and a person with a disability (see subrule 6.13 (2)).

Division 13.1.2     Duty of disclosure — financial cases

13.02      Purpose of Division 13.1.2

         (1)   This Division sets out the duty of disclosure required by parties to a financial case.

         (2)   This Division does not apply to a party to a property case who is not a party to the marriage to which the application relates, except to the extent that the party’s financial circumstances are relevant to the issues in dispute.

13.03      Definition

                In this Division:

party to a financial case includes a payee or other respondent to an enforcement application.

13.04      Full and frank disclosure

         (1)   A party to a financial case must make full and frank disclosure of the party’s financial circumstances, including:

                (a)    the party’s earnings, including income that is paid or assigned to another party, person or legal entity;

               (b)    any vested or contingent interest in property;

                (c)    any vested or contingent interest in property owned by a legal entity that is fully or partially owned or controlled by a party;

               (d)    any income earned by a legal entity fully or partially owned or controlled by a party, including income that is paid or assigned to any other party, person or legal entity;

                (e)    the party’s other financial resources;

                (f)    any trust:

                          (i)    of which the party is the appointor or trustee;

                         (ii)    of which the party, the party’s child, spouse or de facto spouse is an eligible beneficiary as to capital or income;

                         (iii)    of which a corporation is an eligible beneficiary as to capital or income if the party, or the party’s child, spouse or de facto spouse is a shareholder or director of the corporation;

                        (iv)    over which the party has any direct or indirect power or control;

                         (v)    of which the party has the direct or indirect power to remove or appoint a trustee;

                        (vi)    of which the party has the power (whether subject to the concurrence of another person or not) to amend the terms;

                        (vii)    of which the party has the power to disapprove a proposed amendment of the terms or the appointment or removal of a trustee; or

                       (viii)    over which a corporation has a power mentioned in any of subparagraphs (iv) to (vii), if the party, the party’s child, spouse or de facto spouse is a director or shareholder of the corporation;

                (g)    any disposal of property (whether by sale, transfer, assignment or gift) made by the party, a legal entity mentioned in paragraph (c), a corporation or a trust mentioned in paragraph (f) that may affect, defeat or deplete a claim:

                          (i)    in the 12 months immediately before the separation of the parties; or

                         (ii)    since the final separation of the parties; and

                (h)    liabilities and contingent liabilities.

         (2)   Paragraph (1) (g) does not apply to a disposal of property made with the consent or knowledge of the other party or in the ordinary course of business.

         (3)   In this rule:

legal entity means a corporation (other than a public company), trust, partnership, joint venture business or other commercial activity.

Note   The requirements in this rule are in addition to the requirements in rules 12.02 and 12.05 to exchange certain documents before a conference in a property case.

13.05      Financial statement (Form 13)

         (1)   A party starting, or filing a response or reply to, a financial case (other than by an Application for Consent Orders (Form 11)) must file a Financial Statement (Form 13) at the same time.

         (2)   If a party is aware that the completion of a Form 13 will not fully discharge the duty to make full and frank disclosure, the party must also file an affidavit giving further particulars.

Note   The court may order a party to file an affidavit giving further particulars in relation to the party’s financial affairs.

13.06      Amendment of Financial Statement (Form 13)

         (1)   This rule applies if, before a conciliation conference, pre‑trial conference or trial, or at the time of seeking a consent order, a party’s financial circumstances have changed significantly from the information set out in the Form 13 or affidavit filed under rule 13.05.

         (2)   At least 7 days before the conciliation conference, pre‑trial conference or trial, or at the time of seeking a consent order, the party must file:

                (a)    a new Form 13 with the amendments clearly marked; or

               (b)    if the amendments are able to be clearly set out in 300 words or less, an affidavit containing details about the party’s changed financial circumstances.

Part 13.2            Duty of disclosure — documents

Division 13.2.1     Disclosure of documents — all cases

13.07      Duty of disclosure — documents

                The duty of disclosure applies to each document that:

                (a)    is or has been in the possession, or under the control, of the party disclosing the document; and

               (b)    is relevant to an issue in the case.

Note 1   For documents that parties must produce to the court:

(a)   on the first court date for a Maintenance Application, see rule 4.15;

(b)   on the first court date for a child support application or appeal, see rule 4.19;

(c)   at a conference in a property case, see Part 12.2; and

(d)   at a trial, see Chapters 15 and 16.

Note 2   Rule 13.15 provides that a party must file a written notice about the party’s duty of disclosure.

Note 3   Rule 15.76 provides that a party may give another party a notice to produce a specified document at a hearing or trial.

Note 4   A document disclosed to a party must be used for the purposes of the case only and must not be used for any other purpose without the consent of the other party or an order.

13.08      Inspection of documents

         (1)   A party may, by written notice, require another party to provide a copy of, or produce for inspection, a document referred to:

                (a)    in a document filed or served by a party on another party or independent children’s lawyer; or

               (b)    in correspondence prepared and sent by or to another party or independent children’s lawyer.

         (2)   A party required to provide a copy of a document must provide the copy within 21 days after receiving the written notice.

13.09      Production of original documents

                A party may, by written notice, require another party to produce for inspection an original document if the document is a document that must be produced under the duty of disclosure.

13.10      Disclosure by inspection of documents

         (1)   If a party is required to produce a document for inspection under rule 13.08 or 13.09, the party must:

                (a)    notify, in writing, the party requesting the document of a convenient place and time to inspect the document;

               (b)    produce the document for inspection at that place and time; and

                (c)    allow copies of the document to be made, at the expense of the party requesting it.

         (2)   The time fixed under paragraph (1) (a) must be within 21 days after the party receives a written notice under rule 13.08 or 13.09 or as otherwise agreed.

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

13.11      Costs for inspection

                A party who fails to inspect a document under a notice given under rule 13.08 or 13.09 or paragraph 13.20 (3) (a) may not later do so unless the party tenders an amount for the reasonable costs of providing another opportunity for inspection.

Note   The court may, on application, order that a party not pay costs (see rule 1.12).

13.12      Documents that need not be produced

                Subject to rule 15.55, a party must disclose, but need not produce to the party requesting it:

                (a)    a document for which there is a claim for privilege from disclosure; or

               (b)    a document a copy of which is already disclosed, if the copy contains no change, obliteration or other mark or feature that is likely to affect the outcome of the case.

Note   Rule 13.13 sets out the requirements for challenging a claim of privilege from disclosure.

13.13      Objection to production

         (1)   This rule applies if:

                (a)    a party claims:

                          (i)    privilege from production of a document; or

                         (ii)    that the party is unable to produce a document; and

               (b)    another party, by written notice, challenges the claim.

         (2)   The party making the claim must, within 7 days after the other party challenges the claim, file an affidavit setting out details of the claim.

Note   If there is a dispute about disclosure, an application may be made to the court (see rules 13.18 and 13.22).

13.14      Consequence of non‑disclosure

                If a party does not disclose a document as required under these Rules:

                (a)    the party:

                          (i)    must not offer the document, or present evidence of its contents, at a hearing or trial without the other party’s consent or the court’s permission;

                         (ii)    may be guilty of contempt for not disclosing the document; and

                         (iii)    may be ordered to pay costs; and

               (b)    the court may stay or dismiss all or part of the party’s case.

Note 1   Under rule 15.76, a party who discloses a document under this Part must produce the document at the trial if a notice to produce has been given.

Note 2   Section 112AP of the Act sets out the court’s powers in relation to contempt of court.

13.15      Undertaking by party

         (1)   A party (except an independent children’s lawyer) must file a written notice:

                (a)    stating that the party:

                          (i)    has read Parts 13.1 and 13.2 of these Rules; and

                         (ii)    is aware of the party’s duty to the court and each other party (including any independent children’s lawyer) to give full and frank disclosure of all information relevant to the issues in the case, in a timely manner;

               (b)    undertaking to the court that, to the best of the party’s knowledge and ability, the party has complied with, and will continue to comply with, the duty of disclosure; and

                (c)    acknowledging that a breach of the undertaking may be contempt of court.

         (2)   A party commits an offence if the party makes a statement or signs an undertaking the party knows, or should reasonably have known, is false or misleading in a material particular.

Penalty:   50 penalty units.

Note   Subrule (2) is in addition to the court’s powers under section 112AP of the Act relating to contempt and the court’s power to make an order for costs.

         (3)   If the court makes an order against a party under section 112AP of the Act in respect of a false or misleading statement mentioned in subrule (2), the party must not be charged with an offence against subrule (2) in respect of that statement.

         (4)   A notice under subrule (1) must comply with subrule 24.01 (1) and be as follows:

                ‘This Notice is filed in accordance with rule 13.15 of the Family Law Rules 2004.

                I [insert name]:

                (a)    have read Parts 13.1 and 13.2 of the Family Law Rules 2004;

               (b)    am aware of my duty to the court and to each other party (including any independent children’s lawyer) to give full and frank disclosure of all information relevant to the issues in the case, in a timely manner; and

                (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.

                I understand the nature and terms of this undertaking and that if I breach the undertaking, I may be guilty of contempt of court.

 

………………………………

 

………………………………

(signature of person making statement)

(full name of person making statement)

 

………………………………

 

(date of signature)

 

 

………………………………

 

………………………………

(signature of witness)

(full name of witness)

 

………………………………

 

(date of signature)

 

Note 1   For the consequences of failing to comply with this rule, see rule 11.02.

Note 2   A party who breaches an undertaking may be found guilty of contempt of court and may be punished by imprisonment (see section 112AP of the Act).

13.16      Time for filing undertaking

                A notice under rule 13.15 must be filed:

                (a)    for a case that has a pre‑trial conference — at least 21 days before the date fixed for the pre‑trial conference; and

               (b)    for any other case — at least 7 days before the date fixed for the hearing or trial.

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

Division 13.2.2     Disclosure of documents — certain applications

13.17      Application of Division 13.2.2

                This Division applies to the following applications:

                (a)    an application for divorce;

               (b)    an Application in a Case;

                (c)    an application for an order that a marriage is a nullity or a declaration as to the validity of a marriage, divorce or annulment;

               (d)    a Maintenance Application;

                (e)    a child support application or appeal;

                (f)    a Small Claim;

                (g)    a Contravention Application;

                (h)    a Contempt Application;

                 (i)    a case listed for trial without a pre‑trial conference.

13.18      Party may seek order about disclosure

                A party to an application under this Division may seek only the following orders about disclosure:

                (a)    that another party deliver a copy of a document;

               (b)    that another party produce a document for inspection by another party.

Division 13.2.3     Disclosure of documents — Applications for Final Orders

13.19      Application of Division 13.2.3

         (1)   This Division applies to all Applications for Final Orders (Form 1), except:

                (a)    an application for an order that a marriage is a nullity or a declaration as to the validity of a marriage, divorce or annulment;

               (b)    a Maintenance Application;

                (c)    a child support application or appeal;

               (d)    a Small Claim; or

                (e)    a case listed for trial without a pre‑trial conference.

         (2)   This Division does not affect:

                (a)    the right of a party to inspect a document, if the party has a common interest in the document with the party who has possession or control of the document;

               (b)    another right of access to a document other than under this Division; or

                (c)    an agreement between the parties for disclosure by a procedure that is not described in this Division.

13.20      Disclosure by service of a list of documents

         (1)   After the final resolution event for a case, a party (the requesting party) may, by written notice, ask another party (the disclosing party) to give the requesting party a list of documents to which the duty of disclosure applies.

         (2)   The disclosing party must, within 21 days after receiving the notice, serve on the requesting party a list of documents identifying:

                (a)    the documents to which the duty of disclosure applies;

               (b)    the documents no longer in the disclosing party’s possession or control to which the duty would otherwise apply (with a brief statement about the circumstances in which the documents left the party’s possession or control); and

                (c)    the documents for which privilege from production is claimed.

Note   Rule 13.07 sets out the documents to which the duty of disclosure applies.

         (3)   The requesting party may, by written notice, ask the disclosing party to:

                (a)    produce a document for inspection; or

               (b)    provide a copy of a document.

         (4)   The disclosing party must, within 14 days after receiving a notice under paragraph (3) (b), give the requesting party, at the requesting party’s expense, the copies requested, other than copies of documents:

                (a)    in relation to which privilege from production is claimed; or

               (b)    that are no longer in the disclosing party’s possession or control.

         (5)   If a document that must be disclosed is located by, or comes into the possession or control of, a disclosing party after disclosure under subrule (2), the party must disclose the document within 7 days after it is located or comes into the party’s possession or control.

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

13.21      Disclosure by inspection of documents

         (1)   This rule applies if:

                (a)    a party has requested the production of a document for inspection under paragraph 13.20 (3) (a); or

               (b)    it is not convenient for a disclosing party to provide copies of documents under paragraph 13.20 (3) (b) because of the number and size of the documents.

         (2)   The disclosing party must, within 14 days after receiving the notice under subrule 13.20 (3):

                (a)    notify the requesting party, in writing, of a convenient place and time at which the documents may be inspected;

               (b)    produce the documents for inspection at that place and time; and

                (c)    allow copies of the documents to be made at the requesting party’s expense.

13.22      Application for order for disclosure

         (1)   At or after the final resolution event, a party may seek an order that:

                (a)    another party comply with a request for a list of documents in accordance with rule 13.20;

               (b)    another party disclose a specified document, or class of documents, by providing to the other party a copy of the document, or each document in the class, for inspection by the other party;

                (c)    another party produce a document for inspection;

               (d)    a party file an affidavit stating:

                          (i)    that a specified document, or class of documents, does not exist or has never existed; or

                         (ii)    the circumstances in which a specified document or class of documents ceased to exist or passed out of the possession or control of that party; or

                (e)    the party be partly or fully relieved of the duty of disclosure.

         (2)   A party making an application under subrule (1) must satisfy the court that the order is necessary for disposing of the case or an issue or reducing costs.

Note 1   Before making an application under this Chapter, a party must make a reasonable and genuine attempt to settle the issue to which the application relates (see rule 5.03).

Note 2   An application under this Chapter is made by filing a Form 2 and an affidavit (see rules 5.01 and 5.02). The court may allow an oral application at the conciliation conference or another court event.

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

                (a)    whether the disclosure sought is relevant to an issue in dispute;

               (b)    the relative importance of the issue to which the document or class of documents relates;

                (c)    the likely time, cost and inconvenience involved in disclosing a document or class of documents taking into account the amount of the property, or complexity of the corporate, trust or partnership interests (if any), involved in the case; and

               (d)    the likely effect on the outcome of the case of disclosing, or not disclosing, the document or class of documents.

         (4)   If the disclosure of a document is necessary for the purpose of resolving a case at the conciliation conference, a party (the requesting party) may, at the first court event, seek an order that another party:

                (a)    provide a copy of the document to the requesting party; or

               (b)    produce the document to the requesting party for inspection and copying.

         (5)   The court may only make an order under subrule (4) in exceptional circumstances.

         (6)   If a party objects to the production of a document for inspection or copying, the court may inspect the document to decide the objection.

13.23      Costs of compliance

                If the cost of complying with the duty of disclosure would be oppressive to a party, the court may order another party to:

                (a)    pay the costs;

               (b)    contribute to the costs; or

                (c)    give security for costs.

13.24      Electronic disclosure

                The court may make an order directing disclosure of documents by electronic communication.

Note   The court has practice guidelines about disclosure by electronic communication.

Part 13.3            Answers to specific questions

  

13.25      Application of Part 13.3

                This Part applies to all Applications for Final Orders (Form 1), except:

                (a)    an application for an order that a marriage is a nullity or a declaration as to the validity of a marriage, divorce or annulment;

               (b)    a Maintenance Application;

                (c)    a child support application or appeal;

               (d)    a Small Claim; or

                (e)    a case listed for trial without a pre‑trial conference.

13.26      Service of specific questions

         (1)   After the final resolution event, a party (the requesting party) may serve on another party (the answering party) a request to answer specific questions.

         (2)   A party may only serve one set of specific questions on another party.

         (3)   The specific questions must:

                (a)    be in writing;

               (b)    be limited to 20 questions (with each question taken to be one specific question); and

                (c)    not be vexatious or oppressive.

         (4)   If an answering party is required, by a written notice served under rule 13.20 or an order, to give the requesting party a list of documents, the answering party is not required to answer the questions until the time for disclosure under Part 13.2 or an order has expired.

         (5)   The requesting party must serve a copy of any request to answer specific questions on all other parties.

13.27      Answering specific questions

         (1)   A party on whom a request to answer specific questions is served must answer the questions in an affidavit that is filed and served on each person to be served within 21 days after the request was served.

         (2)   The party must, in the affidavit:

                (a)    answer, fully and frankly, each specific question; or

               (b)    object to answering a specific question.

         (3)   An objection under paragraph (2) (b) must:

                (a)    specify the grounds of the objection; and

               (b)    briefly state the facts in support of the objection.

13.28      Orders in relation to specific questions

         (1)   After the final resolution event, a party may apply for an order:

                (a)    that a party comply with rule 13.27 and answer, or further answer, a specific question served on the party under rule 13.26;

               (b)    determining the extent to which a question must be answered;

                (c)    requiring a party to state specific grounds of objection;

               (d)    determining the validity of an objection; or

                (e)    that a party who has not answered, or who has given an insufficient answer, to a specific question be required to attend court to be examined.

         (2)   In considering whether to make an order under subrule (1), the court may take into account whether:

                (a)    the requesting party is unlikely, at the trial, to have another reasonably simple and inexpensive way of proving the matter sought to be obtained by the specific questions;

               (b)    answering the questions will cause unacceptable delay or undue expense; and

                (c)    the specific questions are relevant to an issue in the case.

Part 13.4            Information from non‑parties

Division 13.4.1     Employment information

13.29      Purpose of Division 13.4.1

                This Division sets out the information a party may require from an employer of a party to a financial case.

13.30      Employment information

         (1)   The court may order a party to advise the court, in writing, within a specified time, of:

                (a)    the name and address of the party’s employer or, if the party has more than one employer, each of those employers; and

               (b)    other information the court considers necessary to enable an employer to identify the party.

         (2)   Subrule (3) applies if:

                (a)    a party (the requesting party) requests the employer of another party (the employee) to give particulars about:

                          (i)    the employer’s indebtedness to the employee;

                         (ii)    the employee’s present rate of earnings, or of all the earnings of the employee that became payable during a specified period; or

                         (iii)    the employee’s conditions of employment; and

               (b)    the employer refuses, or fails to respond to, the requesting party’s request.

         (3)   The requesting party may apply for an order that the employer advise the court, in writing, within a specified time, of the particulars mentioned in paragraph (2) (a).

Note   A document purporting to be a statement within the meaning of subrule (1) or (2) may be admitted as evidence of its contents (see section 48 of the Evidence Act 1995). However, subject to sections 4 and 5 of the Evidence Act 1995, that Act does not apply to the Family Court of Western Australia or any other court of a State.

Division 13.4.2     Non‑party documents

13.31      Purpose of Division 13.4.2

                This Division sets out the procedure for obtaining the production of documents by a person who is not a party to a case.

13.32      Definitions

                In this Division:

non‑party means a person who is not a party to, or an independent children’s lawyer in, a case.

requesting party means a party who serves a Notice of Non‑party Production of Documents (Form 12) on a non‑party.

13.33      Notice of Non‑party Production of Documents

         (1)   A requesting party may serve a Notice of Non‑party Production of Documents (Form 12) on a non‑party, requiring the non‑party to produce to the requesting party a specified document or class of documents:

                (a)    relevant to an issue in the case;

               (b)    in the possession, or under the control, of the non‑party; and

                (c)    that the non‑party may be required to produce at the trial.

         (2)   A Form 12 may be served only if there is no other reasonably simple and inexpensive way of proving the issue sought to be proved by the document specified in the Form.

         (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.

13.34      Service on others affected by Notice

                At least 14 days before serving a non‑party with a Form 12, a requesting party must serve a copy of the Form on:

                (a)    each other party to the case; and

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

Note   The court may:

(a)   dispense with compliance with a rule (see rule 1.12); and

(b)   shorten or extend the time for compliance with a rule (see rule 1.14).

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).

13.36      Production of documents

         (1)   A non‑party must produce, for inspection by a requesting party, a document specified in a Form 12 at the place stated in the Form or at a time and place convenient to the requesting party and non‑party.

         (2)   Subrule (1) does not apply if the operation of a Form 12 is stayed under rule 13.40.

13.37      Copying produced documents

         (1)   A requesting party may copy a document produced under subrule 13.36 (1).

         (2)   A party who copies a document under subrule (1):

                (a)    must use the copy for the purposes of the case only; and

               (b)    must not use the copy for any other purpose, without an order or the consent of the non‑party.

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.

13.38      Costs of production

         (1)   A requesting party must pay the reasonable costs incurred by a non‑party in producing a document under subrule 13.36 (1) as ordered or agreed.

         (2)   The amount payable under subrule (1) must be at least equal to the minimum amount of conduct money mentioned in Part 1 of Schedule 4.

Note   The court may order that a party is not required to pay costs (see rule 1.12).

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.

13.41      Court’s decision about Form 12

         (1)   If:

                (a)    a non‑party does not comply with rule 13.35; or

               (b)    a person makes an objection under rule 13.39;

a requesting party may apply for an order for the non‑party’s compliance or for a decision about the objection.

         (2)   A party making an application under subrule (1) must satisfy the court:

                (a)    of the matters set out in rule 13.33; and

               (b)    that the order is necessary for disposing of the case or an issue, or reducing costs.

         (3)   A party may only apply for an order under subrule (2) after the final resolution event, except in exceptional circumstances.

         (4)   If an objection under rule 13.39 is upheld, the requesting party may be ordered to pay the costs of the person who made the objection.

13.42      Orders about non‑party disclosure

                The court may make any order about non‑party production of documents, including an order:

                (a)    requiring production;

               (b)    lifting a stay (see rule 13.40);

                (c)    varying the requirements of, or setting aside, the Form 12; or

               (d)    about the costs of production.

Chapter 14  Property orders

Summary of Chapter 14

Chapter 14 sets out the procedure to be taken in property cases to obtain orders for inspection, detention, possession, valuation, insurance, preservation of property and with respect to a superannuation interest.

An application made under this Chapter must be in Form 2 (see Chapter 5 for the procedure).

The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.

A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.

  

  

14.01      Orders about property

         (1)   The court may make an order for the inspection, detention, possession, valuation, insurance or preservation of property if:

                (a)    the order relates to the property of a party, or a question may arise about the property in a case; and

               (b)    the order is necessary to allow the proper determination of a case.

         (2)   The court may order a party:

                (a)    to sell or otherwise dispose of property that will deteriorate, decay or spoil; and

               (b)    to deal with the proceeds of the sale or disposal in a certain way.

         (3)   A party may ask the court to make an order in relation to property authorising a person to:

                (a)    enter, or to do another thing to gain entry or access to, the property;

               (b)    make observations, and take photographs, of the property;

                (c)    observe or read images or information contained in the property including, for example, playing a tape, film or disk, or accessing computer files; or

               (d)    copy the property or information contained in the property.

         (4)   If the court makes an order under this rule, it may also order a party to pay the costs of a person who is not a party to the case and who must comply with the order.

         (5)   The court may make an order under subrule (1) binding on, or otherwise affecting, a person who is not a party to a case.

Note   For the procedure for making an application in a case, see Chapter 5.

14.02      Service of application

         (1)   A party who has applied for an order under rule 14.01 must:

                (a)    make a reasonable attempt to find out who has, or claims to have, an interest in the property to which the application relates; and

               (b)    serve the application and any supporting affidavits on that person.

         (2)   The court may allow an application for an order under this Part to be made without notice.

14.03      Inspection

                A party may apply for an order that the court inspect a place, process or thing, or witness a demonstration, about which a question arises in a case.

Note   For the procedure for making an application in a case, see Chapter 5.

14.04      Application for Anton Piller order

         (1)   A party may apply for an Anton Piller order:

                (a)    requiring a respondent to permit the applicant, alone or with another person, to enter the respondent’s premises and inspect or seize documents or other property;

               (b)    requiring the respondent to disclose specific information relevant to the case; and

                (c)    restraining the respondent, for a specified period of no more than 7 days, from informing anyone else (other than the respondent’s lawyer) that the order has been made.

         (2)   The applicant may apply for an Anton Piller order without notice to the respondent.

         (3)   An application for an Anton Piller order must be supported by an affidavit that includes:

                (a)    a description of the document or property to be seized or inspected;

               (b)    the address of the premises where the order is to be carried out;

                (c)    the reason the applicant believes the respondent may remove, destroy or alter the document or property unless the order is made;

               (d)    a statement about the damage the applicant is likely to suffer if the order is not made;

                (e)    a statement about the value of the property to be seized; and

                (f)    if permission is granted, the name of the person (if any) who the applicant wishes to accompany the applicant to the respondent’s premises.

Note   For the procedure for making an application in a case, see Chapter 5.

         (4)   If an Anton Piller order is made, the applicant must serve a copy of it on the respondent when the order is acted on.

14.05      Application for Mareva order

         (1)   A party may apply for a Mareva order restraining another person from removing property from Australia, or dealing with property in or outside Australia, if:

                (a)    the order will be incidental to an existing or prospective order made in favour of the applicant; or

               (b)    the applicant has an existing or prospective claim that is able to be decided in Australia.

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

                (a)    a description of the nature and value of the respondent’s property, so far as it is known to the applicant, in and outside Australia;

               (b)    the reason why the applicant believes:

                          (i)    property of the respondent may be removed from Australia; and

                         (ii)    dealing with the property should be restrained by order;

                (c)    a statement about the damage the applicant is likely to suffer if the order is not made;

               (d)    a statement about the identity of anyone, other than the respondent, who may be affected by the order and how the person may be affected; and

                (e)    if the application is made under paragraph (1) (b), the following information about the claim:

                          (i)    the basis of the claim;

                         (ii)    the amount of the claim;

                         (iii)    if the application is made without notice to the respondent, a possible response to the claim.

Note   For the procedure for making an application in a case, see Chapter 5.

14.06      Notice to superannuation trustee

         (1)   This rule applies in a property case if:

                (a)    a party seeks an order to bind the trustee of an eligible superannuation plan; and

               (b)    the case has been listed for a trial.

         (2)   The party must, not less than 28 days before the date fixed for the trial, notify the trustee of the eligible superannuation plan in writing of the terms of the order that will be sought at the trial to bind the trustee, and the date of the trial.

         (3)   If the court makes an order binding the trustee of an eligible superannuation plan, the party that sought the order must serve a copy of the order on the trustee of the eligible superannuation plan in which the interest is held.

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

Note 2   Eligible superannuation plan is defined in section 90MD of the Act.

14.07      Notice about intervention under Part VIII of Act

                If a person applies for an order under Part VIII of the Act, the person may serve a written notice on a person who may be entitled to become a party to the case under subsection 79 (10) of the Act:

                (a)    stating that the person to whom the notice is addressed may be entitled to become a party to the case under subsection 79 (10) of the Act;

               (b)    attaching a copy of the application for the order sought; and

                (c)    stating the date of the next relevant court event.

Chapter 15  Evidence

Summary of Chapter 15

Chapter 15 sets out rules about evidence generally and in relation to children, affidavits, subpoenas, assessors and expert witnesses. Evidence adduced at a hearing or trial must be admissible in accordance with the provisions of the Act, the Evidence Act 1995 and these Rules. Note, though, that, subject to sections 4 and 5 of the Evidence Act 1995, that Act does not apply to the Family Court of Western Australia or any other court of a State.

A person may be prosecuted for knowingly making a false statement in evidence (see section 35 of the Crimes Act 1914).

Sections 69ZT to 69ZX of the Act apply to a case to which Division 12A of Part VII of the Act applies.

The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.

A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.

Part 15.1            Children

  

15.01      Restriction on child’s evidence

         (1)   A party applying to adduce the evidence of a child under section 100B of the Act must file an affidavit that:

                (a)    sets out the facts relied on in support of the application;

               (b)    includes the name of a support person; and

                (c)    attaches a summary of the evidence to be adduced from the child.

Note   For the procedure for making an application in a case, see Chapter 5.

         (2)   If the court makes an order in relation to an application mentioned in subrule (1), it may order that:

                (a)    the child’s evidence be given by way of affidavit, video conference, closed circuit television or other electronic communication; and

               (b)    a person named in the order as a support person be present with the child when the child gives evidence.

Note   Subsections 100B (1) and (2) of the Act provide that a child (other than a child who is, or is seeking to become, a party to a case) must not swear an affidavit and must not be called as a witness or remain in court unless the court otherwise orders.

15.02      Interviewing a child

         (1)   A judicial officer may interview a child who is the subject of a case under Part VII of the Act.

         (2)   The interview may be conducted in the presence of a family consultant or another person specified by the judicial officer.

         (3)   If the child expresses a wish during the interview that is relevant to the case, the judicial officer may order a family report to be prepared.

15.03      Family reports

         (1)   A party to an Application for Final Orders (Form 1) may apply for an order that a family report be prepared at or after the issue of a trial notice.

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

                (a)    whether the case involves:

                          (i)    an intractable or complex parenting case;

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

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

                        (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 an independent children’s lawyer;

               (b)    receive the report in evidence;

                (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.

Part 15.2            Affidavits

Note   The filing of an affidavit does not make it become evidence. It is only when the affidavit is relied upon by a party at a hearing or trial that it becomes, for that hearing or trial (subject to any rulings on admissibility), part of the evidence.

  

15.05      Evidence in chief by affidavit

         (1)   Evidence in chief at a hearing or trial must be given by affidavit.

         (2)   Oral evidence may be adduced at a hearing or trial only if:

                (a)    a witness refuses to swear an affidavit; and

               (b)    notice to that effect has been given under subparagraph 15.07 (2) (b) (ii).

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

15.06      Reliance on affidavits

         (1)   An affidavit may be relied on at a hearing or trial only if it is filed and served in accordance with these Rules or an order.

         (2)   The court may order that an affidavit that does not comply with these Rules or an order must not be relied on at a hearing or trial.

         (3)   An affidavit filed with an application may be relied on in evidence only for the purpose of the application for which it was filed.

Note   Rule 5.09 sets out which affidavits may be relied on at an interim or procedural hearing.

15.07      Filing an affidavit

         (1)   This rule applies to a case started by an Application for Final Orders (Form 1) or Response to Application for Final Orders (Form 1A) except:

                (a)    a Medical Procedure Application;

               (b)    a Maintenance Application;

                (c)    a child support application or appeal;

               (d)    an application for an order that a marriage is a nullity or a declaration as to the validity of a marriage, divorce or annulment; or

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

         (2)   Each party must file, at least 14 days before a pre‑trial conference:

                (a)    one affidavit setting out the party’s evidence in chief; and

               (b)    for each witness the party intends calling at the trial:

                          (i)    one affidavit made by the witness, setting out the witness’s evidence in chief; or

                         (ii)    if the witness refuses to swear an affidavit — a notice to that effect, setting out the name of the witness and a statement of the evidence sought to be adduced from the witness.

Note 1   The court may, by order, vary a requirement in this rule when the trial notice is issued.

Note 2   At the trial, a party may not refer to or rely on an affidavit filed in relation to an earlier application or hearing unless the court orders otherwise (see subrule 15.06 (3)).

15.08      Form of affidavit

                An affidavit must:

                (a)    be divided into consecutively numbered paragraphs, with each paragraph being, as far as possible, confined to a distinct part of the subject matter;

               (b)    state, at the beginning of the first page:

                          (i)    the file number of the case for which the affidavit is sworn;

                         (ii)    the full name of the party on whose behalf the affidavit is filed; and

                         (iii)    the full name of the deponent;

                (c)    have a statement at the end specifying:

                          (i)    the name of the witness before whom the affidavit is sworn and signed; and

                         (ii)    the date when, and the place where, the affidavit is sworn and signed; and

               (d)    bear the name of the person who prepared the affidavit.

Note   An affidavit must comply with subrule 24.01 (1), including being legibly printed by machine.

15.09      Making an affidavit

         (1)   An affidavit must be:

                (a)    confined to facts about the issues in dispute;

               (b)    confined to admissible evidence;

                (c)    sworn by the deponent, in the presence of a witness;

               (d)    signed at the bottom of each page by the deponent and the witness; and

                (e)    filed after it is sworn.

         (2)   Any insertion in, erasure or other alteration of, an affidavit must be initialled by the deponent and the witness.

         (3)   A reference to a date (except the name of a month), number or amount of money must be written in figures.

Examples

1.        The second of July, Nineteen Hundred and Sixty‑Four must be written as ‘2 July 1964’.

2.        Twenty dollars must be written as ‘$20.00’.

Note 1   Rule 24.07 sets out the requirements for filing an affidavit by electronic communication.

15.10      Affidavit of illiterate or blind person etc

         (1)   If a deponent is illiterate, blind, or physically incapable of signing an affidavit, the witness before whom the affidavit is made must certify, at the end of the affidavit, that:

                (a)    the affidavit was read to the deponent;

               (b)    the deponent seemed to understand the affidavit; and

                (c)    for a deponent physically incapable of signing — the deponent indicated that the contents were true.

         (2)   If a deponent does not have an adequate command of English:

                (a)    a translation of the affidavit and oath must be read or given in writing to the deponent in a language that the deponent understands; and

               (b)    the translator must certify that the affidavit has been translated.

15.11      Affidavit outside Australia

                A person may make an affidavit outside Australia in accordance with:

                (a)    this Part; or

               (b)    the law of the place where the person makes the affidavit.

15.12      Documents attached

         (1)   A document to be used in conjunction with an affidavit must:

                (a)    subject to subrules (2) and (5), be attached to the affidavit;

               (b)    have its pages consecutively numbered beginning on the first page of the document with:

                          (i)    if the document is the first or only document used in conjunction with the affidavit — the numeral ‘1’; or

                         (ii)    if the document is not the first document used in conjunction with the affidavit — the numeral following the numeral appearing on the last page of the preceding document; and

                (c)    bear a statement, signed by the witness before whom the affidavit is made, identifying it as the document used in conjunction with the affidavit.

         (2)   A document to be used in conjunction with an affidavit must not be attached to the affidavit if:

                (a)    the document is more than 2.5 cm in thickness; or

               (b)    if the document is not more than 2.5 cm in thickness — the document and the affidavit, including any other documents to be used in conjunction with the affidavit, when combined are more than 2.5 cm in thickness.

         (3)   If a document to be used in conjunction with an affidavit must not be attached to the affidavit because of subrule (2), the document must be filed:

                (a)    if the document is not more than 2.5 cm in thickness — in a separate volume; or

               (b)    if the document is more than 2.5 cm in thickness — in as many separately indexed volumes, each not more than 2.5cm in thickness, as are required to contain the document.

         (4)   An index of contents must be included at the beginning of:

                (a)    if more than 1 document is attached to an affidavit in accordance with paragraph (1) (a) — the documents attached to the affidavit; or

               (b)    if more than 1 volume is filed in accordance with paragraph (3) (b) — each volume.

         (5)   If a document to be used in conjunction with an affidavit is unable to be attached to the affidavit, the document must be identified in the affidavit and filed.

         (6)   Paragraph (1) (c) does not apply to an attachment to an Affidavit of Service (Form 7).

15.13      Striking out objectionable material

         (1)   The court may order material to be struck out of an affidavit if the material:

                (a)    is inadmissible, unnecessary, irrelevant, unreasonably long, scandalous or argumentative; or

               (b)    sets out the opinion of a person who is not qualified to give it.

         (2)   If the court orders material to be struck out of an affidavit, the party who filed the affidavit may be ordered to pay the costs thrown away of any other party because of the material struck out.

15.14      Notice to attend for cross‑examination

         (1)   This rule applies only to a trial.

         (2)   A party seeking to cross‑examine a deponent must, at least 14 days before the trial, give to the party who filed the affidavit a written notice stating the name of the deponent who is required to attend court for cross‑examination.

         (3)   If a deponent fails to attend court in response to a notice under subrule (2), the court may:

                (a)    refuse to allow the deponent’s affidavit to be relied on;

               (b)    allow the affidavit to be relied on only on the terms ordered by the court; or

                (c)    order the deponent to attend for cross‑examination.

         (4)   If:

                (a)    a deponent attends court in response to a notice under subrule (2); and

               (b)    the deponent is not cross‑examined, or the cross‑examination is of little or no evidentiary value;

the party who required the deponent’s attendance may be ordered to pay the deponent’s costs for attending and any costs incurred by the other party because of the notice.

15.15      Deponent’s attendance and expenses

                The court may make orders for the attendance, and the payment of expenses, of a deponent who attends court for cross‑examination under rule 15.14.

Part 15.3            Subpoenas

Division 15.3.1     General

15.16      Interpretation

         (1)   In this Part:

court date means the date specified in a subpoena for attending court to give the evidence or produce the document mentioned in the subpoena.

issuing party means the party for whom a subpoena is issued.

named person means a person required by a subpoena to produce a document or give evidence.

         (2)   In this Part, a reference to a document includes a reference to an object.

Note   See section 25 of the Acts Interpretation Act 1901 for the definition of document.

15.17      Issuing a subpoena (Form 14)

         (1)   The court may, on its own initiative or at a party’s request, issue:

                (a)    a subpoena for production;

               (b)    a subpoena to give evidence; or

                (c)    a subpoena for production and to give evidence.

         (2)   A subpoena must be in Form 14.

         (3)   A subpoena must identify the person to whom it is directed by name or description of office.

         (4)   A subpoena may be directed to 2 or more persons if:

                (a)    the subpoena is to give evidence only; or

               (b)    the subpoena requires the production of the same documents from each named person.

         (5)   A subpoena for production:

                (a)    must identify the document to be produced and the time and place for production; and

               (b)    may require the named person to produce the document before the date of the trial.

15.18      Subpoena not to issue in certain circumstances

                The court must not issue a subpoena:

                (a)    at the request of a self‑represented party, unless the party has first obtained the Registrar’s permission to make the request; or

               (b)    for production of a document in the custody of the court or another court.

Note 1   Rule 15.34 sets out the procedure to be followed when a party seeks to produce to the court a document from another court.

Note 2   A prisoner required to give evidence at a hearing must do so by electronic communication, if practicable. Otherwise the party requiring the prisoner’s attendance must seek an order for the prisoner’s personal attendance (see rule 5.07).

15.19      Time for issuing a subpoena

         (1)   In a case started by an Application for Final Orders (Form 1), a party may ask the court to issue a subpoena after the issue of a trial notice.

         (2)   A party may ask the court to issue a subpoena after a hearing or trial date has been fixed in:

                (a)    a case started by a Form 1 that is listed for trial without a pre‑trial conference;

               (b)    a case started by an Application in a Case (Form 2);

                (c)    an application for divorce; or

               (d)    an appeal.

Note   A subpoena to produce must be served at least 7 days before the court date (see rule 15.28).

15.20      Amendment of subpoena

                A subpoena that has been issued but not served may be amended by the issuing party filing the amended subpoena with the amendments clearly marked.

15.21      Limit on number of subpoenas

         (1)   Subject to subrule (2), a party must not request the issue of more than 3 subpoenas for the hearing of any of the following applications:

                (a)    an Application in a Case (Form 2);

               (b)    a child support application or appeal;

                (c)    a Maintenance Application.

         (2)   An independent children’s lawyer may request the issue of more than 3 subpoenas to produce documents for the hearing of a Form 2.

Note 1   In a case to be determined as a small claim, only the parties may give evidence, unless the court orders otherwise (see rule 11.15).

Note 2   A party may seek permission from the court to issue additional subpoenas.

15.22      Service

         (1)   A subpoena must be served on the named person by hand.

         (2)   A subpoena must not be served on a child without the court’s permission.

Note   For service generally, see Chapter 7. For particular requirements in relation to service of a subpoena to produce documents, see rule 15.28.

15.23      Conduct money and witness fees

         (1)   A named person is entitled to be paid conduct money by the issuing party at the time of service of the subpoena, of an amount that is:

                (a)    sufficient to meet the reasonable expenses of complying with the subpoena; and

               (b)    at least equal to the minimum amount mentioned in Part 1 of Schedule 4.

         (2)   A named person served with a subpoena to give evidence and a subpoena to give evidence and produce documents is entitled to be paid a witness fee by the issuing party in accordance with Part 2 of Schedule 4, immediately after attending court in compliance with the subpoena.

         (3)   A named person may apply to be reimbursed if the named person incurs a substantial loss or expense that is greater than the amount of the conduct money or witness fee payable under this rule.

15.24      When compliance is not required

         (1)   A named person does not have to comply with the subpoena if:

                (a)    the named person was not served in accordance with these Rules (see rule 15.22 and subrule 15.28 (1)); or

               (b)    conduct money was not tendered to the person at the time of service or within a reasonable time before the court date.

         (2)   If a named person is not to be called to give evidence or produce a document to the court in compliance with the subpoena, the issuing party may excuse the named person from complying with the subpoena.

15.25      Discharge of subpoena obligation

         (1)   A subpoena remains in force until the earliest of the following events:

                (a)    the subpoena is complied with;

               (b)    the issuing party or the court releases the named person from the obligation to comply with the subpoena;

                (c)    the hearing or trial is concluded.

         (2)   For paragraph (1) (c), a trial or hearing is concluded when all parties have finished presenting their case.

15.26      Objection to subpoena

                If a named person or a person having sufficient interest in a subpoena:

                (a)    seeks an order that the subpoena be set aside in whole or in part;

               (b)    objects to the production of a document required by the subpoena;

                (c)    seeks to be paid for any loss or expense relating to the person’s attendance, or the production of a document, in compliance with the subpoena; or

               (d)    seeks any other relief in relation to the subpoena;

the person must attend court on the court date to apply for the order.

Note   An application to set aside a subpoena issued in an appeal will be listed for determination before the court hearing the appeal.

Division 15.3.2     Production of documents and access by parties

15.27      Application of Division 15.3.2

         (1)   This Division applies to a subpoena for production.

         (2)   A person who inspects or copies a document under these Rules or an order must:

                (a)    use the document for the purpose of the case only; and

               (b)    not disclose the contents of the document or give a copy of it to any other person without the court’s permission.

15.28      Service of subpoena for production

         (1)   A party who requests the issue of a subpoena for production must, at least 7 days before the court date:

                (a)    serve the named person, by hand, with:

                          (i)    the subpoena;

                         (ii)    a brochure called Subpoena (Information for Named Person), approved by the Principal Registrar giving information about subpoenas; and

                         (iii)    if the party intends to rely on rule 15.30 — the written notice mentioned in subrule 15.30 (2); and

               (b)    serve all other parties and the independent children’s lawyer (if any), by ordinary service, with a copy of the subpoena for production and, if applicable, the notice mentioned in subparagraph (a) (iii).

         (2)   At the time of service of the subpoena, the named person must be paid conduct money under subrule 15.23 (1).

Note 1   A person may ask permission to serve a subpoena at a later time than that set out in subrule (1) (see rule 1.14).

Note 2   Paragraph 15.17 (5) (b) provides that a subpoena for production may require the named person to produce a document before the date of the trial.

15.29      Compliance with subpoena

         (1)   A named person may comply with a subpoena for production by:

                (a)    attending, on the court date, at the place specified in the subpoena and providing the documents to the court; or

               (b)    no later than 2 days before the court date:

                          (i)    producing the documents to the Registry Manager together with a copy of the subpoena; or

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

         (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.

         (3)   The named person, when complying with the subpoena for production, must inform the Registry Manager in writing about whether:

                (a)    the documents referred to in the subpoena are to be returned to the named person; or

               (b)    the Registry Manager is authorised to dispose of the documents when they are no longer required by the court.

15.30      Right to inspect and copy

         (1)   This rule applies if:

                (a)    the issuing party serves the named person and the other parties, including the independent children’s lawyer (if any), in accordance with rule 15.28 at least 21 days before the court date; and

               (b)    the named person complies with the subpoena at least 7 days before the court date.

         (2)   The written notice mentioned in subparagraph 15.28 (1) (a) (iii) must state that:

                (a)    if the named person:

                          (i)    complies with the subpoena at least 7 days before the court date; and

                         (ii)    does not object to a party or any independent children’s lawyer inspecting or copying the document; and

               (b)    if no other party or person objects to the document being inspected and copied by the parties or any independent children’s lawyer;

each party and any independent children’s lawyer is entitled, without an order, to inspect and take copies of the document from 7 days before the court date.

         (3)   The issuing party must file an Affidavit of Service (Form 7), setting out the details of the party’s compliance with paragraph (1) (a).

         (4)   If the named person, a party or an independent children’s lawyer has not made an objection under rule 15.31 by the seventh day before the court date, each party and any independent children’s lawyer is entitled, after the seventh day and without an order, to inspect and take copies of the document.

Note   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.

15.31      Objection to inspection or copying of document

         (1)   This rule applies if the named person, or a person having sufficient interest in a subpoena for production:

                (a)    objects to the production of a document identified in the subpoena; or

               (b)    objects to a document identified in the subpoena being inspected or copied by any of the parties.

         (2)   The person must, as soon as practicable after being served with the subpoena and at least 10 days before the court date, give written notice of the objection, or other order sought, in accordance with Part F of Form 14, to:

                (a)    the Registry Manager;

               (b)    the named person, if applicable;

                (c)    the other parties; and

               (d)    any independent children’s lawyer.

         (3)   A notice under this rule operates as a stay on the operation of the parties’ and independent children’s lawyer’s right, under subrule 15.30 (4), to inspect and copy a document produced under a subpoena.

15.32      Court permission to inspect documents

                A person may not inspect or copy a document produced in compliance with a subpoena for production, but not yet admitted into evidence, unless:

                (a)    rule 15.30 applies; or

               (b)    the court gives permission.

15.33      Claim for privilege

                The court may compel a person to produce a document to the court for the purpose of ruling on an objection to the production of the document under a subpoena for production.

15.34      Production of document from another court

         (1)   A party who seeks to produce to the court a document in the possession of another court must give the Registry Manager a written notice setting out:

                (a)    the name and address of the court having possession of the document;

               (b)    a description of the document to be produced;

                (c)    the date when the document is to be produced; and

               (d)    the reason for seeking production.

         (2)   On receiving a notice under subrule (1), a Registrar may ask the other court, in writing, to send the document to the Registry Manager of the filing registry by a specified date.

         (3)   A party may apply for permission to inspect and copy a document produced to the court.

15.35      Return of documents produced

         (1)   This rule applies to a document produced in compliance with a subpoena that is to be returned to the named person.

         (2)   If the document is tendered as an exhibit at a hearing or trial, the Registry Manager must return it at least 28 days, and no later than 42 days, after the final determination of the application or appeal.

         (3)   If:

                (a)    a document is not tendered as an exhibit at a hearing or trial; and

               (b)    the party who filed the subpoena has been given 7 days written notice of the Registry Manager’s intention to return it;

the Registry Manager may return the document to the named person at a time that is earlier than the time mentioned in subrule (2).

         (4)   If the Registry Manager has received written permission from the named person to destroy the document:

                (a)    subrules (2) and (3) do not apply; and

               (b)    the Registry Manager may destroy the document, in an appropriate way, not earlier than 42 days after the final determination of the application or appeal.

Note   A document:

(a)   tendered into evidence by a party; and

(b)   not produced in compliance with a subpoena;

must be collected by the party who tendered it (see subrule 16.10 (4)).

Division 15.3.3     Non‑compliance with subpoena

15.36      Non‑compliance with subpoena

                If:

                (a)    a named person does not comply with a subpoena; and

               (b)    the court is satisfied that the named person was served with the subpoena and given conduct money (see rule 15.23);

the court may issue a warrant for the named person’s arrest and order the person to pay any costs caused by the non‑compliance.

Note   A person who does not comply with a subpoena may be guilty of contempt (see section 112AP of the Act).

Part 15.4            Assessors

  

15.37      Application of Part 15.4

                This Part applies to all applications except:

                (a)    an application for divorce;

               (b)    an application for an order that a marriage is a nullity; or

                (c)    an application for a declaration as to the validity of a marriage, divorce or annulment.

15.38      Appointing an assessor

         (1)   A party may apply for the appointment of an assessor by filing an Application in a Case (Form 2) and an affidavit.

         (2)   The affidavit must:

                (a)    state:

                          (i)    the name of the proposed assessor;

                         (ii)    the issue about which the assessor’s assistance will be sought; and

                         (iii)    the assessor’s qualifications, skill and experience to give the assistance; and

               (b)    attach the written consent of the proposed assessor.

         (3)   The court may appoint an assessor on its own initiative only if the court has:

                (a)    notified the parties of the matters mentioned in subrule (2); and

               (b)    given the parties a reasonable opportunity to be heard in relation to the appointment.

15.39      Assessor’s report

         (1)   The court may direct an assessor to prepare a report.

         (2)   A copy of the report must be given to each party and any independent children’s lawyer.

         (3)   An assessor must not be required to give evidence.

         (4)   The court is not bound by any opinion or finding of the assessor.

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

15.40      Remuneration of assessor

         (1)   An assessor may:

                (a)    be remunerated as determined by the court; and

               (b)    be paid by the court, or a party or other person, as ordered by the court.

         (2)   The court may order a party or other person to pay, or give security for payment of, the assessor’s remuneration before the assessor is appointed to assist the court.

Part 15.5            Expert evidence

Division 15.5.1     General

15.41      Application of Part 15.5

         (1)   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 family consultant 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.

         (2)   Nothing in this Part prevents an independent children’s lawyer communicating with a single expert witness.

15.42      Purpose of Part 15.5

                The purpose of this Part is:

                (a)    to ensure that parties obtain expert evidence only in relation to a significant issue in dispute;

               (b)    to restrict expert evidence to that which is necessary to resolve or determine a case;

                (c)    to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness;

               (d)    to avoid unnecessary costs arising from the appointment of more than one expert witness; and

                (e)    to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if necessary in the interests of justice.

15.43      Definitions

                In this Part:

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

expert’s report means a report by an expert witness, including a notice under subrule 15.59 (5).

expert witness means an expert who has been instructed to give or prepare independent evidence for the purpose of a case.

single expert witness means an expert witness who is appointed by agreement between the parties or by the court to give evidence or prepare a report on an issue.

Division 15.5.2     Single expert witness

15.44      Appointment of single expert witness by parties

         (1)   If the parties agree that expert evidence may help to resolve a substantial issue in a case, they may agree to jointly appoint a single expert witness to prepare a report in relation to the issue.

Note   Subrule 15.54 (3) sets out the requirements that apply to instructions to a single expert witness appointed by agreement between the parties.

         (2)   A party does not need the court’s permission to tender a report or adduce evidence from a single expert witness appointed under subrule (1).

15.45      Order for single expert witness

         (1)   The court may, on application or on its own initiative, order that expert evidence be given by a single expert witness.

         (2)   When considering whether to make an order under subrule (1), the court may take into account factors relevant to making the order, including:

                (a)    the main purpose of these Rules (see rule 1.04) and the purpose of this Part (see rule 15.42);

               (b)    whether expert evidence on a particular issue is necessary;

                (c)    the nature of the issue in dispute;

               (d)    whether the issue falls within a substantially established area of knowledge; and

                (e)    whether it is necessary for the court to have a range of opinion.

         (3)   The court may appoint a person as a single expert witness only if the person consents to the appointment.

         (4)   A party does not need the court’s permission to tender a report or adduce evidence from a single expert witness appointed under subrule (1).

15.46      Orders the court may make

                The court may, in relation to the appointment of, instruction of, or conduct of a case involving, a single expert witness make an order, including an order:

                (a)    requiring the parties to confer for the purpose of agreeing on the person to be appointed as a single expert witness;

               (b)    that, if the parties cannot agree on who should be the single expert witness, the parties give the court a list stating:

                          (i)    the names of people who are experts on the relevant issue and have consented to being appointed as an expert witness; and

                         (ii)    the fee each expert will accept for preparing a report and attending court to give evidence;

                (c)    appointing a single expert witness from the list prepared by the parties or in some other way;

               (d)    determining any issue in dispute between the parties to ensure that clear instructions are given to the expert;

                (e)    that the parties:

                          (i)    confer for the purpose of preparing an agreed letter of instructions to the expert; and

                         (ii)    submit a draft letter of instructions for settling by the court;

                (f)    settling the instructions to be given to the expert;

                (g)    authorising and giving instructions about any inspection, test or experiment to be carried out for the purposes of the report; or

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

15.47      Single expert witness’s fees and expenses

         (1)   The parties are equally liable to pay a single expert witness’s reasonable fees and expenses incurred in preparing a report.

         (2)   A single expert witness is not required to undertake any work in relation to his or her appointment until the fees and expenses are paid or secured.

Note 1   This rule applies unless the court orders otherwise (see rule 1.12).

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).

15.48      Single expert witness’s report

         (1)   A single expert witness must prepare a written report.

         (2)   If the single expert witness was appointed by the parties, the expert witness must give each party a copy of the report at the same time.

         (3)   If the single expert witness was appointed by the court, the expert witness must give the report to the Registry Manager.

Note   An expert witness may seek procedural orders from the court under rule 15.60 if the expert witness considers that it would not be in the best interests of a child or a party to give a copy of a report to each party.

         (4)   An applicant who has been given a copy of a report must file the copy but does not need to serve it.

15.49      Appointing another expert witness

         (1)   If a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court’s permission.

         (2)   The court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if it is satisfied that:

                (a)    there is a substantial body of opinion contrary to any opinion given by the single expert witness and that the contrary opinion is or may be necessary for determining the issue;

               (b)    another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or

                (c)    there is another special reason for adducing evidence from another expert witness.

15.50      Cross‑examination of single expert witness

         (1)   A party wanting to cross‑examine a single expert witness at a hearing or trial must inform the expert witness, in writing at least 14 days before the date fixed for the hearing or trial, that the expert witness is required to attend.

         (2)   The court may limit the nature and length of cross‑examination of a single expert witness.

Division 15.5.3     Permission for expert’s evidence

15.51      Permission for expert’s reports and evidence

         (1)   A party must apply for the court’s permission to tender a report or adduce evidence at a hearing or trial from an expert witness, except a single expert witness.

         (2)   An independent children’s lawyer may tender a report or adduce evidence at a hearing or trial from one expert witness on an issue without the court’s permission.

15.52      Application for permission for expert witness

         (1)   A party may seek permission to tender a report or adduce evidence from an expert witness by filing an Application in a Case (Form 2).

Note 1   A party who files a Form 2 must, at the same time, file an affidavit stating the facts relied on in support of the orders sought (see subrule 5.02 (1)).

Note 2   The court may allow a party to make an oral application (see paragraph (h) in item 3 of Table 11.1 in rule 11.01).

         (2)   The affidavit filed with the application must state:

                (a)    whether the party has attempted to agree on the appointment of a single expert witness with the other party and, if not, why not;

               (b)    the name of the expert witness;

                (c)    the issue about which the expert witness’s evidence is to be given;

               (d)    the reason the expert evidence is necessary in relation to that issue;

                (e)    the field in which the expert witness is expert;

                (f)    the expert witness’s training, study or experience that qualifies the expert witness as having specialised knowledge on the issue; and

                (g)    whether there is any previous connection between the expert witness and the party.

         (3)   When considering whether to permit a party to tender a report or adduce evidence from an expert witness, the court may take into account:

                (a)    the purpose of this Part (see rule 15.42);

               (b)    the impact of the appointment of an expert witness on the costs of the case;

                (c)    the likelihood of the appointment expediting or delaying the case;

               (d)    the complexity of the issues in the case;

                (e)    whether the evidence should be given by a single expert witness rather than an expert witness appointed by one party only; and

                (f)    whether the expert witness has specialised knowledge, based on the person’s training, study or experience:

                          (i)    relevant to the issue on which evidence is to be given; and

                         (ii)    appropriate to the value, complexity and importance of the case.

         (4)   If the court grants a party permission to tender a report or adduce evidence from an expert witness, the permission is limited to the expert witness named, and the field of expertise stated, in the order.

Note   Despite an order under this rule, a party is not entitle to adduce evidence from an expert witness if the expert’s report has not been disclosed or a copy has not been given to the other party (see rule 15.58).

Division 15.5.4     Instructions and disclosure of expert’s report

15.53      Application of Division 15.5.4

                This Division does not apply to a market appraisal or an opinion as to value in relation to property obtained by a party for the purposes of a procedural hearing or conference under paragraph 12.02 (g) or subrule 12.05 (2).

15.54      Instructions to expert witness

         (1)   A party who instructs an expert witness to give an opinion for a case or an anticipated case must:

                (a)    ensure the expert witness has a copy of the most recent version of, and has read, Divisions 15.5.4, 15.5.5 and 15.5.6 of these Rules; and

               (b)    obtain a written report from the expert witness.

         (2)   All instructions to an expert witness must be in writing and must include:

                (a)    a request for a written report;

               (b)    advice that the report may be used in an anticipated or actual case;

                (c)    the issues about which the opinion is sought;

               (d)    a description of any matter to be investigated, or any experiment to be undertaken or issue to be reported on; and

                (e)    full and frank disclosure of information and documents that will help the expert witness to perform the expert witness’s function.

         (3)   All instructions to a single expert witness appointed by agreement between the parties must be provided jointly by the parties and, if an independent children’s lawyer has been appointed in the case, the independent children’s lawyer.

15.55      Mandatory disclosure of expert’s report

         (1)   A party who has obtained an expert’s report for a parenting case, whether before or after the start of the case, must give each other party a copy of the report:

                (a)    if the report is obtained before the case starts — at least 2 days before the case assessment conference; or

               (b)    if the report is obtained after the case starts — within 7 days after the party receives the report.

         (2)   The party who discloses an expert’s report must disclose any supplementary report and any notice amending the report under subrule 15.59 (5).

         (3)   If an expert’s report has been disclosed under this rule, any party may seek to tender the report as evidence.

         (4)   Legal professional privilege does not apply in relation to an expert’s report that must be disclosed under this rule.

15.56      Provision of information about fees

                A party who has instructed an expert witness must, if requested by another party, give each other party details of any fee or benefit received, or receivable, by or for the expert witness, for the preparation of the report and for services provided, or to be provided, by or for the expert witness in connection with the expert witness giving evidence for the party in the case.

15.57      Application for provision of information

         (1)   This rule applies if the court is satisfied that:

                (a)    a party (the disclosing party) has access to information or a document that is not reasonably available to the other party (the requesting party); and

               (b)    the provision of the information or a copy of the document is necessary to allow an expert witness to carry out the expert witness’s function properly.

         (2)   The requesting party may apply for an order that the disclosing party:

                (a)    file and serve a document specifying the information in enough detail to allow the expert witness to properly assess its value and significance; and

               (b)    give a copy of the document to the expert witness.

Note   An expert witness may request the court to make an order under this rule (see rule 15.60).

15.58      Failure to disclose report

                A party who fails to give a copy of an expert’s report to another party or the independent children’s lawyer (if any) must not use the report or call the expert witness to give evidence at a hearing or trial, unless the other party and independent children’s lawyer consent to the report being used or the expert witness being called, or the court orders otherwise.

Division 15.5.5     Expert witness’s duties and rights

15.59      Expert witness’s duty to the court

         (1)   An expert witness has a duty to help the court with matters that are within the expert witness’s knowledge and capability.

         (2)   The expert witness’s duty to the court prevails over the obligation of the expert witness to the person instructing, or paying the fees and expenses of, the expert witness.

         (3)   The expert witness has a duty to:

                (a)    give an objective and unbiased opinion that is also independent and impartial on matters that are within the expert witness’s knowledge and capability;

               (b)    conduct the expert witness’s functions in a timely way;

                (c)    avoid acting on an instruction or request to withhold or avoid agreement when attending a conference of experts;

               (d)    consider all material facts, including those that may detract from the expert witness’s opinion;

                (e)    tell the court:

                          (i)    if a particular question or issue falls outside the expert witness’s expertise; and

                         (ii)    if the expert witness believes that the report prepared by the expert witness:

                                   (A)     is based on incomplete research or inaccurate or incomplete information; or

                                   (B)     is incomplete or may be inaccurate, for any reason; and

                (f)    produce a written report that complies with rules 15.62 and 15.63.

         (4)   The expert witness’s duty to the court arises when the expert witness:

                (a)    receives instructions under rule 15.54; or

               (b)    is informed by a party that the expert witness may be called to give evidence in a case.

         (5)   An expert witness who changes an opinion after the preparation of a report must give written notice to that effect:

                (a)    if appointed by a party — to the instructing party; or

               (b)    if appointed by the court — to the Registry Manager and each party.

         (6)   A notice under subrule (5) is taken to be part of the expert’s report.

15.60      Expert witness’s right to seek orders

         (1)   A single expert witness may, by written request to the court, seek a procedural order to assist in carrying out the expert witness’s function.

Note   The written request may be by letter and may, for example:

(a)   ask for clarification of instructions;

(b)   relate to the questions mentioned in Division 15.5.6; or

(c)   relate to a dispute about fees.

         (2)   The request must:

                (a)    comply with subrule 24.01 (1); and

               (b)    set out the procedural orders sought and the reason the orders are sought.

         (3)   The expert witness must serve a copy of the request on each party and satisfy the court that the copy has been served.

         (4)   The court may determine the request in chambers unless:

                (a)    within 7 days of being served with the request, a party makes a written objection to the request being determined in chambers; or

               (b)    the court decides that an oral hearing is necessary.

15.61      Expert witness’s evidence in chief

         (1)   An expert witness’s evidence in chief comprises the expert’s report, any changes to that report in a notice under subrule 15.59 (5) and any answers to questions under rule 15.66.

         (2)   An expert witness has the same protection and immunity in relation to the contents of a report disclosed under these Rules or an order as the expert witness could claim if the contents of the report were given by the expert witness orally at a hearing or trial.

15.62      Form of expert’s report

         (1)   An expert’s report must:

                (a)    be addressed to the court and the party instructing the expert witness;

               (b)    have attached to it a summary of the instructions given to the expert witness and a list of any documents relied on in preparing the report; and

                (c)    be verified by an affidavit of the expert witness.

         (2)   The affidavit verifying the expert’s report must state the following:

                        ‘I have made all the inquiries I believe are necessary and appropriate and to my knowledge there have not been any relevant matters omitted from this report, except as otherwise specifically stated in this report.

                        I believe that the facts within my knowledge that have been stated in this report are true.

                        The opinions I have expressed in this report are independent and impartial.

                        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.

                        I have complied with the requirements of the following professional codes of conduct or protocol, being [state the name of the code or protocol].

                        I understand my duty to the court and I have complied with it and will continue to do so.’.

15.63      Contents of expert’s report

                An expert’s report must:

                (a)    state the reasons for the expert witness’s conclusions;

               (b)    include a statement about the methodology used in the production of the report; and

                (c)    include the following in support of the expert witness’s conclusions:

                          (i)    the expert witness’s qualifications;

                         (ii)    the literature or other material used in making the report;

                         (iii)    the relevant facts, matters and assumptions on which the opinions in the report are based;

                        (iv)    a statement about the facts in the report that are within the expert witness’s knowledge;

                         (v)    details about any tests, experiments, examinations or investigations relied on by the expert witness and, if they were carried out by another person, details of that person’s qualifications and experience;

                        (vi)    if there is a range of opinion on the matters dealt with in the report — a summary of the range of opinion and the basis for the expert witness’s opinion;

                        (vii)    a summary of the conclusions reached;

                       (viii)    if necessary, a disclosure that:

                                   (A)     a particular question or issue falls outside the expert witness’s expertise;

                                   (B)     the report may be incomplete or inaccurate without some qualification and the details of any qualification; or

                                   (C)     the expert witness’s opinion is not a concluded opinion because further research or data is required or because of any other reason.

15.64      Consequences of non‑compliance

                If an expert witness does not comply with these Rules, the court may:

                (a)    order the expert witness to attend court;

               (b)    refuse to allow the expert’s report or any answers to questions to be relied on;

                (c)    allow the report to be relied on but take the non‑compliance into account when considering the weight to be given to the expert witness’s evidence; and

               (d)    take the non‑compliance into account when making orders for:

                          (i)    an extension or abridgment of a time limit;

                         (ii)    a stay of the case;

                         (iii)    interest payable on a sum ordered to be paid; or

                        (iv)    costs.

Note   For the court’s power to order costs, see subsection 117 (2) of the Act.

Division 15.5.6     Questions to single expert witness

15.65      Questions to single expert witness

         (1)   A party wanting to ask a single expert witness questions about the expert’s report must do so before the hearing or trial.

         (2)   The questions must:

                (a)    be in writing and be put once only, within 21 days after the party receives a copy of the report;

               (b)    be only for the purpose of clarifying the expert’s report; and

                (c)    not be vexatious or oppressive, or require the expert witness to undertake an unreasonable amount of work to answer.

         (3)   The party must give a copy of any questions to each other party.

Note   A party may cross‑examine a single expert witness (see rule 15.50).

15.66      Single expert witness’s answers

         (1)   A single expert witness must answer a question received under rule 15.65 within 21 days after receiving it.

         (2)   An answer to a question:

                (a)    must be in writing;

               (b)    must specifically refer to the question; and

                (c)    must:

                          (i)    answer the substance of the question; or

                         (ii)    object to answering the question.

         (3)   If the single expert witness objects to answering a question or is unable to answer a question, the single expert witness must state the reason for the objection or inability in the document containing the answers.

         (4)   The single expert witness’s answers:

                (a)    must be:

                          (i)    attached to the affidavit under subrule 15.62 (2);

                         (ii)    sent by the single expert witness to all parties at the same time; and

                         (iii)    filed by the party asking the questions; and

               (b)    are taken to be part of the expert’s report.

15.67      Single expert witness’s costs for answers

         (1)   A single expert witness’s reasonable fees and expenses incurred in answering any questions are to be paid by the party asking the questions.

         (2)   Despite subrule 15.66 (1), a single expert witness is not required to answer any questions until the fees and expenses for answering them are paid or secured.

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

Division 15.5.7     Evidence from 2 or more expert witnesses

15.68      Application of Division 15.5.7

                This Division applies to a case in which 2 or more parties intend to tender an expert’s report or adduce evidence from different expert witnesses about the same, or a similar, question.

15.69      Conference of expert witnesses

         (1)   In a case to which this Division applies:

                (a)    the parties must arrange for the expert witnesses to confer at least 14 days before the pre‑trial conference; and

               (b)    each party must give to the expert witness the party has instructed a copy of the document entitled Experts’ Conferences — Guidelines for expert witnesses and those instructing them in cases in the Family Court of Australia, the text of which is set out in Schedule 5.

         (2)   The court may, in relation to the conference, make an order, including an order about:

                (a)    which expert witnesses are to attend;

               (b)    where and when the conference is to occur;

                (c)    which issues the expert witnesses must discuss;

               (d)    the questions to be answered by the expert witnesses; or

                (e)    the documents to be given to the expert witnesses, including:

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

                         (ii)    relevant affidavits;

                         (iii)    a joint statement of the assumptions to be relied on by the expert witnesses during the conference, including any competing assumptions; and

                        (iv)    all expert’s reports already disclosed by the parties.

         (3)   At the conference, the expert witnesses must:

                (a)    identify the issues that are agreed and not agreed;

               (b)    if practicable, reach agreement on any outstanding issue;

                (c)    identify the reason for disagreement on any issue;

               (d)    identify what action (if any) may be taken to resolve any outstanding issues; and

                (e)    prepare a joint statement specifying the matters mentioned in paragraphs (a) to (d) and deliver a copy of the statement to each party.

         (4)   If the expert witnesses reach agreement on an issue, the agreement does not bind the parties unless the parties expressly agree to be bound by it.

         (5)   The joint statement may be tendered as evidence of matters agreed on and to identify the issues on which evidence will be called.

15.70      Conduct of trial with expert witnesses

                At a trial, the court may make an order, including an order that:

                (a)    an expert witness clarify the expert witness’s evidence after cross‑examination;

               (b)    the expert witness give evidence only after all or certain factual evidence relevant to the question has been led;

                (c)    each party intending to call an expert witness is to close that party’s case, subject only to adducing the evidence of the expert witness;

               (d)    each expert witness is to be sworn and available to give evidence in the presence of each other;

                (e)    each expert witness give evidence about the opinion given by another expert witness; or

                (f)    cross‑examination, or re‑examination, of an expert witness is to be conducted:

                          (i)    by completing the cross‑examination or re‑examination of the expert witness before another expert witness; or

                         (ii)    by putting to each expert witness, in turn, each question relevant to one subject or issue at a time, until the cross‑examination or re‑examination of all witnesses is completed.

Part 15.6            Other matters about evidence

  

15.71      Court may call evidence

         (1)   The court may, on its own initiative:

                (a)    call any person as a witness; and

               (b)    make any orders relating to examination and cross‑examination of that witness.

         (2)   The court may order a party to pay conduct money for the attendance of the witness.

15.72      Order for examination of witness

         (1)   A court may, at any stage in a case:

                (a)    request that a person be examined on oath before a court, or an officer of that court, at any place in Australia; or

               (b)    order a commission to be issued to a person in Australia authorising that person to take the evidence of any person on oath.

         (2)   The court receiving the request, or the person to whom the commission is issued, may make procedural orders about the time, place and manner of the examination or taking of evidence, including that the evidence be recorded in writing or by electronic communication.

         (3)   The court making the request or ordering the commission may receive in evidence the record taken.

15.73      Letters of request

         (1)   If, under the Foreign Evidence Act 1994, a court orders a letter to be issued to the judicial authorities of a foreign country requesting that the evidence of a person be taken, the party obtaining the order must file:

                (a)    2 copies of the appropriate letter of request and any questions to accompany the request;

               (b)    if English is not an official language of the country to whose judicial authorities the letter of request is to be sent — 2 copies of a translation of each document mentioned in paragraph (a) in a language appropriate to the place where the evidence is to be taken; and

                (c)    an undertaking:

                          (i)    to be responsible for all expenses incurred by the court, or by the person at the request of the court, in respect of the letter of request; and

                         (ii)    to pay the amount to the Registry Manager of the filing registry, after being given notice of the amount of the expenses.

         (2)   A translation filed under paragraph (1) (b) must be accompanied by an affidavit of the person making the translation:

                (a)    verifying that it is a correct translation; and

               (b)    setting out the translator’s full name, address and qualifications for making the translation.

         (3)   If, after receiving the documents mentioned in subrules (1) and (2) (if applicable), the Registrar is satisfied that the documents are appropriate, the Registry Manager must send them to the Secretary of the Attorney‑General’s Department for transmission to the judicial authorities of the other country.

Note   Rules 5.06 and 16.08 set out the procedure for arranging for a party or a witness to attend a hearing or trial by electronic communication.

15.74      Hearsay evidence — notice under section 67 of the Evidence Act 1995

                A Notice of Previous Representation for subsection 67 (1) of the Evidence Act 1995 must be attached to an affidavit that sets out evidence of the previous representation.

15.75      Transcript receivable in evidence

                A transcript of a hearing or trial may be received in evidence as a true record of the hearing or trial.

15.76      Notice to produce

         (1)   A party may, no later than 7 days before a hearing or 28 days before a trial, by written notice, require another party to produce, at the hearing or trial, a specified document that is in the possession or control of the other party.

         (2)   A party receiving a notice under subrule (1) must produce the document at the hearing or trial.

Chapter 16  Trial

Summary of Chapter 16

Chapter 16 sets out how to prepare for and conduct a trial other than a trial to which Chapter 16A applies.

The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.

A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.

Part 16.1            Expedited trials

  

16.01      Expedited trial

         (1)   A party may apply for an expedited trial.

Note   For the procedure for making an application in a case, see Chapter 5.

         (2)   The court may take into account whether:

                (a)    the applicant has acted reasonably and without delay in the conduct of the case;

               (b)    the application has been made without delay; and

                (c)    there is an exceptional circumstance in which the case should be given priority to the possible detriment of other cases.

         (3)   If the court is satisfied of the matters in subrule (2), the court may:

                (a)    order an expedited trial;

               (b)    set a trial date;

                (c)    specify how the trial will be conducted;

               (d)    define the issues;

                (e)    limit disclosure;

                (f)    set a timetable for the filing of affidavits; and

                (g)    identify the documentary evidence to be relied on.

         (4)   For paragraph (2) (c), an exceptional circumstance includes:

                (a)    whether the age, physical or mental health of, or other circumstance (such as an imminent move interstate or overseas) affecting a party or witness, that would affect the availability or competence of the party or witness;

               (b)    whether a party has been violent, harassing or intimidating to another party or a witness;

                (c)    whether the applicant is suffering financial hardship that:

                          (i)    is not caused by the applicant; and

                         (ii)    cannot be rectified by an interim order;

               (d)    whether the continuation of interim orders is causing the applicant or the children hardship;

                (e)    whether the purpose of the case will be lost if it is not heard quickly (for example, a job opportunity will be lost if not taken; property will be destroyed; an occasion will have passed);

                (f)    whether the case involves allegations of child sexual, or other, abuse; and

                (g)    whether an expedited trial would avoid serious emotional or psychological trauma to a party or child who is the subject of, or affected by, the case.

Part 16.2            Preparation for trial

Note   Every attempt should be made to draft affidavits in an admissible form. It is necessary for the parties to resolve, before the trial, questions of admissibility of evidence contained in affidavits, and for the trial Judge to dispose of outstanding questions of admissibility when the party or witness is called.

  

16.02      Trial information

                If a party seeks to change any of the information given to the Registrar under paragraph 12.10 (1) (b), the party must notify each other party and the court at least 14 days before the trial.

16.03      Notice in relation to evidence

         (1)   A party must notify each other party, in writing, at least 14 days before the trial, of:

                (a)    any objections to an affidavit filed by the other party (in particular, the specific material the party objects to, and the grounds for the objection);

               (b)    the documents the party intends to tender at the trial in evidence in chief; and

                (c)    if inspection of documents has not occurred, where and when the documents may be inspected.

         (2)   Each other party must, in writing, at least 3 days before the trial:

                (a)    reply to any objections notified under paragraph (1) (a); and

               (b)    advise:

                          (i)    which documents notified under paragraph (1) (b) may be tendered by consent; and

                         (ii)    if there are documents that may not be tendered by consent, why the consent is withheld.

         (3)   If a party gives any written notice, reply or advice under subrule (1) or (2), the party must also lodge a copy of the notice, reply or advice with the associate to the trial Judge at least 24 hours before the trial begins.

Note 1   Rule 13.14 provides that, if a party does not disclose a document required to be disclosed under the duty of disclosure, the document is not admissible at the trial without the consent of the other party or an order.

Note 2   Rule 15.76 provides that a party may give another party a notice to produce a specified document at a hearing or trial.

Part 16.3            Conduct of trial

Note   Before a trial starts, the trial Judge should have available to read:

(a)   the information given to the Registrar about the trial (see paragraph 12.10 (1) (b) and rule 16.02);

(b)   the documents relied on by each party (see rule 15.06);

(c)   the summary of argument by each party as ordered at the pre‑trial conference;

(d)   the lists of objections (if any) in relation to evidence (see rule 16.03);

(e)   the lists of documents intended to be tendered (see rule 16.03); and

(f)    any other documents ordered to be filed before the trial (for example, in some cases, a joint case summary document may be ordered to be filed).

  

16.04      Conduct of trial — general

                The court must ensure, in the conduct of a trial, that:

                (a)    the parties focus on issues that are in dispute; and

               (b)    the case is conducted expeditiously.

Note 1   An affidavit must not be relied on at the trial unless it is filed in accordance with these Rules or an order (see subrule 15.06 (1)).

Note 2   The court may dispense with compliance with a rule (see rule 1.12).

16.05      Trial management

         (1)   The court, having regard to the main purpose of these Rules, may make any order about the conduct of the trial, including an order:

                (a)    related to:

                          (i)    the issues on which the court requires evidence;

                         (ii)    the nature of the evidence required to decide the issues;

                         (iii)    the number of witnesses a party may call on a particular issue;

                        (iv)    how the evidence is to be adduced;

                         (v)    excluding inadmissible evidence; and

                        (vi)    the time to be taken for evidence in chief, cross‑examination or re‑examination of a witness and submissions;

               (b)    requiring submissions to be made in a specified way;

                (c)    limiting the duration of an oral submission, or of the length of a written submission or affidavit;

               (d)    limiting the time for presentation of a party’s case; and

                (e)    determining the duration of the trial.

         (2)   The court must not make an order under subrule (1) that detracts from:

                (a)    the attainment of justice;

               (b)    each party’s entitlement to a fair and just hearing; or

                (c)    each party being given a reasonable opportunity to adduce evidence, cross‑examine and re‑examine witnesses, and to address the court.

16.06      Sequence of evidence

         (1)   An applicant must adduce evidence before a respondent or independent children’s lawyer adduces evidence.

         (2)   A respondent must adduce evidence before an independent children’s lawyer adduces evidence.

16.07      Opening and closing address

         (1)   A party or an independent children’s lawyer may make an opening address with the court’s permission.

         (2)   An independent children’s lawyer must make any closing address before the applicant or respondent makes a closing address.

         (3)   A respondent must make any closing address before the applicant makes a closing address.

Note   The court may require the parties to address the court in another sequence (see rule 1.12).

16.08      Attendance, submissions and evidence by electronic communication

Note   The issue of whether a party wishes to make a submission or adduce evidence from a witness at the trial by electronic communication will be discussed at the pre‑trial conference, and any application in that respect will be referred to a Judge without formal application or affidavit material. In other cases, an application should be made under rule 16.08.

         (1)   A party may apply for permission to do any of the following things by electronic communication in a trial:

                (a)    attend;

               (b)    make a submission;

                (c)    give evidence;

               (d)    adduce evidence from a witness.

Note   For the procedure for making an application in a case, see Chapter 5.

         (2)   The application must be:

                (a)    filed at least 28 days before the date of the trial; and

               (b)    listed before the trial Judge.

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

         (3)   The affidavit filed with the application must set out the facts relied on in support of the application, including the following:

                (a)    what the applicant seeks permission to do by electronic communication;

               (b)    the kind of electronic communication to be used;

                (c)    if the party proposes to give evidence, make a submission, or adduce evidence from a witness by electronic communication — the place from which the party proposes to give or adduce the evidence, or make the submission;

               (d)    the facilities at the place mentioned in paragraph (c) that will enable all eligible persons present in that place to see or hear each eligible person in the place where the court is sitting;

                (e)    if the applicant seeks to adduce evidence from a witness by electronic communication:

                          (i)    whether an affidavit by the witness has been filed;

                         (ii)    whether the applicant seeks permission for the witness to give oral evidence;

                         (iii)    the relevance of the evidence to the issues;

                        (iv)    whether the witness is an expert witness;

                         (v)    the name, address and occupation of any person who is to be present when the evidence is given;

                        (vi)    if the applicant proposes to refer the witness to a document, whether:

                                   (A)     the document has been filed; and

                                   (B)     the witness will have a copy of the document; and

                        (vii)    whether an interpreter is required and, if so, what arrangements are to be made;

                (f)    the expense of using the electronic communication, including any expense to the court, and the applicant’s proposals for paying those expenses;

                (g)    whether the other parties object to the use of electronic communication for the purpose specified in the application and, if so, the reason for the objection;

                (h)    if the application relates to evidence to be adduced from a witness in a foreign country — the matters required to be addressed under rule 16.09;

                 (i)    if the application relates to making a submission, giving evidence or adducing evidence from New Zealand — the facilities that enable evidence to be given or a submission to be made, as required by Part 4 of the Evidence and Procedure (New Zealand) Act 1994.

Note   Part 4 of the Evidence and Procedure (New Zealand) Act 1994 (the EP Act) applies to proceedings in a federal court, or a court specified in regulations made under the EP Act, in which a direction is made for the use of video link or telephone to take evidence or make a submission from New Zealand.

Subsection 25 (2) of the EP Act sets out the matters of which a court must be satisfied before it may make a direction under subsection 25 (1) of that Act. The EP Act also provides that evidence is not to be given, or a submission made, from New Zealand unless the place where the court is sitting and the place where the evidence is to be given or a submission made are equipped with facilities enabling the persons at each place to see and hear each other in the case of video link (see section 26), or to hear each other in the case of a telephone conference (see section 27).

         (4)   The application may be decided in chambers on the documents filed.

         (5)   The court may order:

                (a)    a party to pay the expenses of the attendance by electronic communication; or

               (b)    that the expenses are to be apportioned between the parties.

         (6)   For paragraph 16.08 (3) (h):

foreign country has the meaning given by subrule 16.09 (2).

16.09      Foreign evidence by electronic communication

         (1)   In addition to the requirements of rule 16.08, a party who proposes to adduce evidence by electronic communication from a witness in a foreign country, must satisfy the court:

                (a)    that the party has read the information published
by the Attorney‑General’s Department regarding its arrangements with other countries for the taking of evidence, to determine the attitude of the foreign country’s government to the taking of evidence by electronic communication;

               (b)    if the attitude of the foreign country’s government to the taking of evidence by electronic communication cannot be ascertained from sources within Australia — that the party has made appropriate inquiries through diplomatic channels, a lawyer or a provider of technical facilities in the foreign country to determine that attitude;

                (c)    whether permission is needed from the foreign country’s government to adduce evidence from a witness in that country by electronic communication;

               (d)    if permission is needed, whether permission has been granted or refused;

                (e)    if permission has been refused, the reason for refusal; and

                (f)    whether there are any special requirements for the adducing of evidence, including:

                          (i)    the administration of an oath; and

                         (ii)    the form of the oath.

         (2)   In this rule:

foreign country means a country other than Canada, New Zealand, the United Kingdom or the United States of America.

Note 1    A party seeking to adduce evidence from a witness in Canada, New Zealand, the United Kingdom or the United States of America does not have to comply with the requirements of subrule (1) because these countries do not object to the taking of evidence by electronic communication.

Note 2   The court, instead of granting permission for a party to adduce evidence by electronic communication from a witness in a foreign country, may direct the Registry Manager to send a letter of request to the judicial authorities in the foreign country, requesting the court to take evidence from the witness in accordance with the law of the foreign country. For the requirements for a letter of request to the judicial authorities of a foreign country, see rule 15.73.

16.10      Exhibits

         (1)   The Registry Manager must take charge of every exhibit.

         (2)   The list of exhibits is part of the court record.

         (3)   A court may direct that an exhibit be:

                (a)    kept in the court;

               (b)    returned to the person who produced it; or

                (c)    disposed of in an appropriate manner.

         (4)   A party who tenders an exhibit into evidence must collect the exhibit from the Registry Manager at least 28 days, and no later than 42 days, after the final determination of the application or appeal (if any).

         (5)   Subrule (4) does not apply to a document produced by a person as required by a subpoena for production.

Note   For the return of a document produced in compliance with a subpoena, see rule 15.35.

16.11      Party’s failure to attend

         (1)   If a party does not attend when a trial starts, the other party may seek the orders sought in that party’s application by, if necessary, adducing evidence to establish an entitlement to those orders.

         (2)   If no party attends, the court may dismiss all applications.

16.12      Vacating trial date

         (1)   A party seeking to vacate a trial date must apply to do so at the earliest possible time before the date fixed for trial.

         (2)   Both parties must attend the hearing of the application.

         (3)   A trial may only be vacated:

                (a)    by order of a Judge or Judicial Registrar; and

               (b)    in exceptional circumstances.

         (4)   If final agreement has been reached between the parties, the applicant must:

                (a)    immediately notify the court after agreement is reached; and

               (b)    arrange for the case to be finalised by consent order or discontinuance.

Chapter 16A    Division 12A of Part VII of the Act

Summary of Chapter 16A

Chapter 16A sets out the requirements for consent to the application of Division 12A of Part VII of the Act to a case and the additional procedures for certain trials to which Division 12A of Part VII of the Act applies.

Division 12A of Part VII of the Act applies to proceedings:

·   that come wholly or partly under Part VII of the Act, or any other proceedings which involve the court’s jurisdiction under the Act if the parties in those proceedings consent to Division 12A applying to those proceedings; and

·   that were commenced by application:

     (a)   on or after 1 July 2006; or

     (b)   before 1 July 2006 if the parties to the proceedings consent, and the      court grants permission (the court’s permission may be sought in       accordance with rule 12.04 of these Rules).

The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.

If a rule in another Chapter (other than Chapter 1) conflicts with a rule in this Chapter, the rule in this Chapter applies.

A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.

Part 16A.1          Consent for Division 12A of Part VII of the Act to apply to a case

  

16A.01   Definition

                In this Part:

the prescribed form means a form authorised by the Principal Registrar for the purposes of a party in a case giving consent to the application of Division 12A of Part VII of the Act to the case.

16A.02   Application of Part 16A.1

                This Part applies if the consent of the parties to a case is necessary before Division 12A of Part VII of the Act can apply to the case.

16A.03   Consent for Division 12A of Part VII of the Act to apply

                If a party to a case seeks to consent to the application of Division 12A of Part VII of the Act to the case, or part of the case, the party must:

                (a)    give consent in accordance with the prescribed form; and

               (b)    file a copy of the form.

16A.04   Application for Division 12A of Part VII of the Act to apply for case commenced by application before 1 July 2006

                For the purposes of seeking the leave of the court for Division 12A of Part VII of the Act to apply to a case commenced by an application filed before 1 July 2006, an application for permission may be made to the court at a procedural hearing in accordance with rule 12.04.

Part 16A.2          Trials of certain cases to which Division 12A of Part VII of the Act applies

  

16A.05   Definitions

                In this Part:

                trial Judge means the Judge to whom a trial, in a case to which Division 12A of Part VII of the Act applies, is allocated.

                trial Judicial Registrar means the Judicial Registrar to whom a trial, in a case to which Division 12A of Part VII of the Act applies, is allocated.

16A.06   Application

         (1)   Subject to subrules (2) and (3), this Part applies to the trial of a case:

                (a)    that is pending in the Family Court; and

               (b)    to which Division 12A of Part VII of the Act applies.

         (2)   This Part does not apply to the trial of a case which involves 1 or more of the following applications only:

                (a)    a Medical Procedure Application referred to in Division 4.2.3 of these Rules;

               (b)    a Maintenance Application referred to in Division 4.2.4 of these Rules;

                (c)    a child support application referred to in Division 4.2.5 of these Rules;

               (d)    an application relating to a passport referred to in Division 4.2.7 of these Rules.

         (3)   This Part does not apply to the trial of a case conducted under the Children’s Cases Program described in the following Practice Directions:

                (a)    No. 2 of 2005;

               (b)    No. 3 of 2005.

         (4)   To the extent to which a rule in this Part applies to the trial of a case mentioned in subrule (1), and does not conflict with a rule in Chapter 1, the rule in this Part applies to the case and overrides all other provisions in these Rules.

16A.07   Questionnaire

         (1)   In a case to which this Part applies, each party to the case must file a completed questionnaire.

         (2)   A questionnaire mentioned in subrule (1) must be:

                (a)    in the form approved by the Principal Registrar; and

               (b)    filed 28 days before the commencement of the trial of the case.

16A.08   Subpoenas etc

         (1)   This rule applies in a case that has had a trial date fixed.

         (2)   A party in a case must not do any of the following unless the court has granted permission to the party to do so:

                (a)    issue a subpoena in the case;

               (b)    file or serve an application or affidavit in the case.

         (3)   A request for the court’s permission mentioned in subrule (2):

                (a)    must be made:

                          (i)    to the trial Judge or trial Judicial Registrar in the case if the trial Judge or trial Judicial Registrar is available; or

                         (ii)    if the trial Judge or trial Judicial Registrar in the case is not available — to any other judicial officer;

               (b)    may be made orally or in writing;

                (c)    may be made without giving notice to any other parties in the case; and

               (d)    may be determined in chambers in the absence of the other parties to the case.

16A.09   Commencement of trial

                A trial is taken to have commenced when it first comes before the trial Judge or trial Judicial Registrar for that trial.

16A.10   Parties to be sworn etc

         (1)   On the first day of a trial, all parties, and any family consultant, must be administered an oath or affirmation.

         (2)   A person is bound by the oath or affirmation administered under subrule (1) until the conclusion of the trial.

Chapter 17  Orders

Summary of Chapter 17

Chapter 17 sets out when an order is made, how errors in orders are corrected, the rate of interest and other requirements in relation to certain monetary orders.

The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.

A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.

  

  

17.01      When an order is made

         (1)   An order is made:

                (a)    in a hearing or trial — when it is pronounced in court by the judicial officer; or

               (b)    in chambers — when the judicial officer signs the order (see paragraph 11.16 (3) (b)).

         (2)   An order takes effect on the date when it is made, unless otherwise stated.

Note   After an order is made, it is issued by the court. The issued order embodies the terms of the order in a document that is signed and sealed.

         (3)   A party is entitled to receive:

                (a)    a sealed copy of an order;

               (b)    if the order is rectified by the court — a sealed copy of the rectified order; and

                (c)    a copy of any published reasons for judgment.

         (4)   Subrule (3) does not apply to a procedural order.

17.02      Errors in orders

         (1)   If a party claims that there is an error in an order issued by the court, the party must give written notice of the error to the Registry Manager and all parties.

         (2)   A Registrar may rectify an error that appears obvious on reading the order.

Example

A kind of amendment that a Registrar may make under subrule (2) is the correction of a typographical error.

         (3)   If the Registrar:

                (a)    is in doubt about whether there is an error in an order; or

               (b)    believes that an error in an order has, or may have, arisen from an accidental slip or omission;

the Registrar may take action under subrule (4).

         (4)   If subrule (1) or (3) applies, the party or Registrar may, after giving reasonable notice to each party, refer the order to the judicial officer who made it.

Note   If the judicial officer who made the order is unavailable, it may be referred to another judicial officer (see rule 1.13).

         (5)   A judicial officer may, after giving each party a reasonable opportunity to be heard, rectify a suspected error referred to the judicial officer.

Note   An amendment of an order may be made under this rule only if it is an error obvious when reading the order. Any other amendment must be remedied by appeal or consent.

17.03      Rate of interest

                For paragraphs 87 (11) (b) and 90KA (b) and subsection 117B (1) of the Act, the rate of interest prescribed is 10.75% a year.

Note   For the date from which interest is payable, see section 117B of the Act.

17.04      Order for payment of money

         (1)   This rule applies if a person is ordered by the court (other than by way of consent) to pay money and:

                (a)    the person is not present, or represented by a lawyer, in court when the order is made; or

               (b)    the order is made in chambers.

         (2)   The person must be served with a sealed copy of the order:

                (a)    if the order imposes a fine — by the Marshal or other officer of the court; or

               (b)    in any other case — by the person who benefits from the order.

Note   A party must not personally serve another party by hand but may be present when service takes place (see subrule 7.06 (3)). For service of documents generally, see Chapter 7.

17.05      Order for payment of fine

                If a court orders the payment of a fine or the forfeiture of a bond, the fine or forfeited amount must be paid immediately into the filing registry.

Note 1   A person may apply to the court for more time to pay a fine (see rule 1.14).

Note 2   If the court makes an order on an application without notice to the respondent, the order will operate until a time specified in the order (see rule 5.13).

Chapter 18  Powers of Judicial Registrars, Registrars and Deputy Registrars

Summary of Chapter 18

Chapter 18 sets out:

·   the powers of the court that are delegated to Judicial Registrars, Registrars and Deputy Registrars of the Family Court of Australia; and

·   the process for reviewing an order made by a Judicial Registrar or Registrar.

Note   A power or function expressed by these Rules to be conferred on a Registrar may also be exercised in the Family Court by a Judge or a Judicial Registrar.

The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.

A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.

Part 18.1            Delegation of powers to Judicial Registrars and Registrars

Division 18.1.1     General

18.01A   Definitions

                In this Chapter:

Deputy Registrar means a Deputy Registrar of the Family Court of Australia.

Registrar means a Registrar of the Family Court of Australia.

18.01      Exercise of powers and functions

         (1)   A power or function expressed by these Rules to be conferred on a Deputy Registrar may also be exercised by a Judicial Registrar or a Registrar.

         (2)   A power or function expressed by these Rules to be conferred on a Registrar may also be exercised by a Judicial Registrar.

         (3)   A Judicial Registrar, Registrar or Deputy Registrar exercising a power of the court or performing any function in connection with a power of the court has the same protection and immunity as a Judge or Magistrate.

Division 18.1.2     Delegation to Judicial Registrars

18.02      Delegation of powers to Judicial Registrars

         (1)   All of the powers vested in the Family Court by legislative provisions in relation to a case in which the court is exercising original jurisdiction are delegated to each Judicial Registrar except the power to make:

                (a)    an excluded child order;

               (b)    an order setting aside a registered award under section 13K of the Act;

                (c)    an order or declaration under section 78, 79 or 79A or subsection 87 (8), 90J (3) or 90K (1) of the Act, if the gross value of the property is more than $2 000 000;

               (d)    an order under section 70NFD of the Act to vary or discharge an order under paragraph 70NFB (2) (a) of the Act that was not made by a Judicial Registrar;

                (e)    an order under section 112AK of the Act to vary or discharge an order under section 112AD of the Act that was not made by a Judicial Registrar;

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

                (f)    an order under the Marriage Act 1961;

                (g)    an order reviewing the exercise of a power by a Judicial Registrar, Registrar or Deputy Registrar; and

                (h)    any of the orders under these Rules mentioned in Table 18.1.

Table 18.1   Powers not delegated to Judicial Registrars

 

Item

Provision of these Rules

Description (for information only)

1

rule 4.07

Power to transfer a cross‑vesting matter

2

Division 4.2.3

Power to make an order in relation to a medical procedure application

3

Part 10.3

Power to make a summary order or separate decision relating to an application that is not within the Judicial Registrar’s jurisdiction

4

rule 11.04

Power to make an order in relation to a frivolous or vexatious case

5

rule 11.05

Power to make an order in relation to an application for permission to start a case

Note   The powers of the court in its appellate jurisdiction, set out in Part X of the Act, are not delegated to Judicial Registrars.

         (2)   Despite paragraph (1) (f), the power to make an order under subsection 92 (1) of the Marriage Act 1961 is delegated to a Judicial Registrar.

         (3)   Paragraphs (1) (c), (d) and (e) do not apply to an order that is:

                (a)    an order until further order;

               (b)    an order made in an undefended case; or

                (c)    an order made with the consent of all the parties to the case.

         (4)   Paragraph (1) (c) does not apply if:

                (a)    the order is a flagging order; or

               (b)    the parties consent to the exercise of the power by a Judicial Registrar.

         (5)   For paragraph (1) (c), the value of any superannuation interest must be included in the calculation of the gross value of the property.

Note   Under section 90MC of the Act, a superannuation interest is to be treated as property for the purposes of paragraph (ca) of the definition of matrimonial cause in section 4 of the Act.

18.03      Property value exceeding limit — power to determine case

                If, in a case:

                (a)    a Judicial Registrar exercises the power of the court mentioned in paragraph 18.02 (1) (c); and

               (b)    it becomes apparent during the trial that the gross value of the property to be dealt with in the case exceeds $2 000 000;

the Judicial Registrar may continue to hear and determine the case.

Note   Under section 90MC of the Act, a superannuation interest is to be treated as property for the purposes of paragraph (ca) of the definition of matrimonial cause in section 4 of the Act.

Division 18.1.3     Delegation of powers to Registrars and Deputy Registrars

18.04      Application of Division 18.1.3

                This Division applies:

                (a)    to a Registrar or Deputy Registrar who is enrolled as a lawyer of the High Court or of the Supreme Court of a State or Territory; and

               (b)    subject to any arrangement made under subsection 37B (2) of the Act.

Note   Under subsection 37B (2) of the Act, the Principal Registrar may direct which Registrars or Deputy Registrars are to perform any functions or exercise any power under the Act, Regulations or these Rules in particular matters or classes of matters.

18.05      Registrars

         (1)   Each power of the court mentioned in an item of Table 18.2 is delegated to each Registrar who is approved, or is in a class of Registrars approved, by a majority of the Judges to exercise the power.

Table 18.2   Powers delegated to Registrars

 

Item

Legislative provision

Description (for information only)

Family Law Act

1

section 37A

Power to make a parenting order in an undefended case

1A

subsection 46 (3A)

Power to remove a case from a court of summary jurisdiction

2

section 63H

Power to make an order concerning a registered parenting plan until further order

3

section 65D

Power to make a parenting order until further order

4

paragraph 65G (2) (b)

Power to make a parenting order by consent in favour of a non‑parent without attendance at conference with a family consultant

5

section 65L

Power to make an order requiring compliance with a parenting order to be supervised by a family consultant

6

sections 66G, 66M, 66P and 66Q

Power to make an order for child maintenance

7

section 66S

Power to discharge or vary a child maintenance order

8

section 66W

Power to make an order for the recovery of arrears due under a child maintenance order

9

subsection 67D (1) and section 67E

Power to make an order in relation to the birth of a child, including for financial assistance

10

subsection 67M (2)

Power to make a location order

11

subsection 67N (2)

Power to make a Commonwealth information order

12

section 67ZD

Power to make an order to deliver up a passport to a Registrar until further order

13

subsections 68B (1) and (2)

Power to make an order, or grant an injunction, until further order

14

subsection 68M (2)

Power to make an order that a child be made available for an examination for the purposes of preparing a report in connection with the proceedings

15

sections 69V and 69VA, subsection 69W (1), section 69X and subsection 69ZC (2)

Power to make an order in relation to the parentage of a child

16

sections 74 and 77

Power to make an order, including an urgent order, for the maintenance of a party

17

subsection 83 (1)

Power to vary or discharge a spouse maintenance order

18

subsection 87 (3)

Power to make an order approving a maintenance agreement

19

section 100B

Power to make an order allowing a child to swear an affidavit or be called as a witness

20

section 102A

Power to make an order granting permission for a child to be examined

21

section 106A

Power to direct a Deputy Registrar to sign documents

Assessment Act

22

section 139

Power to make an order for the payment of urgent maintenance

Registration Act

23

subsection 105 (2)

Power to make procedural orders for the resolution of any difficulty arising in relation to the application of subsection 105 (1) of the Registration Act or in relation to a particular case

         (2)   Each power vested in the court by these Rules and mentioned in an item of Table 18.3 is delegated to each Registrar.

Table 18.3   Powers under Rules delegated to Registrars

 

Item

Provision of Family Law Rules

Description (for information only)

1

rule 6.05

Power to make an order in relation to a person seeking to intervene in a case to become a party

2

Part 6.3

Power to make an order in relation to a case guardian

3

subrule 10.11 (5)

Power to make an order staying a case until an order to pay costs in relation to an earlier case has been complied with

4

rule 13.14

Power to make an order in relation to a case heard by a Registrar as a consequence of a party’s failure to disclose a document as required under these Rules

5

rule 15.01

Power to make an order in relation to adducing the evidence of a child

6

Part 15.4

Power to make an order in relation to the appointment of an assessor

8

Division 20.3.2

Power to make an order in relation to a notice of claim made in response to an Enforcement Warrant

9

rule 20.37

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

9A

rule 20.39

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

10

Part 20.5

Power to make an order in relation to sequestration of property

11

Part 20.6

Power to make an order in relation to the appointment of a receiver

12

Part 20.7

Power to make an order in relation to enforcement of an obligation (except an obligation to pay money)

13

Part 21.4

Power to make an order in relation to a warrant for arrest in a case within a Registrar’s jurisdiction

18.06      Deputy Registrars

         (1)   Each power of the court mentioned in an item of Table 18.4 is delegated to each Deputy Registrar.

Table 18.4   Powers delegated to Deputy Registrars

 

Item

Legislative provision

Description (for information only)

Family Law Act

1

section 11F

Power to order parties to attend appointment or a series of appointments with a family consultant

2

section 11G

Power to make an order as a result of failure to attend appointment with family consultant

3

section 13B

Power to refer parties to family counselling and to adjourn the case until the parties have had family counselling

4

section 13C

Power to refer parties to family counselling, family dispute resolution and other family services and to adjourn the case until the parties have had family counselling, family dispute resolution and other family services

5

section 13D

Power to make an order as a result of failure to attend family counselling, family dispute resolution or other family services

6

sections 13E and 13F

Power to refer parties to arbitration, with consent of parties, and to make procedural orders to assist arbitration

7

section 27A

Power to direct, at any stage, that a case or part of a case be conducted or continued at a specified place subject to conditions (if any)

8

sections 33B and 33C

Power to transfer a case, in whole or in part, to the Federal Magistrates Court

9

subsection 37A (1) (except subparagraph (e) (iv) and paragraph (f))

Power to make procedural and costs orders

Note   The delegations mentioned in this item are subject to the restrictions imposed by subsection 37A (6) of the Act.

10

subsection 44 (1C)

Power to make an order for divorce within 2 years of the date of marriage

11

section 45

Power to transfer a case to another court

12

section 48

Power to make a divorce order in an undefended case

13

subsection 55 (2)

Power to reduce or increase the time for a divorce order to take effect

14

section 55A

Power to make a declaration about arrangements for children after a divorce

15

section 57

Power to rescind a divorce order if parties reconciled

16

paragraphs 60K (2) (a), (b) and (c)

Power to make procedural orders in relation to allegations of child abuse or family violence

17

section 62G

Power to order a family report

18

subsection 63E (3)

Power to register a revocation agreement

19

section 68L

Power to make an order that a child is to be independently represented

20

section 69ZW

Power to make an order requesting a prescribed State or Territory agency to provide the court with specified documents or information

21

paragraph 79 (9) (c)

Power to make an order dispensing with requirement to attend a conference

22

subsection 91B (1)

Power to request that a prescribed child welfare authority intervene in a case in which a child’s welfare is or may be affected

23

subsections 92 (1) and (2)

Power to make an order entitling a person to intervene in a case

24

subsection 97 (1A)

Power to exercise powers in chambers

25

subsection 97 (2)

Power to make an order that a specified person is not, or specified persons are not, to be present in court during the case or during a specified part of the case that is within the Deputy Registrar’s power

26

section 98A

Power to make an order granting an undefended application for divorce in the absence of the parties

27

section 101

Power to protect a witness in relation to a case being heard by the Deputy Registrar

28

section 109A

Power to enforce an order in relation to a financial matter