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Family Law Amendment Rules 2009 (No. 2)

Authoritative Version
  • - F2009L04646
  • No longer in force
SLI 2009 No. 393 Rules/Court & Tribunal Rules as made
These Rules amend the Family Law Rules 2004 relating to the implementation of The Law & Justice (Cross Border and Other Amendments) Bill 2009 which was passed on 7 September 2009.
Administered by: Attorney-General's
Registered 18 Dec 2009
Tabling HistoryDate
Tabled HR02-Feb-2010
Tabled Senate02-Feb-2010
Date of repeal 09 Apr 2013
Repealed by Attorney-General's (Spent and Redundant Instruments) Repeal Regulation 2013

Family Law Amendment Rules 2009 (No. 2)1

Select Legislative Instrument 2009 No. 393

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

Dated 17 December 2009

D. BRYANT CJ

I. COLEMAN J

M .MAY J

J. M. BOLAND J

N. MUSHIN J

S. BROWN J

C. MARTIN J

R. K. BURR J

D. COLLIER J

S. STRICKLAND J

J. STEVENSON J

M. LE POER TRENCH J

G. A .WATTS J

R. BENJAMIN J

J. RYAN J

P. CRONIN J

P. MURPHY J

S. FOWLER J

S. AUSTIN J.

 

 

 

Judges of the Family Court

of Australia

 

A. M. FILIPPELLO

Principal Registrar

Family Court of Australia

J. CRISFORD J

S. CROOKS J

S. MONCREIF J

 

 

 

Judges of the Family Court

of Western Australia

 

DAVID MONAGHAN

Principal Registrar
Family Court of Western Australia


1              Name of Rules

                These Rules are the Family Law Amendment Rules 2009 (No. 2).

2              Commencement

                These Rules commence on 1 January 2010.

3              Amendment of Family Law Rules 2004

                Schedule 1 amends the Family Law Rules 2004.


Schedule 1        Amendments

(rule 3)

 

[1]           Subrule 6.15 (3)

omit

a person

insert

the legal personal representative of the deceased person

[2]           Paragraphs 10.15 (2) (b) and (c)

substitute

               (b)    state that it is made by consent;

                (c)    be signed by each of the parties; and

               (d)    be accompanied by 2 copies of the order that are certified as true copies by the applicant’s lawyer or each party to the application.

[3]           Table 11.1, item 2, paragraph (g)

omit

party;

insert

party and particulars of the reasons why the orders are sought;

[4]           Paragraph 13.19 (1) (b)

omit

Application; or

insert

Application;

[5]           Paragraph 13.19 (1) (c)

omit

appeal.

insert

appeal; or

[6]           Paragraph 13.19 (1) (f)

reletter as paragraph (d)

[7]           Paragraph 13.25 (b)

omit

Application; or

insert

Application;

[8]           After Division 15.3.3

insert

Division 15.3.4     Subpoenas in Trans-Tasman Cases

15.36A   Application of Division 15.3.4

                This Division applies to a subpoena:

                (a)    that is issued by the court;

               (b)    to which Part 2 of the Evidence and Procedure Act applies; and

                (c)    that is to be served in New Zealand.

15.36B   General rules to apply

                These Rules, including Divisions 15.3.1 and 15.3.2, apply to a subpoena to which this Division applies to the extent that they are not inconsistent with this Division.

15.36C   Definition for Division 15.3.4

         (1)   In this Division:

Evidence and Procedure Act means the Evidence and Procedure (New Zealand) Act 1994.

         (2)   Expressions used in this Division and in the Evidence and Procedure Act have the same meaning in this Division as in that Act.

15.36D   Subpoenas not to be served without leave

                A subpoena may be served in New Zealand only with the leave of a Judge.

Note   See subsection 9 (1) of the Evidence and Procedure Act.

15.36E   Application for leave to serve subpoena in New Zealand

         (1)   An application for leave to serve a subpoena in New Zealand must be made as an application for ancillary orders in an Initiating Application (Family Law) or in an Application in a Case.

         (2)   An application for the person named to give evidence by telephone or video link must be made and heard at the same time as the application for leave.

Note   The court may, of its own motion, direct that evidence sought in a subpoena be taken by electronic means whether or not such an application is made.

         (3)   The affidavit accompanying the application for leave must include each subpoena for which leave is sought and state the following matters:

                (a)    the name, designation or occupation and address of each person named in a subpoena;

               (b)    the name of any person named who is under 18 years;

                (c)    the nature and significance of the evidence to be given, or the document or thing to be produced, by each person named;

               (d)    details of the steps taken to ascertain whether the evidence, document or thing could be obtained by other means without significantly greater expense, and with less inconvenience to the person named;

                (e)    the date by which it is intended to serve each subpoena in New Zealand;

                (f)    an undertaking to pay:

                          (i)    all of the reasonable expenses of each person named complying with the subpoena; and

                         (ii)    when required by a Registrar, a sum sufficient to send each document or thing sought by each subpoena, and produced to a Registry of the High Court of New Zealand, to the Registry that issued the subpoena by a means that will ensure it is received by the court before the date when it is required to be produced;

                (g)    details of the amounts to be paid or tendered to each person named to meet the person’s reasonable expenses of complying with the subpoena;

                (h)    details of the way in which these amounts are to be paid or tendered to each person named;

                 (i)    if a subpoena requires a person named to give evidence:

                          (i)    an estimate of the time that the person will be required to give evidence; and

                         (ii)    details of the facilities available and costs to be incurred to enable the person to give evidence by electronic means;

                (j)    any facts or matters known to the applicant that may be grounds for an application by a person named to have the subpoena set aside under subsection 14 (2) or (3) of the Evidence and Procedure Act;

               (k)    details of any hardship or inconvenience to a person named known to the applicant.

15.36F    Hearing of application

         (1)   The application:

                (a)    may be heard in the absence of a party or of the person named; and

               (b)    need not be served on a person named unless the court otherwise orders.

         (2)   In giving leave, the Judge may give directions about service of the subpoena.

15.36G   Setting aside subpoena

         (1)   A person seeking an order mentioned in rule 15.26 for a subpoena to which this Division applies may do so by filing an Application in a Case.

         (2)   The affidavit accompanying the application must:

                (a)    include a copy of the subpoena;

               (b)    state the grounds on which the application is based;

                (c)    include an address for service in Australia or New Zealand of the person named; and

               (d)    state whether the person named requests that the hearing be heard by video link or telephone.

         (3)   A document in relation to the application may be served on the person named in a manner mentioned in subsection 13 (4) of the Evidence and Procedure Act.

Note   This is in addition to, not in derogation from, any other method of service permitted under the Rules — see subsection 13 (7) of the Evidence and Procedure Act.

         (4)   The Registry Manager must serve a copy of the application and the accompanying affidavit on the person who obtained leave to serve the subpoena in New Zealand.

15.36H   Service of subpoena

                A subpoena must be served in accordance with section 10 of the Evidence and Procedure Act.

Note 1   In particular, the subpoena must be accompanied by a copy of the order giving leave for service and a notice in the form set out in Schedule 2 to the Evidence and Procedure (New Zealand) Regulations 1995 — see subsection 10 (3) of the Evidence and Procedure Act.

Note 2   Section 11 of the Evidence and Procedure Act requires payment for the reasonable expenses of complying with the subpoena to be proffered at the time of service.

15.36I     Compliance

                If a Registrar is told that a document or thing has been produced to a Registry of the High Court of New Zealand in compliance with a subpoena, the Registrar may:

                (a)    ask that Registry if the document or thing is able to be delivered to the court before the date mentioned in the subpoena for production; and

               (b)    subject to payment of costs by the person who obtained leave — arrange for the document or thing to be delivered to the court.

15.36J    Non-compliance

                If a person named fails to comply with a subpoena, the court may issue a certificate under section 16 of the Evidence and Procedure Act.

Note   This certificate empowers the High Court of New Zealand, under section 165 of the Evidence Act 2006 (NZ), to take action to enforce the subpoena.

[9]           Rule 15.47, note 2

omit

rule 15.46

insert

rules 15.46 and 15.60

[10]         Table 18.2, item 18B

omit

section 90SM

insert

section 90SI

[11]         Rule 18.07, note 2

substitute

Note 2   A party seeking a review of an Appeal Registrar’s order relating to the conduct of an appeal may file an Application in an Appeal in the Regional Appeal Registry within 14 days after the order is made (see rule 22.40).

[12]         Subparagraph 24.05 (1) (a) (iii)

omit

Internet);

insert

Internet); and

[13]         Subrule 24.05 (4)

substitute

         (4)   A document that is sent for filing by electronic communication after 4.30 pm according to legal time in the Australian Capital Territory is taken to have been received by the filing registry on the next day when the filing registry is open.

[14]         Subrule 24.13 (4), definition of court document

after

correspondence

insert

or a transcript

[15]         Chapter 25, heading

substitute

Chapter 25  Applications under the Corporations Act 2001 and the Corporations (Aboriginal and Torres Strait Islander) Act 2006

  

[16]         Chapter 25, summary

omit

Corporations Act 2001.

insert

Corporations Act 2001 or the Corporations (Aboriginal and Torres Strait Islander) Act 2006.

[17]         Rule 25.01

omit

Corporations Act 2001.

insert

Corporations Act 2001 or the Corporations (Aboriginal and Torres Strait Islander) Act 2006.

[18]         Rule 25.02

after

Corporations Act 2001

insert

or the Corporations (Aboriginal and Torres Strait Islander) Act 2006

[19]         Rule 25.04

substitute

25.04      Application under Corporations Act 2001 or Corporations (Aboriginal and Torres Strait Islander) Act 2006

                An application under the Corporations Act 2001 or the Corporations (Aboriginal and Torres Strait Islander) Act 2006 must not be dismissed only because it has been made in the wrong form.

[20]         Rule 25.05, heading

substitute

25.05      Transfer of cases under Corporations Act 2001 or Corporations (Aboriginal and Torres Strait Islander) Act 2006

[21]         Paragraphs 25.05 (a) and (b)

after

Corporations Act 2001

insert

or the Corporations (Aboriginal and Torres Strait Islander) Act 2006


Note

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