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Family Law Amendment Rules 2008 (No. 2)

Authoritative Version
  • - F2008L04590
  • No longer in force
SLI 2008 No. 245 Rules/Court & Tribunal Rules as made
These Rules amend the Family Law Rules 2004 to provide a series of miscellaneous amendments along with a new set of Appeal Rules.
Administered by: Attorney-General's
Registered 08 Dec 2008
Tabling HistoryDate
Tabled HR03-Feb-2009
Tabled Senate03-Feb-2009
Date of repeal 09 Apr 2013
Repealed by Attorney-General's (Spent and Redundant Instruments) Repeal Regulation 2013

 

Family Law Amendment Rules 2008 (No. 2)1

Select Legislative Instrument 2008 No. 245

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

Dated 3 December 2008

D. BRYANT CJ

J. FAULKS DCJ

M. M .FINN J

B. J. WARNICK J

M .MAY J

J. M. BOLAND J

S. R. O’RYAN J

S. BROWN J

N. MUSHIN J

B. E. JORDAN J

R. K. BURR J

M. R. WATT J

D. COLLIER J

S. STRICKLAND J

R. MONTEITH J

P. YOUNG J

G. A .WATTS J

P. J. MURPHY J

S. G. FOWLER J

 

 

 

 

 

Judges of the Family Court

of Australia

 

A. M. FILIPPELLO

Principal Registrar

Family Court of Australia

S. E. THACKRAY J

C. E. MARTIN J

J. PENNY J

J. CRISFORD J

S. D. CROOKS J

 

 

 

Judges of the Family Court

of Western Australia

 

DAVID MONAGHAN

Principal Registrar

Family Court of Western Australia


1              Name of Rules

                These Rules are the Family Law Amendment Rules 2008 (No. 2).

2              Commencement

                These Rules commence as follows:

                (a)    on the day after they are registered — rules 1 to 3 and Schedule 1;

               (b)    on 1 January 2009 — Schedule 2.

3              Amendment of Family Law Rules 2004

                Schedules 1 and 2 amend the Family Law Rules 2004.


Schedule 1        Amendments commencing on day after registration

(rule 3)

  

[1]           Table 2.2, item 5

omit

or the application is unopposed

[2]           Table 2.2, item 5

after

see

insert

section 66M of the Act and

[3]           After subrule 2.02 (4), before the notes

insert

         (5)   An applicant in proceedings mentioned in subsection 100 (1) of the Assessment Act or subsection 105 (1) of the Registration Act is not required to file in the court a certificate given to the applicant by a family dispute resolution practitioner under subsection 60I (8) of the Family Law Act.

[4]           After subrule 2.02

insert

2.02A      Documents filed by electronic communication

                A person who files a document by electronic communication must:

                (a)    include in the filed document and each copy served on another person any details the person knows about the location, date and time of the next court event in the matter; and

               (b)    if the Registry Manager notifies the person of the details of the next court event — give a copy of the notice as soon as practicable to each person on whom the document is or has been served.

[5]           Division 4.2.5, overview

omit

·   section 140 for an order staying (suspending) the operation of the Act, until the finalisation of court proceedings

[6]           Division 4.2.5, overview

omit

Applications may also be made under the Child Support (Assessment) (Overseas‑related Maintenance Obligations) Regulations 2000.

insert

Applications may be made under the section 111C of the Child Support (Registration and Collection) Act 1988 for an order staying (suspending) the operation of the Act and the Child Support (Assessment) Act 1989, until the finalisation of court proceedings.

[7]           After paragraph 4.16 (b)

insert

              (ba)    an application under section 111C of the Registration Act;

[8]           Paragraph 4.16 (c)

omit

Act;

insert

Act; and

[9]           Paragraph 4.16 (d)

omit

[10]         Table 4.1, item 2

omit

139, 140 and 143 of the Assessment Act

insert

139 and 143 of the Assessment Act and 111C of the Registration Act

[11]         Subrule 4.26 (1)

omit

139, 140 or 143 of the Assessment Act

insert

139 or 143 of the Assessment Act or section 111C of the Registration Act,

[12]         After subrule 7.04 (1)

insert

      (1A)   A person who serves a document filed by electronic communication must:

                (a)    if the Registry Manager has sent the person who filed the document a communication recording the date of filing —ensure that a copy of the communication is served; or

               (b)    in any other case — write on the front of the served copy of the document the date of filing.

[13]         Paragraph 10.15 (1) (b)

omit

Orders, and attaching a draft consent order.

insert

Orders.

[14]         After subrule 10.15 (1)

insert

      (1A)   A party who files an Application for Consent Orders if there is no current case must:

                (a)    lodge a draft consent order; or

               (b)    tender a draft consent order to a judicial officer during a court event.

[15]         Table 18.5, after item 29

insert

29A

rule 15.33

Power to compel a person to produce a document to the court for the purpose of ruling on an objection to production

[16]         Table 18.5, item 37

omit

Chapter 24

insert

Chapter 24, other than a permission in relation to the conduct of research

[17]         Chapter 19, summary, paragraph (c)

substitute

(c)   under a new retainer entered into by a client in the client’s case after 30 June 2008, if the client instructs a new lawyer in a new firm;

[18]         Rules 19.18 and 19.19

substitute

19.18      Method of calculation of costs

         (1)   The court may order that a party is entitled to costs:

                (a)    of a specific amount;

               (b)    as assessed on a particular basis (eg lawyer and client, party/party or indemnity);

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

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

Example

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

         (2)   If costs are payable under the Act or these Rules, or the court orders that costs be paid and does not specify the method for their calculation, the costs are to be assessed on a party/party basis.

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

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

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

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

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

                (e)    the time properly spent on the case, or in complying with pre‑action procedures; and

                (f)    expenses properly paid or payable.

19.19      Maximum amount of party/party costs recoverable

         (1)   This rule sets out the maximum amount of party/party costs a person may recover:

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

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

         (2)   The maximum amount of costs that a person may recover under this rule is as follows:

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

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

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

[19]         Subrule 19.32 (2)

substitute

         (2)   At the assessment hearing, a party may only raise as an issue a disputed item included in the Notice Disputing Itemised Costs Account.

[20]         Subparagraph 19.56 (2) (c) (i)

substitute

                          (i)    was identified as a disputed item in the Notice Disputing Itemised Costs Account;

[21]         Paragraph 24.05 (1) (b)

omit

waived; and

insert

waived.

Note   The Registry Manager will record the date of filing according to the current protocol adopted by the court.

[22]         Paragraph 24.05 (1) (c)

omit

[23]         After subrule 24.07 (5), before the note

insert

         (6)   When accepting a document for filing by email, the Registry Manager may send to the person filing the document an electronic communication recording the date of filing.

[24]         Rule 24.08

omit

A person filing a document must, at the time of filing or, if the document is filed by electronic communication, within 7 days after filing,

insert

         (1)   A person filing a document must at the time of filing, unless the document is filed by electronic communication,

[25]         Rule 24.08, before the note

insert

         (2)   A person who files a document by fax must, within 7 days after filing unless excused by the Registry Manager, give to the Registry Manager:

                (a)    for a Full Court matter — 3 additional copies for the members of the Full Court; and

               (b)    in any other case — 1 additional copy for the court.

[26]         Subparagraph 24.13 (1) (c) (ii)

omit

case.

insert

case;

[27]         After paragraph 24.13 (1) (c)

insert

               (d)    with the permission of the court, a person researching the court record relating to the case.

[28]         Subrule 24.13 (2), except the note

substitute

         (2)   For subrule (1):

                (a)    the parts of the court record that may be searched are:

                          (i)    court documents; and

                         (ii)    with the permission of the court — any other part of the court record; and

               (b)    a permission:

                          (i)    may include conditions, including a requirement for consent from any person who is mentioned in the record; and

                         (ii)    for paragraph (1) (d) — must specify the research to which it applies.

         (3)   In considering whether to give permission under paragraph (2) (a) (ii), the court must consider the following matters:

                (a)    the purpose for which access is sought;

               (b)    whether the access sought is reasonable for that purpose;

                (c)    the need for security of court personnel, parties, children and witnesses;

               (d)    any limits or conditions that should be imposed on access to, or use of, the record.

         (4)   In this rule:

court document includes a document filed in a case, but does not include correspondence forming part of the court record.

Note   Section 121 of the Act restricts the publication of court proceedings.

[29]         Subrules 26.22 (2) and 26.23 (3)

after

fixed for the

insert

procedural

[30]         Rule 26.24

substitute

26.24      Procedural hearing — report by trustee

         (1)   When the application and the supporting affidavit are filed, the Registry Manager must fix a date for a procedural hearing.

         (2)   At the procedural hearing, the court may make:

                (a)    an order requiring the trustee to prepare a report for the periods before and after the bankruptcy;

               (b)    orders for the future conduct of the case; and

                (c)    an order allocating a date or dates for the hearing of the case.

         (3)   A report required under paragraph (2) (a) must include information about:

                (a)    the bankrupt’s conduct;

               (b)    the bankrupt’s examinable affairs; and

                (c)    the administration of the bankrupt’s estate.

         (4)   The report must:

                (a)    be in the form of an affidavit; and

               (b)    be filed at least 5 days before the first date allocated under paragraph (2) (c).

[31]         Schedule 1, Part 2, paragraphs 1 (1) (b) and (c)

renumber as paragraphs 1 (1) (a) and (b)

[32]         Schedule 3, note

substitute

Note 1   This Schedule commenced on 1 July 2006 and applies generally to work done on or after that date. Different amounts, set out in superseded versions of this Schedule, may continue to apply to work done before that date.

Note 2   The amounts in this Schedule include GST.

[33]         Schedule 6, summary, subparagraph (b) (iii)

substitute

(iii)  under a new retainer entered into by a client in the client’s case after 30 June 2008, if the client instructs a new lawyer in a new firm; or

[34]         Schedule 6, subclause 6.33 (2)

substitute

         (2)   At the assessment hearing, a party may only raise as an issue a disputed item included in the Notice Disputing Itemised Costs Account.

[35]         Schedule 6, subparagraph 6.55 (2) (c) (i)

substitute

                          (i)    was identified as a disputed item in the Notice Disputing Itemised Costs Account;

[36]         Dictionary, definition of costs notice

substitute

costs notice means a brochure, approved by the Principal Registrar, about costs under Chapter 19 or Schedule 6.


 

Schedule 2        Amendments commencing on 1 January 2009

(rule 3)

  

[1]           Chapter 22

substitute

Chapter 22  Appeals

Summary of Chapter 22

Chapter 22 sets out the procedures to appeal an order including where leave to appeal is required.

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 22.1            Introduction

  

22.01      Application of Chapter 22

         (1)   This Chapter applies to the following appeals:

                (a)    an appeal to the Full Court from an order of a Judge or Judges of the Family Court, a Family Court of a State or a Supreme Court of a State or Territory;

               (b)    an appeal to the Family Court from an order of a Federal Magistrates Court (whether heard by the Full Court or a single Judge);

                (c)    an appeal to the Family Court from an order of a Family Law Magistrate of Western Australia (whether heard by the Full Court or a single Judge);

               (d)    an appeal to a single Judge of the Family Court from an order of a court of summary jurisdiction.

         (2)   This Chapter does not apply to the following appeals:

                (a)    an appeal from an assessment or decision under the Assessment Act or the Registration Act that was not made by a court (see Division 4.2.5);

               (b)    a review of an order of a Judicial Registrar or Registrar to a Judge of a Family Court (see Chapter 18).

Part 22.2            Starting an appeal

  

Note   A person needs the court’s permission to appeal from:

(a)   an interlocutory order, other than an interlocutory order relating to a child welfare matter, of a Family Court, the Federal Magistrates Court or a Family Law Magistrate of Western Australia (see subsection 94AA (1) of the Act and regulation 15A of the Regulations); or

(b)   an order, made by a court, mentioned in section 102, 102A or 105 of the Assessment Act or section 107, 107A or 110 of the Registration Act.

22.02  Starting an appeal

         (1)   A person may start an appeal by filing a Notice of Appeal:

                (a)    for an appeal from a court of summary jurisdiction other than a Family Law Magistrate of Western Australia — in the registry of a Family Court that is closest to the court of summary jurisdiction that made the order appealed from; and

               (b)    in any other case — in the Regional Appeal Registry.

         (2)   If an appeal cannot be started without the leave of the court, leave must be sought in the Notice of Appeal.

Note 1   A filing fee may be payable (see regulation 16 of the Regulations).

Note 2   At the hearing of the appeal, only the grounds stated in the Notice of Appeal may be argued except with the court’s permission. A Notice of Appeal may be amended only in accordance with rule 22.09.

Note 3   Chapter 24 sets out the requirements for documents and filing. For the number of copies of a document to file, see rule 24.08.

Note 4   A document that is filed must be served on each party to be served (see subrule 7.04 (1)).

22.03      Time for appeal

                A Notice of Appeal, including a Notice of Appeal in which leave to appeal is sought, must be filed within 28 days after the date the order appealed from was made.

Note 1   Rule 17.01 sets out when an order is made.

Note 2   A person may apply for an extension of time to appeal or to make an application for leave to appeal (see rule 1.14).

22.04      Parties to an appeal

                Each person who is directly affected by the orders sought in the Notice of Appeal, or who is likely to be interested in maintaining the order under appeal, must be made a respondent to the appeal or the application for leave to appeal.

Note   An application may be made to have a person added or removed as a party to an appeal (see paragraphs 94 (2B) (a) and 94AAA (8) (a) of the Act, paragraphs 102 (6) (a) and 102A (7) (a) of the Assessment Act and paragraphs 107 (5) (a) and 107A (7) (a) of the Registration Act). See Division 22.7.1 for how to make an application relating to an appeal.

22.05      Service

                A copy of a Notice of Appeal must be served on each party to the appeal, in accordance with rule 22.04, within 14 days after it is filed.

Note   A party may apply for an extension of time to serve a copy of a Notice of Appeal (see rule 1.14).

22.06      Notice about appeal to other courts

         (1)   If an appeal is from an order of a court other than a Family Court, the appellant must give a copy of the Notice of Appeal to the Registrar of that court within 14 days after filing the Notice of Appeal.

         (2)   A party seeking leave to appeal from an order of another court must give a copy of the Notice of Appeal in which leave to appeal is sought to:

                (a)    the Registrar of the other court; and

               (b)    for an appeal from a court exercising jurisdiction under the child support legislation — the Child Support Registrar.

22.07      Cross‑appeal

                A respondent to an appeal or an independent children’s lawyer who intends to argue that an order under appeal should be varied or set aside must cross‑appeal by filing a Notice of Appeal endorsed as a cross‑appeal.

22.08      Time for cross‑appeal

                A Notice of Appeal for a cross‑appeal must be filed within the later of:

                (a)    14 days after the Notice of Appeal for the appeal is served on the cross‑appellant; or

               (b)    28 days after the date the order appealed from was made.

Note 1    A document that is filed must also be served on each person to be served (see subrule 7.04 (1)).

Note 2    A person may apply for an extension of time to cross‑appeal (see rule 1.14).

22.09      Amendment of Notice of Appeal

         (1)   The grounds of appeal and the orders sought in a Notice of Appeal may be amended without permission, at any time up to and including the date fixed for filing of the summary of argument by the appellant.

         (2)   If a Notice of Appeal is amended, the grounds of appeal and the orders sought in a Notice of Appeal endorsed as a cross‑appeal may be amended without permission, at any time within 7 days after service of the amended Notice of Appeal.

Note 1   A party may apply for permission to amend a Notice of Appeal at a later time. See Division 22.7.1 for how to apply for permission to amend grounds of appeal.

Note 2   Rule 11.12 provides for how to amend a document.

22.10      Documents filed in a current appeal

                If an appeal has been started, a document filed in the appeal must be filed in the same Registry in which the appeal was filed.

22.11      Stay

         (1)   The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision.

         (2)   If an appeal has been started, or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.

         (3)   An application for a stay must be filed in the Registry in which the order under appeal was made and be heard by the Judge, Federal Magistrate or Magistrate who made the order under appeal.

Note 1   Under subsection 55 (3) of the Act, a divorce order is stayed until after an appeal against it is determined or discontinued.

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

22.12      Application for leave to appeal

                In considering an application for leave to appeal from an order, a Judge, a Regional Appeal Registrar or other Registrar may make procedural orders, including:

                (a)    an order requiring the applicant to file a written undertaking to pay any filing fee;

               (b)    an order that the proposed appeal be argued at the same time as the application for leave to appeal; or

                (c)    an order that the application be dealt with by the court without an oral hearing and orders in relation to the conduct of the application, including the filing of written submissions.

Note   The court has the power to determine some applications relating to an appeal without an oral hearing (see subsections 94 (2C) and (2E), 94AAA (9) and (11), and 94AA (3) of the Act, subsections 102 (7) and (9), and 102A (8) and (10) of the Assessment Act and subsections 107 (6) and (8), and 107A (8) and (10) of the Registration Act). The court may decide to deal with an application without an oral hearing on its own initiative or on application.

22.13      Filing draft index to appeal books

         (1)   This rule applies to an appeal that is not an appeal from a court of summary jurisdiction other than a Family Law Magistrate of Western Australia.

         (2)   The appellant must file a draft index to the appeal book within 28 days after:

                (a)    filing the Notice of Appeal; or

               (b)    the date when the reasons for judgment that relate to the order the subject of the appeal are issued (being the date of the certificate of the Associate to the Judicial Officer that appears on the published reasons for judgment).

         (3)   If the appellant fails to comply with subrule (2), the appeal is taken to be abandoned.

Note 1   A party may apply for an extension of time (see rule 1.14).

Note 2   See rules 22.19 and 22.20 for what must be included in the appeal books.

Note 3   A document that is filed must also be served on each party to the appeal (see rule 22.04).

Part 22.3            Appeal to Full Court

  

22.14      Application of Part 22.3

                This Part applies to the following appeals:

                (a)    an appeal to the Full Court:

                          (i)    from an order of a Judge or Judges of a Family Court exercising the original jurisdiction of the court; or

                         (ii)    under subsection 94 (1AA) of the Act;

               (b)    an appeal to the Full Court from an order of the Federal Magistrates Court or a Family Law Magistrate of Western Australia, when the jurisdiction of the court in relation to the appeal is to be exercised by the Full Court;

                (c)    an appeal to the Full Court from a single Judge of a Supreme Court of a State or Territory.

Note   On the filing of an appeal from an order of the Federal Magistrates Court or a Family Law Magistrate of Western Australia, the Chief Justice must decide whether the jurisdiction of the Family Court is to be exercised by the Full Court or a single Judge. There is no right to an appeal against this decision.

If the appeal is to be heard by:

(a)   a Full Court — Part 22.3 applies; and

(b)   a single Judge — Part 22.4 applies.

The Regional Appeal Registrar will give the parties to the appeal written notice of which Part of these Rules apply.

22.15      Procedural hearing

                As soon as reasonably practical after the filing of a draft index the Regional Appeal Registrar must:

                (a)    fix a date for a procedural hearing for the appeal before a Regional Appeal Registrar or other Registrar or, if the Regional Appeal Registrar considers it appropriate, a Judge of the Appeal Division or other Judge (if a Judge of the Appeal Division is unavailable); and

               (b)    give the parties to the appeal written notice of the date fixed for the procedural hearing.

Note   An application or appeal will usually be listed before a Regional Appeal Registrar, but may be listed before a Judge of the Appeal Division or another Judge if there is no Judge of the Appeal Division available (see rule 1.13).

22.16      Attendance at first procedural hearing

         (1)   The appellant or the appellant’s lawyer must attend on the first procedural hearing for the appellant’s appeal.

         (2)   Any of the following persons may also attend on the first procedural hearing:

                (a)    a respondent in the appeal;

               (b)    a lawyer for a respondent in the appeal;

                (c)    an independent children’s lawyer in the appeal.

Note   A party may request permission to attend the procedural hearing by electronic communication (see rule 22.31) or be excused from attending the procedural hearing (see rule 1.12).

22.17      Orders to be made at procedural hearing

         (1)   A Regional Appeal Registrar or Registrar conducting a procedural hearing may, if the Registrar considers it appropriate, adjourn the hearing to a Judge at any time.

         (2)   Orders about the following matters may be made at a procedural hearing:

                (a)    the documents that are to be included in the appeal books;

               (b)    the part or parts of the transcript of the hearing relevant to the appeal that are to be included in the appeal books;

                (c)    the preparation of the appeal books and the number of copies;

               (d)    the date by which the appeal books must be filed and served;

                (e)    the conduct of the appeal (including the likely duration of the appeal);

                (f)    any other matter which the Registrar or Judge considers necessary.

22.18      Preparation of appeal books

         (1)   The appellant or, if so ordered, the cross‑appellant is responsible for preparing the appeal books, including arranging to obtain any transcript required to be included in the appeal books.

         (2)   If a Judge or Regional Appeal Registrar is satisfied that preparing the appeal books would impose exceptional hardship on the appellant, the Judge or Regional Appeal Registrar may order either of the following to prepare the appeal books:

                (a)    a respondent;

               (b)    the Regional Appeal Registrar.

Note   If the Regional Appeal Registrar prepares the appeal books, the appellant or cross‑appellant (if so ordered) is still responsible for obtaining the transcript (see rule 22.27).

         (3)   When making an order under subrule (2), the court may order the appellant to pay the costs of preparing the appeal books.

Note 1   The party filing the appeal books must file and serve the number of copies ordered to be filed (see paragraph 22.17 (2) (c)). The number to be filed will include enough copies for each member of the Full Court. In addition, the number required to be served will be 2 copies for each other party.

Note 2   A party may apply for an extension of time (see rule 1.14).

Note 3   If a party fails to comply with the requirements for filing and serving the appeal books, the appeal is taken to be abandoned (see rule 22.21).

22.19      Contents of appeal books

         (1)   Unless otherwise ordered under paragraph 22.17 (2) (a), the appeal books must contain only the following documents:

                (a)    documents put in evidence at the hearing or trial to which the appeal relates and which are relevant to the grounds of appeal and necessary to enable the court hearing the appeal to reach its decision;

               (b)    if the appeal involves a challenge to the exclusion of evidence, the document:

                          (i)    that is the subject of the challenge; and

                         (ii)    that was tendered, but not admitted as evidence, at the hearing or trial to which the appeal relates.

         (2)   The appeal books must not mention any offer to settle that has been made or the terms of the offer unless the terms of the offer are relevant to the appeal.

22.20      Form of appeal books

         (1)   Each volume of the appeal books must have:

                (a)    a title page stating:

                          (i)    the names of the parties to the appeal;

                         (ii)    the court where the order appealed from was made; and

                         (iii)    the address for service of each party; and

               (b)    an index stating the documents included in the appeal books, and the date and page number of each document.

         (2)   The appeal books must include a certificate signed by the person who prepared them, certifying that the books have been prepared in accordance with these Rules and the orders made at the procedural hearing.

         (3)   The documents in the appeal books must be arranged in the following order:

                (a)    the Notice of Appeal;

               (b)    the order appealed from;

                (c)    reasons for judgment;

               (d)    any relevant previous or subsequent order;

                (e)    each relevant application;

                (f)    any relevant response;

                (g)    relevant affidavits;

                (h)    any family or expert report received in evidence in the case that is relevant to the appeal;

                 (i)    a list of exhibits and each relevant exhibit (if practicable);

                (j)    the relevant parts of the transcript;

               (k)    if the appeal involves a challenge to the exclusion of evidence — the document that is the subject of the challenge.

         (4)   The pages of the appeal books, including the transcript, must be numbered consecutively.

         (5)   The appeal books must be securely fastened to make 1 or more volumes, each of which is no more than 25 mm thick.

         (6)   Each page in an appeal book must comply with the requirements for documents mentioned in subrule 24.01 (1).

Note   The Regional Appeal Registrar may refuse to accept the books for filing if they do not comply with these Rules or an order.

22.21      Failure to file appeal books by due date

                If the appellant fails to file the appeal books by the date ordered, the appeal is taken to be abandoned.

Note   A party may apply for an extension of time to file the appeal books (see rule 1.14).

22.22      Summary of argument and list of authorities

         (1)   Each party must file and serve a summary of argument and a list of authorities to be relied on:

                (a)    for the appellant — at least 28 days before the first day of the sittings in which the appeal is listed for hearing; and

               (b)    for the respondent and any independent children’s lawyer — at least 7 days before the first day of the sittings in which the appeal is listed for hearing.

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

         (2)   For subrule (1), a summary of argument must:

                (a)    set out each ground of appeal and, for each ground of appeal, a statement of the arguments setting out the points of law or fact and the authorities relied on;

               (b)    set out the orders sought;

                (c)    not exceed 10 pages;

               (d)    have all paragraphs numbered consecutively;

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

                (f)    include the signatory’s name, telephone number, facsimile number and email address (if any) or document exchange number (if any) at which the signatory may be contacted.

Note   For the number of copies of a document to file, see rule 24.08.

Part 22.4            Appeal from Federal Magistrates Court or a Family Law Magistrate of Western Australia heard by single Judge

  

22.23      Application of Part 22.4

                This Part applies to an appeal from an order of the Federal Magistrates Court or a Family Law Magistrate of Western Australia for which the Chief Justice has determined that the jurisdiction of the court is to be exercised by a single Judge.

Note   On the filing of an appeal from an order of the Federal Magistrates Court or a Family Law Magistrate of Western Australia, the Chief Justice must decide whether it is appropriate for the jurisdiction of the Full Court to be exercised by a single Judge. There is no right to appeal against this decision.

If the appeal is to be heard by:

(a)   a Full Court — Part 22.3 applies; and

(b)   a single Judge — Part 22.4 applies.

The Regional Appeal Registrar will give the parties to the appeal written notice of which Part of these Rules applies.

22.24      Procedural hearing

         (1)   The single Judge who is to hear the appeal may direct that the appeal be listed before that Judge, or another Judge or Regional Appeal Registrar, for a procedural hearing

         (2)   The Judge or Regional Appeal Registrar may make procedural orders in chambers, in the absence of the parties, on the documents filed.

22.25      Attendance at procedural hearing

         (1)   The appellant or the appellant’s lawyer must attend on the first procedural hearing for the appellant’s appeal.

         (2)   Any of the following persons may also attend on the first procedural hearing:

                (a)    a respondent in the appeal;

               (b)    a lawyer for a respondent in the appeal;

                (c)    an independent children’s lawyer in the appeal.

Note   A party may request permission to attend the procedural hearing by electronic communication (see rule 22.31) or be excused from attending the procedural hearing (see rule 1.12).

22.26      Procedural orders for conduct of appeal

         (1)   The procedural orders made by a Judge or Regional Appeal Registrar in chambers under subrule 22.24 (2) or at a procedural hearing may include orders about the following:

                (a)    whether an appeal book is required for the hearing of the appeal and, if so, whether rules 22.18, 22.19 and 22.20 are to apply with or without any variation;

                (b)    if an appeal book is not required, the arrangements for ensuring that the documents mentioned in rule 22.27 are before the court at the hearing of the appeal;

                (c)    a timetable for the party responsible to file and serve:

                          (i)    the reasons for judgment of the Federal Magistrate or of the Family Law Magistrate of Western Australia and those parts of the transcript of the hearing likely to be relevant to the appeal;

                         (ii)    a list of documents to be relied on, or an appeal book;

                         (iii)    a summary of argument; and

                        (iv)    a list of authorities to be relied on;

               (d)    a date for the hearing of the appeal.

         (2)   A summary of argument filed by a party as required by an order made under subparagraph (1) (c) (iii) must comply with subrule 22.22 (2).

22.27      Documents for appeal hearing if appeal book not required

         (1)   The documents that must be before the Judge on the hearing of the appeal are:

                (a)    the Notice of Appeal;

               (b)    the order of the Federal Magistrate or of the Family Law Magistrate of Western Australia;

                (c)    reasons for judgment of the Federal Magistrate or of the Family Law Magistrate of Western Australia;

                (d)    any relevant previous or subsequent order;

                (e)    the application relied on before the Federal Magistrate or the Family Law Magistrate of Western Australia;

                (f)    any response relied on before the Federal Magistrate or the Family Law Magistrate of Western Australia;

                (g)    relevant affidavits relied on before the Federal Magistrate or the Family Law Magistrate of Western Australia;

                (h)    any family report received in evidence;

                 (i)    relevant exhibits tendered before the Federal Magistrate or the Family Law Magistrate of Western Australia;

                 (j)    the relevant part or parts of the transcript of the hearing before the Federal Magistrate or the Family Law Magistrate of Western Australia; and

                (k)    if the appeal involves a challenge to the exclusion of evidence — the document that is the subject of the challenge.

         (2)   The documents to be relied on in the appeal must not mention any offer to settle that has been made or the terms of the offer unless the terms of the offer are relevant to the appeal.

Part 22.5            Appeal from court of summary jurisdiction other than a Family Law Magistrate of Western Australia

Do not delete : Division Placeholder

22.28      Application of Part 22.5

                This Part applies to an appeal from an order of a court of summary jurisdiction other than a Family Law Magistrate of Western Australia.

22.29      Fixing of hearing date

                On the filing of a Notice of Appeal, the Registry Manager must fix a date for the hearing of the appeal that is as near as practicable to 56 days after the Notice of Appeal was filed.

Note   The appellant must give a copy of the Notice of Appeal to the Registrar of the court of summary jurisdiction within 14 days after filing the Notice of Appeal (see rule 22.06).

Part 22.6            Powers of appeal courts and conduct of appeal

  

Note 1   The following provisions set out the powers of the appeal court:

(a)   subsections 93A (2), 94 (2) and 94AAA (6) and section 96 of the Act;

(b)   subsections 102 (4), 102A (5) and 105 (6) of the Assessment Act;

(c)   subsections 107 (3), 107A (5) and 110 (8) of the Registration Act.

Note 2   Oral argument will ordinarily be restricted to issues raised by the Notice of Appeal and the summary of argument. The appeal court may restrict the time allowed for oral argument.

22.30      Non‑attendance by party

                If a party does not attend, in person or by lawyer, when an appeal is called on for the hearing of the appeal, the court may:

                (a)    if the appellant does not attend — dismiss the appeal; or

               (b)    if the respondent does not attend — proceed with the appeal.

22.31      Attendance by electronic communication

         (1)   A party may request permission from the court to attend the hearing of an appeal or an application for leave to appeal or an application in relation to an appeal or a procedural hearing by electronic communication.

         (2)   The request must:

                (a)    be in writing;

               (b)    for an application in relation to an appeal or a procedural hearing — be made at least 14 days before the date fixed for the hearing of the application or the procedural hearing;

                (c)    for an application for leave to appeal or an appeal — be made at least 14 days before the date fixed for the sitting of the Full Court during which application for leave to appeal or the appeal will be heard;

               (d)    address all of the matters mentioned in subrule 16.08 (3), if applicable; and

                (e)    set out the notice given of the request to any other party and whether there is any objection to the request.

         (3)   The request may be determined, in chambers, in the absence of the parties by:

                (a)    for an appeal or application to be heard by the Full Court — a Judge of the Appeal Division;

               (b)    for an appeal or application to be heard by a single Judge — the Judge hearing the appeal or application; or

                (c)    for a procedural hearing — the Registrar or Judge who is to conduct the procedural hearing.

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

                (a)    the party’s distance from the place where the event is to be held;

               (b)    any physical difficulty the party has in attending because of illness, disability or concerns about security.

         (5)   The court may order a party to pay the expenses of attending by electronic communication, apportion the expenses between the parties, or make no order about the expenses.

         (6)   This rule does not apply if the court of its own motion decides to hear an appeal, or an application for leave to an appeal or procedural hearing, by electronic communication.

22.32      Attendance of party in prison

         (1)   A party who is in prison must attend a procedural hearing, the hearing of an appeal, an application in relation to an appeal or an application for leave to appeal, by electronic communication, if practicable.

         (2)   A party may seek permission from the court to attend a procedural hearing, the hearing of an appeal, an application for leave to appeal or an application in relation to an appeal, in person.

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

                (a)    be in writing;

               (b)    be made at least 14 days before the date fixed for the procedural hearing or the hearing of the appeal, the application for leave to appeal or the application in relation to the appeal;

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

               (d)    set out the notice given of the request to any other party and whether there is any objection to the request.

22.33      Short reasons for decision

                The court, in exercising its power under subsection 94 (2A) or 94AAA (7) of the Family Law Act, subsection 102 (5) or 102A (6) of the Assessment Act or subsection 107 (4) or 107A (6) of the Registration Act, to give reasons in short form for its decision to dismiss an appeal, must do so by stating them in the following form:

Short reasons for decision

File number

Applicant(s)

At

Respondent(s)

The Court/Full Court is of the opinion that the appeal does not raise any question of general principle.

The Court’s reasons in short form are: [set out short reasons]

The appeal is dismissed [insert particulars of any costs order]

 

Date:

22.34      Subpoenas

         (1)   A subpoena may be issued in an appeal only if leave to issue the subpoena has been given by:

                (a)    the Full Court; or

               (b)    for an appeal heard by a single Judge — that Judge.

         (2)   A document produced in compliance with a subpoena issued in accordance with subrule (1) may be inspected only with the leave of the Full Court or the Judge mentioned in paragraph (1) (b).

Part 22.7            Applications in relation to appeals

Division 22.7.1     How to make an application

22.35      Application of Part 22.7

                This Part applies if a party seeks to make an application in relation to an appeal (other than an application for leave to appeal).

22.36      Application in relation to appeal

                A party may make an application in relation to an appeal by filing an Application in an Appeal together with an affidavit stating the facts relied on in support of the application.

Note 1   See rule 22.10 for where to file an application.

Note 2   The applicant must file enough copies of the documents to provide 1 copy for each member of the appeal court and to enable service on all parties and any independent children’s lawyer (see rule 24.08).

Note 3   A document that is filed must be served (see subrule 7.04 (1)). If a time limit is given for an action, service must also be effected within that time.

22.37      Hearing date for application

                On the filing of an Application in an Appeal, the Regional Appeal Registrar must:

                (a)    fix a date for a hearing of the application; or

               (b)    refer the application to a Judge in chambers if:

                          (i)    the applicant has asked the court, in the application, to determine it without an oral hearing and the respondent has not objected to the request (see Part 5.4); or

                         (ii)    the Regional Appeal Registrar considers it appropriate.

22.38      Decision without an oral hearing

         (1)   Part 5.4 applies to an application in relation to an appeal as if a reference in that Part:

                (a)    to an application for an interim or procedural order were a reference to an application in relation to an appeal; and

               (b)    to ‘in the absence of the parties’ were a reference to ‘without an oral hearing’.

         (2)   If an application is referred to a Judge in chambers in accordance with paragraph 22.37 (b), the Judge may:

                (a)    order that the application be dealt with by the court without an oral hearing and:

                          (i)    make procedural orders in relation to the conduct of the application, including the filing of written submissions; or

                         (ii)    determine the application; or

               (b)    direct that a date for hearing be fixed for the application and require the parties to attend.

Note 1   The court has the power to determine some applications relating to an appeal without an oral hearing (see subsections 94 (2C) and (2E), 94AAA (9) and (11), and 94AA (3) of the Act, subsections 102 (7) and (9), and 102A (8) and (10) of the Assessment Act and subsections 107 (6) and (8), and 107A (8) and (10) of the Registration Act). The court may decide to deal with an application without an oral hearing on its own initiative or on application.

Note 2   For the requirements for withdrawing or discontinuing an application, see Part 10.2.

Division 22.7.2     Specific applications relating to appeals

22.39      Further evidence on appeal

         (1)   A party to an appeal, other than an appeal that is a hearing de novo, who seeks to apply for an order that the court receive further evidence on the hearing of the appeal, must file the application at least 14 days before the date of commencement of the sittings in which the appeal is listed for hearing.

         (2)   The affidavit filed with the application must either describe the nature of the further evidence or include the further evidence that the applicant wants the court to admit at the hearing of the appeal.

         (3)   Any other party to the appeal may file an affidavit in response to the application at least 7 days before the date of commencement of the sittings in which the appeal is listed for hearing.

         (4)   The hearing date for an application to adduce further evidence will be the same as the date fixed for hearing of the appeal or application for leave to appeal.

Note 1   For the rules on how to make an application, the procedure and by whom the application will be heard, see Division 22.7.1.

Note 2   Documents relating to further evidence should not be included in the appeal books.

22.40      Review of Regional Appeal Registrar’s order

                A party may apply for a review of a Regional Appeal Registrar’s order relating to the conduct of an appeal by filing an Application in an Appeal in the Regional Appeal Registry, within 14 days after the order is made.

Note 1   The Regional Appeal Registrar must list the application for review for hearing by a Judge of the Appeal Division (or, if no Judge of the Appeal Division is available, another Judge).

Note 2   The court may shorten or extend the time for compliance with a rule (see rule 1.14).

Part 22.8            Concluding an appeal, an application for leave to appeal or an application in relation to an appeal

  

22.41      Consent orders on appeal

         (1)   This rule applies if the parties to an appeal agree about the orders the court will be asked to make on appeal.

         (2)   The parties may file a draft consent order, setting out the terms of their agreement.

         (3)   If the parties:

                (a)    agree about the orders the court will be asked to make on appeal; and

               (b)    disagree about the order for costs;

the Regional Appeal Registrar may fix a date for hearing for the argument about costs, without requiring appeal books to be prepared or a procedural hearing to be held.

22.42      Discontinuance of appeal or application

         (1)   A party may discontinue an appeal, an application for leave to appeal or an application in relation to an appeal by filing a notice of discontinuance.

         (2)   The party may be ordered to pay the costs of all other parties.

         (3)   An application for costs must be filed within 28 days after the filing of the notice of discontinuance.

22.43      Abandoning an appeal

         (1)   If the appeal is taken to be abandoned, the appellant may be ordered to pay the costs of all other parties.

         (2)   An application for costs of an abandoned appeal must be filed within 28 days after the date the appeal became abandoned.

22.44      Application for reinstatement of appeal

                A party may apply to have an appeal taken to be abandoned under this Chapter reinstated.

22.45      Dismissal of appeal and applications for non‑compliance or delay

         (1)   This rule applies if:

                (a)    the appeal is not taken to have been abandoned; and

               (b)    a party (the defaulting party) has not:

                          (i)    met a requirement under these Rules or the Regulations;

                         (ii)    complied with an order in relation to the appeal (including an application for leave to appeal or application in relation to an appeal); or

                         (iii)    shown reasonable diligence in proceeding with an appeal or application.

         (2)   A court having jurisdiction in the appeal or application may:

                (a)    if the defaulting party is the appellant or the applicant:

                          (i)    dismiss the appeal or application; or

                         (ii)    fix a time by which a requirement is to be met and order that the appeal or application will be dismissed if the order imposing the requirement is not complied with; or

               (b)    if the defaulting party is the respondent:

                          (i)    fix a time by which a requirement is to be met and order that the appeal or application will proceed if the order imposing the requirement is not complied with; or

                         (ii)    proceed to hear the appeal or application.

         (3)   The court may make an order under subrule (2) on its own initiative if, at least 14 days before making the order, written notice has been given to the parties about the date and time when the court will consider whether to make the order.

         (4)   An application for costs in relation to an appeal or application dismissed under this rule must be made within 28 days after the dismissal.

Part 22.9            Case stated

  

22.46      Application of Part 22.9

                This Part applies to a case (a case stated) under the Act, the Assessment Act or the Registration Act in relation to which the court and a party want a Full Court to determine a question of law arising in the case.

22.47      Case stated

         (1)   If a Judge orders a party to prepare a case stated to the Full Court, the party must:

                (a)    confer with each other party about the terms of a draft case stated; and

               (b)    prepare the draft case stated based on the agreed terms.

         (2)   The draft case stated must concisely state the facts and the question of law to be determined.

         (3)   When the draft of the case stated is completed, the party who prepared it must:

                (a)    ask the Regional Appeal Registrar to list the case for a procedural hearing to have the draft case stated settled by the Judge; and

               (b)    serve a copy of the draft case stated and a notice of the date fixed for the procedural hearing on each other party and any other person the Judge directs.

22.48      Objection to draft case stated

         (1)   A party served with a copy of a draft case stated under paragraph 22.47 (3) (b) may object to its terms, or seek an amendment of it, by giving written notice to the party who prepared the draft of:

                (a)    any objections; or

               (b)    any amendments sought to be made when the draft is settled by the Judge.

         (2)   The party must give the notice within 7 days after the copy of the draft case stated was served on the party.

22.49      Settlement and signing

         (1)   The party who prepared the draft case stated must lodge:

                (a)    the draft case stated;

               (b)    any objections or amendments sought by the other party; and

                (c)    a request that the Judge settle the draft case stated.

         (2)   The party who prepared the draft case stated must, within 3 days after it has been settled, file a copy of the case stated, as settled, for signature by the Judge.

22.50      Filing of copies of case stated

                A party who prepares a draft case stated must, within 7 days after it has been signed under rule 22.49:

                (a)    file 5 copies of the case stated in the Regional Appeal Registry; and

               (b)    serve 2 copies of the case stated on each other party and any other person the Judge directs.

22.51      Fixing of hearing date

                On the filing of copies of the signed case stated under rule 22.50, the Regional Appeal Registrar must:

                (a)    fix a date for the hearing of the case stated during a sitting of the Full Court; and

               (b)    give each party written notice about the hearing.

22.52      Summary of argument and list of authorities

         (1)   A summary of argument to be presented and a list of cases to be relied on at the hearing of a case stated must be filed and served:

                (a)    by the party who prepares the draft case stated — at least 21 days before the commencement of the sittings at which the case stated is listed for hearing;

               (b)    by each other party — at least 14 days before the commencement of the sittings at which the case stated is listed for hearing; and

                (c)    by a child representative (if any) — at least 7 days before the commencement of the sittings at which the case stated is listed for hearing.

         (2)   The summary of argument must be in accordance with subrule 22.22 (2).

[2]           Dictionary, after definition of family dispute resolution practitioner

insert

Family Law Magistrate of Western Australia means the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia.

[3]           Dictionary, definitions of Regional Appeal Registrar and Regional Appeal Registry

substitute

Regional Appeal Registrar means the Registrar at the Regional Appeal Registry for an appeal.

Regional Appeal Registry, for an appeal other than from an order of a court of summary jurisdiction, means:

                (a)    from an order in a case heard in Queensland, Lismore or the Northern Territory — the Brisbane Registry;

               (b)    from an order in a case heard in the Australian Capital Territory or New South Wales, except Lismore — the Sydney Registry;

                (c)    from an order in a case heard in South Australia, Tasmania or Victoria — the Melbourne Registry; or

               (d)    from an order made in Western Australia — the Registry of the Family Court of Western Australia.


Note

1.       All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See http://www.frli.gov.au.