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Family Law Amendment Regulations 2010 (No. 1)

Authoritative Version
  • - F2010L01220
  • No longer in force
SLI 2010 No. 76 Regulations as made
These Regulations amend the Family Law Regulations 1984 to provide rules for the service of documents abroad in court proceedings under the Family Law Act 1975. The amendments are consistent with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, done at The Hague on 15 November 1965.
Administered by: Attorney-General's
General Comments: These Regulations commence on the day the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, done at The Hague on 15 November 1965 enters into force for Australia.
Registered 11 May 2010
Tabling HistoryDate
Tabled HR12-May-2010
Tabled Senate12-May-2010
Date of repeal 09 Apr 2013
Repealed by Attorney-General's (Spent and Redundant Instruments) Repeal Regulation 2013

Family Law Amendment Regulations 2010 (No. 1)1

Select Legislative Instrument 2010 No. 76

I, QUENTIN BRYCE, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Family Law Act 1975.

Dated 6 May 2010

QUENTIN BRYCE

Governor-General

By Her Excellency’s Command

ROBERT MCCLELLAND


1              Name of Regulations

                These Regulations are the Family Law Amendment Regulations 2010 (No. 1).

2              Commencement

                These Regulations commence on the day the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, done at The Hague on 15 November 1965 enters into force for Australia.

3              Amendment of Family Law Regulations 1984

                Schedule 1 amends the Family Law Regulations 1984.


Schedule 1        Amendments

(regulation 3)

 

[1]           Subregulation 3 (1), after definition of filed

insert

Hague Service Convention means the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, done at The Hague on 15 November 1965.

[2]           Regulation 12

omit

[3]           After regulation 21AB

insert

Part IIAB            Service under the Hague Service Convention

Division 1              Preliminary

Note 1   This Part forms part of a scheme to implement Australia’s obligations under the Hague Service Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Under the Convention, the Attorney-General’s Department of the Commonwealth is designated as the Central Authority (under Article 2 of the Convention) and certain courts and government departments are, for certain purposes, designated as ‘other ‘ or ‘additional ‘ authorities (under Article 18 of the Convention).

Note 2   This Part provides (in Division 2) for service in overseas Convention countries of local judicial documents (documents that relate to proceedings in the court) and (in Division 3) for default judgment in proceedings in the court after service overseas of such a document.

Note 3   The Attorney-General’s Department of the Commonwealth maintains a copy of the Convention, a list of all Convention countries, details of declarations and objections made under the Convention by each of those countries and the names and addresses of the Central and other authorities of each of those countries. A copy of the Convention can be found at http://www.hcch.net.

21AC      Definitions for Part IIAB

                In this Part:

additional authority, for a Convention country, means an authority that is:

                (a)    for the time being designated by the country, under Article 18 of the Hague Service Convention, to be an authority (other than the Central Authority) for the country; and

               (b)    competent to receive requests for service abroad emanating from Australia.

applicant, for a request for service abroad, means the person on whose behalf service is requested.

Note   The term applicant may have a different meaning in other provisions of these Regulations.

Central Authority, for a Convention country, means an authority that is for the time being designated by that country, under Article 2 of the Hague Service Convention, to be the Central Authority for that country.

certificate of service means a certificate of service that has been completed for the purposes of Article 6 of the Hague Service Convention.

certifying authority, for a Convention country, means the Central Authority for the country or some other authority that is for the time being designated by the country, under Article 6 of the Hague Service Convention, to complete certificates of service in the form annexed to the Hague Service Convention.

civil proceedings means any judicial proceedings in relation to civil or commercial matters.

Convention country means a country, other than Australia, that is a party to the Hague Service Convention.

defendant, for a request for service abroad of an initiating process, means the person on whom the initiating process is requested to be served.

foreign judicial document means a judicial document that originates in a Convention country and relates to civil proceedings in a court of that country.

forwarding authority means the Registrar.

initiating process means any document by which proceedings (including proceedings on any cross-claim or third party notice) are commenced.

local judicial document means a judicial document that relates to civil proceedings in the court.

request for service abroad means a request for service in a Convention country of a local judicial document mentioned in subregulation 21AF (1).

21AD      Provisions of this Part to prevail

                The provisions of this Part prevail to the extent of any inconsistency between those provisions and any other provisions of these Regulations.

Division 2              Service abroad of local judicial documents

21AE      Application of Division

         (1)   Subject to subregulation (2), this Division applies to service in a Convention country of a local judicial document.

         (2)   This Division does not apply if service of the document is effected, without application of any compulsion, by an Australian diplomatic or consular agent mentioned in Article 8 of the Hague Service Convention.

21AF      Application for request for service abroad

         (1)   A person may apply to the Registrar, in the Registrar’s capacity as a forwarding authority, for a request for service in a Convention country of a local judicial document.

         (2)   The application must be accompanied by 3 copies of each of the following documents:

                (a)    a draft request for service abroad, which must be in accordance with Part 1 of Form 1A in Schedule 1;

               (b)    the document to be served;

                (c)    a summary of the document to be served, which must be in accordance with Form 1B in Schedule 1;

               (d)    if, under Article 5 of the Hague Service Convention, the Central Authority or any additional authority of the country to which the request is addressed requires the document to be served to be written in, or translated into, an official language of that country, a translation into that language or 1 of the official languages of both the document to be served and the summary of the document to be served.

         (3)   The application must contain a written undertaking to the court, signed by the legal practitioner on the record for the applicant in the proceedings to which the local judicial document relates or, if there is no legal practitioner on the record for the applicant in the proceedings, by the applicant:

                (a)    to be personally liable for all costs that are incurred:

                          (i)    by the employment of a person to serve the documents to be served, being a person who is qualified to do so under the law of the Convention country in which the documents are to be served; or

                         (ii)    by the use of any particular method of service that has been requested by the applicant for the service of the documents to be served; and

               (b)    to pay the amount of those costs to the Registrar within 28 days after receipt from the Registrar of a notice specifying the amount of those costs under subregulation 21AH (3); and

                (c)    to give such security for those costs as the Registrar may require.

         (4)   The draft request for service abroad:

                (a)    must be completed (except for signature) by the applicant; and

               (b)    must state whether, if the time fixed for entering an appearance in the proceedings to which the local judicial document relates expires before service is effected, the applicant wants service to be attempted after the expiry of that time; and

                (c)    must be addressed to the Central Authority, or to an additional authority, for the Convention country in which the person is to be served; and

               (d)    may state that the applicant requires a certificate of service that is completed by an additional authority to be countersigned by the Central Authority.

         (5)   Any translation required under paragraph (2) (d) must bear a certificate (in both English and the language used in the translation) signed by the translator stating:

                (a)    that the translation is an accurate translation of the document to be served; and

               (b)    the translator’s full name and address and his or her qualifications for making the translation.

21AG      How application to be dealt with

         (1)   If satisfied that the application and its accompanying documents comply with regulation 21AF, the Registrar:

                (a)    must sign the request for service abroad; and

               (b)    must forward 2 copies of the relevant documents:

                          (i)    if the applicant has asked for the request to be forwarded to a nominated additional authority for the Convention country in which service of the document is to be effected — to the nominated additional authority; or

                         (ii)    in any other case — to the Central Authority for the Convention country in which service of the document is to be effected.

         (2)   The relevant documents mentioned in paragraph (1) (b) are the following:

                (a)    the request for service abroad (duly signed);

               (b)    the document to be served;

                (c)    the summary of the document to be served;

               (d)    if required under paragraph 21AF (2) (d), a translation into the relevant language of each of the documents mentioned in paragraphs (b) and (c).

         (3)   If not satisfied that the application or any of its accompanying documents complies with regulation 21AF, the Registrar must inform the applicant of the respects in which the application or document fails to comply.

21AH      Procedure on receipt of certificate of service

         (1)   Subject to subregulation (5), on receipt of a certificate of service in due form in relation to a local judicial document to which a request for service abroad relates, the Registrar:

                (a)    must arrange for the original certificate to be filed in the proceedings to which the document relates; and

               (b)    must send a copy of the certificate to:

                          (i)    the legal practitioner on the record for the applicant in the proceedings; or

                         (ii)    if there is no legal practitioner on the record for the applicant in the proceedings — the applicant.

         (2)   For the purposes of subregulation (1), a certificate of service is in due form if:

                (a)    it is in accordance with Part 2 of Form 1A in Schedule 1; and

               (b)    it has been completed by a certifying authority for the Convention country in which service was requested; and

                (c)    if the applicant requires a certificate of service that is completed by an additional authority to be countersigned by the Central Authority — it has been countersigned.

         (3)   On receipt of a statement of costs in due form in relation to the service of a local judicial document mentioned in subregulation (1), the Registrar must send to the legal practitioner or applicant who gave the undertaking mentioned in subregulation 21AF (3) a notice specifying the amount of those costs.

         (4)   For the purposes of subregulation (3), a statement of costs is in due form if:

                (a)    it relates only to costs of a kind mentioned in paragraph 21AF (3) (a); and

               (b)    it has been completed by a certifying authority for the Convention country in which service was requested.

         (5)   Subregulation (1) does not apply unless:

                (a)    adequate security to cover the costs mentioned in subregulation (3) has been given under paragraph 21AF (3) (c); or

               (b)    to the extent to which the security so given is inadequate to cover those costs, an amount equal to the amount by which those costs exceed the security so given has been paid to the Registrar.

21AI        Payment of costs

         (1)   On receipt of a notice under subregulation 21AH (3) in relation to the costs of service, the legal practitioner or applicant, as the case may be, must pay to the Registrar the amount specified in the notice as the amount of the costs.

         (2)   If the legal practitioner or applicant fails to pay that amount within 28 days after receiving the notice:

                (a)    except by leave of the court, the applicant may not take any further step in the proceedings to which the local judicial document relates until the costs are paid to the Registrar; and

               (b)    the Registrar may take such steps as are appropriate to enforce the undertaking for payment of the costs.

21AJ       Evidence of service

                A certificate of service in relation to a local judicial document (being a certificate in due form, within the meaning of subregulation 21AH (2)) that certifies that service of the document was effected on a specified date is, in the absence of any evidence to the contrary, sufficient proof that:

                (a)    service of the document was effected by the method specified in the certificate on that date; and

               (b)    if that method of service was requested by the applicant, that method is compatible with the law in force in the Convention country in which service was effected.

Division 3              Default judgment following service abroad of initiating process

21AK      Application of Division

                This Division applies to civil proceedings for which an initiating process has been forwarded following a request for service abroad to the Central Authority (or to an additional authority) for a Convention country.

21AL      Restriction on power to enter default judgment if certificate of service filed

         (1)   This regulation applies if:

                (a)    a certificate of service of initiating process has been filed in the proceedings (being a certificate in due form, within the meaning of subregulation 21AH (2)) that states that service has been duly effected; and

               (b)    the defendant has not appeared or filed a notice of address for service.

         (2)   In circumstances to which this regulation applies, default judgment may not be given against the defendant unless the court is satisfied that:

                (a)    the initiating process was served on the defendant:

                          (i)    by a method of service prescribed by the internal law of the Convention country for the service of documents in domestic proceedings on persons who are within its territory; or

                         (ii)    if the applicant requested a particular method of service (being a method under which the document was actually delivered to the defendant or to his or her residence) and that method is compatible with the law in force in the country, by that method; or

                         (iii)    if the applicant did not request a particular method of service, in circumstances where the defendant accepted the document voluntarily; and

               (b)    the initiating process was served in sufficient time to enable the defendant to enter an appearance in the proceedings.

         (3)   In paragraph (2) (b), sufficient time means:

                (a)    42 days from the date specified in the certificate of service in relation to the initiating process as the date on which service of the process was effected; or

               (b)    such lesser time as the court considers, in the circumstances, to be a sufficient time to enable the defendant to enter an appearance in the proceedings.

21AM      Restriction on power to enter default judgment if certificate of service not filed

         (1)   This regulation applies if:

                (a)    a certificate of service of initiating process has not been filed in the proceedings; or

               (b)    a certificate of service of initiating process has been filed in the proceedings (being a certificate in due form, within the meaning of subregulation 21AH (2)) that states that service has not been effected;

and the defendant has not appeared or filed a notice of address for service.

         (2)   If this regulation applies, default judgment may not be given against the defendant unless the court is satisfied that:

                (a)    the initiating process was forwarded to the Central Authority, or to an additional authority, for the Convention country in which service of the initiating process was requested; and

               (b)    a period that is adequate in the circumstances (being a period of not less than 6 months) has elapsed since the date on which initiating process was so forwarded; and

                (c)    every reasonable effort has been made:

                          (i)    to obtain a certificate of service from the relevant certifying authority; or

                         (ii)    to effect service of the initiating process;

                        as the case requires.

21AN      Setting aside judgment in default of appearance

         (1)   This regulation applies if default judgment has been entered against the defendant in proceedings to which this Division applies.

         (2)   If this regulation applies, the court may set aside the judgment on the application of the defendant if it is satisfied that the defendant:

                (a)    without any fault on the defendant’s part, did not have knowledge of the initiating process in sufficient time to defend the proceedings; and

               (b)    has a prima facie defence to the proceedings on the merits.

         (3)   An application to have a judgment set aside under this regulation may be filed:

                (a)    at any time within 12 months after the date on which the judgment was given; or

               (b)    after the expiry of that 12-month period, within such time after the defendant acquires knowledge of the judgment as the court considers reasonable in the circumstances.

         (4)   Nothing in this regulation affects any other power of the court to set aside or vary a judgment.

Part IIAC            Service in countries that are parties to conventions other than the Hague Service Convention

  

21AO      Application of Part

                This Part applies to the service of a document in a convention country subject to the provisions of the convention.

21AP      Definitions for Part IIAC

                In this Part:

convention means a convention (other than the Hague Service Convention), that is in force for Australia, about legal proceedings in civil and commercial matters.

convention country means a country that is a party to a convention (other than the Hague Service Convention), that is in force for Australia, about legal proceedings in civil and commercial matters.

21AQ      Service in accordance with convention

                If the convention provides that a document may be served in a convention country only in accordance with the convention, the document must be served in accordance with this Part.

21AR      Request for service

         (1)   A party to proceedings may request service of a document relating to the proceedings on a person in a convention country by:

                 a)    filing a request for service of the document in accordance with Forms 1A and 1B in Schedule 1; and

               (b)    giving to the Registrar of the court in which the proceedings are pending the following documents:

                          (i)    the document to be served;

                         (ii)    a translation of the document into the language of the convention country;

                         (iii)    copies of the document to be served and the translation;

                        (iv)    any further copies of the document and translation required by the convention.

         (2)   The Registrar must seal the documents mentioned in paragraph (1) (b) with the seal of the court and give them to the Secretary for transmission to the convention country for service.

         (3)   For subparagraph (1) (b) (ii), the translation must include a certificate, in the language of the convention country, by the person who made the translation, certifying that it is a translation of the document of which it purports to be a translation.

21AS      Certificate of service

         (1)   A certificate certifying that a document has been served on a person on a date specified in the certificate is evidence of the matters stated in the certificate if:

                (a)    it is made by a judicial authority in a convention country; and

               (b)    it is received by the Registrar in accordance with the convention.

         (2)   If the document must be served by delivering it personally to the person, the certificate must state:

                (a)    the means by which the person who served the document identified the person served; or

               (b)    how the document came to the notice of the person on whom it was to be served.

[4]           Schedule 1, Form 1

substitute

Form 1A     Request for service abroad of judicial documents and certificate

(regulations 21AF and 21AH)

Part 1          Request for service abroad of judicial documents

Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, done at The Hague on 15 November 1965

 

Identity and address of the forwarding authority requesting service

 

Identity and address of receiving authority [Central Authority/additional authority]

The undersigned forwarding authority (on the application of [name and address of applicant on whose behalf forwarding authority requests service]) has the honour to transmit – in duplicate – the documents listed below and, in conformity with Article 5 of the abovementioned Convention, requests prompt service of one copy thereof on the addressee, ie:

(identity and address) ...................................................................................

......................................................................................................................

*(a)   in accordance with the provisions of subparagraph (a) of the first paragraph of Article 5 of the Convention.

*(b)   in accordance with the following particular method (subparagraph (b) of the first paragraph of Article 5): ............................................................

          ............................................................................................................

*(c)   by delivery to the addressee, if he or she accepts it voluntarily (second paragraph of Article 5).

The receiving authority [Central Authority/additional authority] is requested to return or to have returned to the forwarding authority a copy of the documents – and of the annexes* – with a certificate as provided in Part 2 of this Form on the reverse side.

List of documents

................................................................................................................................

......................................................................................................................

......................................................................................................................

Done at.............................................. , the....................................................

Signature or stamp (or both) of forwarding authority.

*Delete if inappropriate.

Part 2          Certificate

Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, done at The Hague on 15 November 1965

The undersigned authority has the honour to certify, in conformity with Article 6 of the Convention:

     *1.   that the documents listed in Part 1 have been served

            – the (date)........................................................................................

            – at (place, street, number) .......................................................................

            – in one of the following methods authorised by Article 5:

     *a)       in accordance with the provisions of subparagraph (a) of the first paragraph of Article 5 of the Convention.

     *b)       in accordance with the following particular method: ....................

            ..........................................................................................................

     *c)       by delivery to the addressee, who accepted it voluntarily.

                The document referred to in the request, has been delivered to:

            – (identity and description of person) ..............................................

            ..........................................................................................................

            – relationship to the addressee (family, business or other.) ..............

            ..........................................................................................................

            ..........................................................................................................

     *2.       that the document has not been served, by reason of the following facts:...............................................................................................

......................................................................................................................

......................................................................................................................

*In conformity with the second paragraph of Article 12 of the Convention, the forwarding authority is requested to pay or reimburse the expenses detailed in the attached statement.

Annexes

Documents returned: ....................................................................................

......................................................................................................................

......................................................................................................................

In appropriate cases, documents, establishing the service: ...........................

......................................................................................................................

......................................................................................................................

Done at.............................................. , the....................................................

Signature or stamp (or both)

*Delete if inappropriate.

Form 1B     Summary of the document to be served

(regulation 21AF)

Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, done at The Hague on 15 November 1965

(Article 5, fourth paragraph)

Identity and address of the addressee [Central Authority/additional authority]:

 

 

 

IMPORTANT

THE ENCLOSED DOCUMENT IS OF A LEGAL NATURE AND MAY AFFECT YOUR RIGHTS AND OBLIGATIONS. THE SUMMARY OF THE DOCUMENT TO BE SERVED WILL GIVE YOU SOME INFORMATION ABOUT ITS NATURE AND PURPOSE. YOU SHOULD HOWEVER READ THE DOCUMENT ITSELF CAREFULLY. IT MAY BE NECESSARY TO SEEK LEGAL ADVICE.

IF YOUR FINANCIAL RESOURCES ARE INSUFFICIENT YOU SHOULD SEEK INFORMATION ON THE POSSIBILITY OF OBTAINING LEGAL AID OR ADVICE EITHER IN THE COUNTRY WHERE YOU LIVE OR IN THE COUNTRY WHERE THE DOCUMENT WAS ISSUED.

ENQUIRIES ABOUT THE AVAILABILITY OF LEGAL AID OR ADVICE IN THE COUNTRY WHERE THE DOCUMENT WAS ISSUED MAY BE DIRECTED TO: ...........................................................................................

SUMMARY OF THE DOCUMENT TO BE SERVED

Name and address of the forwarding authority: .........................................

......................................................................................................................

Particulars of the parties: .............................................................................

......................................................................................................................

**JUDICIAL DOCUMENT

Nature and purpose of the document: ..........................................................

......................................................................................................................

Nature and purpose of the proceedings and, where appropriate, the amount in dispute: ..................................................................................................................

......................................................................................................................

......................................................................................................................

Date and place for entering appearance: ......................................................

......................................................................................................................

Court in which proceedings pending/judgment given: ..................................

......................................................................................................................

**Date of judgment (if applicable): .............................................................

Time limits stated in the document: ..............................................................

......................................................................................................................

 


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.