Contents
Chapter 1 Introduction
Part 1.1 Preliminary
1.01 Name of Rules [see Note 1] 29
1.02 Commencement 29
1.03 Rules in Chapter 1 prevail 30
Part 1.2 Main purpose of Rules
1.04 Main purpose of Rules 31
1.05 Pre‑action procedure 31
1.06 Promoting the main purpose 32
1.07 Achieving the main purpose 32
1.08 Responsibility of parties and lawyers in achieving the main purpose 33
Part 1.3 Court’s powers in all cases
1.09 Procedural orders in cases of doubt or difficulty 35
1.10 Court may make orders 35
1.11 Court may set aside or vary order 35
1.12 Court may dispense with Rules 35
1.13 Judicial officer hearing application 36
1.14 Shortening or extension of time 36
1.15 Time for compliance 36
Part 1.4 Other preliminary matters
1.16 Definitions — the dictionary 37
1.17 Notes, examples etc 37
1.18 Sittings 38
1.19 Permission to record court event 38
1.20 Publishing lists of cases 38
1.21 Calculating time 39
Chapter 2 Starting a case
Part 2.1 Applications
2.01 Which application to file 40
2.02 Documents to be filed with applications 42
2.02A Documents filed by electronic communication 46
Part 2.2 Brochures
2.03 Service of brochures 47
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 48
2.04A Application of Division 2.3.1 48
2.04B Filing and service 48
2.04C Listing case 49
2.04D Prescribed document and prescribed form 49
2.05 Family violence order 49
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) 50
2.07 Proceeds of crime 50
Chapter 3 Divorce
Part 3.1 Application for Divorce
3.01 Fixing of hearing date 52
3.02 Amendment of an Application for Divorce 52
3.03 Discontinuance of an Application for Divorce 52
Part 3.2 Response
3.04 Response 53
3.05 Objection to jurisdiction 53
3.06 Response out of time 53
3.07 Affidavit to reply to information in an Application for Divorce 54
Part 3.3 Attendance at hearing
3.08 Attendance at hearing 55
Part 3.4 Hearing in absence of parties
3.09 Seeking a hearing in absence of parties 56
3.10 Hearing in absence of parties — joint application 56
3.11 Request not to hear case in parties’ absence 56
Part 3.5 Events affecting divorce order
3.12 Application for rescission of divorce order 57
3.13 Death of party 57
Chapter 4 Application for Final Orders
Part 4.1 Introduction
4.01 Contents of Application for Final Orders 59
4.02 Filing affidavits 59
4.03 First court date 60
Part 4.2 Specific applications
Division 4.2.1 General
4.04 General provisions still apply 61
4.05 Application by Attorney‑General for transfer of case 61
Division 4.2.2 Cross‑vesting
4.06 Cross‑vesting matters 61
4.07 Transfer of case 62
Division 4.2.3 Medical procedure
4.08 Application for medical procedure 62
4.09 Evidence supporting application 62
4.10 Service of application 63
4.11 Fixing of hearing date 64
4.12 Procedure on first court date 64
Division 4.2.4 Spousal maintenance
4.14 Procedure on first court date 64
4.15 Evidence to be provided 65
Division 4.2.5 Child support and child maintenance
4.16 Application of Division 4.2.5 67
4.17 Commencing proceedings 67
4.18 Documents to be filed with applications 67
4.19 Child support agreements 68
4.20 Time limits for applications under Assessment Act 69
4.21 Appeals on questions of law 69
4.22 Time limit for appeals on questions of law 69
4.23 Service of application or notice of appeal 70
4.24 Service by Child Support Registrar 70
4.25 Procedure on first court date 70
4.26 Evidence to be provided 71
Division 4.2.6 Nullity and validity of marriage and divorce
4.27 Application of Division 4.2.6 72
4.28 Fixing hearing date 72
4.29 Affidavit to be filed with application 72
Division 4.2.7 Applications relating to passports
4.30 Application relating to passport 73
4.31 Fixing hearing date 73
Chapter 5 Applications in a case
Part 5.1 General
5.01 Applications in a case 74
5.01A Filing of applications seeking parenting orders during the Christmas school holiday period 75
5.02 Evidence in applications in a case 75
5.03 Procedure before filing 75
5.04 Restrictions in relation to applications 76
5.05 Fixing a date for hearing or case assessment conference 77
5.06 Attendance by electronic communication 77
5.07 Attendance of party or witness in prison 79
Part 5.2 Hearing — interim and procedural applications
5.08 Interim orders — matters to be considered 80
5.09 Affidavits 80
5.10 Hearing time of interim or procedural application 80
5.11 Party’s failure to attend 81
Part 5.3 Application without notice
5.12 Application without notice 82
5.13 Necessary procedural orders 83
Part 5.4 Hearing on papers in absence of parties
5.14 Request for hearing in absence of parties 84
5.15 Objection to hearing in absence of parties 84
5.16 Court decision to not proceed in absence of parties 84
5.17 Procedure in hearing in absence of parties 84
Part 5.5 Postponement of interim hearing
5.18 Administrative postponement of interim hearing 86
Chapter 6 Parties
Part 6.1 General
6.01 Parties 87
6.02 Necessary parties 87
Part 6.2 Adding and removing a party
6.03 Adding a party 89
6.04 Removing a party 89
6.05 Intervention by a person seeking to become a party 89
6.06 Intervention by a person entitled to intervene 90
6.07 Notice of constitutional matter 91
Part 6.3 Case guardian
6.08A Interpretation 92
6.08 Conducting a case by case guardian 92
6.09 Who may be a case guardian 92
6.10 Appointment, replacement or removal of case guardian 92
6.11 Attorney‑General may nominate case guardian 93
6.12 Notice of becoming case guardian 93
6.13 Conduct of case by case guardian 94
6.14 Costs of case guardian 94
Part 6.4 Progress of case after death
6.15 Death of party 95
Part 6.5 Progress of a case after bankruptcy or personal insolvency agreement
6.16 Interpretation 96
6.17 Notice of bankruptcy or personal insolvency agreement 96
6.18 Notice under paragraph 6.17 (1) (b) 97
6.19 Notice under paragraph 6.17 (1) (c) 97
6.20 Notice of bankruptcy proceedings 98
6.21 Notice of application under section 139A of the Bankruptcy Act 98
6.22 Official name of trustee 99
Chapter 7 Service
Part 7.1 General
7.01A Application 100
7.01 Service 100
7.02 Court’s discretion regarding service 101
7.03 Service of documents 101
7.04 Service of filed documents 102
Part 7.2 Special service
7.05 Special service 104
7.06 Special service by hand 104
7.07 Special service by post or electronic communication 104
7.08 Special service through a lawyer 105
7.09 Special service on person with a disability 105
7.10 Special service on a prisoner 106
7.11 Special service on a corporation 106
Part 7.3 Ordinary service
7.12 Ordinary service 107
Part 7.4 Proof of service
7.13 Proof of service 108
7.14 Proof of special service 108
7.15 Evidence of identity 108
Part 7.5 Other matters about service
7.16 Service by electronic communication 110
7.17 When service is taken to have been carried out 110
7.18 Service with conditions or dispensing with service 111
Part 7.6 Service in non‑convention country
7.19 Service in non‑convention country 112
7.20 Proof of service in non‑convention country 112
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 114
8.02 Independent children’s lawyer 115
8.03 Lawyer — conflicting interests 116
8.04 Lawyer — ceasing to act 116
Part 8.2 Address for service
8.05 Address for service 117
8.06 Change of address for service 118
Chapter 9 Response and reply
Part 9.1 Response to an Application for Final Orders
9.01 Response to an Application for Final Orders 119
9.02 Filing an affidavit with Response to an Application for Final Orders 120
9.03 Response objecting to jurisdiction 121
Part 9.2 Reply to Response to an Application for Final Orders
9.04 Applicant reply to Response to an Application for Final Orders (Reply) 122
9.04A Additional party reply to Response to an Application for Final Orders, (Reply) 122
Part 9.3 Response to Application in a Case
9.05 Response to Application in a Case 123
9.06 Affidavit to be filed with Response to an Application in a Case 123
9.07 Affidavit in reply to Response to an Application in a Case 123
Part 9.4 Filing and service
9.08 Time for filing and service of response or reply 124
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 125
10.02 Open and ‘without prejudice’ offer 126
10.03 How to withdraw an offer 126
10.04 How to accept an offer 127
10.05 Counter‑offer 127
Division 10.1.2 Offer to settle — property cases
10.06 Compulsory offer to settle 127
10.07 Withdrawal of offer 128
Part 10.2 Discontinuing a case
10.10 Definition 129
10.11 Discontinuing a case 129
Part 10.3 Summary orders and separate decisions
10.12 Application for summary orders 131
10.13 Application for separate decision 131
10.14 What the court may order under this Part 131
Part 10.4 Consent orders
10.15 How to apply for a consent order 133
10.15A Consent parenting orders and allegations of abuse 134
10.16 Notice to superannuation trustee 135
10.16A Order or injunction binding a third party 135
10.17 Dealing with a consent order 136
10.18 Lapsing of respondent’s consent 136
Chapter 11 Case management
Part 11.1 Court’s powers of case management
11.01 General powers 137
11.02 Failure to comply with a legislative provision or order 139
11.03 Relief from orders 139
11.04 Frivolous or vexatious case 140
11.05 Application for permission to start a case 141
11.06 Dismissal for want of prosecution 141
Part 11.2 Limiting issues
Division 11.2.1 Admissions
11.07 Request to admit 143
11.08 Notice disputing fact or document 143
11.09 Withdrawing admission 144
Division 11.2.2 Amendment
11.10 Amendment by a party or court order 144
11.11 Time limit for amendment 145
11.12 Amending a document 145
11.13 Response to amended document 146
11.14 Disallowance of amendment 146
Division 11.2.3 Small claims
11.15 Small claims 146
Part 11.3 Venue
Division 11.3.1 Open court and chambers
11.16 Cases in chambers 148
Division 11.3.2 Transferring a case
11.17 Transfer to another court or registry 148
11.18 Factors to be considered for transfer 149
Division 11.3.3 Transfer of court file
11.20 Transfer between courts 150
Chapter 12 Court events
Part 12.1 Application of Chapter 12
12.01 Application of Chapter 12 152
Part 12.2 Court events — resolution phase
12.02 Property case — exchange of documents before first court date 153
12.03 Case assessment conference 154
12.04 Procedural hearing 155
12.05 Property case — exchange of documents before conciliation conference 156
12.06 Conduct of a conciliation conference 157
Part 12.3 Court events — determination phase
12.07A Application 158
12.07 Trial notice 158
12.08 Compliance certificate 158
12.09 Non‑compliance 159
12.10 Conduct of pre‑trial conference 159
Part 12.4 Attendance at court events
12.11 Party’s attendance 161
12.12 Attendance by electronic communication 161
12.13 Failure to attend court events 161
Part 12.5 Adjournment and postponement of court events
12.14 Administrative postponement of conferences or procedural hearings 163
12.15 Adjournment of case conference 164
12.16 Adjournment or postponement of pre‑trial conference 164
Chapter 13 Disclosure
Part 13.1 Disclosure between parties
Division 13.1.1 General duty of disclosure
13.01 General duty of disclosure 166
Division 13.1.2 Duty of disclosure — financial cases
13.02 Purpose of Division 13.1.2 166
13.03 Definition 167
13.04 Full and frank disclosure 167
13.05 Financial statement 168
13.06 Amendment of Financial Statement 169
Part 13.2 Duty of disclosure — documents
Division 13.2.1 Disclosure of documents — all cases
13.07 Duty of disclosure — documents 170
13.08 Inspection of documents 170
13.09 Production of original documents 171
13.10 Disclosure by inspection of documents 171
13.11 Costs for inspection 171
13.12 Documents that need not be produced 171
13.13 Objection to production 172
13.14 Consequence of non‑disclosure 172
13.15 Undertaking by party 173
13.16 Time for filing undertaking 174
Division 13.2.2 Disclosure of documents — certain applications
13.17 Application of Division 13.2.2 175
13.18 Party may seek order about disclosure 175
Division 13.2.3 Disclosure of documents — Applications for Final Orders
13.19 Application of Division 13.2.3 175
13.20 Disclosure by service of a list of documents 176
13.21 Disclosure by inspection of documents 177
13.22 Application for order for disclosure 177
13.23 Costs of compliance 179
13.24 Electronic disclosure 179
Part 13.3 Answers to specific questions
13.25 Application of Part 13.3 180
13.26 Service of specific questions 180
13.27 Answering specific questions 181
13.28 Orders in relation to specific questions 181
Part 13.4 Information from non‑parties
Division 13.4.1 Employment information
13.29 Purpose of Division 13.4.1 182
13.30 Employment information 182
Division 13.4.2 Non‑party documents
13.31 Purpose of Division 13.4.2 183
13.32 Definitions 183
13.33 Notice of Non‑party Production of Documents 183
13.34 Service on others affected by Notice 184
13.35 Compliance with Notice of Non‑party Production of Documents 184
13.36 Production of documents 185
13.37 Copying produced documents 185
13.37A Protection in relation to production 185
13.38 Costs of production 185
13.39 Objection to production 186
13.39A Service of objection on other parties 186
13.40 Stay of Notice of Non‑party Production of Documents 186
13.41 Court’s decision about Notice of Non‑party Production of Documents 186
13.42 Orders about non‑party disclosure 187
Chapter 14 Property orders
14.01 Orders about property 188
14.02 Service of application 189
14.03 Inspection 189
14.04 Application for Anton Piller order 189
14.05 Application for Mareva order 190
14.06 Notice to superannuation trustee 191
14.07 Notice about intervention under Part VIII of Act 192
Chapter 15 Evidence
Part 15.1 Children
15.01 Restriction on child’s evidence 193
15.02 Interviewing a child 194
15.03 Family reports 194
Part 15.2 Affidavits
15.05 Evidence in chief by affidavit 196
15.06 Reliance on affidavits 196
15.07 Filing an affidavit 196
15.08 Form of affidavit 197
15.09 Making an affidavit 198
15.10 Affidavit of illiterate or blind person etc 198
15.11 Affidavit outside Australia 199
15.12 Documents attached 199
15.13 Striking out objectionable material 200
15.14 Notice to attend for cross‑examination 200
15.15 Deponent’s attendance and expenses 201
Part 15.3 Subpoenas
Division 15.3.1 General
15.16 Interpretation 202
15.17 Issuing a subpoena 202
15.18 Subpoena not to issue in certain circumstances 203
15.19 Time for issuing a subpoena 203
15.20 Amendment of subpoena 204
15.21 Limit on number of subpoenas 204
15.22 Service 204
15.23 Conduct money and witness fees 204
15.24 When compliance is not required 205
15.25 Discharge of subpoena obligation 205
15.26 Objection to subpoena 206
Division 15.3.2 Production of documents and access by parties
15.27 Application of Division 15.3.2 206
15.28 Service of subpoena for production 206
15.29 Compliance with subpoena 207
15.30 Right to inspect and copy 208
15.31 Objection to inspection or copying of document 209
15.32 Court permission to inspect documents 209
15.33 Claim for privilege 209
15.34 Production of document from another court 210
15.35 Return of documents produced 210
Division 15.3.3 Non‑compliance with subpoena
15.36 Non‑compliance with subpoena 211
Part 15.4 Assessors
15.37 Application of Part 15.4 212
15.38 Appointing an assessor 212
15.39 Assessor’s report 212
15.40 Remuneration of assessor 213
Part 15.5 Expert evidence
Division 15.5.1 General
15.41 Application of Part 15.5 214
15.42 Purpose of Part 15.5 215
15.43 Definitions 215
Division 15.5.2 Single expert witness
15.44 Appointment of single expert witness by parties 216
15.45 Order for single expert witness 216
15.46 Orders the court may make 217
15.47 Single expert witness’s fees and expenses 217
15.48 Single expert witness’s report 218
15.49 Appointing another expert witness 218
15.50 Cross‑examination of single expert witness 219
Division 15.5.3 Permission for expert’s evidence
15.51 Permission for expert’s reports and evidence 219
15.52 Application for permission for expert witness 219
Division 15.5.4 Instructions and disclosure of expert’s report
15.53 Application of Division 15.5.4 221
15.54 Instructions to expert witness 221
15.55 Mandatory disclosure of expert’s report 222
15.56 Provision of information about fees 222
15.57 Application for provision of information 222
15.58 Failure to disclose report 223
Division 15.5.5 Expert witness’s duties and rights
15.59 Expert witness’s duty to the court 223
15.60 Expert witness’s right to seek orders 224
15.61 Expert witness’s evidence in chief 225
15.62 Form of expert’s report 225
15.63 Contents of expert’s report 226
15.64 Consequences of non‑compliance 227
Division 15.5.6 Clarification of single expert witness reports
15.64A Purpose 227
15.64B Conference 228
15.65 Questions to single expert witness 228
15.66 Single expert witness’s answers 229
15.67 Single expert witness’s costs 229
15.67A Application for directions 230
Division 15.5.7 Evidence from 2 or more expert witnesses
15.68 Application of Division 15.5.7 230
15.69 Conference of expert witnesses 230
15.70 Conduct of trial with expert witnesses 232
Part 15.6 Other matters about evidence
15.71 Court may call evidence 233
15.72 Order for examination of witness 233
15.73 Letters of request 233
15.74 Hearsay evidence — notice under section 67 of the Evidence Act 1995 234
15.75 Transcript receivable in evidence 234
15.76 Notice to produce 235
Chapter 16 Trial
Part 16.1 Expedited trials
16.01 Expedited trial 236
Part 16.2 Preparation for trial
16.02 Trial information 238
16.03 Notice in relation to evidence 238
Part 16.3 Conduct of trial
16.04 Conduct of trial — general 240
16.05 Trial management 240
16.06 Sequence of evidence 241
16.07 Opening and closing address 241
16.08 Attendance, submissions and evidence by electronic communication 242
16.09 Foreign evidence by electronic communication 244
16.10 Exhibits 245
16.11 Party’s failure to attend 245
16.12 Vacating trial date 246
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 247
16A.02 Application of Part 16A.1 248
16A.03 Consent for Division 12A of Part VII of the Act to apply 248
16A.04 Application for Division 12A of Part VII of the Act to apply for case commenced by application before 1 July 2006 248
Part 16A.2 Trials of certain cases to which Division 12A of Part VII of the Act applies
16A.05 Definitions 249
16A.06 Application 249
16A.07 Questionnaire 250
16A.08 Subpoenas etc 250
16A.09 Commencement of trial 251
16A.10 Parties to be sworn etc 251
Chapter 17 Orders
17.01 When an order is made 252
17.02 Errors in orders 252
17.03 Rate of interest 253
17.04 Order for payment of money 254
17.05 Order for payment of fine 254
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 255
18.01 Exercise of powers and functions 256
Division 18.1.2 Delegation to Judicial Registrars
18.02 Delegation of powers to Judicial Registrars 256
18.03 Property value exceeding limit — power to determine case 258
Division 18.1.3 Delegation of powers to Registrars and Deputy Registrars
18.04 Application of Division 18.1.3 258
18.05 Registrars 258
18.06 Deputy Registrars 262
Part 18.2 Review of decisions
18.07 Application of Part 18.2 271
18.08 Review of order 271
18.09 Stay 272
18.10 Power of court on review 272
Chapter 19 Party/party costs
Part 19.1 General
19.01 Application of Chapter 19 274
19.02 Interest on outstanding costs 275
Part 19.2 Obligations of a lawyer about costs
19.03 Duty to inform about costs 276
19.04 Notification of costs 276
Part 19.3 Security for costs
19.05 Application for security for costs 278
19.06 Order for security for costs 278
19.07 Finalising security 279
Part 19.4 Costs orders
19.08 Order for costs 280
19.09 Costs order for cases in other courts 280
19.10 Costs orders against lawyers 281
19.11 Notice of costs order 281
Part 19.5 Calculation of costs
19.18 Method of calculation of costs 282
19.19 Maximum amount of party/party costs recoverable 283
Part 19.6 Claiming and disputing costs
Division 19.6.1 Itemised costs account
19.20 Request for itemised costs account 284
19.21 Service of lawyer’s itemised costs account 284
19.22 Lawyer’s itemised costs account 284
19.23 Disputing itemised costs account 285
19.24 Assessment of disputed costs 285
19.25 Amendment of itemised costs account and Notice Disputing Itemised Costs Account 286
Division 19.6.2 Assessment process
19.26 Fixing date for first court event 286
19.27 Notification of hearing 287
19.28 Settlement conference 287
19.29 Preliminary assessment 287
19.30 Objection to preliminary assessment amount 287
19.31 If no objection to preliminary assessment 288
19.32 Assessment hearing 288
19.33 Powers of Registrars 289
19.34 Assessment principles 290
19.35 Allowance for matters not specified 291
19.36 Neglect or delay before Registrar 291
19.37 Costs assessment order — costs account not disputed 292
19.38 Setting aside a costs assessment order 292
Part 19.7 Specific costs matters
19.40 Costs in court of summary jurisdiction 293
19.41 Charge for each page 293
19.42 Proportion of costs 293
19.43 Costs for reading 293
19.44 Postage within Australia 294
19.45 Waiting and travelling time 294
19.46 Agent’s fees 294
19.49 Costs of cases not started together 295
19.50 Certificate as to counsel 295
19.51 Lawyer as counsel — party and party costs 295
19.52 Lawyer as counsel — assessment of fees 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 301
20.04 Who may enforce an obligation 301
20.05 Enforcing an obligation to pay money 302
20.06 Affidavit to be filed for enforcement order 302
20.07 General enforcement powers of court 303
20.08 Enforcement order 304
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 or enforcement hearing 307
Part 20.3 Enforcement warrants
Division 20.3.1 General
20.15 Definitions 308
20.16 Request for Enforcement Warrant 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 318
20.33 Service of Third Party Debt Notice 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 335
21.03 Application made or continued by Marshal 337
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 338
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 an appeal 348
22.05 Service 348
22.06 Notice about appeal to other courts 348
22.07 Cross‑appeal 348
22.08 Time for cross‑appeal 349
22.09 Amendment of Notice of Appeal 349
22.10 Documents filed in a current appeal 349
22.11 Stay 349
22.12 Application for leave to appeal 350
22.13 Filing draft index to appeal books 350
Part 22.3 Appeal to Full Court
22.14 Application of Part 22.3 352
22.15 Procedural hearing 352
22.16 Attendance at first procedural hearing 353
22.17 Orders to be made at procedural hearing 353
22.18 Preparation of appeal books 354
22.19 Contents of appeal books 354
22.20 Form of appeal books 355
22.21 Failure to file appeal books by due date 356
22.22 Summary of argument and list of authorities 356
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 22.4 358
22.24 Procedural hearing 358
22.25 Attendance at procedural hearing 358
22.26 Procedural orders for conduct of appeal 359
22.27 Documents for appeal hearing if appeal book not required 360
Part 22.5 Appeal from court of summary jurisdiction other than a Family Law Magistrate of Western Australia
22.28 Application of Part 22.5 361
22.29 Fixing of hearing date 361
Part 22.6 Powers of appeal courts and conduct of appeal
22.30 Non‑attendance by party 362
22.31 Attendance by electronic communication 362
22.32 Attendance of party in prison 363
22.33 Short reasons for decision 364
22.34 Subpoenas 364
Part 22.7 Applications in relation to appeals
Division 22.7.1 How to make an application
22.35 Application of Part 22.7 365
22.36 Application in relation to appeal 365
22.37 Hearing date for application 365
22.38 Decision without an oral hearing 366
Division 22.7.2 Specific applications relating to appeals
22.39 Further evidence on appeal 366
22.40 Review of Regional Appeal Registrar’s order 367
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 368
22.42 Discontinuance of appeal or application 368
22.43 Abandoning an appeal 368
22.44 Application for reinstatement of appeal 369
22.45 Dismissal of appeal and applications for non‑compliance or delay 369
Part 22.9 Case stated
22.46 Application of Part 22.9 371
22.47 Case stated 371
22.48 Objection to draft case stated 371
22.49 Settlement and signing 372
22.50 Filing of copies of case stated 372
22.51 Fixing of hearing date 372
22.52 Summary of argument and list of authorities 372
Chapter 23 Registration of documents
Part 23.1 Registration of agreements, orders and child support debts
23.01 Registration of agreements 374
23.01A Registration of State child orders under section 70C or 70D of the Act 375
23.02 Registration of debt due to the Commonwealth under child support legislation 375
Part 23.2 Parenting plans
23.03 Requirements for registration of an agreement revoking a registered parenting plan 376
23.04 Court may require service or additional information 376
23.05 Application may be dealt with in chambers 377
Chapter 24 Documents, filing, registry
Part 24.1 Requirements for documents
24.01 General requirements 378
24.02 Corporation as a party 379
24.03 Change of name of party 380
24.04 Forms 380
Part 24.2 Filing documents
24.05 How a document is filed 381
24.06 Filing a document by facsimile 382
24.07 Filing by e‑mail and Internet 382
24.08 Additional copies for filing 383
24.09 Documents filed during a case 384
24.10 Refusal to accept document for filing 384
24.11 Filing a notice of payment into court 385
Part 24.3 Registry records
24.12 Removal of document from registry 386
24.13 Searching court record and copying documents 386
Chapter 25 Applications under the Corporations Act 2001
25.01 Application of Chapter 25 388
25.02 Application of Corporations Rules 388
25.03 Modification of Corporations Rules 388
25.04 Application under Corporations Act 2001 389
25.05 Transfer of case under Corporations Act 2001 389
25.06 Fixing a date for hearing 389
Chapter 26 Cases to which the Bankruptcy Act 1966 applies
Part 26.1 Introduction
26.01 Application of Chapter 26 390
26.02 Expressions used in the Bankruptcy Act 391
Part 26.2 General
26.04 Bankruptcy Application and Bankruptcy Application in a Case 392
26.05 Leave to be heard 393
26.06 Appearance at application or examination 393
26.07 Opposition to Bankruptcy Application or a Bankruptcy Application in a Case 394
Part 26.3 Examinations
Division 26.3.1 Interpretation
26.08 Definition for Part 26.3 395
Division 26.3.2 Examination of relevant person
26.09 Application for summons (Bankruptcy Act s 81) 395
26.10 Hearing of application 395
26.11 Requirements of summons 396
26.12 Service of summons 396
26.13 Failure to attend examination 396
26.14 Application for discharge of summons 396
Division 26.3.3 Examination of examinable person
26.15 Application for summons (Bankruptcy Act s 81) 397
26.16 Hearing of application 398
26.17 Requirements of summons 398
26.18 Service of summons 399
26.19 Application for discharge of summons 399
26.20 Conduct money and witnesses expenses 399
Part 26.4 Annulment of bankruptcy
26.21 Application of Part 26.4 401
26.22 Requirements of application 401
26.23 Notice to creditors 401
26.24 Procedural hearing — report by trustee 401
26.25 Service of annulment order 402
Part 26.5 Trustees
26.26 Objection to appointment of trustee (Bankruptcy Act s 157 (6)) 403
26.27 Resignation or release of trustee (Bankruptcy Act ss 180 and 183) 403
Part 26.6 Warrants
26.28 Arrest of bankrupt (Bankruptcy Act s 78) 405
26.29 Apprehension of person failing to attend Court (Bankruptcy Act s 264B (1)) 405
Part 26.7 Costs
26.30 Order for costs 406
26.31 Application of Order 62 of Federal Court Rules 406
Part 4.1 Introduction
4.01 Contents of Application for Final Orders
(1) In an Application for Final Orders, 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 an Application for Final Orders and must not be made in a Response to an Application for Final Orders (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 an Application for Final Orders 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 an Application for Final Orders.
4.03 First court date
On the filing of an Application for Final Orders, 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 filed with the Application for Final Orders — for a procedural hearing on the same day.
Note Under subrule 5.05 (4), a Registrar may, in exceptional circumstances, allow an Application in a Case 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.
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 or a Response to Application for Final Orders relies on a cross‑vesting law, the party must specify, in the application or response, 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 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 an Application in a Case.
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 the form 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, 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 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 Spousal maintenance
Note Applications should not be made under this Division unless an associated matter is pending in the court or filing with the Federal Magistrates Court is not available. Under section 33B of the Family Law Act 1975, the Family Court may transfer the proceeding to the Federal Magistrates Court without notice to the parties.
4.14 Procedure on first court date
(1) On the first court date for an Application for Spousal Maintenance, 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
(1) On the first court date and the hearing date of an Application for Spousal Maintenance, each party must bring to the court the following documents:
(a) a copy of the party’s taxation returns for the 3 most recent financial years;
(b) the party’s taxation assessments for the 3 most recent financial years;
(c) the party’s bank records for the period of 3 years ending on the date on which the application was filed;
(d) if the party receives wages or salary payments — the party’s payslips for the past 12 months;
(e) if the party owns or controls a business, either as sole trader, partnership or a company — the business activity statements and the financial statements (including profit and loss statements and balance sheets) for the 3 most recent financial years of the business; and
(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 section 83 of the Act.
(2) Before the hearing date, a party must produce the documents mentioned in subrule (1) for inspection, if the other party to the proceedings makes a written request for their production.
(3) If a request is made under subrule (2), the documents must be produced within 7 working days of the request being received.
Division 4.2.5 Child support and child maintenance
Overview of proceedings to which this Division applies
Child support
Applications may be made under the following provisions of the Child Support (Assessment) Act 1989:
· subsection 95 (6), section 98 or 136 about a child support agreement that has been accepted by the Registrar
· sections 106A and 107 about who is or who is not the parent of the child
· section 111 seeking a departure from administrative assessment backdated over 18 months and up to 7 years
· section 118 for departure from administrative assessment as follows:
· if the Child Support Registrar has refused to determine the departure application because the issues are too complex (sections 98E and 98R);
· if the court has a discretion to determine the application because there is another application pending before the court and the court is satisfied that special circumstances exist to enable it to determine both applications (section 116);
· if there is a minimum administrative assessment (paragraph 116 (1) (c))
· section 123 for lump sum or non periodic payments of child support
· section 129 to vary a prior order for lump sum or non periodic child support
· section 139 seeking urgent maintenance after an application has been made for administrative assessment of child support, but has yet to be determined
· section 143 for recovery of child support paid when a person is not liable to pay child support
Note Applications should not be made under this Division unless an associated matter is pending in the court or filing with the Federal Magistrates Court is not available. Under section 33B of the Family Law Act 1975, the Family Court may transfer the proceeding to the Federal Magistrates Court without notice to the parties.
Section 110B of the Child Support (Registration and Collection) Act 1988 allows appeals from the Social Security Appeals Tribunal on questions of law.
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.
Child maintenance
Applications may be made for child maintenance under Division 7 of Part VII of the Family Law Act in relation to children to whom the child support scheme does not apply. Applications may also be made under Parts III and IV of the Family Law Regulations.
4.16 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;
(b) an appeal under the Registration Act, other than an appeal from a court;
(ba) an application under section 111C of the Registration Act;
(c) an application under Division 7 of Part VII of the Family Law Act; and
(e) an application under Parts III and IV of the Family Law Regulations.
Note 1 Chapter 2 provides for the form 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 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.
4.17 Commencing proceedings
(1) An application under this Part must be made in accordance with an Application for Final Orders.
(2) An appeal under this Part must be made in accordance with a Notice of Appeal (Child Support).
4.18 Documents to be filed with applications
(1) A person must file with an application mentioned in an item of Table 4.1, the documents mentioned in the item.
Table 4.1 Documents to file with applications
Item | Application | Documents to be filed with application |
1 | All applications for child support | An affidavit setting out the facts relied on in support of the application, attaching: (a) a schedule setting out the section of the Assessment Act or Registration Act under which the application is made; (b) a copy of any decision, notice of decision or assessment made by the Child Support Registrar relevant to the application and statement of reasons for that decision; 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, 111, 116, 123, 129, 136, 139 and 143 of the Assessment Act and 111C of the Registration Act | An affidavit setting out the facts relied on in support of the application, attaching: (a) the documents mentioned in this column in item 1; (b) a completed Financial Statement; (c) a copy of any relevant order or agreement |
3 | All applications for child maintenance | A completed Financial Statement |
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.
4.19 Child support agreements
A person who makes an application in relation to a child support agreement must register a copy of the agreement with the court by filing one of the following:
(a) an affidavit attaching the original agreement;
(b) an affidavit attaching a copy of the agreement and stating that the copy is a true copy of the original agreement;
(c) an affidavit stating that the original agreement has been lost and the steps taken to locate the agreement, and attaching a copy of a document received from the Child Support Registrar setting out the terms of the agreement as registered by the Child Support Agency.
4.20 Time limits for applications under Assessment Act
A person must file an application for a declaration under subsection 106A (2) or 107 (1) of the Assessment Act within 60 days after being served with a notice given under section 33 or 34 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 an Application in a Case 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.
4.21 Appeals on questions of law
(1) An appeal on a question of law from the Social Security Appeals Tribunal may be made by filing a Notice of Appeal (Child Support).
(2) A person must file with a Notice of Appeal (Child Support) a copy of the Statement of Reasons of the Social Security Appeals Tribunal.
4.22 Time limit for appeals on questions of law
A party to a proceeding before the Social Security Appeals Tribunal under Part VIIA of the Registration Act may file an appeal, on a question of law, from any decision of the Social Security Appeals Tribunal in that proceeding, within 28 days of the publication of the Statement of Reasons.
4.23 Service of application or notice of appeal
(1) The persons to be served with an application or notice of appeal under this Part are:
(a) each respondent;
(b) a parent or eligible carer of the child in relation to whom the application or appeal is made;
(c) the Child Support Registrar; and
(d) for appeals from the Social Security Appeals Tribunal — the Executive Director of the Social Security Appeals Tribunal and any other parties to the appeal.
(2) Except for an application for an order staying a decision or an urgent order for child maintenance, an application or notice of appeal must be served at least 28 days before the hearing date.
(3) A person seeking to appeal a decision of the Social Security Appeals Tribunal must serve a notice of the appeal on the Executive Director of the Social Security Appeals Tribunal within 7 working days of the day of filing the appeal.
(4) Any documents on which the applicant or appellant intends to rely must be served on the persons mentioned in subrule (1) at least 21 days before the hearing date.
4.24 Service by Child Support Registrar
For rule 4.20, 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 maintenance application or a child support application or appeal, the Registrar must, if practicable, conduct a case assessment conference.
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, 111, 116, 123, 129, 136, 139 or 143 of the Assessment Act or section 111C of the Registration Act, or a child maintenance application.
(2) On the first court date and the hearing date of the application, each party must bring to the court the following documents:
(a) a copy of the party’s taxation returns for the 3 most recent financial years;
(b) the party’s taxation assessments for the 3 most recent financial years;
(c) the party’s bank records for the period of 3 years ending on the date on which the application was filed;
(d) if the party receives wages or salary payments — the party’s payslips for the past 12 months;
(e) if the party owns or controls a business, either as sole trader, partnership or a company — the business activity statements and the financial statements (including profit and loss statements and balance sheets) for the 3 most recent financial years of the business; and
(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) of the Act.
(3) Before the hearing date, a party must produce the documents mentioned in subrule (2) for inspection, if the other party to the proceedings makes a written request for their production.
(4) If a request is made under subrule (3), the documents must be produced within 7 working days of the request being received.
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 the form 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 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 an Application for Final Orders, 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 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 by an Application in a Case; or
(d) no Form is approved under these Rules for the party’s application.
Note 1 An Application in a Case 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).
5.01A Filing of applications seeking parenting orders during the Christmas school holiday period
(1) This rule applies to an application for a parenting order relating in whole or part to the school holiday period beginning in December in a year (the application year) and extending to January in the following year.
(2) The application must be filed before 4.00 pm on the second Friday in November of the application year.
Note Except in cases of urgency (where the usual criteria for an urgent hearing will apply), an application filed after the deadline under subrule (2) will be allocated the next available date in the usual way. That date may be after Christmas. In other words, if the deadline has passed, the fact that an application relates to the school holiday period will not of itself justify a listing before Christmas. In urgent cases, applications to abridge times and to list a matter on short notice can be made to the Registry.
5.02 Evidence in applications in a case
(1) A party who files an Application in a Case 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 an Application in a Case 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 an Application in a Case, 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 An Application in a Case may be filed at the same time as an Application for Final Orders.
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 an Application in a Case 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 an Application in a Case, 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 an Application in a Case is filed:
(a) at the same time as the related Application for Final Orders — both applications must be listed for the same first court date (see rule 4.03); or
(b) after another related Application, the Application in a Case 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 an Application in a Case 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
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.
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. However, an independent children’s lawyer 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 and the Response to an Application in a Case, 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.
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) an Application in a Case; 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; 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 Notice of Intervention by Person Entitled to Intervene, 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.
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.
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 (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, 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 | Special service |
2 | Application in a Case filed at the same time as an Application for Final Orders | Special service |
3 | Application in a Case fixing an enforcement hearing | Special service |
4 | Application for Divorce | Special service |
5 | Subpoena | Special service by hand |
6 | Application — Contravention | Special service by hand |
7 | Application — Contempt | 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 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: · an Application in a Case (other than an Application in a Case 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).
(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.
(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;
(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 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 an Acknowledgement of Service. If an applicant wants to prove service by electronic communication (other than by facsimile), the applicant must still produce a signed Acknowledgement of Service. This means that the person served will need to print out and sign a hard copy of the Acknowledgement of Service 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 or Notice of Appeal 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;
(b) by the respondent filing a Notice of Address for Service or a Response; or
(c) if service was carried out by giving the document to a lawyer — by filing an Acknowledgement of Service that has been signed by the lawyer.
(2) Service of any other document is proved by filing an Affidavit of Service.
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 an Affidavit of Service, an Acknowledgement of Service signed by the respondent; and
(b) evidence identifying the signature on the Acknowledgement of Service as the respondent’s signature.
Note If a person serving a document seeks to prove service under this
rule, an Acknowledgment of Service must be signed by the person
served with the document. However, if the Affidavit of Service with the Acknowledgement of Service 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;
(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 an Application in a Case 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.
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;
(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 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 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 Notice of Address for Service.
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.
(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 Notice of Address for Service 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 Notice of Address for Service 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 an Application for Final Orders (known as a Response to an Application for Final Orders);
· responding to an Application in a Case (known as a Response to an Application in a Case); and
· replying to a Response to an Application for Final Orders seeking orders in a cause of action other than one mentioned in the application (known as a Reply).
Note A Response to Application for Divorce is used to respond to an Application for Divorce (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 an Application for Final Orders
9.01 Response to an Application for Final Orders
(1) A respondent to an Application for Final Orders who seeks to oppose the orders sought in the application or seeks different orders must file a Response to an Application for Final Orders.
(2) A Response to an Application for Final Orders 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 Response to an Application for Final Orders 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 Response to an Application for Final Orders 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 Response to an Application for Final Orders 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 Response to an Application for Final Orders the document required under rule 2.02 to be filed for that cause of action.
9.02 Filing an affidavit with Response to an Application for Final Orders
A respondent must not file an affidavit with a Response to an Application for Final Orders unless required to do so by item 5 or 6 of Table 2.2 in rule 2.02.
Note A Response to an Application for Final Orders 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 Response to an Application for Final Orders; and
(b) is not taken to have submitted to the jurisdiction of the court by seeking other orders in the Response to an Application for Final Orders.
(2) The objection to the jurisdiction must be determined before any other orders sought in the Response to an Application for Final Orders.
Part 9.2 Reply to Response to an Application for Final Orders
9.04 Applicant reply to Response to an Application for Final Orders (Reply)
An applicant must file a Reply if:
(a) in the Response to an Application for Final Orders, 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 Response to an Application for Final Orders; or
(ii) different orders in the cause of action mentioned in the Response to an Application for Final Orders.
9.04A Additional party reply to Response to an Application for Final Orders, (Reply)
(1) This rule applies if, in a Response to an Application for Final Orders, 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 Response to an Application for Final Orders, or who seeks different orders, must file a Reply.
Part 9.3 Response to Application in a Case
9.05 Response to Application in a Case
A respondent to an Application in a Case who seeks to oppose the Application or seeks different orders must file a Response to an Application in a Case.
9.06 Affidavit to be filed with Response to an Application in a Case
(1) A respondent who files a Response to an Application in a Case must, at the same time, file an affidavit stating the facts relied on in support of the Response to an Application in a Case.
(2) Subrule (1) does not apply to a Response to an Application in a Case filed in response to an application to review an order of a Judicial Registrar or Registrar.
9.07 Affidavit in reply to Response to an Application in a Case
If:
(a) a respondent files a Response to an Application in a Case seeking orders in a cause of action other than a cause of action mentioned in the Application in a Case; and
(b) the applicant opposes the orders sought in the Response to an Application in a Case;
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 (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, 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 or a Response to an Application in a Case 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 Response to an Application in a Case.
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 .
(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 Notice of Discontinuance 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 an Application in a Case 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.
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)).
(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.
(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 section 66M of the Act;
(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 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)).
10.15A Consent parenting orders and allegations of abuse
(1) This rule applies if an application is made to the court for a parenting order by consent.
(2) If the application is made orally during a hearing or trial each party, or if represented by a lawyer, the party’s lawyer:
(a) must advise the court that no allegations of child sexual or other physical abuse or risk of abuse (abuse) have been made in:
(i) any document filed or exhibited in the proceedings;
(ii) any report prepared for the proceedings; or
(iii) any document subpoenaed to the court in the proceedings; or
(b) if allegations of abuse have been made — must explain to the court how the order attempts to deal with the allegations.
(3) For any other application other than an application under paragraph 10.15 (1) (b), each party, or if represented by a lawyer, the party’s lawyer:
(a) must certify in an annexure to the draft consent order that no allegations of abuse have been made in:
(i) any document filed or exhibited in the proceedings;
(ii) any report prepared for the proceedings; or
(iii) any document subpoenaed to the court in the proceedings; or
(b) if allegations of abuse have been made — must, in the annexure, identify each document containing them and explain how the order attempts to deal with them.
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 Application for Consent Orders, 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 Application for Consent Orders 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 Application for Consent Orders lapses if:
(a) 90 days have passed since the date of the first affidavit in the Application for Consent Orders; and
(b) the Application for Consent Orders 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 an Application in a Case or, with the court’s permission, orally at a court event.
11.04 Frivolous or vexatious case
(1) If the court is satisfied that a party has frequently started a case or appeal that is frivolous, vexatious or an abuse of process, it may:
(a) dismiss the party’s application; and
(b) order that the party 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 an Application in a Case 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:
(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:
(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 an Application for Final Orders or Response to an Application for Final Orders; 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 Application for Final Orders or Response to an Application for Final Orders 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.
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) and subclause 6.41 (2) of Schedule 6).
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 and section 126E of the Evidence Act 1995).
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.