Family Law Rules 2004
Statutory Rules 2003 No. 375 as amended
made under the
This compilation was prepared on 4 January 2012
taking into account amendments up to SLI 2011 No. 286
The text of any of those amendments not in force
on that date is appended in the Notes section
This document has been split into two volumes
Volume 1 contains Chapters 1–26 (Rr. 1.01–26.31), and
Volume 2 contains Schedules 1–6, Dictionary and the Notes
Each volume has its own Table of Contents
Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra
Contents
Chapter 1 Introduction
Part 1.1 Preliminary
1.01 Name of Rules [see Note 1] 30
1.02 Commencement 30
1.03 Rules in Chapter 1 prevail 31
Part 1.2 Main purpose of Rules
1.04 Main purpose of Rules 32
1.05 Pre‑action procedure 32
1.06 Promoting the main purpose 33
1.07 Achieving the main purpose 33
1.08 Responsibility of parties and lawyers in achieving the main purpose 34
Part 1.3 Court’s powers in all cases
1.09 Procedural orders in cases of doubt or difficulty 36
1.10 Court may make orders 36
1.11 Court may set aside or vary order 36
1.12 Court may dispense with Rules 36
1.13 Judicial officer hearing application 37
1.14 Shortening or extension of time 37
1.15 Time for compliance 37
Part 1.4 Other preliminary matters
1.16 Definitions — the dictionary 38
1.17 Notes, examples etc 38
1.18 Sittings 39
1.19 Prohibition on recording court event 39
1.20 Publishing lists of cases 40
1.21 Calculating time 40
Chapter 2 Starting a case
Part 2.1 Applications
2.01 Which application to file 42
2.02 Documents to be filed with applications 44
2.02A Documents filed by electronic communication 48
Part 2.2 Brochures
2.03 Service of brochures 49
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 50
2.04A Application of Division 2.3.1 50
2.04B Filing and service 50
2.04C Listing case 51
2.04D Prescribed document and prescribed form 51
2.05 Family violence order 51
Division 2.3.2 Property settlement or spousal or de facto maintenance cases
2.06 Notification of proceeds of crime order or forfeiture application (Act ss 79B, 90M and 90VA) 52
2.07 Proceeds of crime 52
Chapter 3 Divorce
Part 3.1 Application for Divorce
3.01 Fixing of hearing date 54
3.02 Amendment of an Application for Divorce 54
3.03 Discontinuance of an Application for Divorce 54
Part 3.2 Response
3.04 Response 55
3.05 Objection to jurisdiction 55
3.06 Response out of time 55
3.07 Affidavit to reply to information in an Application for Divorce 56
Part 3.3 Attendance at hearing
3.08 Attendance at hearing 57
Part 3.4 Hearing in absence of parties
3.09 Seeking a hearing in absence of parties 58
3.10 Hearing in absence of parties — joint application 58
3.11 Request not to hear case in parties’ absence 58
Part 3.5 Events affecting divorce order
3.12 Application for rescission of divorce order 59
3.13 Death of party 59
Chapter 4 Application for Final Orders
Part 4.1 Introduction
4.01 Contents of Application for Final Orders 61
4.02 Filing affidavits 61
4.03 First court date 62
Part 4.2 Specific applications
Division 4.2.1 General
4.04 General provisions still apply 63
4.05 Application by Attorney‑General for transfer of case 63
Division 4.2.2 Cross‑vesting
4.06 Cross‑vesting matters 63
4.07 Transfer of case 64
Division 4.2.3 Medical procedure
4.08 Application for medical procedure 64
4.09 Evidence supporting application 64
4.10 Service of application 66
4.11 Fixing of hearing date 66
4.12 Procedure on first court date 66
Division 4.2.4 Spousal or de facto maintenance
4.14 Procedure on first court date 66
4.15 Evidence to be provided 67
Division 4.2.5 Child support and child maintenance
4.16 Application of Division 4.2.5 69
4.17 Commencing proceedings 69
4.18 Documents to be filed with applications 69
4.19 Child support agreements 70
4.20 Time limits for applications under Assessment Act 71
4.21 Appeals on questions of law 71
4.22 Time limit for appeals on questions of law 71
4.23 Service of application or notice of appeal 72
4.24 Service by Child Support Registrar 72
4.25 Procedure on first court date 72
4.26 Evidence to be provided 73
Division 4.2.6 Nullity and validity of marriage and divorce
4.27 Application of Division 4.2.6 74
4.28 Fixing hearing date 74
4.29 Affidavit to be filed with application 74
Division 4.2.7 Applications relating to passports
4.30 Application relating to passport 75
4.31 Fixing hearing date 75
Chapter 5 Applications for interim, procedural, ancillary or other incidental orders
Part 5.1 General
5.01 Restrictions in relation to applications 76
5.01A Filing of applications seeking parenting orders during the Christmas school holiday period 77
5.02 Evidence in applications to which Chapter 5 applies 78
5.03 Procedure before filing 78
5.05 Fixing a date for hearing or case assessment conference 79
5.06 Attendance by electronic communication 79
5.07 Attendance of party or witness in prison 81
Part 5.2 Hearing — interim and procedural applications
5.08 Interim orders — matters to be considered 82
5.09 Affidavits 82
5.10 Hearing time of interim or procedural application 82
5.11 Party’s failure to attend 83
Part 5.3 Application without notice
5.12 Application without notice 84
5.13 Necessary procedural orders 85
Part 5.4 Hearing on papers in absence of parties
5.14 Request for hearing in absence of parties 86
5.15 Objection to hearing in absence of parties 86
5.16 Court decision to not proceed in absence of parties 86
5.17 Procedure in hearing in absence of parties 86
Part 5.5 Postponement of interim hearing
5.18 Administrative postponement of interim hearing 88
Part 5.6 Application for certain orders
5.19 Application to suppress publication of judgment 89
Chapter 6 Parties
Part 6.1 General
6.01 Parties 90
6.02 Necessary parties 90
Part 6.2 Adding and removing a party
6.03 Adding a party 92
6.04 Removing a party 92
6.05 Intervention by a person seeking to become a party 92
6.06 Intervention by a person entitled to intervene 93
6.07 Notice of constitutional matter 94
Part 6.3 Case guardian
6.08A Interpretation 95
6.08 Conducting a case by case guardian 95
6.09 Who may be a case guardian 95
6.10 Appointment, replacement or removal of case guardian 95
6.11 Attorney‑General may nominate case guardian 96
6.12 Notice of becoming case guardian 96
6.13 Conduct of case by case guardian 97
6.14 Costs of case guardian 97
Part 6.4 Progress of case after death
6.15 Death of party 98
Part 6.5 Progress of a case after bankruptcy or personal insolvency agreement
6.16 Interpretation 99
6.17 Notice of bankruptcy or personal insolvency agreement 99
6.18 Notice under paragraph 6.17 (1) (b) 100
6.19 Notice under paragraph 6.17 (1) (c) 100
6.20 Notice of bankruptcy proceedings 101
6.21 Notice of application under section 139A of the Bankruptcy Act 101
6.22 Official name of trustee 102
Chapter 7 Service
Part 7.1 General
7.01A Application 103
7.01 Service 103
7.02 Court’s discretion regarding service 104
7.03 Service of documents 104
7.04 Service of filed documents 105
Part 7.2 Special service
7.05 Special service 107
7.06 Special service by hand 107
7.07 Special service by post or electronic communication 107
7.08 Special service through a lawyer 108
7.09 Special service on person with a disability 108
7.10 Special service on a prisoner 109
7.11 Special service on a corporation 109
Part 7.3 Ordinary service
7.12 Ordinary service 110
Part 7.4 Proof of service
7.13 Proof of service 111
7.14 Proof of special service 111
7.15 Evidence of identity 111
Part 7.5 Other matters about service
7.16 Service by electronic communication 113
7.17 When service is taken to have been carried out 113
7.18 Service with conditions or dispensing with service 114
Part 7.6 Service in non‑convention country
7.19 Service in non‑convention country 115
7.20 Proof of service in non‑convention country 115
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 117
8.02 Independent children’s lawyer 118
8.03 Lawyer — conflicting interests 119
8.04 Lawyer — ceasing to act 119
Part 8.2 Address for service
8.05 Address for service 120
8.06 Change of address for service 121
Chapter 9 Response and reply
Part 9.1 Response to an Initiating Application (Family Law)
9.01 Response to an Initiating Application (Family Law) 122
9.02 Filing an affidavit with Response to Initiating Application (Family Law) 123
9.03 Response objecting to jurisdiction 123
Part 9.2 Reply to Response to an Initiating Application (Family Law)
9.04 Applicant reply to Response to an Initiating Application (Family Law) (Reply) 125
9.04A Additional party reply to Response to an Initiating Application (Family Law), (Reply) 125
Part 9.3 Response to Application in a Case
9.05 Response to Application in a Case 126
9.06 Affidavit to be filed with Response to an Application in a Case 126
9.07 Affidavit in reply to Response to an Application in a Case 126
Part 9.4 Filing and service
9.08 Time for filing and service of response or reply 127
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 128
10.02 Open and ‘without prejudice’ offer 129
10.03 How to withdraw an offer 129
10.04 How to accept an offer 130
10.05 Counter‑offer 130
Division 10.1.2 Offer to settle — property cases
10.06 Compulsory offer to settle 130
10.07 Withdrawal of offer 131
Part 10.2 Discontinuing a case
10.10 Definition 132
10.11 Discontinuing a case 132
Part 10.3 Summary orders and separate decisions
10.12 Application for summary orders 134
10.13 Application for separate decision 134
10.14 What the court may order under this Part 134
Part 10.4 Consent orders
10.15 How to apply for a consent order 136
10.15A Consent parenting orders and allegations of abuse or family violence 137
10.16 Notice to superannuation trustee 138
10.17 Dealing with a consent order 138
10.18 Lapsing of respondent’s consent 139
Chapter 11 Case management
Part 11.1 Court’s powers of case management
11.01 General powers 140
11.02 Failure to comply with a legislative provision or order 142
11.03 Relief from orders 143
11.04 Frivolous or vexatious case 143
11.05 Application for permission to start a case 144
11.06 Dismissal for want of prosecution 145
Part 11.2 Limiting issues
Division 11.2.1 Admissions
11.07 Request to admit 146
11.08 Notice disputing fact or document 147
11.09 Withdrawing admission 147
Division 11.2.2 Amendment
11.10 Amendment by a party or court order 148
11.11 Time limit for amendment 149
11.12 Amending a document 149
11.13 Response to amended document 149
11.14 Disallowance of amendment 149
Part 11.3 Venue
Division 11.3.1 Open court and chambers
11.16 Cases in chambers 150
Division 11.3.2 Transferring a case
11.17 Transfer to another court or registry 150
11.18 Factors to be considered for transfer 151
Division 11.3.3 Transfer of court file
11.20 Transfer between courts 152
Chapter 12 Court events — Registrar managed
Part 12.1 Application of Chapter 12
12.01 Application of Chapter 12 153
Part 12.2 Specific court events
12.02 Property case — exchange of documents before first court date 154
12.03 Case assessment conference 155
12.04 Initial procedural hearing in a parenting case 156
12.05 Property case — exchange of documents before conciliation conference 157
12.06 Financial questionnaire and balance sheet 157
12.07 Conduct of a conciliation conference 158
12.08 Procedural hearing in a financial case 158
12.09 Procedural hearing after the Child Responsive Program 159
12.10 Procedural hearing where the application includes both a financial case and a parenting case 160
12.10A Expedition 160
Part 12.4 Attendance at court events
12.11 Party’s attendance 162
12.12 Attendance by electronic communication 162
12.13 Failure to attend court events 162
Part 12.5 Adjournment and postponement of court events
12.14 Administrative postponement of conferences or procedural hearings 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 — Initiating Applications (Family Law)
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
Chapter 14 Property orders
14.01 Orders about property 183
14.02 Service of application 184
14.03 Inspection 184
14.04 Application for Anton Piller order 184
14.05 Application for Mareva order 185
14.06 Notice to superannuation trustee 186
14.07 Notice about intervention under Part VIII or VIIIAB of Act 187
Chapter 15 Evidence
15.01 Definition 188
Part 15.1 Children
15.02 Restriction on child’s evidence 188
15.04 Family reports 189
Part 15.2 Affidavits
15.05 No general right to file affidavits 190
15.06 Reliance on affidavits 190
15.08 Form of affidavit 190
15.09 Making an affidavit 191
15.10 Affidavit of illiterate or blind person etc 191
15.11 Affidavit outside Australia 192
15.12 Documents attached 192
15.13 Striking out objectionable material 193
15.14 Notice to attend for cross‑examination 193
15.15 Deponent’s attendance and expenses 194
Part 15.3 Subpoenas
Division 15.3.1 General
15.16 Interpretation 195
15.17 Issuing a subpoena 195
15.18 Subpoena not to issue in certain circumstances 196
15.20 Amendment of subpoena 196
15.21 Subpoenas to produce documents 197
15.22 Service 197
15.23 Conduct money and witness fees 197
15.24 When compliance is not required 197
15.25 Discharge of subpoena obligation 198
15.26 Objection to subpoena 198
Division 15.3.2 Production of documents and access by parties
15.27 Application of Division 15.3.2 199
15.28 Service of subpoena for production 199
15.29 Compliance with subpoena 200
15.30 Right to inspect and copy 200
15.31 Objection to inspection or copying of document 201
15.32 Court permission to inspect documents 202
15.33 Claim for privilege 202
15.34 Production of document from another court 202
15.35 Return of documents produced 203
Division 15.3.3 Non‑compliance with subpoena
15.36 Non‑compliance with subpoena 204
Division 15.3.4 Subpoenas in Trans-Tasman Cases
15.36A Application of Division 15.3.4 204
15.36B General rules to apply 204
15.36C Definition for Division 15.3.4 204
15.36D Subpoenas not to be served without leave 205
15.36E Application for leave to serve subpoena in New Zealand 205
15.36F Hearing of application 206
15.36G Setting aside subpoena 207
15.36H Service of subpoena 207
15.36I Compliance 208
15.36J Non-compliance 208
Part 15.4 Assessors
15.37 Application of Part 15.4 209
15.38 Appointing an assessor 209
15.39 Assessor’s report 209
15.40 Remuneration of assessor 210
Part 15.5 Expert evidence
Division 15.5.1 General
15.41 Application of Part 15.5 211
15.42 Purpose of Part 15.5 212
15.43 Definition 212
Division 15.5.2 Single expert witness
15.44 Appointment of single expert witness by parties 213
15.45 Order for single expert witness 213
15.46 Orders the court may make 214
15.47 Single expert witness’s fees and expenses 214
15.48 Single expert witness’s report 215
15.49 Appointing another expert witness 215
15.50 Cross‑examination of single expert witness 216
Division 15.5.3 Permission for expert’s evidence
15.51 Permission for expert’s reports and evidence 216
15.52 Application for permission for expert witness 216
Division 15.5.4 Instructions and disclosure of expert’s report
15.53 Application of Division 15.5.4 218
15.54 Instructions to expert witness 218
15.55 Mandatory disclosure of expert’s report 219
15.56 Provision of information about fees 219
15.57 Application for provision of information 219
15.58 Failure to disclose report 220
Division 15.5.5 Expert witness’s duties and rights
15.59 Expert witness’s duty to the court 220
15.60 Expert witness’s right to seek orders 221
15.61 Expert witness’s evidence in chief 222
15.62 Form of expert’s report 222
15.63 Contents of expert’s report 223
15.64 Consequences of non‑compliance 224
Division 15.5.6 Clarification of single expert witness reports
15.64A Purpose 224
15.64B Conference 225
15.65 Questions to single expert witness 225
15.66 Single expert witness’s answers 226
15.67 Single expert witness’s costs 226
15.67A Application for directions 227
Division 15.5.7 Evidence from 2 or more expert witnesses
15.68 Application of Division 15.5.7 227
15.69 Conference of expert witnesses 227
15.70 Conduct of trial with expert witnesses 229
Part 15.6 Other matters about evidence
15.71 Court may call evidence 230
15.72 Order for examination of witness 230
15.73 Letters of request 230
15.74 Hearsay evidence — notice under section 67 of the Evidence Act 1995 231
15.75 Transcript receivable in evidence 231
15.76 Notice to produce 232
15.77 Parenting questionnaire 232
Chapter 16 Court events — Judge managed
Part 16.1 Preliminary
16.01 Application 233
16.02 Compliance check 233
16.03 Vacating dates that are Judge managed 234
Part 16.2 Proceedings before the Judge — general
16.04 Trial management 235
16.05 Attendance, submissions and evidence by electronic communication 236
16.06 Foreign evidence by electronic communication 238
16.07 Parties’ participation 239
Part 16.3 Proceedings before the Judge — parenting case
16.08 First day of trial 240
16.09 Continuation of trial 240
16.10 Final stage of trial 241
Part 16.4 Proceedings before the Judge — financial case
16.11 The first procedural hearing before the Judge 242
16.12 Further days before the Judge 242
16.13 The trial 242
Part 16.5 Proceedings before the Judge — combined parenting and financial cases
16.14 Conduct of combined cases 243
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 244
16A.02 Application of Part 16A.1 245
16A.03 Consent for Division 12A of Part VII of the Act to apply 245
16A.04 Application for Division 12A of Part VII of the Act to apply for case commenced by application before 1 July 2006 245
Part 16A.2 Trials of certain cases to which Division 12A of Part VII of the Act applies
16A.05 Definitions 246
16A.06 Application 246
16A.10 Parties to be sworn etc 247
Chapter 17 Orders
17.01 When an order is made 248
17.02 Errors in orders 249
17.03 Rate of interest 249
17.04 Order for payment of money 250
17.05 Order for payment of fine 250
Chapter 18 Powers of Judicial Registrars, Registrars and Deputy Registrars
Part 18.1 Delegation of powers to Judicial Registrars and Registrars
Division 18.1.1 General
18.01A Definitions 251
18.01 Exercise of powers and functions 252
Division 18.1.2 Delegation to Judicial Registrars
18.02 Delegation of powers to Judicial Registrars 252
18.03 Property value exceeding limit — power to determine case 254
Division 18.1.3 Delegation of powers to Registrars and Deputy Registrars
18.04 Application of Division 18.1.3 254
18.05 Registrars 254
18.06 Deputy Registrars 256
Part 18.2 Review of decisions
18.07 Application of Part 18.2 262
18.08 Review of order or decision 262
18.09 Stay 263
18.10 Power of court on review 264
Chapter 19 Party/party costs
Part 19.1 General
19.01 Application of Chapter 19 265
19.02 Interest on outstanding costs 266
Part 19.2 Obligations of a lawyer about costs
19.03 Duty to inform about costs 267
19.04 Notification of costs 267
Part 19.3 Security for costs
19.05 Application for security for costs 269
19.06 Order for security for costs 270
19.07 Finalising security 270
Part 19.4 Costs orders
19.08 Order for costs 271
19.09 Costs order for cases in other courts 271
19.10 Costs orders against lawyers 272
19.11 Notice of costs order 272
Part 19.5 Calculation of costs
19.18 Method of calculation of costs 273
19.19 Maximum amount of party/party costs recoverable 274
Part 19.6 Claiming and disputing costs
Division 19.6.1 Itemised costs account
19.20 Request for itemised costs account 275
19.21 Service of lawyer’s itemised costs account 275
19.22 Lawyer’s itemised costs account 275
19.23 Disputing itemised costs account 276
19.24 Assessment of disputed costs 276
19.25 Amendment of itemised costs account and Notice Disputing Itemised Costs Account 277
Division 19.6.2 Assessment process
19.26 Fixing date for first court event 277
19.27 Notification of hearing 278
19.28 Settlement conference 278
19.29 Preliminary assessment 278
19.30 Objection to preliminary assessment amount 278
19.31 If no objection to preliminary assessment 279
19.32 Assessment hearing 279
19.33 Powers of Registrars 280
19.34 Assessment principles 281
19.35 Allowance for matters not specified 282
19.36 Neglect or delay before Registrar 282
19.37 Costs assessment order — costs account not disputed 283
19.38 Setting aside a costs assessment order 283
Part 19.7 Specific costs matters
19.40 Costs in court of summary jurisdiction 284
19.41 Charge for each page 284
19.42 Proportion of costs 284
19.43 Costs for reading 284
19.44 Postage within Australia 284
19.45 Waiting and travelling time 285
19.46 Agent’s fees 285
19.49 Costs of cases not started together 286
19.50 Certificate as to counsel 286
19.51 Lawyer as counsel — party and party costs 286
19.52 Lawyer as counsel — assessment of fees 286
Part 19.8 Review of assessment
19.54 Application for review 288
19.55 Time for filing an application for review 288
19.56 Hearing of application 288
Chapter 20 Enforcement of financial orders and obligations
Part 20.1 General
20.01 Enforceable obligations 290
20.02 When an agreement may be enforced 291
20.03 When a child support liability may be enforced 292
20.04 Who may enforce an obligation 292
20.05 Enforcing an obligation to pay money 293
20.06 Affidavit to be filed for enforcement order 293
20.07 General enforcement powers of court 294
20.08 Enforcement order 295
20.09 Discharging, suspending or varying enforcement order 295
Part 20.2 Information for aiding enforcement
Division 20.2.1 Processes for aiding enforcement
20.10 Processes for obtaining financial information 296
Division 20.2.2 Enforcement hearings
20.11 Enforcement hearing 296
20.12 Obligations of payer 297
20.13 Subpoena of witness 298
20.14 Failure concerning Financial Statement or enforcement hearing 298
Part 20.3 Enforcement warrants
Division 20.3.1 General
20.15 Definitions 299
20.16 Request for Enforcement Warrant 299
20.17 Period during which Enforcement Warrant is in force 300
20.18 Enforcement officer’s responsibilities 300
20.19 Directions for enforcement 301
20.20 Effect of Enforcement Warrant 302
20.21 Advertising before sale 302
20.21A Sale of property at reasonable price 303
20.21B Conditions of sale of property 304
20.22 Result of sale of property under Enforcement Warrant 304
20.23 Payee’s responsibilities 305
20.24 Orders for real property 306
Division 20.3.2 Claims by person affected by an Enforcement Warrant
20.25 Notice of claim 307
20.26 Payee to admit or dispute claim 307
20.27 Admitting claim 307
20.28 Denial or no response to claim 308
20.29 Hearing of application 308
Part 20.4 Third Party Debt Notice
20.30 Application of Part 20.4 309
20.31 Money deposited in a financial institution 309
20.32 Request for Third Party Debt Notice 309
20.33 Service of Third Party Debt Notice 310
20.34 Effect of Third Party Debt Notice — general 310
20.35 Employer’s obligations 311
20.36 Duration of Third Party Debt Notice 311
20.37 Response to Third Party Debt Notice 311
20.38 Discharge of Third Party Debt Notice 312
20.39 Claim by affected person 312
20.40 Cessation of employment 312
20.41 Compliance with Third Party Debt Notice 313
Part 20.5 Sequestration of property
20.42 Application for sequestration of property 315
20.43 Order for sequestration 315
20.44 Order relating to sequestration 316
20.45 Procedural orders for sequestration 316
Part 20.6 Receivership
20.46 Application for appointment of receiver 318
20.47 Appointment and powers of receiver 318
20.48 Security 319
20.49 Accounts 319
20.50 Objection to accounts 319
20.51 Removal of receiver 320
20.52 Compliance with orders and Rules 320
Part 20.7 Enforcement of obligations other than an obligation to pay money
20.53 Application for other enforcement orders 321
20.54 Warrant for possession of real property 321
20.55 Warrant for delivery 322
20.56 Warrant for seizure and detention of property 322
Part 20.8 Other provisions about enforcement
20.57 Service of order 323
20.58 Certificate for payments under maintenance order 323
20.59 Enforcement by or against a non‑party 323
20.60 Powers of enforcement officer 323
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 21.1 326
21.02 How to apply for an order 326
21.03 Application made or continued by Marshal 328
21.04 Contempt in the court room 329
21.05 Fixing of hearing date 329
21.06 Response to an application 329
21.07 Failure of respondent to attend 329
21.08 Procedure at hearing 330
Part 21.2 Parenting orders — compliance
21.09 Duties of program provider 331
21.10 Relisting for hearing 331
Part 21.3 Location and recovery orders
21.11 Application of Part 21.3 332
21.12 Application for order under Part 21.3 332
21.13 Fixing of hearing date 332
21.14 Service of recovery order 332
21.15 Application for directions for execution of recovery order 333
Part 21.4 Warrants for arrest
21.16 Application for warrant 334
21.17 Execution of warrant 334
21.18 Duration of warrant 335
21.19 Procedure after arrest 335
21.20 Application for release or setting aside warrant 336
Chapter 22 Appeals
Part 22.1 Introduction
22.01 Application of Chapter 22 337
Part 22.2 Starting an appeal
22.02 Starting an appeal 338
22.03 Time for appeal 338
22.04 Parties to an appeal 339
22.05 Service 339
22.06 Notice about appeal to other courts 339
22.07 Cross‑appeal 339
22.08 Time for cross‑appeal 340
22.09 Amendment of Notice of Appeal 340
22.10 Documents filed in a current appeal 340
22.11 Stay 340
22.12 Application for leave to appeal 341
22.13 Filing draft index to appeal books 341
Part 22.3 Appeal to Full Court
22.14 Application of Part 22.3 343
22.15 Procedural hearing 343
22.16 Attendance at first procedural hearing 344
22.17 Orders to be made at procedural hearing 344
22.18 Preparation of appeal books 345
22.19 Contents of appeal books 345
22.20 Form of appeal books 346
22.21 Failure to file appeal books by due date 347
22.22 Summary of argument and list of authorities 347
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 22.4 349
22.24 Procedural hearing 349
22.25 Attendance at procedural hearing 349
22.26 Procedural orders for conduct of appeal 350
22.27 Documents for appeal hearing if appeal book not required 351
Part 22.5 Appeal from court of summary jurisdiction other than a Family Law Magistrate of Western Australia
22.28 Application of Part 22.5 352
22.29 Fixing of hearing date 352
Part 22.6 Powers of appeal courts and conduct of appeal
22.30 Non‑attendance by party 353
22.31 Attendance by electronic communication 353
22.32 Attendance of party in prison 354
22.33 Short reasons for decision 355
22.34 Subpoenas 355
Part 22.7 Applications in relation to appeals
Division 22.7.1 How to make an application
22.35 Application of Part 22.7 356
22.36 Application in relation to appeal 356
22.37 Hearing date for application 356
22.38 Decision without an oral hearing 357
Division 22.7.2 Specific applications relating to appeals
22.39 Further evidence on appeal 357
22.40 Review of Regional Appeal Registrar’s order 358
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 359
22.42 Discontinuance of appeal or application 359
22.43 Abandoning an appeal 359
22.44 Application for reinstatement of appeal 360
22.45 Dismissal of appeal and applications for non‑compliance or delay 360
Part 22.9 Case stated
22.46 Application of Part 22.9 362
22.47 Case stated 362
22.48 Objection to draft case stated 362
22.49 Settlement and signing 363
22.50 Filing of copies of case stated 363
22.51 Fixing of hearing date 363
22.52 Summary of argument and list of authorities 363
Chapter 23 Registration of documents
Part 23.1 Registration of agreements, orders and child support debts
23.01 Registration of agreements 365
23.01A Registration of State child orders under section 70C or 70D of the Act 366
23.01B Registration of de facto maintenance orders under section 90SI of the Act 366
23.02 Registration of debt due to the Commonwealth under child support legislation 366
Part 23.2 Parenting plans
23.03 Requirements for registration of an agreement revoking a registered parenting plan 367
23.04 Court may require service or additional information 367
23.05 Application may be dealt with in chambers 368
Chapter 24 Documents, filing, registry
Part 24.1 Requirements for documents
24.01 General requirements 369
24.02 Corporation as a party 370
24.03 Change of name of party 371
24.04 Forms 371
Part 24.2 Filing documents
24.05 How a document is filed 372
24.06 Filing a document by facsimile 373
24.07 Filing by e‑mail and Internet 373
24.08 Additional copies for filing 374
24.09 Documents filed during a case 375
24.10 Rejection of documents 375
24.11 Filing a notice of payment into court 376
Part 24.3 Registry records
24.12 Removal of document from registry 377
24.13 Searching court record and copying documents 377
24.14 Exhibits 378
Chapter 25 Applications under the Corporations Act 2001 and the Corporations (Aboriginal and Torres Strait Islander) Act 2006
25.01 Application of Chapter 25 379
25.02 Application of Corporations Rules 379
25.03 Modification of Corporations Rules 379
25.04 Application under Corporations Act 2001 or Corporations (Aboriginal and Torres Strait Islander) Act 2006 380
25.05 Transfer of cases under Corporations Act 2001 or Corporations (Aboriginal and Torres Strait Islander) Act 2006 380
25.06 Fixing a date for hearing 381
Chapter 26 Cases to which the Bankruptcy Act 1966 applies
Part 26.1 Introduction
26.01 Application of Chapter 26 382
26.02 Expressions used in the Bankruptcy Act 382
Part 26.2 General
26.04 Bankruptcy Application and Bankruptcy Application in a Case 384
26.05 Leave to be heard 385
26.06 Appearance at application or examination 385
26.07 Opposition to Bankruptcy Application or a Bankruptcy Application in a Case 386
Part 26.3 Examinations
Division 26.3.1 Interpretation
26.08 Definition for Part 26.3 387
Division 26.3.2 Examination of relevant person
26.09 Application for summons (Bankruptcy Act s 81) 387
26.10 Hearing of application 387
26.11 Requirements of summons 388
26.12 Service of summons 388
26.13 Failure to attend examination 388
26.14 Application for discharge of summons 388
Division 26.3.3 Examination of examinable person
26.15 Application for summons (Bankruptcy Act s 81) 389
26.16 Hearing of application 390
26.17 Requirements of summons 390
26.18 Service of summons 391
26.19 Application for discharge of summons 391
26.20 Conduct money and witnesses expenses 391
Part 26.4 Annulment of bankruptcy
26.21 Application of Part 26.4 393
26.22 Requirements of application 393
26.23 Notice to creditors 393
26.24 Procedural hearing — report by trustee 393
26.25 Service of annulment order 394
Part 26.5 Trustees
26.26 Objection to appointment of trustee (Bankruptcy Act s 157 (6)) 395
26.27 Resignation or release of trustee (Bankruptcy Act ss 180 and 183) 395
Part 26.6 Warrants
26.28 Arrest of bankrupt (Bankruptcy Act s 78) 397
26.29 Apprehension of person failing to attend Court (Bankruptcy Act s 264B (1)) 397
Part 26.7 Costs
26.30 Order for costs 398
26.31 Application of Part 40 of Federal Court Rules 2011 398
Chapter 1 Introduction
Summary of Chapter 1
Chapter 1 sets out the rules relating to:
· the main purpose of these Rules, and the obligations of parties, lawyers and the court;
· the court’s general powers that are to apply in all cases; and
· other preliminary matters, including sittings, definitions, calculation of time and publication.
These Rules are not, and should not be read as if they were, a complete code of the court’s powers. Other powers are found in the provisions of various Acts, the court’s inherent jurisdiction and the common law.
The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.
A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.
Part 1.1 Preliminary
1.01 Name of Rules [see Note 1]
These Rules are the Family Law Rules 2004.
1.02 Commencement
These Rules commence on 29 March 2004.
Note The Family Law Rules 1984 (the old Rules), as in force under the Family Law Act 1975 immediately before the commencement of these Rules (the new Rules), are repealed — see the Family Law Repeal Rules 2004. The new Rules apply to a case that was commenced in accordance with the old Rules and not determined before the repeal of those Rules — see rule 4 of the Family Law Repeal Rules 2004.
1.03 Rules in Chapter 1 prevail
(1) Chapter 1 sets out the general rules that the court may apply in all cases.
(2) If a rule in another Chapter conflicts with a rule in Chapter 1 of these Rules, the rule in Chapter 1 applies.
Part 1.2 Main purpose of Rules
1.04 Main purpose of Rules
The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.
Note Section 43 of the Act sets out the principles that the court must apply when exercising its jurisdiction under the Act.
1.05 Pre‑action procedure
(1) Before starting a case, each prospective party to the case must comply with the pre‑action procedures, the text of which is set out in Schedule 1.
(2) Compliance with subrule (1) is not necessary if:
(a) for a parenting case — the case involves allegations of child abuse or family violence, or the risk of child abuse or family violence;
(b) for a property case — the case involves allegations of family violence, or the risk of family violence, or fraud;
(c) the application is urgent;
(d) the applicant would be unduly prejudiced;
(e) there has been a previous application in the same cause of action in the 12 months immediately before the start of the case;
(f) the case is an application for divorce;
(g) the case is a child support application or appeal; or
(h) the case involves a court’s jurisdiction in bankruptcy under section 35 or 35B of the Bankruptcy Act.
Note 1 The court publishes a brochure setting out the pre‑action procedures for financial cases and parenting cases.
Note 2 The court may take into account a party’s failure to comply with a pre‑action procedure when considering whether to order costs (see paragraph 1.10 (2) (d)).
Note 3 Subsections 60I (7) to (12) provide for attendance at family dispute resolution before applying for an order under Part VII of the Act in relation to a child.
1.06 Promoting the main purpose
The court must apply these Rules to promote the main purpose, and actively manage each case by:
(a) encouraging and helping parties to consider and use a dispute resolution method rather than having the case resolved by trial;
(b) having regard to unresolved risks or other concerns about the welfare of a child involved;
(c) identifying the issues in dispute early in the case and separating and disposing of any issues that do not need full investigation and trial;
(d) at an early stage, identifying and matching types of cases to the most appropriate case management procedure;
(e) setting realistic timetables, and monitoring and controlling the progress of each case;
(f) ensuring that parties and their lawyers comply with these Rules, any practice directions and procedural orders;
(g) considering whether the likely benefits of taking a step justify the cost of that step;
(h) dealing with as many aspects of the case as possible on the same occasion;
(i) minimising the need for parties and their lawyers to attend court by, if appropriate, relying on documents; and
(j) having regard to any barriers to a party’s understanding of anything relevant to the case.
1.07 Achieving the main purpose
To achieve the main purpose, the court applies these Rules in a way that:
(a) deals with each case fairly, justly and in a timely manner;
(b) encourages parties to negotiate a settlement, if appropriate;
(c) is proportionate to the issues in a case and their complexity, and the likely costs of the case;
(d) promotes the saving of costs;
(e) gives an appropriate share of the court’s resources to a case, taking into account the needs of other cases; and
(f) promotes family relationships after resolution of the dispute, where possible.
1.08 Responsibility of parties and lawyers in achieving the main purpose
(1) Each party has a responsibility to promote and achieve the main purpose, including:
(a) ensuring that any orders sought are reasonable in the circumstances of the case and that the court has the power to make those orders;
(b) complying with the duty of disclosure (see rule 13.01);
(c) ensuring readiness for court events;
(d) providing realistic estimates of the length of hearings or trials;
(e) complying with time limits;
(f) giving notice, as soon as practicable, of an intention to apply for an adjournment or cancellation of a court event;
(g) assisting the just, timely and cost‑effective disposal of cases;
(h) identifying the issues genuinely in dispute in a case;
(i) being satisfied that there is a reasonable basis for alleging, denying or not admitting a fact;
(j) limiting evidence, including cross‑examination, to that which is relevant and necessary;
(k) being aware of, and abiding by, the requirements of any practice direction or guideline published by the court; and
(l) complying with these Rules and any orders.
(2) A lawyer for a party has a responsibility to comply, as far as possible, with subrule (1).
Note The court recognises that a lawyer acts on a party’s instructions and may be unable to establish whether those instructions are correct.
(3) A lawyer attending a court event for a party must:
(a) be familiar with the case; and
(b) be authorised to deal with any issue likely to arise.
Note The court may take into account a failure to comply with this rule when considering costs (see subrule 19.10 (1) and subclause 6.10 (1) of Schedule 6).
Part 1.3 Court’s powers in all cases
1.09 Procedural orders in cases of doubt or difficulty
If the court is satisfied that:
(a) a legislative provision does not provide a practice or procedure; or
(b) a difficulty arises, or doubt exists, in relation to a matter of practice or procedure;
it may make such orders as it considers necessary.
1.10 Court may make orders
(1) Unless a legislative provision states otherwise, the court may make an order, on application or on its own initiative, in relation to any matter mentioned in these Rules.
(2) When making an order, the court may:
(a) impose terms and conditions;
(b) make a consequential order;
(c) specify the consequence of failure to comply with the order; and
(d) take into account whether a party has complied with a pre‑action procedure.
1.11 Court may set aside or vary order
The court may set aside or vary an order made in the exercise of a power under these Rules.
1.12 Court may dispense with Rules
(1) These Rules apply unless the court, on application or its own initiative, orders otherwise.
(2) The court may dispense with compliance with any of these Rules at any time, before or after the occasion for compliance arises.
(3) In considering whether to make an order under this rule, the court may consider:
(a) the main purpose of these Rules (see rule 1.04);
(b) the administration of justice;
(c) whether the application has been promptly made;
(d) whether non‑compliance was intentional; and
(e) the effect that granting relief would have on each party and parties to other cases in the court.
1.13 Judicial officer hearing application
Unless a legislative provision states otherwise, if:
(a) these Rules provide that an application or appeal is to be heard by a particular judicial officer or particular class of judicial officer; and
(b) such a person is unavailable;
the application or appeal may be listed before another judicial officer who has jurisdiction to hear the application or appeal.
1.14 Shortening or extension of time
(1) A party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order.
(2) A party may make an application under subrule (1) for an order extending a time to be made even though the time fixed by the rule or order has passed.
(3) A party who makes an application under subrule (1) for an extension of time may be ordered to pay any other party’s costs in relation to the application.
1.15 Time for compliance
If a rule or order requires a person to take an action but does not specify a time by which the action is to be taken, the person must take the action as soon as practicable.
Part 1.4 Other preliminary matters
1.16 Definitions — the dictionary
(1) The dictionary at the end of these Rules defines and explains certain words and expressions.
(2) Within a definition, the defined term is identified by bold italics.
(3) The dictionary is part of these Rules.
(4) A definition of a word or expression in the dictionary applies to each use of the word or expression in these Rules, unless the context does not permit.
1.17 Notes, examples etc
(1) The following are explanatory only and are not part of these Rules:
(a) chapter summaries;
(b) examples;
(c) flow charts;
(d) notes.
(2) The explanatory guide at the end of these Rules is not part of these Rules and is not to be used in interpreting these Rules.
Note 1 See section 13 and paragraph 15AB (2) (a) of the Acts Interpretation Act 1901.
Note 2 In interpreting these Rules:
Specific prevails over the general
In these Rules, if there is a conflict between a general rule and a specific rule, the specific rule prevails.
Use of ‘and’ and ‘or’ between paragraphs etc
A series of paragraphs may be joined by the word and or or, which will appear between the last 2 paragraphs only. The series is to be read as if the same word appears between each paragraph in the series — for example:
(1) This is:
(a) a paragraph;
(b) another paragraph; and
(c) yet another paragraph.
and
(2) This is:
(a) a paragraph;
(b) another paragraph; or
(c) yet another paragraph.
If the paragraphs are to be read as a list, the words and or or are not used — for example:
(3) A provision may include the following:
(a) a paragraph;
(b) another paragraph;
(c) yet another paragraph.
1.18 Sittings
The Family Court of Australia must sit at the times and places the Chief Justice directs.
1.19 Prohibition on recording court event
(1) A person must not photograph, or record by electronic or mechanical means:
(a) a court event; or
(b) a person who is at premises for the purpose of attending a court event.
Note Section 121 of the Act restricts publication of information relating to cases.
(2) Subrule (1) does not apply to a recording made at the request of the court.
(3) A person commits an offence if the person contravenes subrule (1).
Penalty: 50 penalty units.
1.20 Publishing lists of cases
(1) A list of cases to be heard in the court prepared by a Registry Manager may be:
(a) published in the law list in a newspaper; and
(b) made available to members of the legal profession and their employees.
Note See subsection 121 (2) of the Act.
(2) The list may contain:
(a) subject to subrule (3), the family name of a party, but not a given name;
(b) the file number of a case;
(c) the name of the judicial officer for a hearing or trial;
(d) the time and place where a named judicial officer will sit; and
(e) the general nature of an application.
(3) For a case in which a court has jurisdiction in bankruptcy under section 35 or 35B of the Bankruptcy Act, the list may contain the given name of a party.
1.21 Calculating time
(1) Time in a case runs during a period when the filing registry is closed.
(2) If:
(a) the period allowed by these Rules or an order for an action to be validly taken is 5 days or less; and
(b) the period includes a day when the filing registry is closed;
that day is not counted.
(3) For the calculation of time of one day or more from a particular day, or from the occurrence of a particular event, the particular day, or the day when the event occurs, is not counted.
(4) If the last day for taking an action requiring attendance at a filing registry is on a day when the filing registry is closed, the action may be taken on the next day when the filing registry is open.
(5) Subsection 36 (2) of the Acts Interpretation Act 1901 does not apply to these Rules.
Chapter 2 Starting a case
Summary of Chapter 2
Chapter 2 sets out rules about:
· the form of application you must file to start a case in a court, respond to an application or seek orders in the course of a case;
· the documents you must file with an application or response; and
· the brochures that must be served in a case.
Before starting a case, you must comply with the court’s pre‑action procedures (see subrule 1.05 (1) and Schedule 1).
The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.
A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.
Part 2.1 Applications
2.01 Which application to file
A person starting a case must file an application as set out in Table 2.1.
Table 2.1 Applications
| Item | Kind of application | Application form to be filed |
| 1 | Application seeking final orders (other than a consent order or a divorce), for example: · property settlement · parenting · maintenance · child support · medical procedures | Initiating Application (Family Law) |
| | · nullity · declaration as to validity of marriage, divorce or annulment · order relating to passport (see Division 4.2.7) | |
| 2 | Interim order sought at the same time as an application for final orders is made | Initiating Application (Family Law) |
| 2A | Interim order sought after an application for final orders is made | Application in a Case |
| 3 | Procedural, ancillary or other incidental order relating to an order or application sought at the same time as an application for final orders is made | Initiating Application (Family Law) |
| 3A | Procedural, ancillary or other incidental order relating to an order or application sought after an application for final orders is made | Application in a Case |
| 4 | Enforcement of a financial obligation or parenting order | Application in a Case |
| 5 | Review of an order of a Registrar or Judicial Registrar | Application in a Case |
| 6 | Divorce | Application for Divorce |
| 7 | Consent order when there is no current case | Application for Consent Orders |
| 8 | Contravention of an order under Division 13A of Part VII of the Act affecting children, for example, a breach of a contact order | Application — Contravention |
| 9 | Contravention of an order under Part XIIIA of the Act not affecting children, for example, a breach of a property order | Application — Contravention |
| 10 | Failure to comply with a bond entered into in accordance with the Act | Application — Contravention |
| 11 | Contempt of court | Application — Contempt |
Note 1 A respondent seeking orders in another cause of action may make an application in a Response to Initiating Application (Family Law) (see paragraph 9.01 (3) (c)).
Note 2 For further information about:
(a) a divorce application, see Chapter 3;
(b) starting a case for final orders other than a divorce, see Chapter 4;
(c) making an Application in a Case, see Chapter 5;
(d) an application for a consent order, see Chapter 10;
(e) an application for contempt, enforcement or contravention, see Chapters 20 and 21; and
(f) an application relating to the failure of a party to comply with a bond, see Chapter 21;
(g) an appeal or an application relating to an appeal, see Chapter 22; and
(h) an application relating to a bankruptcy case, see Chapter 26.
Note 3 An application seeking orders under the Act may not be filed in a court of a Territory unless the applicant or respondent ordinarily resides in the Territory at the time the application is filed (see subsection 39 (8) and section 69K of the Act).
2.02 Documents to be filed with applications
(1) A person must file with an application mentioned in an item of Table 2.2, the document mentioned in the item if the document has not already been filed.
Table 2.2 Documents to be filed with applications
| Item | Application | Documents to be filed with application |
| 2A | Initiating Application (Family Law) in which an order is sought under Part VII of the Act, for example, a parenting order | (a) a certificate given to the applicant by a family dispute resolution practitioner under subsection 60I (8) of the Act; or (b) if no certificate is required because paragraph 60I (9) (b), (c), (d), (e) or (f) of the Act applies — an affidavit in a form approved by the Principal Registrar unless another affidavit filed in the proceedings sets out the factual basis of the exception claimed |
| 2B | Initiating Application (Family Law) in which an order is sought relating to a de facto relationship | (a) the documents required by an item in this table that applies to the application (for example items 2A to 6 and 9); and (b) to satisfy the court for section 90SB of the Act that the relationship is or was registered under a prescribed law — the certificate of registration; and |
| | | (c) for an applicant who has made a choice under subitem 86A (1) or 90A (1) of Schedule 1 to the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 — a document that satisfies the requirements of subitem 86A (5) or 90A (5) of that Act |
| 3 | Initiating Application (Family Law), or Response to Initiating Application (Family Law), in which financial orders are sought, for example, property settlement, maintenance, child support | a completed Financial Statement (see rule 13.05) |
| 4 | Initiating Application (Family Law) or Response to Initiating Application (Family Law) in which property settlement orders are sought, and Reply responding to Response to Initiating Application (Family Law) in which property orders are sought as a new cause of action | (a) the documents mentioned in this column in item 3; (b) a completed superannuation information form (attached to the Financial Statement) for a superannuation interest of the party filing the Initiating Application (Family Law), Response or Reply to an Initiating Application (Family Law) |
| 5 | Initiating Application (Family Law) or Response to an Initiating Application (Family Law) relying on a cross‑vesting law, or seeking an order under Part 4.2: · for a medical procedure; · for step‑parent maintenance, if there is consent; · for nullity of marriage; · for a declaration as to validity of a marriage or divorce or annulment; or · relating to a passport | an affidavit (see section 66M of the Act and rules 4.06, 4.09, 4.29 and 4.30) |
| 6 | Initiating Application (Family Law) or Response to an Initiating Application (Family Law) in which a child support application or appeal is made | the documents mentioned in rule 4.18 for the application |
| 7 | Application for interim, procedural, ancillary or other incidental orders in an Initiating Application (Family Law) or Application in Case (other than an application seeking review of a decision of a Registrar or Judicial Registrar) | an affidavit (see rules 5.02 and 9.02) |
| 9 | Application for Consent Orders | (a) if the orders sought are for a de facto relationship — one of the documents mentioned in this column in item 2B; (b) for an Application for Consent Orders in which orders are sought in relation to a superannuation interest (see rule 10.16) — a completed superannuation information form for the superannuation interest |
| 10 | Application — Contravention, other than an application to which item 10A applies | an affidavit (see subrules 21.02 (2) and (3)) |
| 10A | Application — Contravention in which an order is sought under Part VII of the Act | (a) an affidavit (see subrules 21.02 (2) and (3)); and (b) either: (i) a certificate given to the applicant by the family dispute resolution practitioner under subsection 60I (8) of the Act; or (ii) if no certificate is required because paragraph 60I (9) (b), (c), (d), (e) or (f) of the Act applies — an affidavit in a form approved by the Principal Registrar unless another affidavit filed in the proceedings sets out the factual basis of the exception claimed |
| 11 | Application — Contempt | an affidavit (see subrule 21.02 (2)) |
(4) If a document mentioned in Table 2.2 is not in English, the person filing the document must file:
(a) a translation of the document, in English; and
(b) an affidavit, by the person who made the translation, verifying the translation and setting out the person’s qualifications to make the translation.
(5) An applicant in proceedings mentioned in subsection 100 (1) of the Assessment Act or subsection 105 (1) of the Registration Act is not required to file in the court a certificate given to the applicant by a family dispute resolution practitioner under subsection 60I (8) of the Family Law Act.
Note 1 A party must not file an affidavit with an Initiating Application (Family Law) unless an application seeking interim, procedural, ancillary or other incidental orders is included in the Initiating Application (Family Law) or permitted to do so by Chapter 4 or an order (see rules 1.12 and 4.02).
Note 2 A document that is filed must be served (see rules 7.03 and 7.04).
Note 3 For information about filing documents, see Chapter 24.
2.02A Documents filed by electronic communication
A person who files a document by electronic communication must:
(a) include in the filed document and each copy served on another person any details the person knows about the location, date and time of the next court event in the matter; and
(b) if the Registry Manager notifies the person of the details of the next court event — give a copy of the notice as soon as practicable to each person on whom the document is or has been served.
Part 2.2 Brochures
2.03 Service of brochures
A person who files an Initiating Application (Family Law) or an Application for Divorce must, when serving the application on the respondent, also serve a brochure prepared by the court for section 12F of the Act.
Note In addition to the requirements of this rule, an applicant who has filed an application for enforcement must serve the relevant brochure on the respondent (see paragraph 20.11 (3) (b)).
Part 2.3 Notification in certain cases
Division 2.3.1 Cases involving allegation of abuse or family violence in relation to a child
2.04 Definition
In this Division:
allegation of abuse or family violence means an allegation:
(a) that a child has been abused or that there is a risk of a child being abused; or
(b) that there has been family violence involving a child or a member of the child’s family or that there is a risk of family violence involving a child or a member of the child’s family.
Part VII order has the same meaning as in subsection 60I (1) of the Act.
2.04A Application of Division 2.3.1
This Division applies to a case if an application is made to a court for a Part VII order in relation to a child in the case.
2.04B Filing and service
(1) In a case to which this Division applies, if any of the following persons makes an allegation of abuse or family violence the person must file a Notice of Child Abuse or Family Violence (Form 4):
(a) a party in the case;
(b) an independent children’s lawyer in the case;
(c) a person seeking to intervene in the case.
(2) A person who files a Form 4 must file an affidavit or affidavits setting out the evidence on which the allegations in the Form 4 are based, no later than the time the Form 4 is filed.
Note The requirements for service of filed documents are set out in rule 7.04. For service of a notice filed in a case to which section 67Z of the Act applies, subsection 67Z (2) specifically requires that a person alleged in the notice to have abused a child in the case, or to be a person from whom a child in the case is at risk of being abused, must be served with a copy of the notice.
2.04C Listing case
If a Form 4 has been filed in a case, a Registrar may list the case for hearing or procedural hearing.
2.04D Prescribed document and prescribed form
A Notice of Child Abuse or Family Violence (Form 4) is:
(a) the document prescribed for the purposes of paragraph 60K (1) (d) of the Act; and
(b) the prescribed form for the purposes of a notice mentioned in subsection 67Z (2) of the Act.
2.05 Family violence order
(1) A party must file a copy of any family violence order affecting the parties or a child of the parties:
(a) when a case starts; or
(b) as soon as practicable after the order is made.
(2) If a copy of the family violence order is not available, the party must file a written notice containing:
(a) an undertaking to file the order within a specified time;
(b) the date of the order;
(c) the court that made the order; and
(d) the details of the order.
Division 2.3.2 Property settlement or spousal or de facto maintenance cases
2.06 Notification of proceeds of crime order or forfeiture application (Act ss 79B, 90M and 90VA)
If a party to a property settlement or spousal maintenance case, or a de facto property settlement or maintenance proceedings, is required to give the Registry Manager written notice under subsection 79B (3), 90M (3) or 90VA (3) of the Act of a proceeds of crime order or forfeiture application, the party must:
(a) attach to the notice a sealed copy of the proceeds of crime order or forfeiture application, if not already filed; and
(b) file the notice as soon as possible after the party is notified by the Director of Public Prosecutions under paragraph 79B (3) (b), 90M (3) (b) or 90VA (3) (b) of the Act.
2.07 Proceeds of crime
(1) If the Director of Public Prosecutions applies under section 79C, 90N or 90VB of the Act to stay a property settlement or spousal maintenance case, or a de facto property settlement or maintenance proceedings, the Director must, at the same time, file a sealed copy of the proceeds of crime order or forfeiture application covering the property of the parties to the marriage or either of them, if not already filed.
(2) An application under section 79D, 90P or 90VC of the Act to lift a stay of a property settlement or spousal maintenance case, or a de facto property settlement or maintenance proceedings, must have filed with it:
(a) proof that the proceeds of crime order has ceased to be in force or that the forfeiture application has been finally determined; and
(b) if made by a party, the written consent of the Director of Public Prosecutions under section 79D, 90P or 90VC of the Act.
Note A party seeking a stay of a case or an order lifting a stay under this rule must file an Application in a Case (see Chapter 5).
Chapter 3 Divorce
Summary of Chapter 3
Chapter 3 sets out the procedure for obtaining a divorce. You may also need to refer to other Chapters in these Rules, particularly Chapters 7 and 24, when applying for a divorce.
The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.
A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.
Part 3.1 Application for Divorce
3.01 Fixing of hearing date
(1) On the filing of an Application for Divorce, the Registry Manager must fix a date for the hearing of the application.
(2) The date fixed must be:
(a) for a joint application — at least 28 days after the application is filed; or
(b) for any other application:
(i) if the respondent is in Australia — at least 42 days after the application is filed; or
(ii) if the respondent is outside Australia — at least 56 days after the application is filed.
Note 1 An Application for Divorce (other than a joint application) must be served on the respondent (see rule 7.03).
Note 2 When an Application for Divorce is served, the respondent must also be given a brochure approved by the Principal Registrar (see rule 2.03).
3.02 Amendment of an Application for Divorce
An applicant may amend an Application for Divorce:
(a) within 14 days before the hearing; or
(b) within any shorter time permitted by the court or consented to by the respondent.
3.03 Discontinuance of an Application for Divorce
An applicant may discontinue an Application for Divorce by filing and serving a Notice of Discontinuance at least 7 days before the date fixed for the hearing.
Note The court may, at the hearing, give permission for an Application for Divorce to be discontinued.
Part 3.2 Response
3.04 Response
(1) A respondent to an Application for Divorce who seeks to oppose the divorce or contest the jurisdiction of the court must file a Response to an Application for Divorce:
(a) if the respondent is served in Australia — within 28 days after the day when the Application for Divorce is served on the respondent; or
(b) if the respondent is served outside Australia — within 42 days after the day when the Application for Divorce is served on the respondent.
(2) If a respondent files a Response to an Application for Divorce:
(a) the hearing must proceed in open court; and
(b) each party must attend or be represented by a lawyer.
Note A document that is filed must be served (see rules 7.03 and 7.04).
3.05 Objection to jurisdiction
(1) If, in a Response to an Application for Divorce, a respondent objects to the jurisdiction of the court, the respondent will not be taken to have submitted to the jurisdiction of the court by also seeking an order that the application be dismissed on another ground.
(2) The objection to the jurisdiction must be determined before any other orders sought in the Response to an Application for Divorce.
3.06 Response out of time
If a respondent files a Response to an Application for Divorce after the time allowed under subrule 3.04 (1):
(a) the applicant may consent to the late filing; or
(b) if the applicant does not consent, the court may continue the case as if the response had not been filed.
Note The respondent may apply to the court for permission to file a Response to an Application for Divorce after the time allowed by rule 3.04 (see rule 1.14).
3.07 Affidavit to reply to information in an Application for Divorce
A respondent to an Application for Divorce who disputes any of the facts set out in the application, but does not oppose the divorce, may, at least 7 days before the date fixed for the hearing of the application, file and serve an affidavit setting out the facts in dispute.
Part 3.3 Attendance at hearing
3.08 Attendance at hearing
(1) A party may apply under rule 5.06 to attend the hearing of an Application for Divorce by electronic communication.
(2) Subject to Part 3.4:
(a) if the applicant fails to attend the hearing in person or by a lawyer, the application may be dismissed; and
(b) if the respondent fails to attend the hearing in person or by a lawyer, the applicant may proceed with the hearing as if the application were undefended.
Part 3.4 Hearing in absence of parties
3.09 Seeking a hearing in absence of parties
If, in an Application for Divorce (other than a case started by a joint Application):
(a) no Response has been filed;
(b) at the date fixed for the hearing, there are no children of the marriage within the meaning of subsection 98A (3) of the Act;
(c) the applicant has requested that the case be heard in the absence of the parties; and
(d) the respondent has not requested the court not to hear the case in the absence of the parties;
the court may determine the case in the absence of the parties.
3.10 Hearing in absence of parties — joint application
If, in a joint Application for Divorce, the applicants request that the case be heard in their absence, the court may so determine the case.
Note The court must not determine the Application in the absence of the parties if there are any children of the marriage who are under 18 and the court is not satisfied that proper arrangements have been made for their care, welfare and development (see subsection 98A (2A) of the Act).
3.11 Request not to hear case in parties’ absence
A respondent to an Application for Divorce who objects to the case being heard in the absence of the parties must, at least 7 days before the date fixed for the hearing, file and serve a written notice to that effect.
Note 1 If a respondent seeks that a case not be heard in the absence of the parties, the court must not determine the case in the absence of the parties (see subsection 98A (1) of the Act).
Note 2 A notice under this rule must comply with subrule 24.01 (1).
Part 3.5 Events affecting divorce order
3.12 Application for rescission of divorce order
A party may, before a divorce order nisi becomes absolute, apply for the order to be rescinded by filing an Application in a Case.
Note 1 Sections 57 and 58 of the Act set out the circumstances in which the court may rescind a divorce order nisi.
Note 2 A party filing an Application in a Case must file an affidavit (see rule 5.02).
3.13 Death of party
If a party to an Application for Divorce dies after the divorce order nisi is made but before the order becomes absolute, the surviving party must inform the Registry Manager of the death of the other party by filing:
(a) the death certificate of the deceased party; or
(b) an affidavit stating the details of the deceased party’s date and place of death.
Chapter 4 Application for Final Orders
Summary of Chapter 4
Chapter 4 sets out rules about:
· the general procedure for starting a case by an Initiating Application (Family Law) seeking final orders, for example, an Application for Property Settlement or Parenting Orders; and
· the procedure for starting specific applications such as an Application relying on cross‑vesting laws, for a medical procedure, maintenance, child support or a declaration as to validity of a marriage.
Before starting a case, you must comply with the court’s pre‑action procedures (see subrule 1.05 (1) and Schedule 1).
You may also need to refer to other Chapters in these Rules when making an application, in particular, Chapters 6, 7 and 24.
Note This Chapter does not apply to:
(a) an Application for Divorce (see Chapter 3);
(b) an application for an interim, procedural or other incidental order about an application seeking final orders whether made in an Initiating Application (Family Law) or an Application in a Case (see Chapter 5);
(c) an Application for Review of a Judicial Registrar’s or a Registrar’s Order (see Chapter 18);
(d) an Application to enforce an obligation to pay money (see Chapter 20);
(e) an Application resulting from a contravention of an order or in relation to contempt (see Chapter 21);
(f) an Application relating to an appeal (see Chapter 22); or
(g) an appeal (see Chapter 22).
The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.
A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.
Part 4.1 Introduction
4.01 Contents of Application for Final Orders
(1) In an Initiating Application (Family Law), 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 Initiating Application (Family Law) and must not be made in a Response to an Initiating Application (Family Law) (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 Initiating Application (Family Law) unless permitted or required to do so by these Rules.
Example
A party only seeking final orders for property settlement or parenting orders must not file an affidavit with an Initiating Application (Family Law).
4.03 First court date
On the filing of an Initiating Application (Family Law), the Registry Manager must fix a date:
(a) in a parenting case — for a procedural hearing that is as near as practicable to 28 days after the application was filed;
(b) in a financial case — for a case assessment conference that is as near as practicable to 28 days after the application was filed;
(c) if the application includes both a financial case and a parenting case — for a case assessment conference that is as near as practicable to 28 days after the application was filed; or
(d) if an earlier date is fixed for the hearing of that or another application so far as it concerns an interim, procedural or other ancillary order in the case — for a procedural hearing on the same day.
Note Under subrule 5.05 (4), a Registrar may, in exceptional circumstances, allow an application for an interim, procedural, ancillary or other incidental order 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 Initiating Application (Family Law).
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 Initiating Application (Family Law) or a Response to Initiating Application (Family Law) 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 Initiating Application (Family Law) 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 Initiating Application (Family Law), 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 Initiating Application (Family Law) 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 or de facto 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 or de facto 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 or de facto 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 modification of a spousal maintenance order, see section 83 of the Act. For modification of a de facto maintenance order, see section 90SI 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 Initiating Application (Family Law) 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 Initiating Application (Family Law).
(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 56 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 Initiating Application (Family Law) or 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 Initiating Application (Family Law) 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 Initiating Application (Family Law) 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 referred to in rule 4.30, 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 for interim, procedural, ancillary or other incidental orders
Summary of Chapter 5
Chapter 5 sets out the procedure for making an application for interim, procedural, ancillary, or other incidental orders. 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 Restrictions in relation to applications
(1) A party may apply for an interim, procedural, ancillary or other incidental 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 A reference to application includes a reference to cross‑application (see the dictionary).
(2) A party may apply for an interim, procedural, ancillary or other incidental 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, 90P, 90VB or 90VC of the Act, to stay or lift a stay of a property settlement or spousal or de facto maintenance case;
(c) a bankruptcy trustee; or
(d) a trustee of a personal insolvency agreement.
(5) If a party applies for an interim, procedural, ancillary or other order at the start of a case, the application must be in an Initiating Application (Family Law).
(6) If a party applies for an interim, procedural, ancillary or other order after a case has commenced, the application must be in an Application in a Case.
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); and
(b) an Application to enforce an obligation to pay money or to enforce a parenting order (see Chapter 20 and rule 21.01).
Note 2 A party may ask for a procedural order orally (see paragraph (h) of item 3 of Table 11.1).
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 to which Chapter 5 applies
(1) A party who applies for an interim, procedural, ancillary or other incidental order in an Initiating Application (Family Law), or 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 Application address specific factors (see, for example, rule 5.12).
5.03 Procedure before filing
(1) Before filing an application seeking interim, procedural, ancillary or other incidental orders, 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).
5.05 Fixing a date for hearing or case assessment conference
(1) On the filing of an Application in a Case, or an Initiating Application (Family Law) in which application is made for interim, procedural, ancillary or other orders, 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 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.
Note If an Initiating Application (Family Law) seeks interim, procedural, ancillary or other incidental orders, and an earlier date is fixed for the hearing of the application under subrule 5.05 (4), the Application to the extent that it concerns final orders must be dealt with on the same court date (see subrule 4.03).
(4) The Registry Manager may fix an earlier date for the hearing of an Application in a Case, or an Initiating Application (Family Law) in which application is made for interim, procedural, ancillary or other incidental orders, 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.
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 and response, 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.
Part 5.6 Application for certain orders
5.19 Application to suppress publication of judgment
An applicant for an order to suppress publication of a judgment must file an affidavit that sets out evidence relating to the following:
(a) the public interest in suppressing or not suppressing publication;
(b) why further anonymisation of the judgment would not be sufficient;
(c) whether publication of the entire judgment should be suppressed or only part of the judgment;
(d) whether publication should be suppressed in one medium or in all media;
(e) whether a summary of the judgment should be made publicly available if publication of the judgment is suppressed.
Note The Court anonymises all judgments in accordance with the requirements of section 121 of the Act.
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 1 An independent children’s lawyer is not a party to a case but must be treated as a party (see rule 8.02).
Note 2 Pre-action procedures must be complied with by all prospective parties under rule 1.05.
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 1 The court may dispense with compliance with a rule (see rule 1.12).
Note 2 Pre-action procedures must be complied with by all prospective parties under rule 1.05.
Part 6.2 Adding and removing a party
6.03 Adding a party
(2) A party may add another party after a case has started by amending the application or response to add the name of the party.
(3) A party who relies on subrule (2) must:
(a) file an affidavit setting out the facts relied on to support the addition of the new party, including a statement of the new party’s relationship (if any) to the other parties; and
(b) serve on the new party:
(i) a copy of the application, amended application, response or amended response; and
(ii) the affidavit mentioned in paragraph (a); and
(iii) 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 Pre-action procedures must be complied with by all prospective parties under rule 1.05.
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;
(aa) subsection 90SM (10) authorises a creditor of a party to a case who would not be able to recover a debt if an order is made under section 90SM of the Act, a party to a de facto relationship or marriage with a party to a case, a party to certain financial agreements and a person whose interests would be affected by the making of an order to become parties 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 the legal personal representative of the deceased 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), 90SM (2), 90SM (8), 90SN (5), 90UM (8) 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, 83, 90SE, 90SL, 90SM or 90SN 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 or de facto relationship; and
(b) a party to a relevant case in relation to that marriage or de facto relationship.
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 or de facto relationship 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 or de facto relationship — the other party to the marriage or de facto relationship, 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 or de facto relationship 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 Initiating Application (Family Law), 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 | Initiating Application (Family Law) | 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 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) an Affidavit of Service;
(d) a document signed by all parties;
(e) 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 (4)).
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 Initiating Application (Family Law) 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 Initiating Application (Family Law) (known as a Response to Initiating Application (Family Law);
· responding to an Application in a Case (known as a Response to an Application in a Case); and
· replying to a Response to Initiating Application (Family Law) 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 Initiating Application (Family Law)
9.01 Response to an Initiating Application (Family Law)
(1) A respondent to an Initiating Application (Family Law) who seeks to oppose the orders sought in the application or seeks different orders must file a Response to an Initiating Application (Family Law).
(2) A Response to an Initiating Application (Family Law) 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 Initiating Application (Family Law) 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 Initiating Application (Family Law) 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 Initiating Application (Family Law) 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 Initiating Application (Family Law) the document required under rule 2.02 to be filed for that cause of action.
9.02 Filing an affidavit with Response to Initiating Application (Family Law)
A respondent must not file an affidavit with a Response to Initiating Application (Family Law) unless:
(a) responding to interim, procedural, ancillary or other incidental orders sought in the Initiating Application;
(b) seeking interim, procedural, ancillary or other incidental orders in the Response; or
(c) required to do so by item 5 or 6 of Table 2.2.
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 Initiating Application (Family Law); and
(b) is not taken to have submitted to the jurisdiction of the court by seeking other orders in the Response to an Initiating Application (Family Law).
(2) The objection to the jurisdiction must be determined before any other orders sought in the Response to an Initiating Application (Family Law).
Part 9.2 Reply to Response to an Initiating Application (Family Law)
9.04 Applicant reply to Response to an Initiating Application (Family Law) (Reply)
An applicant must file a Reply if:
(a) in the Response to an Initiating Application (Family Law), 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 Initiating Application (Family Law); or
(ii) different orders in the cause of action mentioned in the Response to an Initiating Application (Family Law).
9.04A Additional party reply to Response to an Initiating Application (Family Law), (Reply)
(1) This rule applies if, in a Response to an Initiating Application (Family Law), 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 Initiating Application (Family Law), 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;
(b) if no conciliation conference has been held — 28 days after the procedural hearing at which the case was allocated the first day before the Judge; or
(c) 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
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 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;
(c) be signed by each of the parties; and
(d) be accompanied by additional copies of the order:
(i) so that there is a copy for each person to be served and an additional copy for the court; and
(ii) each of which is certified by the applicant’s lawyer, or by each party to the application, as a true copy.
(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 Initiating Application (Family Law) 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 or family violence
(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) or family violence 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 or family violence 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 or family violence 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 or family violence 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.
10.17 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 statement of truth 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; 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: (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) finalise the balance sheet setting out all assets, liabilities and financial resources that either party asserts are relevant to the determination of the case; (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 and the basis on which the orders are sought; |
| | | (h) order a party to produce any relevant document in a financial case to the court or to any other party for the purpose of developing and finalising the balance sheet |
| 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; (l) make an order granting permission for a party to perform an action if a provision of the Rules requires a party to obtain that permission; (m) for a fee that is required by law to be paid — order that the fee must be paid by a specified date |
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 Initiating Application (Family Law):
(i) at any time before the procedural hearing at which the case is allocated the first day before the Judge; or
(ii) if the court gives permission — at a later time;
(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 Initiating Application (Family Law) or Response to an Initiating Application (Family Law); 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 Initiating Application (Family Law) or Response to an Initiating Application (Family Law) 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
(1) 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.
(2) If the court gives permission for a party to amend a document, the permission is taken to be given by court order.
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.
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.
Chapter 12 Court events — Registrar managed
Summary of Chapter 12
Chapter 12 sets out rules about the events that parties to an Application for Final Orders may be required to attend before the first day before the Judge is allocated. Depending on whether it is a parenting case or a financial case, these include:
(a) a case assessment conference;
(b) an initial procedural hearing;
(c) the Child Responsive Program;
(d) a conciliation conference; and
(e) a procedural hearing where the case is set down for the first day before the Judge
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 12.1 Application of Chapter 12
12.01 Application of Chapter 12
This Chapter applies to all Initiating Applications (Family Law), except:
(a) a Medical Procedure Application;
(b) a Maintenance Application;
(c) a child support application or appeal;
(d) an application for an order that a marriage is a nullity or a declaration as to the validity of a marriage, divorce or annulment;
(e) an application in which the only order sought relates to a passport (see Division 4.2.7).
Part 12.2 Specific court events
12.02 Property case — exchange of documents before first court date
At least 2 days before the first court date in a property case, each party must, as far as practicable, exchange with each other party a copy of all of the following documents:
(a) a copy of the party’s 3 most recent taxation returns and assessments;
(b) if relevant, documents about any superannuation interest of the party, including:
(i) if not already filed, the completed superannuation information form for the superannuation interest; and
(ii) if the party is a member of a self‑managed superannuation fund — a copy of the trust deed and the 3 most recent financial statements for the fund;
(c) for a corporation in relation to which a party has a duty of disclosure under rule 13.04:
(i) a copy of the financial statements for the 3 most recent financial years, including balance sheets, profit and loss accounts, depreciation schedules and taxation returns;
(ii) a copy of the corporation’s most recent annual return that lists the directors and shareholders; and
(iii) if relevant, a copy of the corporation’s constitution;
(d) for a trust in relation to which a party has a duty of disclosure under rule 13.04:
(i) a copy of the financial statements for the 3 most recent financial years, including balance sheets, profit and loss accounts, depreciation schedules and taxation returns; and
(ii) a copy of the trust deed;
(e) for a partnership in relation to which a party has a duty of disclosure under rule 13.04:
(i) a copy of the financial statements for the 3 most recent financial years, including balance sheets, profit and loss accounts, depreciation schedules and taxation returns; and
(ii) a copy of the partnership agreement;
(f) for a person or entity mentioned in paragraph (a), (c), (d) or (e) — any business activity statements for the 12 months ending immediately before the first court date;
(g) unless the value is agreed — a market appraisal or an opinion as to value in relation to any item of property in which a party has an interest.
Note All parties have a general duty of disclosure (see Chapter 13). For examples of the type of property about which disclosure must be made, see rule 13.04.
12.03 Case assessment conference
(1) A case assessment conference must be held in the presence of a Registrar.
(2) The purpose of a case assessment conference is:
(a) to enable the person conducting the conference to assess and make any recommendations about the appropriate future conduct of the case; and
(b) to enable the parties to attempt to resolve the case, or any part of the case, by agreement; and
(c) to determine whether the case:
(i) is suitable to remain in the Family Court; or
(ii) should be transferred to another court exercising jurisdiction under the Act.
(3) At a case assessment conference, each party must, as far as practicable, identify each of the following:
(a) any procedural orders sought;
(b) the agreed issues;
(c) the items to be included on the balance sheet;
(d) any areas of controversy about the assets, liabilities, superannuation and financial resources of the parties;
(e) any person who may be entitled to become a party to the case;
(f) any other relevant matter related to the main purpose of these Rules (see rule 1.04).
(4) If the case is not settled by the end of the conference, the court will make procedural orders for the future conduct of the matter, including:
(a) if appropriate — an order that the parties attend a conciliation conference; or
(b) if the case is suitable to be allocated the first day before the Judge — procedural orders under rule 12.08.
(5) If the proceedings also involve parenting issues and the case is not settled by the end of the conference, the parties may be ordered to attend the Child Responsive Program.
Note 1 A party and a party’s lawyer must attend a case assessment conference (see subrule 1.08 (3) and rule 12.11).
Note 2 A party to a parenting case must disclose a copy of an expert’s report no later than 2 days before a case assessment conference (see paragraph 15.55 (1) (a)).
Note 3 Evidence of a communication made at a case assessment conference may be excluded (see section 131 of the Evidence Act 1995).
12.04 Initial procedural hearing in a parenting case
(1) The purpose of an initial procedural hearing in a parenting case is:
(a) to enable the person conducting the hearing:
(i) to assess the case;
(ii) to make recommendations about the future conduct of the case; and
(iii) to determine whether the case is suitable to remain in the Family Court or should be transferred to another court exercising jurisdiction under the Act; and
(b) to enable the parties to attempt to resolve the case, or any part of the case, by agreement.
(2) If the case is not settled at the end of the hearing, the person conducting the hearing:
(a) must make procedural orders for the future conduct of the case; and
(b) may order the parties to attend the Child Responsive Program.
Note A party to a parenting case must disclose a copy of an expert’s report no later than 2 days before the first court event (see paragraph 15.55 (1) (a)).
12.05 Property case — exchange of documents before conciliation conference
(1) This rule applies to a party to a property case in which the parties are required to attend a conciliation conference.
(2) Within 28 days after the case assessment conference, each party must, as far as practicable, exchange with each other party:
(a) if not already exchanged, a copy of all the documents mentioned in rule 12.02; and
(b) any other documents ordered at the case assessment conference to be exchanged.
12.06 Financial questionnaire and balance sheet
(1) Within 21 days after the case assessment conference, each party must file a financial questionnaire in the form approved by the Principal Registrar.
(2) Within 28 days after the case assessment conference, the applicant must:
(a) prepare a balance sheet in the form approved by the Principal Registrar by completing all items and values asserted by the applicant; and
(b) send the balance sheet to the respondent.
(3) Within 21 days after receiving the balance sheet, the respondent must:
(a) add the respondent’s estimated values for all items on the balance sheet prepared by the applicant;
(b) add any items to the balance sheet the respondent asserts have been omitted from the balance sheet and assert values for those items;
(c) complete the notes relating to all disputed items and all disputed values for items; and
(d) return the amended balance sheet to the applicant.
(4) Within 14 days after receiving the amended balance sheet, the applicant must:
(a) add the applicant’s estimated values for all items added to the balance sheet by the respondent;
(b) complete the notes relating to all disputed items and all disputed values for items; and
(c) file the balance sheet with the court.
Note 1 For the service requirements for a document filed with the court, see rule 7.04.
Note 2 Subsection 131 (1) of the Evidence Act 1995 does not apply to the financial questionnaire or balance sheet.
12.07 Conduct of a conciliation conference
(1) A conciliation conference must be conducted by a judicial officer.
(2) Each party at a conciliation conference must make a genuine effort to reach agreement on the matters in issue between them.
Note 1 A party and a party’s lawyer must attend a conciliation conference (see subrule 12.11 (1)).
Note 2 Evidence of a communication made at a conciliation conference may be excluded (see section 131 of the Evidence Act 1995).
12.08 Procedural hearing in a financial case
(1) For a financial case:
(a) if a conciliation conference has been held — a procedural hearing must take place immediately after the conciliation conference ends; and
(b) if a conciliation conference is not scheduled to be held before the first day before the Judge, the procedural hearing must be held at the conclusion of the case assessment conference.
(2) The purpose of the procedural hearing in a financial case is to enable the person conducting the hearing to make procedural orders for the conduct of the case, including orders for any of the following matters:
(a) if a conciliation conference has been held:
(i) the clarification of any disputed items in the balance sheet; and
(ii) the clarification of any issue arising out of a statement made by a party in a financial questionnaire;
(b) payment of the hearing fee;
(c) filing of undertakings as to disclosure;
(d) allocating a date for a compliance check as close as practicable to 21 days before the first day before the Judge;
(e) allocating the first day before the Judge.
12.09 Procedural hearing after the Child Responsive Program
(1) A procedural hearing must take place as soon as practicable after the parties complete the Child Responsive Program.
(2) The purpose of the procedural hearing after the Child Responsive Program is to enable the person conducting the hearing to make procedural orders for the conduct of the case, including orders for any of the following matters:
(a) referring parties to family counselling, family dispute resolution and other family services;
(b) appointment of an independent children’s lawyer;
(c) payment of the hearing fee;
(d) completion by each party of a parenting questionnaire;
(e) filing of undertakings as to disclosure;
(f) allocating a date for a compliance check as close as practicable to 21 days before the first day before the Judge;
(g) allocating the first day before the Judge.
Note The court would usually order that the parties attend this event by electronic communication.
12.10 Procedural hearing where the application includes both a financial case and a parenting case
(1) This rule applies if:
(a) an application includes a financial case and a parenting case;
(b) the financial case remains unresolved after the conciliation conference; and
(c) the parenting case remains unresolved after the parties complete the Child Responsive Program.
(2) A procedural hearing must be held as soon as practicable after the later of:
(a) completion of the conciliation conference; or
(b) completion of the Child Responsive Program.
(3) The purpose of the procedural hearing is to enable the person conducting the hearing to take the actions mentioned in subrules 12.08 (2) and 12.09 (2).
Note The court would usually order that the parties attend this event by electronic communication.
12.10A Expedition
(1) A party may apply to expedite the first day before the Judge.
Note For the procedure for making an application in a case, see Chapter 5.
(2) The court may take into account:
(a) whether the applicant has acted reasonably and without delay in the conduct of the case;
(b) whether the application has been made without delay;
(c) any prejudice to the respondent; and
(d) whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.
(3) If the court is satisfied of the matters in subrule (2), the court may:
(a) set an early first day before the Judge; and
(b) make procedural orders for the further conduct of the case.
(4) For paragraph (2) (d), a relevant circumstance includes:
(a) whether the age, physical or mental health of, or other circumstance (such as an imminent move interstate or overseas) affecting, a party or witness would affect the availability or competence of the party or witness;
(b) whether a party has been violent, harassing or intimidating to another party, a witness or any child the subject of, or affected by, the case;
(c) whether the applicant is suffering financial hardship that:
(i) is not caused by the applicant; and
(ii) cannot be rectified by an interim order;
(d) whether the continuation of interim orders is causing the applicant or a child hardship;
(e) whether the purpose of the case will be lost if it is not heard quickly (for example, a job opportunity will be lost if not taken; property will be destroyed; an occasion will have passed);
(f) whether the case involves allegations of child sexual, or other, abuse; and
(g) whether an expedited trial would avoid serious emotional or psychological trauma to a party or child who is the subject of, or affected by, the case.
Part 12.4 Attendance at court events
12.11 Party’s attendance
(1) A party and the party’s lawyer (if any) must attend each procedural hearing, case assessment conference or conciliation conference.
(2) Subrule (1) does not apply if the parties are seeking a consent order that will finally dispose of the case.
Note 1 A request under rule 5.14 for an application to be determined in the absence of the parties does not apply to a court event mentioned in Chapter 12 because rule 5.14 applies only to interim, procedural or enforcement orders.
Note 2 If, at a court event mentioned in subrule (1), the parties intend to seek a consent order that will finally dispose of the case, a party or the party’s lawyer may be excused from attending the event.
Note 3 A lawyer attending a court event for a party must be familiar with the case and authorised to deal with any issue in the case (see subrule 1.08 (3)).
Note 4 Rule 16.02 deals with compliance checks.
12.12 Attendance by electronic communication
Rules 5.06 and 5.07 apply in relation to the use of electronic communication to attend a court event (other than a trial) as if the court event were a hearing.
Note Rule 16.05 sets out the requirements in relation to attending a trial by electronic communication.
12.13 Failure to attend court events
(1) If an applicant does not attend a case assessment conference or procedural hearing, the court may:
(a) dismiss the application; or
(b) make an order for the future conduct of the case.
(2) If a respondent does not attend a case assessment conference or procedural hearing, the court may:
(a) if respondent has not filed a Response to an Application for Final Orders — make the order sought in the application;
(b) list the case for dismissal or hearing on an undefended basis; or
(c) make an order for the future conduct of the case.
(3) If a party does not attend a conciliation conference, the court may:
(a) list the case for dismissal or hearing on an undefended basis; and
(b) make an order for the future conduct of the case.
Note See rules 11.01 and 11.02 for the court’s power to make orders for the conduct of a case.
Part 12.5 Adjournment and postponement of court events
12.14 Administrative postponement of conferences or procedural hearings
(1) If the applicant and any party served agree that a case assessment conference or a procedural hearing should not proceed on the date fixed for it, the applicant and any party served may request the Registry Manager to postpone the conference or hearing.
(2) A request must:
(a) be in writing;
(b) specify why it is appropriate to postpone the event;
(c) specify the date to which the event is sought to be postponed;
(d) be signed by each party making the request or the party’s lawyer; and
(e) be received by the Registry Manager no later than 12 noon on the day before the date fixed for the conference or 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.
(4) The Registry Manager must not postpone a conference more than once or any procedural hearing more than twice.
(5) A court event mentioned in subrule (1) must not be postponed to a date that is more than 8 weeks after the date fixed for the event.
Chapter 13 Disclosure
Summary of Chapter 13
Chapter 13 sets out the rules about:
· a party’s duty to make early, full and continuing disclosure of all information relevant to the case to each other party and the court; and
· the timing, extent and method of discharging the duty of disclosure and how the duty can be enforced.
The aim of disclosure is to help parties to focus on genuine issues, reduce cost and encourage settlement, of the case.
The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.
A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.
Disclosure between parties
(Parts 13.1, 13.2 and 13.3)
General duty of disclosure (Division 13.1.1)
Disclosure of documents (Division 13.2.1)
| By delivery | | Exceptions | | By inspection |
| (r 13.20) | | (r 13.12) | | (rr 13.10, 13.21) |
Orders relating to disclosure (Division 13.2.2)
Duty of disclosure — financial cases (Division 13.1.2)
Answers to specific questions (Part 13.3)
Information from non‑parties (Part 13.4)
| Employment information (Division 13.4.1) | | Production of documents (Division 13.4.2) |
Part 13.1 Disclosure between parties
Division 13.1.1 General duty of disclosure
13.01 General duty of disclosure
(1) Subject to subrule (3), each party to a case has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the case, in a timely manner.
Note Failure to comply with the duty may result in the court excluding evidence that is not disclosed or imposing a consequence, including punishment for contempt of court. This Chapter sets out a number of ways that a party is either required, or can be called upon, to discharge the party’s duty of disclosure, including:
(a) disclosure of financial circumstances (see Division 13.1.2);
(b) disclosure and production of documents (see Division 13.2.1); and
(c) disclosure by answering specific questions in certain circumstances (see Part 13.3).
(2) The duty of disclosure starts with the pre‑action procedure for a case and continues until the case is finalised.
Note The duty of disclosure applies to a case guardian for a child and a person with a disability (see subrule 6.13 (2)).
(3) This rule does not apply to a respondent in an application alleging contravention or contempt.
Division 13.1.2 Duty of disclosure — financial cases
13.02 Purpose of Division 13.1.2
(1) This Division sets out the duty of disclosure required by parties to a financial case.
(2) This Division does not apply to a party to a property case who is not a party to the marriage or de facto relationship to which the application relates, except to the extent that the party’s financial circumstances are relevant to the issues in dispute.
13.03 Definition
In this Division:
party to a financial case includes a payee or other respondent to an enforcement application.
13.04 Full and frank disclosure
(1) A party to a financial case must make full and frank disclosure of the party’s financial circumstances, including:
(a) the party’s earnings, including income that is paid or assigned to another party, person or legal entity;
(b) any vested or contingent interest in property;
(c) any vested or contingent interest in property owned by a legal entity that is fully or partially owned or controlled by a party;
(d) any income earned by a legal entity fully or partially owned or controlled by a party, including income that is paid or assigned to any other party, person or legal entity;
(e) the party’s other financial resources;
(f) any trust:
(i) of which the party is the appointor or trustee;
(ii) of which the party, the party’s child, spouse or de facto spouse is an eligible beneficiary as to capital or income;
(iii) of which a corporation is an eligible beneficiary as to capital or income if the party, or the party’s child, spouse or de facto spouse is a shareholder or director of the corporation;
(iv) over which the party has any direct or indirect power or control;
(v) of which the party has the direct or indirect power to remove or appoint a trustee;
(vi) of which the party has the power (whether subject to the concurrence of another person or not) to amend the terms;
(vii) of which the party has the power to disapprove
a proposed amendment of the terms or the appointment or removal of a trustee; or
(viii) over which a corporation has a power mentioned in any of subparagraphs (iv) to (vii), if the party, the party’s child, spouse or de facto spouse is a director or shareholder of the corporation;
(g) any disposal of property (whether by sale, transfer, assignment or gift) made by the party, a legal entity mentioned in paragraph (c), a corporation or a trust mentioned in paragraph (f) that may affect, defeat or deplete a claim:
(i) in the 12 months immediately before the separation of the parties; or
(ii) since the final separation of the parties; and
(h) liabilities and contingent liabilities.
(2) Paragraph (1) (g) does not apply to a disposal of property made with the consent or knowledge of the other party or in the ordinary course of business.
(3) In this rule:
legal entity means a corporation (other than a public company), trust, partnership, joint venture business or other commercial activity.
Note The requirements in this rule are in addition to the requirements in rules 12.02 and 12.05 to exchange certain documents before a conference in a property case.
13.05 Financial statement
(1) A party starting, or filing a response or reply to, a financial case (other than by an Application for Consent Orders) must file a Financial Statement at the same time.
(2) If a party is aware that the completion of a Financial Statement will not fully discharge the duty to make full and frank disclosure, the party must also file an affidavit giving further particulars.
Note The court may order a party to file an affidavit giving further particulars in relation to the party’s financial affairs.
13.06 Amendment of Financial Statement
If a party’s financial circumstances have changed significantly from the information set out in the Financial Statement or the affidavit filed under rule 13.05, the party must, within 21 days after the change of circumstances, file:
(a) a new Financial Statement; or
(b) if the amendments can be set out clearly in 300 words or less — an affidavit containing details about the party’s changed financial circumstances.
Part 13.2 Duty of disclosure — documents
Division 13.2.1 Disclosure of documents — all cases
13.07 Duty of disclosure — documents
The duty of disclosure applies to each document that:
(a) is or has been in the possession, or under the control, of the party disclosing the document; and
(b) is relevant to an issue in the case.
Note 1 For documents that parties must produce to the court:
(a) on the first court date for a Maintenance Application, see rule 4.15;
(b) on the first court date for a child support application or appeal, see rule 4.26 (2);
(c) at a conference in a property case, see Part 12.2; and
(d) at a trial, see Chapters 15 and 16.
Note 2 Rule 13.15 provides that a party must file a written notice about the party’s duty of disclosure.
Note 3 Rule 15.76 provides that a party may give another party a notice to produce a specified document at a hearing or trial.
Note 4 A document disclosed to a party must be used for the purposes of the case only and must not be used for any other purpose without the consent of the other party or an order.
13.08 Inspection of documents
(1) A party may, by written notice, require another party to provide a copy of, or produce for inspection, a document referred to:
(a) in a document filed or served by a party on another party or independent children’s lawyer; or
(b) in correspondence prepared and sent by or to another party or independent children’s lawyer.
(2) A party required to provide a copy of a document must provide the copy within 21 days after receiving the written notice.
13.09 Production of original documents
A party may, by written notice, require another party to produce for inspection an original document if the document is a document that must be produced under the duty of disclosure.
13.10 Disclosure by inspection of documents
(1) If a party is required to produce a document for inspection under rule 13.08 or 13.09, the party must:
(a) notify, in writing, the party requesting the document of a convenient place and time to inspect the document;
(b) produce the document for inspection at that place and time; and
(c) allow copies of the document to be made, at the expense of the party requesting it.
(2) The time fixed under paragraph (1) (a) must be within 21 days after the party receives a written notice under rule 13.08 or 13.09 or as otherwise agreed.
Note The court may shorten or extend the time for compliance with a rule (see rule 1.14).
13.11 Costs for inspection
A party who fails to inspect a document under a notice
given under rule 13.08 or 13.09 or paragraph 13.20 (3) (a)
may not later do so unless the party tenders an amount
for the reasonable costs of providing another opportunity for inspection.
Note The court may, on application, order that a party not pay costs (see rule 1.12).
13.12 Documents that need not be produced
Subject to rule 15.55, a party must disclose, but need not produce to the party requesting it:
(a) a document for which there is a claim for privilege from disclosure; or
(b) a document a copy of which is already disclosed, if the copy contains no change, obliteration or other mark or feature that is likely to affect the outcome of the case.
Note Rule 13.13 sets out the requirements for challenging a claim of privilege from disclosure.
13.13 Objection to production
(1) This rule applies if:
(a) a party claims:
(i) privilege from production of a document; or
(ii) that the party is unable to produce a document; and
(b) another party, by written notice, challenges the claim.
(2) The party making the claim must, within 7 days after the other party challenges the claim, file an affidavit setting out details of the claim.
Note If there is a dispute about disclosure, an application may be made to the court (see rules 13.18 and 13.22).
13.14 Consequence of non‑disclosure
If a party does not disclose a document as required under these Rules:
(a) the party:
(i) must not offer the document, or present evidence of its contents, at a hearing or trial without the other party’s consent or the court’s permission;
(ii) may be guilty of contempt for not disclosing the document; and
(iii) may be ordered to pay costs; and
(b) the court may stay or dismiss all or part of the party’s case.
Note 1 Under rule 15.76, a party who discloses a document under this Part must produce the document at the trial if a notice to produce has been given.
Note 2 Section 112AP of the Act sets out the court’s powers in relation to contempt of court.
13.15 Undertaking by party
(1) A party (except an independent children’s lawyer) must file a written notice:
(a) stating that the party:
(i) has read Parts 13.1 and 13.2 of these Rules; and
(ii) is aware of the party’s duty to the court and each other party (including any independent children’s lawyer) to give full and frank disclosure of all information relevant to the issues in the case, in a timely manner;
(b) undertaking to the court that, to the best of the party’s knowledge and ability, the party has complied with, and will continue to comply with, the duty of disclosure; and
(c) acknowledging that a breach of the undertaking may be contempt of court.
(2) A party commits an offence if the party makes a statement or signs an undertaking the party knows, or should reasonably have known, is false or misleading in a material particular.
Penalty: 50 penalty units.
Note Subrule (2) is in addition to the court’s powers under section 112AP of the Act relating to contempt and the court’s power to make an order for costs.
(3) If the court makes an order against a party under section 112AP of the Act in respect of a false or misleading statement mentioned in subrule (2), the party must not be charged with an offence against subrule (2) in respect of that statement.
(4) A notice under subrule (1) must comply with subrule 24.01 (1) and be as follows:
‘This Notice is filed in accordance with rule 13.15 of the Family Law Rules 2004.
I [insert name]:
(a) have read Parts 13.1 and 13.2 of the Family Law Rules 2004;
(b) am aware of my duty to the court and to each other party (including any independent children’s lawyer) to give full and frank disclosure of all information relevant to the issues in the case, in a timely manner; and
(c) undertake to the court that, to the best of my knowledge and ability, I have complied with, and will continue to comply with, my duty of disclosure.
I understand the nature and terms of this undertaking and that if I breach the undertaking, I may be guilty of contempt of court.
| ……………………………… | ……………………………… |
| (signature of person making statement) | (full name of person making statement) |
| ……………………………… | |
| (date of signature) | |
| ……………………………… | ……………………………… |
| (signature of witness) | (full name of witness) |
| ……………………………… | |
| (date of signature) | |
Note 1 For the consequences of failing to comply with this rule, see rule 11.02.
Note 2 A party who breaches an undertaking may be found guilty of contempt of court and may be punished by imprisonment (see section 112AP of the Act).
13.16 Time for filing undertaking
A notice under rule 13.15 must be filed at least 28 days before the first day before the Judge.
Note The court may shorten or extend the time for compliance with a rule (see rule 1.14).
Division 13.2.2 Disclosure of documents — certain applications
13.17 Application of Division 13.2.2
This Division applies to the following applications:
(a) an application for divorce;
(b) an Application in a Case;
(c) an application for an order that a marriage is a nullity or a declaration as to the validity of a marriage, divorce or annulment;
(d) a Maintenance Application;
(e) a child support application or appeal;
(f) a Contravention Application;
(g) a Contempt Application.
13.18 Party may seek order about disclosure
A party to an application to which this Division applies may seek only the following orders about disclosure:
(a) that another party deliver a copy of a document;
(b) that another party produce a document for inspection by another party.
Division 13.2.3 Disclosure of documents — Initiating Applications (Family Law)
13.19 Application of Division 13.2.3
(1) This Division applies to all Initiating Applications (Family Law), except:
(a) an application for an order that a marriage is a nullity or a declaration as to the validity of a marriage, divorce or annulment;
(b) a Maintenance Application;
(c) a child support application or appeal; or
(d) an Initiating Application (Family Law) seeking an interim, procedural, ancillary or other incidental order.
(2) This Division does not affect:
(a) the right of a party to inspect a document, if the party has a common interest in the document with the party who has possession or control of the document;
(b) another right of access to a document other than under this Division; or
(c) an agreement between the parties for disclosure by a procedure that is not described in this Division.
13.20 Disclosure by service of a list of documents
(1) After a case has been allocated to a first day before the Judge, a party (the requesting party) may, by written notice, ask another party (the disclosing party) to give the requesting party a list of documents to which the duty of disclosure applies.
(2) The disclosing party must, within 21 days after receiving the notice, serve on the requesting party a list of documents identifying:
(a) the documents to which the duty of disclosure applies;
(b) the documents no longer in the disclosing party’s possession or control to which the duty would otherwise apply (with a brief statement about the circumstances in which the documents left the party’s possession or control); and
(c) the documents for which privilege from production is claimed.
Note Rule 13.07 sets out the documents to which the duty of disclosure applies.
(3) The requesting party may, by written notice, ask the disclosing party to:
(a) produce a document for inspection; or
(b) provide a copy of a document.
(4) The disclosing party must, within 14 days after receiving a notice under paragraph (3) (b), give the requesting party, at the requesting party’s expense, the copies requested, other than copies of documents:
(a) in relation to which privilege from production is claimed; or
(b) that are no longer in the disclosing party’s possession or control.
(5) If a document that must be disclosed is located by, or comes into the possession or control of, a disclosing party after disclosure under subrule (2), the party must disclose the document within 7 days after it is located or comes into the party’s possession or control.
Note Rule 13.07 sets out the documents to which the duty of disclosure applies.
13.21 Disclosure by inspection of documents
(1) This rule applies if:
(a) a party has requested the production of a document for inspection under paragraph 13.20 (3) (a); or
(b) it is not convenient for a disclosing party to provide copies of documents under paragraph 13.20 (3) (b) because of the number and size of the documents.
(2) The disclosing party must, within 14 days after receiving the notice under subrule 13.20 (3):
(a) notify the requesting party, in writing, of a convenient place and time at which the documents may be inspected;
(b) produce the documents for inspection at that place and time; and
(c) allow copies of the documents to be made at the requesting party’s expense.
13.22 Application for order for disclosure
(1) A party may seek an order that:
(a) another party comply with a request for a list of documents in accordance with rule 13.20;
(b) another party disclose a specified document, or class of documents, by providing to the other party a copy of the document, or each document in the class, for inspection by the other party;
(c) another party produce a document for inspection;
(d) a party file an affidavit stating:
(i) that a specified document, or class of documents, does not exist or has never existed; or
(ii) the circumstances in which a specified document or class of documents ceased to exist or passed out of the possession or control of that party; or
(e) the party be partly or fully relieved of the duty of disclosure.
(2) A party making an application under subrule (1) must satisfy the court that the order is necessary for disposing of the case or an issue or reducing costs.
Note 1 Before making an application under this Chapter, a party must make a reasonable and genuine attempt to settle the issue to which the application relates (see rule 5.03).
Note 2 An application under this Chapter is made by filing an Application in a Case and an affidavit (see rules 5.01 and 5.02). The court may allow an oral application at the conciliation conference or another court event.
(3) In making an order under subrule (1), the court may consider:
(a) whether the disclosure sought is relevant to an issue in dispute;
(b) the relative importance of the issue to which the document or class of documents relates;
(c) the likely time, cost and inconvenience involved in disclosing a document or class of documents taking into account the amount of the property, or complexity of the corporate, trust or partnership interests (if any), involved in the case; and
(d) the likely effect on the outcome of the case of disclosing, or not disclosing, the document or class of documents.
(4) If the disclosure of a document is necessary for the purpose of resolving a case at the conciliation conference, a party (the requesting party) may, at the first court event, seek an order that another party:
(a) provide a copy of the document to the requesting party; or
(b) produce the document to the requesting party for inspection and copying.
(5) The court may only make an order under subrule (4) in exceptional circumstances.
(6) If a party objects to the production of a document for inspection or copying, the court may inspect the document to decide the objection.
13.23 Costs of compliance
If the cost of complying with the duty of disclosure would be oppressive to a party, the court may order another party to:
(a) pay the costs;
(b) contribute to the costs; or
(c) give security for costs.
13.24 Electronic disclosure
The court may make an order directing disclosure of documents by electronic communication.
Part 13.3 Answers to specific questions
13.25 Application of Part 13.3
This Part applies to all applications seeking final orders, except:
(a) an application for an order that a marriage is a nullity or a declaration as to the validity of a marriage, divorce or annulment;
(b) a Maintenance Application;
(c) a child support application or appeal; or
(d) an Initiating Application (Family Law) seeking an interim, procedural, ancillary or other incidental order.
13.26 Service of specific questions
(1) After a case has been allocated to a first day before a Judge, a party (the requesting party) may serve on another party (the answering party) a request to answer specific questions.
(2) A party may only serve one set of specific questions on another party.
(3) The specific questions must:
(a) be in writing;
(b) be limited to 20 questions (with each question taken to be one specific question); and
(c) not be vexatious or oppressive.
(4) If an answering party is required, by a written notice served under rule 13.20 or an order, to give the requesting party a list of documents, the answering party is not required to answer the questions until the time for disclosure under Part 13.2 or an order has expired.
(5) The requesting party must serve a copy of any request to answer specific questions on all other parties.
13.27 Answering specific questions
(1) A party on whom a request to answer specific questions is served must answer the questions in an affidavit that is filed and served on each person to be served within 21 days after the request was served.
(2) The party must, in the affidavit:
(a) answer, fully and frankly, each specific question; or
(b) object to answering a specific question.
(3) An objection under paragraph (2) (b) must:
(a) specify the grounds of the objection; and
(b) briefly state the facts in support of the objection.
13.28 Orders in relation to specific questions
(1) A party may apply for an order:
(a) that a party comply with rule 13.27 and answer, or further answer, a specific question served on the party under rule 13.26;
(b) determining the extent to which a question must be answered;
(c) requiring a party to state specific grounds of objection;
(d) determining the validity of an objection; or
(e) that a party who has not answered, or who has given an insufficient answer, to a specific question be required to attend court to be examined.
(2) In considering whether to make an order under subrule (1), the court may take into account whether:
(a) the requesting party is unlikely, at the trial, to have another reasonably simple and inexpensive way of proving the matter sought to be obtained by the specific questions;
(b) answering the questions will cause unacceptable delay or undue expense; and
(c) the specific questions are relevant to an issue in the case.
Part 13.4 Information from non‑parties
Division 13.4.1 Employment information
13.29 Purpose of Division 13.4.1
This Division sets out the information a party may require from an employer of a party to a financial case.
13.30 Employment information
(1) The court may order a party to advise the court, in writing, within a specified time, of:
(a) the name and address of the party’s employer or, if the party has more than one employer, each of those employers; and
(b) other information the court considers necessary to enable an employer to identify the party.
(2) Subrule (3) applies if:
(a) a party (the requesting party) requests the employer of another party (the employee) to give particulars about:
(i) the employer’s indebtedness to the employee;
(ii) the employee’s present rate of earnings, or of all the earnings of the employee that became payable during a specified period; or
(iii) the employee’s conditions of employment; and
(b) the employer refuses, or fails to respond to, the requesting party’s request.
(3) The requesting party may apply for an order that the employer advise the court, in writing, within a specified time, of the particulars mentioned in paragraph (2) (a).
Note A document purporting to be a statement within the meaning of subrule (1) or (2) may be admitted as evidence of its contents (see section 48 of the Evidence Act 1995). However, subject to sections 4 and 5 of the Evidence Act 1995, that Act does not apply to the Family Court of Western Australia or any other court of a State.
Chapter 14 Property orders
Summary of Chapter 14
Chapter 14 sets out the procedure to be taken in property cases to obtain orders for inspection, detention, possession, valuation, insurance, preservation of property and with respect to a superannuation interest.
An application made under this Chapter must be in an Initiating Application (Family Law) seeking interim, procedural, ancillary or incidental orders, or an Application in a Case (see Chapter 5 for the procedure).
The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.
A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.
14.01 Orders about property
(1) The court may make an order for the inspection, detention, possession, valuation, insurance or preservation of property if:
(a) the order relates to the property of a party, or a question may arise about the property in a case; and
(b) the order is necessary to allow the proper determination of a case.
(2) The court may order a party:
(a) to sell or otherwise dispose of property that will deteriorate, decay or spoil; and
(b) to deal with the proceeds of the sale or disposal in a certain way.
(3) A party may ask the court to make an order in relation to property authorising a person to:
(a) enter, or to do another thing to gain entry or access to, the property;
(b) make observations, and take photographs, of the property;
(c) observe or read images or information contained in the property including, for example, playing a tape, film or disk, or accessing computer files; or
(d) copy the property or information contained in the property.
(4) If the court makes an order under this rule, it may also order a party to pay the costs of a person who is not a party to the case and who must comply with the order.
(5) The court may make an order under subrule (1) binding on, or otherwise affecting, a person who is not a party to a case.
Note For the procedure for making an application for interim, procedural, ancillary or other incidental orders, see Chapter 5.
14.02 Service of application
(1) A party who has applied for an order under rule 14.01 must:
(a) make a reasonable attempt to find out who has, or claims to have, an interest in the property to which the application relates; and
(b) serve the application and any supporting affidavits on that person.
(2) The court may allow an application for an order under this Part to be made without notice.
14.03 Inspection
A party may apply for an order that the court inspect a place, process or thing, or witness a demonstration, about which a question arises in a case.
Note For the procedure for making an application in a case, see Chapter 5.
14.04 Application for Anton Piller order
(1) A party may apply for an Anton Piller order:
(a) requiring a respondent to permit the applicant, alone or with another person, to enter the respondent’s premises and inspect or seize documents or other property;
(b) requiring the respondent to disclose specific information relevant to the case; and
(c) restraining the respondent, for a specified period of no more than 7 days, from informing anyone else (other than the respondent’s lawyer) that the order has been made.
(2) The applicant may apply for an Anton Piller order without notice to the respondent.
(3) An application for an Anton Piller order must be supported by an affidavit that includes:
(a) a description of the document or property to be seized or inspected;
(b) the address of the premises where the order is to be carried out;
(c) the reason the applicant believes the respondent may remove, destroy or alter the document or property unless the order is made;
(d) a statement about the damage the applicant is likely to suffer if the order is not made;
(e) a statement about the value of the property to be seized; and
(f) if permission is granted, the name of the person (if any) who the applicant wishes to accompany the applicant to the respondent’s premises.
Note For the procedure for making an application for interim, procedural, ancillary or other incidental orders, see Chapter 5.
(4) If an Anton Piller order is made, the applicant must serve a copy of it on the respondent when the order is acted on.
14.05 Application for Mareva order
(1) A party may apply for a Mareva order restraining another person from removing property from Australia, or dealing with property in or outside Australia, if:
(a) the order will be incidental to an existing or prospective order made in favour of the applicant; or
(b) the applicant has an existing or prospective claim that is able to be decided in Australia.
(2) The applicant must file with the application an affidavit that includes:
(a) a description of the nature and value of the respondent’s property, so far as it is known to the applicant, in and outside Australia;
(b) the reason why the applicant believes:
(i) property of the respondent may be removed from Australia; and
(ii) dealing with the property should be restrained by order;
(c) a statement about the damage the applicant is likely to suffer if the order is not made;
(d) a statement about the identity of anyone, other than the respondent, who may be affected by the order and how the person may be affected; and
(e) if the application is made under paragraph (1) (b), the following information about the claim:
(i) the basis of the claim;
(ii) the amount of the claim;
(iii) if the application is made without notice to the respondent, a possible response to the claim.
Note For the procedure for making an application for interim, procedural, ancillary or other incidental orders, see Chapter 5.
14.06 Notice to superannuation trustee
(1) This rule applies in a property case if:
(a) a party seeks an order to bind the trustee of an eligible superannuation plan; and
(b) the case has been listed for the first day before the Judge.
(2) The party must, not less than 28 days before the first day before the Judge, notify the trustee of the eligible superannuation plan in writing of the terms of the order that will be sought at the trial to bind the trustee, and the date of the trial.
(3) If the court makes an order binding the trustee of an eligible superannuation plan, the party that sought the order must serve a copy of the order on the trustee of the eligible superannuation plan in which the interest is held.
Note 1 Subrule 7.13 (2) sets out how to prove service of a copy of an order.
Note 2 Eligible superannuation plan is defined in section 90MD of the Act.
14.07 Notice about intervention under Part VIII or VIIIAB of Act
(1) A person who applies for an order under Part VIII of the Act must serve a written notice on each person mentioned in subsection 79 (10) of the Act.
(2) A person who applies for an order under Part VIIIAB of the Act must serve a written notice on each person mentioned in subsection 90SM (10) of the Act.
(3) The notice must:
(a) state that the person to whom the notice is addressed may be entitled to become a party to the case under the subsection of the Act for which the notice is served;
(b) include a copy of the application for the order sought; and
(c) state the date of the next relevant court event.
Chapter 15 Evidence
Summary of Chapter 15
Chapter 15 sets out rules about evidence generally and in relation to children, affidavits, subpoenas, assessors and expert witnesses. Evidence adduced at a hearing or trial must be admissible in accordance with the provisions of the Act, the Evidence Act 1995 and these Rules. Note, though, that, subject to sections 4 and 5 of the Evidence Act 1995, that Act does not apply to the Family Court of Western Australia or any other court of a State.
A person may be prosecuted for knowingly making a false statement in evidence (see section 35 of the Crimes Act 1914).
Sections 69ZT to 69ZX of the Act apply to a case to which Division 12A of Part VII of the Act applies.
The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.
A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.
15.01 Definition
In this Chapter:
relevant date, for an affidavit, report or document proposed to be entered into evidence, means the earlier of:
(a) the first day of the final stage of the trial in which the affidavit, report or document is to be relied on in evidence; or
(b) the first day when the affidavit, report or document is to be relied on in evidence.
Part 15.1 Children
15.02 Restriction on child’s evidence
(1) A party applying to adduce the evidence of a child under section 100B of the Act must file an affidavit that:
(a) sets out the facts relied on in support of the application;
(b) includes the name of a support person; and
(c) attaches a summary of the evidence to be adduced from the child.
Note For the procedure for making an application in a case, see Chapter 5.
(2) If the court makes an order in relation to an application mentioned in subrule (1), it may order that:
(a) the child’s evidence be given by way of affidavit, video conference, closed circuit television or other electronic communication; and
(b) a person named in the order as a support person be present with the child when the child gives evidence.
Note Subsections 100B (1) and (2) of the Act provide that a child (other than a child who is, or is seeking to become, a party to a case) must not swear an affidavit and must not be called as a witness or remain in court unless the court otherwise orders.
15.04 Family reports
If a family report is prepared in a case, the court may:
(a) release copies of the report to each party, or the party’s lawyer, and to an independent children’s lawyer;
(b) receive the report in evidence;
(c) permit oral examination of the person making the report; and
(d) order that the report not be released to a person or that access to the report be restricted.
Part 15.2 Affidavits
Note The filing of an affidavit does not make it become evidence. It is only when the affidavit is relied upon by a party at a hearing or trial that it becomes, for that hearing or trial (subject to any rulings on admissibility), part of the evidence.
15.05 No general right to file affidavits
A party may file an affidavit without the leave of the court only if a provision of the Rules or an order of the court allows the affidavit to be filed in that way.
15.06 Reliance on affidavits
An affidavit filed with an application may be relied on in evidence only for the purpose of the application for which it was filed.
Note The court may dispense with compliance with a rule (see rule 1.12).
15.08 Form of affidavit
An affidavit must:
(a) be divided into consecutively numbered paragraphs, with each paragraph being, as far as possible, confined to a distinct part of the subject matter;
(b) state, at the beginning of the first page:
(i) the file number of the case for which the affidavit is sworn;
(ii) the full name of the party on whose behalf the affidavit is filed; and
(iii) the full name of the deponent;
(c) have a statement at the end specifying:
(i) the name of the witness before whom the affidavit is sworn and signed; and
(ii) the date when, and the place where, the affidavit is sworn and signed; and
(d) bear the name of the person who prepared the affidavit.
Note An affidavit must comply with subrule 24.01 (1), including being legibly printed by machine.
15.09 Making an affidavit
(1) An affidavit must be:
(a) confined to facts about the issues in dispute;
(b) confined to admissible evidence;
(c) sworn by the deponent, in the presence of a witness;
(d) signed at the bottom of each page by the deponent and the witness; and
(e) filed after it is sworn.
(2) Any insertion in, erasure or other alteration of, an affidavit must be initialled by the deponent and the witness.
(3) A reference to a date (except the name of a month), number or amount of money must be written in figures.
Examples
1. The second of July, Nineteen Hundred and Sixty‑Four must be written as ‘2 July 1964’.
2. Twenty dollars must be written as ‘$20.00’.
Note 1 Rule 24.07 sets out the requirements for filing an affidavit by electronic communication.
15.10 Affidavit of illiterate or blind person etc
(1) If a deponent is illiterate, blind, or physically incapable of signing an affidavit, the witness before whom the affidavit is made must certify, at the end of the affidavit, that:
(a) the affidavit was read to the deponent;
(b) the deponent seemed to understand the affidavit; and
(c) for a deponent physically incapable of signing — the deponent indicated that the contents were true.
(2) If a deponent does not have an adequate command of English:
(a) a translation of the affidavit and oath must be read or given in writing to the deponent in a language that the deponent understands; and
(b) the translator must certify that the affidavit has been translated.
15.11 Affidavit outside Australia
A person may make an affidavit outside Australia in accordance with:
(a) this Part; or
(b) the law of the place where the person makes the affidavit.
15.12 Documents attached
(1) A document to be used in conjunction with an affidavit must:
(a) subject to subrules (2) and (5), be attached to the affidavit;
(b) have its pages consecutively numbered beginning on the first page of the document with:
(i) if the document is the first or only document used in conjunction with the affidavit — the numeral ‘1’; or
(ii) if the document is not the first document used in conjunction with the affidavit — the numeral following the numeral appearing on the last page of the preceding document; and
(c) bear a statement, signed by the witness before whom the affidavit is made, identifying it as the document used in conjunction with the affidavit.
(2) A document to be used in conjunction with an affidavit must not be attached to the affidavit if:
(a) the document is more than 2.5 cm in thickness; or
(b) if the document is not more than 2.5 cm in thickness — the document and the affidavit, including any other documents to be used in conjunction with the affidavit, when combined are more than 2.5 cm in thickness.
(3) If a document to be used in conjunction with an affidavit must not be attached to the affidavit because of subrule (2), the document must be filed:
(a) if the document is not more than 2.5 cm in thickness — in a separate volume; or
(b) if the document is more than 2.5 cm in thickness — in as many separately indexed volumes, each not more than 2.5cm in thickness, as are required to contain the document.
(4) An index of contents must be included at the beginning of:
(a) if more than 1 document is attached to an affidavit in accordance with paragraph (1) (a) — the documents attached to the affidavit; or
(b) if more than 1 volume is filed in accordance with paragraph (3) (b) — each volume.
(5) If a document to be used in conjunction with an affidavit is unable to be attached to the affidavit, the document must be identified in the affidavit and filed.
(6) Paragraph (1) (c) does not apply to an attachment to an Affidavit of Service .
15.13 Striking out objectionable material
(1) The court may order material to be struck out of an affidavit if the material:
(a) is inadmissible, unnecessary, irrelevant, unreasonably long, scandalous or argumentative; or
(b) sets out the opinion of a person who is not qualified to give it.
(2) If the court orders material to be struck out of an affidavit, the party who filed the affidavit may be ordered to pay the costs thrown away of any other party because of the material struck out.
15.14 Notice to attend for cross‑examination
(1) This rule applies only to a trial.
(2) A party seeking to cross‑examine a deponent must, at least 14 days before the relevant date, give to the party who filed the affidavit a written notice stating the name of the deponent who is required to attend court for cross‑examination.
(3) If a deponent fails to attend court in response to a notice under subrule (2), the court may:
(a) refuse to allow the deponent’s affidavit to be relied on;
(b) allow the affidavit to be relied on only on the terms ordered by the court; or
(c) order the deponent to attend for cross‑examination.
(4) If:
(a) a deponent attends court in response to a notice under subrule (2); and
(b) the deponent is not cross‑examined, or the cross‑examination is of little or no evidentiary value;
the party who required the deponent’s attendance may be ordered to pay the deponent’s costs for attending and any costs incurred by the other party because of the notice.
15.15 Deponent’s attendance and expenses
The court may make orders for the attendance, and the payment of expenses, of a deponent who attends court for cross‑examination under rule 15.14.
Part 15.3 Subpoenas
Division 15.3.1 General
15.16 Interpretation
(1) In this Part:
court date means the date specified in a subpoena for attending court to give the evidence or produce the document mentioned in the subpoena.
issuing party means the party for whom a subpoena is issued.
named person means a person required by a subpoena to produce a document or give evidence.
(2) In this Part, a reference to a document includes a reference to an object.
Note See section 25 of the Acts Interpretation Act 1901 for the definition of document.
15.17 Issuing a subpoena
(1) Subject to rule 22.34, the court may issue:
(a) a subpoena for production;
(b) a subpoena to give evidence; or
(c) a subpoena for production and to give evidence.
(2) Subject to rule 15.21, the court will issue a subpoena mentioned in subrule (1) at the request of a party only if:
(a) the party has requested permission from the court; and
(b) the court has granted permission.
Note A request for permission should generally be made at a court event.
(3) For subrule (2), a request for the court’s permission:
(a) may be made orally or in writing;
(b) may be made without giving notice to any other parties; and
(c) may be determined in chambers in the absence of the other parties.
(4) A subpoena must identify the person to whom it is directed by name or description of office.
(5) A subpoena may be directed to 2 or more persons if:
(a) the subpoena is to give evidence only; or
(b) the subpoena requires the production of the same documents from each named person.
(6) A subpoena for production:
(a) must identify the document to be produced and the time and place for production; and
(b) may require the named person to produce the document before the date of the trial.
15.18 Subpoena not to issue in certain circumstances
The court must not issue a subpoena:
(a) at the request of a self‑represented party, unless the party has first obtained the Registrar’s permission to make the request; or
(b) for production of a document in the custody of the court or another court.
Note 1 Rule 15.34 sets out the procedure to be followed when a party seeks to produce to the court a document from another court.
Note 2 A prisoner required to give evidence at a hearing must do so by electronic communication, if practicable. Otherwise the party requiring the prisoner’s attendance must seek an order for the prisoner’s personal attendance (see rule 5.07).
15.20 Amendment of subpoena
A subpoena that has been issued but not served may be amended by the issuing party filing the amended subpoena with the amendments clearly marked.
15.21 Subpoenas to produce documents
A party or an independent children’s lawyer may seek the issue of a subpoena to produce documents for the hearing of an application seeking interim, procedural, ancillary or other incidental orders without permission from the court.
15.22 Service
(1) A subpoena must be served on the named person by hand.
(2) A subpoena must not be served on a child without the court’s permission.
Note For service generally, see Chapter 7. For particular requirements in relation to service of a subpoena to produce documents, see rule 15.28.
15.23 Conduct money and witness fees
(1) A named person is entitled to be paid conduct money by the issuing party at the time of service of the subpoena, of an amount that is:
(a) sufficient to meet the reasonable expenses of complying with the subpoena; and
(b) at least equal to the minimum amount mentioned in Part 1 of Schedule 4.
(2) A named person served with a subpoena to give evidence and a subpoena to give evidence and produce documents is entitled to be paid a witness fee by the issuing party in accordance with Part 2 of Schedule 4, immediately after attending court in compliance with the subpoena.
(3) A named person may apply to be reimbursed if the named person incurs a substantial loss or expense that is greater than the amount of the conduct money or witness fee payable under this rule.
15.24 When compliance is not required
(1) A named person does not have to comply with the subpoena if:
(a) the named person was not served in accordance with these Rules (see rule 15.22 and subrule 15.28 (1)); or
(b) conduct money was not tendered to the person at the time of service or within a reasonable time before the court date.
(2) If a named person is not to be called to give evidence or produce a document to the court in compliance with the subpoena, the issuing party may excuse the named person from complying with the subpoena.
15.25 Discharge of subpoena obligation
(1) A subpoena remains in force until the earliest of the following events:
(a) the subpoena is complied with;
(b) the issuing party or the court releases the named person from the obligation to comply with the subpoena;
(c) the hearing or trial is concluded.
(2) For paragraph (1) (c), a trial or hearing is concluded when all parties have finished presenting their case.
15.26 Objection to subpoena
If a named person or a person having sufficient interest in a subpoena:
(a) seeks an order that the subpoena be set aside in whole or in part;
(b) objects to the production of a document required by the subpoena;
(c) seeks to be paid for any loss or expense relating to the person’s attendance, or the production of a document, in compliance with the subpoena; or
(d) seeks any other relief in relation to the subpoena;
the person must attend court on the court date to apply for the order.
Note An application to set aside a subpoena issued in an appeal will be listed for determination before the court hearing the appeal.
Division 15.3.2 Production of documents and access by parties
15.27 Application of Division 15.3.2
(1) This Division applies to a subpoena for production.
(2) A person who inspects or copies a document under these Rules or an order must:
(a) use the document for the purpose of the case only; and
(b) not disclose the contents of the document or give a copy of it to any other person without the court’s permission.
15.28 Service of subpoena for production
(1) A party who requests the issue of a subpoena for production must, at least 7 days before the court date:
(a) serve the named person, by hand, with:
(i) the subpoena;
(ii) a brochure called Subpoena (Information for Named Person), approved by the Principal Registrar giving information about subpoenas; and
(iii) if the party intends to rely on rule 15.30 — the written notice mentioned in subrule 15.30 (2); and
(b) serve all other parties and the independent children’s lawyer (if any), by ordinary service, with a copy of the subpoena for production and, if applicable, the notice mentioned in subparagraph (a) (iii).
(2) At the time of service of the subpoena, the named person must be paid conduct money under subrule 15.23 (1).
Note 1 A person may ask permission to serve a subpoena at a later time than that set out in subrule (1) (see rule 1.14).
Note 2 Paragraph 15.17 (5) (b) provides that a subpoena for production may require the named person to produce a document before the date of the trial.
15.29 Compliance with subpoena
(1) A named person may comply with a subpoena for production by:
(a) attending, on the court date, at the place specified in the subpoena and providing the documents to the court; or
(b) no later than 2 days before the court date:
(i) producing the documents to the Registry Manager together with a copy of the subpoena; or
(ii) producing copies of the documents attached to an affidavit.
(2) For subparagraph (1) (b) (ii), the affidavit must:
(a) state that is it an affidavit under rule 15.29;
(b) have attached to it a copy of the subpoena for production;
(c) verify the attached copies as accurate copies of the original documents mentioned in the subpoena; and
(d) be sworn by the named person.
(3) The named person, when complying with the subpoena for production, must inform the Registry Manager in writing about whether:
(a) the documents referred to in the subpoena are to be returned to the named person; or
(b) the Registry Manager is authorised to dispose of the documents when they are no longer required by the court.
(4) In this rule:
copy includes:
(a) a photocopy; or
(b) a PDF copy on a CD-ROM.
15.30 Right to inspect and copy
(1) This rule applies if:
(a) the issuing party serves the named person and the other parties, including the independent children’s lawyer (if any), in accordance with rule 15.28 at least 21 days before the court date; and
(b) the named person complies with the subpoena at least 7 days before the court date.
(2) The written notice mentioned in subparagraph 15.28 (1) (a) (iii) must state that:
(a) if the named person:
(i) complies with the subpoena at least 7 days before the court date; and
(ii) does not object to a party or any independent children’s lawyer inspecting or copying the document; and
(b) if no other party or person objects to the document being inspected and copied by the parties or any independent children’s lawyer;
each party and any independent children’s lawyer is entitled, without an order, to inspect and take copies of the document from 7 days before the court date.
(3) The issuing party must file an Affidavit of Service, setting out the details of the party’s compliance with paragraph (1) (a).
(4) If the named person, a party or an independent children’s lawyer has not made an objection under rule 15.31 by the seventh day before the court date, each party and any independent children’s lawyer is entitled, after the seventh day and without an order, to inspect and take copies of the document.
Note Some legislative provisions prohibit government departments from communicating certain information; for example, see section 150 of the Assessment Act and section 16 of the Registration Act.
15.31 Objection to inspection or copying of document
(1) This rule applies if the named person, or a person having sufficient interest in a subpoena for production:
(a) objects to the production of a document identified in the subpoena; or
(b) objects to a document identified in the subpoena being inspected or copied by any of the parties.
(2) The person must, as soon as practicable after being served with the subpoena and at least 10 days before the court date, give written notice of the objection, or other order sought, in accordance with Part F of the Subpoena, to:
(a) the Registry Manager;
(b) the named person, if applicable;
(c) the other parties; and
(d) any independent children’s lawyer.
(3) A notice under this rule operates as a stay on the operation of the parties’ and independent children’s lawyer’s right, under subrule 15.30 (4), to inspect and copy a document produced under a subpoena.
15.32 Court permission to inspect documents
A person may not inspect or copy a document produced in compliance with a subpoena for production, but not yet admitted into evidence, unless:
(a) rule 15.30 applies; or
(b) the court gives permission.
15.33 Claim for privilege
The court may compel a person to produce a document to the court for the purpose of ruling on an objection to the production of the document under a subpoena for production.
15.34 Production of document from another court
(1) A party who seeks to produce to the court a document in the possession of another court must give the Registry Manager a written notice setting out:
(a) the name and address of the court having possession of the document;
(b) a description of the document to be produced;
(c) the date when the document is to be produced; and
(d) the reason for seeking production.
(2) On receiving a notice under subrule (1), a Registrar may ask the other court, in writing, to send the document to the Registry Manager of the filing registry by a specified date.
(3) A party may apply for permission to inspect and copy a document produced to the court.
15.35 Return of documents produced
(1) This rule applies to a document produced in compliance with a subpoena that is to be returned to the named person.
(2) If the document is tendered as an exhibit at a hearing or trial, the Registry Manager must return it at least 28 days, and no later than 42 days, after the final determination of the application or appeal.
(3) If:
(a) a document is not tendered as an exhibit at a hearing or trial; and
(b) the party who filed the subpoena has been given 7 days written notice of the Registry Manager’s intention to return it;
the Registry Manager may return the document to the named person at a time that is earlier than the time mentioned in subrule (2).
(4) If the Registry Manager has received written permission from the named person to destroy the document:
(a) subrules (2) and (3) do not apply; and
(b) the Registry Manager may destroy the document, in an appropriate way, not earlier than 42 days after the final determination of the application or appeal.
Note A document:
(a) tendered into evidence by a party; and
(b) not produced in compliance with a subpoena;
must be collected by the party who tendered it (see subrule 16.10 (4)).
Division 15.3.3 Non‑compliance with subpoena
15.36 Non‑compliance with subpoena
If:
(a) a named person does not comply with a subpoena; and
(b) the court is satisfied that the named person was served with the subpoena and given conduct money (see rule 15.23);
the court may issue a warrant for the named person’s arrest
and order the person to pay any costs caused by the non‑compliance.
Note A person who does not comply with a subpoena may be guilty of contempt (see section 112AP of the Act).
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 and accompanied by an information sheet in a form approved by the Principal Registrar.
Note 1 Subsection 10 (3) of the Evidence and Procedure Act requires the subpoena to 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.
Note 2 Section 11 of the Evidence and Procedure Act requires payment for the reasonable expenses of complying with the subpoena to be paid or tendered 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.
Part 15.4 Assessors
15.37 Application of Part 15.4
This Part applies to all applications except:
(a) an application for divorce;
(b) an application for an order that a marriage is a nullity; or
(c) an application for a declaration as to the validity of a marriage, divorce or annulment.
15.38 Appointing an assessor
(1) A party may apply for the appointment of an assessor by filing:
(a) an Initiating Application (Family Law) and an affidavit; or
(b) after a case has commenced — an Application in a Case and an affidavit.
(2) The affidavit filed with the application must:
(a) state:
(i) the name of the proposed assessor;
(ii) the issue about which the assessor’s assistance will be sought; and
(iii) the assessor’s qualifications, skill and experience to give the assistance; and
(b) attach the written consent of the proposed assessor.
(3) The court may appoint an assessor on its own initiative only if the court has:
(a) notified the parties of the matters mentioned in subrule (2); and
(b) given the parties a reasonable opportunity to be heard in relation to the appointment.
15.39 Assessor’s report
(1) The court may direct an assessor to prepare a report.
(2) A copy of the report must be given to each party and any independent children’s lawyer.
(3) An assessor must not be required to give evidence.
(4) The court is not bound by any opinion or finding of the assessor.
Note This rule applies unless the court orders otherwise (see rule 1.12).
15.40 Remuneration of assessor
(1) An assessor may:
(a) be remunerated as determined by the court; and
(b) be paid by the court, or a party or other person, as ordered by the court.
(2) The court may order a party or other person to pay, or give security for payment of, the assessor’s remuneration before the assessor is appointed to assist the court.
Part 15.5 Expert evidence
Division 15.5.1 General
15.41 Application of Part 15.5
(1) This Part (other than rule 15.55) does not apply to any of the following:
(a) evidence from a medical practitioner or other person who has provided, or is providing, treatment for a party or child if the evidence relates only to any or all of the following:
(i) the results of an examination, investigation or observation made;
(ii) a description of any treatment carried out or recommended;
(iii) expressions of opinion limited to the reasons for carrying out or recommending treatment and
the consequences of the treatment, including a prognosis;
(b) evidence from an expert who has been retained for a purpose other than the giving of advice or evidence, or the preparation of a report for a case or anticipated case, being evidence:
(i) about that expert’s involvement with a party, child or subject matter of a case; and
(ii) describing the reasons for the expert’s involvement and the results of that involvement;
(c) evidence from an expert who has been associated, involved or had contact with a party, child or subject matter of a case for a purpose other than the giving of advice or evidence, or the preparation of a report for a case or anticipated case, being evidence about that expert’s association, involvement or contact with that party, child or subject matter;
(d) evidence from family consultant employed by a Family Court (including evidence from a person appointed under regulation 8 of the Regulations).
Example
An example of evidence excluded from the requirements of this Part (other than rule 15.55) is evidence from a treating doctor or a teacher in relation to the doctor’s or teacher’s involvement with a party or child.
(2) Nothing in this Part prevents an independent children’s lawyer communicating with a single expert witness.
15.42 Purpose of Part 15.5
The purpose of this Part is:
(a) to ensure that parties obtain expert evidence only in relation to a significant issue in dispute;
(b) to restrict expert evidence to that which is necessary to resolve or determine a case;
(c) to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness;
(d) to avoid unnecessary costs arising from the appointment of more than one expert witness; and
(e) to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if necessary in the interests of justice.
15.43 Definition
In this Part:
expert’s report means a report by an expert witness, including a notice under subrule 15.59 (5).
Note expert, expert witness and single expert witness are defined in the Dictionary.
Division 15.5.2 Single expert witness
15.44 Appointment of single expert witness by parties
(1) If the parties agree that expert evidence may help to resolve a substantial issue in a case, they may agree to jointly appoint a single expert witness to prepare a report in relation to the issue.
Note Subrule 15.54 (3) sets out the requirements that apply to instructions to a single expert witness appointed by agreement between the parties.
(2) A party does not need the court’s permission to tender a report or adduce evidence from a single expert witness appointed under subrule (1).
15.45 Order for single expert witness
(1) The court may, on application or on its own initiative, order that expert evidence be given by a single expert witness.
(2) When considering whether to make an order under subrule (1), the court may take into account factors relevant to making the order, including:
(a) the main purpose of these Rules (see rule 1.04) and the purpose of this Part (see rule 15.42);
(b) whether expert evidence on a particular issue is necessary;
(c) the nature of the issue in dispute;
(d) whether the issue falls within a substantially established area of knowledge; and
(e) whether it is necessary for the court to have a range of opinion.
(3) The court may appoint a person as a single expert witness only if the person consents to the appointment.
(4) A party does not need the court’s permission to tender a report or adduce evidence from a single expert witness appointed under subrule (1).
15.46 Orders the court may make
The court may, in relation to the appointment of, instruction of, or conduct of a case involving, a single expert witness make an order, including an order:
(a) requiring the parties to confer for the purpose of agreeing on the person to be appointed as a single expert witness;
(b) that, if the parties cannot agree on who should be the single expert witness, the parties give the court a list stating:
(i) the names of people who are experts on the relevant issue and have consented to being appointed as an expert witness; and
(ii) the fee each expert will accept for preparing a report and attending court to give evidence;
(c) appointing a single expert witness from the list prepared by the parties or in some other way;
(d) determining any issue in dispute between the parties to ensure that clear instructions are given to the expert;
(e) that the parties:
(i) confer for the purpose of preparing an agreed letter of instructions to the expert; and
(ii) submit a draft letter of instructions for settling by the court;
(f) settling the instructions to be given to the expert;
(g) authorising and giving instructions about any inspection, test or experiment to be carried out for the purposes of the report; or
(h) that a report not be released to a person or that access to the report be restricted.
15.47 Single expert witness’s fees and expenses
(1) The parties are equally liable to pay a single expert witness’s reasonable fees and expenses incurred in preparing a report.
(2) A single expert witness is not required to undertake any work in relation to his or her appointment until the fees and expenses are paid or secured.
Note This rule applies unless the court orders otherwise (see rule 1.12).
15.48 Single expert witness’s report
(1) A single expert witness must prepare a written report.
(2) If the single expert witness was appointed by the parties, the expert witness must give each party a copy of the report at the same time.
(3) If the single expert witness was appointed by the court, the expert witness must give the report to the Registry Manager.
Note An expert witness may seek procedural orders from the court under rule 15.60 if the expert witness considers that it would not be in the best interests of a child or a party to give a copy of a report to each party.
(4) An applicant who has been given a copy of a report must file the copy but does not need to serve it.
15.49 Appointing another expert witness
(1) If a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court’s permission.
(2) The court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if it is satisfied that:
(a) there is a substantial body of opinion contrary to any opinion given by the single expert witness and that the contrary opinion is or may be necessary for determining the issue;
(b) another expert witness knows of matters, not known to
the single expert witness, that may be necessary for determining the issue; or
(c) there is another special reason for adducing evidence from another expert witness.
15.50 Cross‑examination of single expert witness
(1) A party wanting to cross‑examine a single expert witness at a hearing or trial must inform the expert witness, in writing at least 14 days before the date fixed for the hearing or trial, that the expert witness is required to attend.
(2) The court may limit the nature and length of cross‑examination of a single expert witness.
Division 15.5.3 Permission for expert’s evidence
15.51 Permission for expert’s reports and evidence
(1) A party must apply for the court’s permission to tender a report or adduce evidence at a hearing or trial from an expert witness, except a single expert witness.
(2) An independent children’s lawyer may tender a report or adduce evidence at a hearing or trial from one expert witness on an issue without the court’s permission.
15.52 Application for permission for expert witness
(1) A party may seek permission to tender a report or adduce evidence from an expert witness by filing an Application in a Case.
Note 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 (see subrule 5.02 (1)).
Note 2 The court may allow a party to make an oral application (see paragraph (h) in item 3 of Table 11.1 in rule 11.01).
(2) The affidavit filed with the application must state:
(a) whether the party has attempted to agree on the appointment of a single expert witness with the other party and, if not, why not;
(b) the name of the expert witness;
(c) the issue about which the expert witness’s evidence is to be given;
(d) the reason the expert evidence is necessary in relation to that issue;
(e) the field in which the expert witness is expert;
(f) the expert witness’s training, study or experience that qualifies the expert witness as having specialised knowledge on the issue; and
(g) whether there is any previous connection between the expert witness and the party.
(3) When considering whether to permit a party to tender a report or adduce evidence from an expert witness, the court may take into account:
(a) the purpose of this Part (see rule 15.42);
(b) the impact of the appointment of an expert witness on the costs of the case;
(c) the likelihood of the appointment expediting or delaying the case;
(d) the complexity of the issues in the case;
(e) whether the evidence should be given by a single expert witness rather than an expert witness appointed by one party only; and
(f) whether the expert witness has specialised knowledge, based on the person’s training, study or experience:
(i) relevant to the issue on which evidence is to be given; and
(ii) appropriate to the value, complexity and importance of the case.
(4) If the court grants a party permission to tender a report or adduce evidence from an expert witness, the permission is limited to the expert witness named, and the field of expertise stated, in the order.
Note Despite an order under this rule, a party is not entitle to adduce evidence from an expert witness if the expert’s report has not been disclosed or a copy has not been given to the other party (see rule 15.58).
Division 15.5.4 Instructions and disclosure of expert’s report
15.53 Application of Division 15.5.4
This Division does not apply to a market appraisal or an opinion as to value in relation to property obtained by a party for the purposes of a procedural hearing or conference under paragraph 12.02 (g) or subrule 12.05 (2).
15.54 Instructions to expert witness
(1) A party who instructs an expert witness to give an opinion for a case or an anticipated case must:
(a) ensure the expert witness has a copy of the most recent version of, and has read, Divisions 15.5.4, 15.5.5 and 15.5.6 of these Rules; and
(b) obtain a written report from the expert witness.
(2) All instructions to an expert witness must be in writing and must include:
(a) a request for a written report;
(b) advice that the report may be used in an anticipated or actual case;
(c) the issues about which the opinion is sought;
(d) a description of any matter to be investigated, or any experiment to be undertaken or issue to be reported on; and
(e) full and frank disclosure of information and documents that will help the expert witness to perform the expert witness’s function.
(3) The parties must give the expert an agreed statement of facts on which to base the report.
(4) However, if the parties do not agree on a statement of facts:
(a) unless the court directs otherwise — each of the parties must give to the expert a statement of facts on which to base the report; and
(b) the court may give directions about the form and content of the statement of facts to be given to the expert.
15.55 Mandatory disclosure of expert’s report
(1) A party who has obtained an expert’s report for a parenting case, whether before or after the start of the case, must give each other party a copy of the report:
(a) if the report is obtained before the case starts — at least 2 days before the first court event; or
(b) if the report is obtained after the case starts — within 7 days after the party receives the report.
(2) The party who discloses an expert’s report must disclose any supplementary report and any notice amending the report under subrule 15.59 (5).
(3) If an expert’s report has been disclosed under this rule, any party may seek to tender the report as evidence.
(4) Legal professional privilege does not apply in relation to an expert’s report that must be disclosed under this rule.
15.56 Provision of information about fees
A party who has instructed an expert witness must, if requested by another party, give each other party details of any fee or benefit received, or receivable, by or for the expert witness, for the preparation of the report and for services provided, or to be provided, by or for the expert witness in connection with the expert witness giving evidence for the party in the case.
15.57 Application for provision of information
(1) This rule applies if the court is satisfied that:
(a) a party (the disclosing party) has access to information or a document that is not reasonably available to the other party (the requesting party); and
(b) the provision of the information or a copy of the document is necessary to allow an expert witness to carry out the expert witness’s function properly.
(2) The requesting party may apply for an order that the disclosing party:
(a) file and serve a document specifying the information in enough detail to allow the expert witness to properly assess its value and significance; and
(b) give a copy of the document to the expert witness.
Note An expert witness may request the court to make an order under this rule (see rule 15.60).
15.58 Failure to disclose report
A party who fails to give a copy of an expert’s report to another party or the independent children’s lawyer (if any) must not use the report or call the expert witness to give evidence at a hearing or trial, unless the other party and independent children’s lawyer consent to the report being used or the expert witness being called, or the court orders otherwise.
Division 15.5.5 Expert witness’s duties and rights
15.59 Expert witness’s duty to the court
(1) An expert witness has a duty to help the court with matters that are within the expert witness’s knowledge and capability.
(2) The expert witness’s duty to the court prevails over the obligation of the expert witness to the person instructing, or paying the fees and expenses of, the expert witness.
(3) The expert witness has a duty to:
(a) give an objective and unbiased opinion that is also independent and impartial on matters that are within the expert witness’s knowledge and capability;
(b) conduct the expert witness’s functions in a timely way;
(c) avoid acting on an instruction or request to withhold or avoid agreement when attending a conference of experts;
(d) consider all material facts, including those that may detract from the expert witness’s opinion;
(e) tell the court:
(i) if a particular question or issue falls outside the expert witness’s expertise; and
(ii) if the expert witness believes that the report prepared by the expert witness:
(A) is based on incomplete research or inaccurate or incomplete information; or
(B) is incomplete or may be inaccurate, for any reason; and
(f) produce a written report that complies with rules 15.62 and 15.63.
(4) The expert witness’s duty to the court arises when the expert witness:
(a) receives instructions under rule 15.54; or
(b) is informed by a party that the expert witness may be called to give evidence in a case.
(5) An expert witness who changes an opinion after the preparation of a report must give written notice to that effect:
(a) if appointed by a party — to the instructing party; or
(b) if appointed by the court — to the Registry Manager and each party.
(6) A notice under subrule (5) is taken to be part of the expert’s report.
15.60 Expert witness’s right to seek orders
(1) Before final orders are made, a single expert witness may, by written request to the court, seek a procedural order to assist in carrying out the expert witness’s function.
Note The written request may be by letter and may, for example:
(a) ask for clarification of instructions;
(b) relate to the questions mentioned in Division 15.5.6; or
(c) relate to a dispute about fees.
(2) The request must:
(a) comply with subrule 24.01 (1); and
(b) set out the procedural orders sought and the reason the orders are sought.
(3) The expert witness must serve a copy of the request on each party and satisfy the court that the copy has been served.
(4) The court may determine the request in chambers unless:
(a) within 7 days of being served with the request, a party makes a written objection to the request being determined in chambers; or
(b) the court decides that an oral hearing is necessary.
15.61 Expert witness’s evidence in chief
(1) An expert witness’s evidence in chief comprises the expert’s report, any changes to that report in a notice under subrule 15.59 (5) and any answers to questions under rule 15.66.
(2) An expert witness has the same protection and immunity in relation to the contents of a report disclosed under these Rules or an order as the expert witness could claim if the contents of the report were given by the expert witness orally at a hearing or trial.
15.62 Form of expert’s report
(1) An expert’s report must:
(a) be addressed to the court and the party instructing the expert witness;
(b) have attached to it a summary of the instructions given to the expert witness and a list of any documents relied on in preparing the report; and
(c) be verified by an affidavit of the expert witness.
(2) The affidavit verifying the expert’s report must state the following:
‘I have made all the inquiries I believe are necessary
and appropriate and to my knowledge there have not been any relevant matters omitted from this report, except as otherwise specifically stated in this report.
I believe that the facts within my knowledge that have been stated in this report are true.
The opinions I have expressed in this report are independent and impartial.
I have read and understand Divisions 15.5.4, 15.5.5 and 15.5.6 of the Family Law Rules 2004 and have used my best endeavours to comply with them.
I have complied with the requirements of the following professional codes of conduct or protocol, being [state the name of the code or protocol].
I understand my duty to the court and I have complied with it and will continue to do so.’.
15.63 Contents of expert’s report
An expert’s report must:
(a) state the reasons for the expert witness’s conclusions;
(b) include a statement about the methodology used in the production of the report; and
(c) include the following in support of the expert witness’s conclusions:
(i) the expert witness’s qualifications;
(ii) the literature or other material used in making the report;
(iii) the relevant facts, matters and assumptions on which the opinions in the report are based;
(iv) a statement about the facts in the report that are within the expert witness’s knowledge;
(v) details about any tests, experiments, examinations or investigations relied on by the expert witness and, if they were carried out by another person, details of that person’s qualifications and experience;
(vi) if there is a range of opinion on the matters dealt with in the report — a summary of the range of opinion and the basis for the expert witness’s opinion;
(vii) a summary of the conclusions reached;
(viii) if necessary, a disclosure that:
(A) a particular question or issue falls outside the expert witness’s expertise;
(B) the report may be incomplete or inaccurate without some qualification and the details of any qualification; or
(C) the expert witness’s opinion is not a concluded opinion because further research or data is required or because of any other reason.
15.64 Consequences of non‑compliance
If an expert witness does not comply with these Rules, the court may:
(a) order the expert witness to attend court;
(b) refuse to allow the expert’s report or any answers to questions to be relied on;
(c) allow the report to be relied on but take the non‑compliance into account when considering the weight to be given to the expert witness’s evidence; and
(d) take the non‑compliance into account when making orders for:
(i) an extension or abridgment of a time limit;
(ii) a stay of the case;
(iii) interest payable on a sum ordered to be paid; or
(iv) costs.
Note For the court’s power to order costs, see subsection 117 (2) of the Act.
Division 15.5.6 Clarification of single expert witness reports
15.64A Purpose
(1) The purpose of this Division is to provide ways of clarifying a report prepared by a single expert witness.
(2) Clarification about a report may be obtained at a conference under rule 15.64B or by means of questions under rule 15.65.
15.64B Conference
(1) Within 21 days after receipt of the report of a single expert witness, the parties may enter into an agreement about conferring with the expert witness for the purpose of clarifying the report.
(2) The agreement may provide for the parties, or for one or more of them, to confer with the expert witness.
(3) Without limiting the scope of the conference, the parties must agree on arrangements for the conference.
(4) It is intended that the parties should be free to make any arrangements for the conference that are consistent with this Division.
Note For example, arrangements for a conference might include the attendance of another expert, or the provision of a supplementary report.
(5) Before participating in the conference, the expert witness must be advised of arrangements for the conference.
(6) In seeking to clarify the report of the expert witness, the parties must not interrogate the expert witness.
(7) If the parties do not agree about conferring with a single expert witness, the court, on application by a party, may order that a conference be held in accordance with any conditions the court determines.
15.65 Questions to single expert witness
(1) A party seeking to clarify the report of a single expert witness may ask questions of the single expert witness under this rule:
(a) within 7 days after the conference under rule 15.64B; or
(b) if no conference is held, within 21 days after receipt of the single expert witness’s report by the party.
(2) The questions must:
(a) be in writing and be put once only;
(b) be only for the purpose of clarifying the single expert witness’s report; and
(c) not be vexatious or oppressive, or require the single expert witness to undertake an unreasonable amount of work to answer.
(3) The party must give a copy of any questions to each other party.
Note A party may cross‑examine a single expert witness (see rule 15.50).
15.66 Single expert witness’s answers
(1) A single expert witness must answer a question received under rule 15.65 within 21 days after receiving it.
(2) An answer to a question:
(a) must be in writing;
(b) must specifically refer to the question; and
(c) must:
(i) answer the substance of the question; or
(ii) object to answering the question.
(3) If the single expert witness objects to answering a question or is unable to answer a question, the single expert witness must state the reason for the objection or inability in the document containing the answers.
(4) The single expert witness’s answers:
(a) must be:
(i) attached to the affidavit under subrule 15.62 (2);
(ii) sent by the single expert witness to all parties at the same time; and
(iii) filed by the party asking the questions; and
(b) are taken to be part of the expert’s report.
15.67 Single expert witness’s costs
(1) The reasonable fees and expenses of a single expert witness incurred in relation to a conference are to be paid as follows:
(a) if only one of the parties attends the conference — by that party; or
(b) if more than one of the parties attends the conference — by those parties jointly.
(2) If a single expert witness answers questions under rule 15.66, his or her reasonable fees and expenses incurred in answering any questions are to be paid by the party asking the questions.
(3) A single expert witness is not required to undertake any work in relation to a conference or answer any questions until the fees and expenses for that work or those answers are paid or secured.
(4) Subrule (3) is not affected by subrule 15.66 (1).
Note This rule applies unless the court orders otherwise (see rule 1.12).
(5) In this rule:
attend includes attendance by electronic communication.
15.67A Application for directions
A party may apply to the court for directions relating to a conference with a single expert witness or the asking or answering of questions under this Division.
Division 15.5.7 Evidence from 2 or more expert witnesses
15.68 Application of Division 15.5.7
This Division applies to a case in which 2 or more parties intend to tender an expert’s report or adduce evidence from different expert witnesses about the same, or a similar, question.
15.69 Conference of expert witnesses
(1) In a case to which this Division applies:
(a) the parties must arrange for the expert witnesses to confer at least 28 days before the relevant date; and
(b) each party must give to the expert witness the party
has instructed a copy of the document entitled Experts’ Conferences — Guidelines for expert witnesses and those instructing them in cases in the Family Court of Australia, the text of which is set out in Schedule 5.
(2) The court may, in relation to the conference, make an order, including an order about:
(a) which expert witnesses are to attend;
(b) where and when the conference is to occur;
(c) which issues the expert witnesses must discuss;
(d) the questions to be answered by the expert witnesses; or
(e) the documents to be given to the expert witnesses, including:
(i) Divisions 15.5.4, 15.5.5 and 15.5.6 of these Rules;
(ii) relevant affidavits;
(iii) a joint statement of the assumptions to be relied on by the expert witnesses during the conference, including any competing assumptions; and
(iv) all expert’s reports already disclosed by the parties.
(3) At the conference, the expert witnesses must:
(a) identify the issues that are agreed and not agreed;
(b) if practicable, reach agreement on any outstanding issue;
(c) identify the reason for disagreement on any issue;
(d) identify what action (if any) may be taken to resolve any outstanding issues; and
(e) prepare a joint statement specifying the matters mentioned in paragraphs (a) to (d) and deliver a copy of the statement to each party.
(4) If the expert witnesses reach agreement on an issue, the agreement does not bind the parties unless the parties expressly agree to be bound by it.
(5) The joint statement may be tendered as evidence of matters agreed on and to identify the issues on which evidence will be called.
15.70 Conduct of trial with expert witnesses
At a trial, the court may make an order, including an order that:
(a) an expert witness clarify the expert witness’s evidence after cross‑examination;
(b) the expert witness give evidence only after all or certain factual evidence relevant to the question has been led;
(c) each party intending to call an expert witness is to close that party’s case, subject only to adducing the evidence of the expert witness;
(d) each expert witness is to be sworn and available to give evidence in the presence of each other;
(e) each expert witness give evidence about the opinion given by another expert witness; or
(f) cross‑examination, or re‑examination, of an expert witness is to be conducted:
(i) by completing the cross‑examination or re‑examination of the expert witness before another expert witness; or
(ii) by putting to each expert witness, in turn, each question relevant to one subject or issue at a time, until the cross‑examination or re‑examination of all witnesses is completed.
Part 15.6 Other matters about evidence
15.71 Court may call evidence
(1) The court may, on its own initiative:
(a) call any person as a witness; and
(b) make any orders relating to examination and cross‑ examination of that witness.
(2) The court may order a party to pay conduct money for the attendance of the witness.
15.72 Order for examination of witness
(1) A court may, at any stage in a case:
(a) request that a person be examined on oath before a court, or an officer of that court, at any place in Australia; or
(b) order a commission to be issued to a person in Australia authorising that person to take the evidence of any person on oath.
(2) The court receiving the request, or the person to whom the commission is issued, may make procedural orders about the time, place and manner of the examination or taking of evidence, including that the evidence be recorded in writing or by electronic communication.
(3) The court making the request or ordering the commission may receive in evidence the record taken.
15.73 Letters of request
(1) If, under the Foreign Evidence Act 1994, a court orders a letter to be issued to the judicial authorities of a foreign country requesting that the evidence of a person be taken, the party obtaining the order must file:
(a) 2 copies of the appropriate letter of request and any questions to accompany the request;
(b) if English is not an official language of the country to whose judicial authorities the letter of request is to be sent — 2 copies of a translation of each document mentioned in paragraph (a) in a language appropriate to the place where the evidence is to be taken; and
(c) an undertaking:
(i) to be responsible for all expenses incurred by the court, or by the person at the request of the court, in respect of the letter of request; and
(ii) to pay the amount to the Registry Manager of the filing registry, after being given notice of the amount of the expenses.
(2) A translation filed under paragraph (1) (b) must be accompanied by an affidavit of the person making the translation:
(a) verifying that it is a correct translation; and
(b) setting out the translator’s full name, address and qualifications for making the translation.
(3) If, after receiving the documents mentioned in subrules (1)
and (2) (if applicable), the Registrar is satisfied that the documents are appropriate, the Registry Manager must send them to the Secretary of the Attorney‑General’s Department for transmission to the judicial authorities of the other country.
Note Rules 5.06 and 16.08 set out the procedure for arranging for a party or a witness to attend a hearing or trial by electronic communication.
15.74 Hearsay evidence — notice under section 67 of the Evidence Act 1995
A Notice of Previous Representation for subsection 67 (1) of the Evidence Act 1995 must be attached to an affidavit that sets out evidence of the previous representation.
15.75 Transcript receivable in evidence
A transcript of a hearing or trial may be received in evidence as a true record of the hearing or trial.
15.76 Notice to produce
(1) A party may, no later than 7 days before a hearing or 28 days before a trial, by written notice, require another party to produce, at the hearing or trial, a specified document that is in the possession or control of the other party.
(2) A party receiving a notice under subrule (1) must produce the document at the hearing or trial.
15.77 Parenting questionnaire
(1) This rule applies to a parenting case.
(2) Each party to the case must file a completed questionnaire at least 28 days before the first day before the Judge.
(3) The questionnaire must be in the form approved by the Principal Registrar.
Note For the service requirements for a document filed with the court, see rule 7.04.
Chapter 16 Court events — Judge managed
Summary of Chapter 16
Chapter 16 sets out the trial process after the case has been allocated to the first day before the Judge. Further specific provisions in Chapter 16A apply to a trial to which Division 12A of Part VII of the Act applies.
The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.
A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.
Part 16.1 Preliminary
16.01 Application
This Chapter applies to all Applications for final orders, except:
(a) a Medical Procedure Application;
(b) a Maintenance Application;
(c) a child support application or appeal;
(d) an application for an order that a marriage is a nullity or a declaration as to the validity of a marriage, divorce or annulment; and
(e) an application in which the only order sought relates to a passport (see Division 4.2.7).
16.02 Compliance check
(1) The purpose of a compliance check is:
(a) to check that all procedural orders have been complied with;
(b) to consider any new issues that may have arisen since the last court event and their effect on the listing of the matter for the first day before the Judge; and
(c) in a financial case — to check the completeness of the balance sheet.
(2) At the compliance check, the court may make orders about the further conduct of the case.
Note The court would usually order that the parties attend this event by electronic communication.
16.03 Vacating dates that are Judge managed
(1) A party seeking to vacate the first day before the Judge, or any subsequent date when the case has been set down before the Judge, must apply to do so at the earliest possible time before the allocated date.
(2) The first day before the Judge or any subsequent date will only be vacated for substantial and significant reason.
(3) If final agreement has been reached between the parties, the applicant must:
(a) immediately tell the court in writing after agreement is reached; and
(b) arrange for the case to be finalised by consent order, or discontinuance or dismissal.
Part 16.2 Proceedings before the Judge — general
Note Before the first day before the Judge, the Judge should have available to read:
· in a parenting case – the application and response and each parties parenting questionnaire;
· in a financial case – the application and response, each parties financial statement, each parties financial questionnaire and the balance sheet; and
· any other documents ordered to be filed before the first day before the Judge.
16.04 Trial management
(1) For rules 16.08 to 16.13, the court may make any order about the conduct of the trial, including an order:
(a) related to the issues on which the court requires evidence, including:
(i) the nature of the evidence (including expert evidence) required to decide the issues;
(ii) which witnesses a party may call on a particular issue;
(iii) how the evidence is to be adduced;
(iv) granting permission to issue subpoenas to produce documents or to attend, or both;
(v) preparation by a family consultant of a family report, or requiring the family consultant to undertake other investigations or carry out other tasks having regard to the functions of family consultants set out in section 11A of the Act;
(vi) determining any evidentiary questions that arise;
(vii) the time to be taken for evidence in chief, cross examination or re‑examination of witnesses to give evidence, and submissions; or
(viii) the sequence of evidence and addresses;
(b) limiting the time for the presentation of a parties case; or
(c) allocating a date or series of dates for the continuation of trial.
(2) If the parties have both consented to a financial case being dealt with under Division 12A of Part VII of the Act, rules 16.08, 16.09 and 16.10 apply to the financial case.
16.05 Attendance, submissions and evidence by electronic communication
Note The issue of whether a party wishes to attend, make a submission, give evidence or adduce evidence from a witness at any court event that is Judge managed by electronic communication will be discussed at the appropriate court event, and any application in that respect will be referred to a Judge without formal application or affidavit material. In other cases, an application should be made under rule 16.05.
(1) A party may apply for permission to do any of the following things by electronic communication at any court event that is Judge managed:
(a) attend;
(b) make a submission;
(c) give evidence;
(d) adduce evidence from a witness.
Note For the procedure for making an application in a case, see Chapter 5.
(2) The application must be:
(a) filed at least 28 days before the event; and
(b) listed before the Judge.
Note The court may shorten or extend the time for compliance with a rule (see rule 1.14).
(3) The affidavit filed with the application must set out the facts relied on in support of the application, including the following:
(a) what the applicant seeks permission to do by electronic communication;
(b) the kind of electronic communication to be used;
(c) if the party proposes to give evidence, make a submission or adduce evidence from a witness by electronic communication — the place from which the party proposes to give or adduce the evidence, or make the submission;
(d) the facilities at the place mentioned in paragraph (c) that will enable all eligible persons present in that place to see or hear each eligible person in the place where the court is sitting;
(e) if the applicant seeks to adduce evidence from a witness by electronic communication:
(i) whether an affidavit by the witness has been filed;
(ii) whether the applicant seeks permission for the witness to give oral evidence;
(iii) the relevance of the evidence to the issues;
(iv) whether the witness is an expert witness;
(v) the name, address and occupation of any person who is to be present when the evidence is given;
(vi) if the applicant proposes to refer the witness to a document, whether:
(A) the document has been filed; and
(B) the witness will have a copy of the document; and
(vii) whether an interpreter is required and, if so, what arrangements are to be made;
(f) the expense of using the electronic communication, including any expense to the court, and the applicant’s proposals for paying those expenses;
(g) whether the other parties object to the use of electronic communication for the purpose specified in the application and, if so, the reason for the objection;
(h) if the application relates to evidence to be adduced from a witness in a foreign country — the matters required to be addressed under rule 16.06;
(i) if the application relates to making a submission, giving evidence or adducing evidence from New Zealand — the facilities that enable evidence to be given or a submission to be made, as required by Part 4 of the Evidence and Procedure (New Zealand) Act 1994.
Note Part 4 of the Evidence and Procedure (New Zealand) Act 1994 (the EP Act) applies to proceedings in a federal court, or a court specified in regulations made under the EP Act, in which a direction is made for the use of video link or telephone to take evidence or make a submission from New Zealand.
Subsection 25 (2) of the EP Act sets out the matters of which a court must be satisfied before it may make a direction under subsection 25 (1) of that Act. The EP Act also provides that evidence is not to be given, or a submission made, from New Zealand unless the place where the court is sitting and the place where the evidence is to be given or a submission made are equipped with facilities enabling the persons at each place to see and hear each other in the case of video link (see section 26), or to hear each other in the case of a telephone conference (see section 27).
(4) The application may be decided in chambers on the documents filed.
(5) The court may order:
(a) a party to pay the expenses of the attendance by electronic communication; or
(b) that the expenses are to be apportioned between the parties.
(6) For paragraph (3) (h):
foreign country has the meaning given by subrule 16.06 (2).
16.06 Foreign evidence by electronic communication
(1) In addition to the requirements of rule 16.05, a party who proposes to adduce evidence by electronic communication from a witness in a foreign country must satisfy the court:
(a) that the party has read the information published by the Attorney‑General’s Department about its arrangements with other countries for the taking of evidence, to determine the attitude of the foreign country’s government to the taking of evidence by electronic communication;
(b) if the attitude of the foreign country’s government to the taking of evidence by electronic communication cannot be ascertained from sources within Australia — that the party has made appropriate inquiries through diplomatic channels, a lawyer or a provider of technical facilities in the foreign country to determine that attitude;
(c) whether permission is needed from the foreign country’s government to adduce evidence from a witness in that country by electronic communication;
(d) if permission is needed, whether permission has been granted or refused;
(e) if permission has been refused, the reason for refusal; and
(f) whether there are any special requirements for the adducing of evidence, including:
(i) the administration of an oath; and
(ii) the form of the oath.
Note Chapter 5 sets out the procedure for making an application for interim, procedural, ancillary or other incidental orders.
(2) In this rule:
foreign country means a country other than Canada, New Zealand, the United Kingdom or the United States of America.
Note 1 A party seeking to adduce evidence from a witness in Canada, New Zealand, the United Kingdom or the United States of America does not have to comply with subrule (1) because these countries do not object to the taking of evidence by electronic communication.
Note 2 The court, instead of granting permission for a party to adduce evidence by electronic communication from a witness in a foreign country, may direct the Registry Manager to send a letter of request to the judicial authorities in the foreign country, requesting the court to take evidence from the witness in accordance with the law of the foreign country. For the requirements for a letter of request to the judicial authorities of a foreign country, see rule 15.73.
16.07 Parties’ participation
(1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.
Note The court may dispense with compliance with a rule (see rule 1.12).
(2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party’s application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.
(3) If no party attends the first day before the Judge, the court may dismiss all applications before it.
Part 16.3 Proceedings before the Judge — parenting case
16.08 First day of trial
(1) The first day of trial will be conducted by the Judge who will:
(a) if evidence is taken at the first day of trial — preside at the entire trial; and
(b) usually preside at the entire trial even if evidence is not taken at the first day of trial.
(2) For these Rules, the trial is taken to have started on the first day of trial, whether or not any evidence is taken or submitted at the trial.
Note Subrules (1) and (2) apply unless the court orders otherwise (see rule 1.12).
(3) The purpose of the first day of trial is:
(a) for the presiding Judge, with the assistance of the parties and their legal representatives, to discuss and identify the orders sought and issues in dispute between the parties arising from the applications before the court;
(b) in the ordinary course, to hear and determine any interlocutory issues or interim applications that are outstanding on the first day of trial, or to make appropriate arrangements for the determination of those applications;
(c) in a children’s case — to receive evidence, including from the family consultant in the case;
(d) if this rule applies because subrule 16.04 (2) applies — to consider the balance sheet; and
(e) to consider and determine a plan for the remainder of the trial.
16.09 Continuation of trial
(1) A trial will continue on the day or dates allocated.
(2) The purpose of the continuation of trial is:
(a) to further identify the issues for which evidence is required;
(b) to make procedural orders about filing and exchange of all remaining evidence; and
(c) to allocate dates for the continuation of the trial and the final stage of the trial.
16.10 Final stage of trial
(1) The final stage of the trial takes place on the day or dates allocated.
(2) At the final stage of the trial the Judge will hear the remainder of the evidence and receive submissions.
Part 16.4 Proceedings before the Judge — financial case
Note If the parties have consented to Division 12A of Part VII of the Act applying to the financial case, Part 16.3 applies (see subrule 16.04 (2)).
16.11 The first procedural hearing before the Judge
The purpose of the first procedural hearing before the Judge is:
(a) for the presiding judicial officer, with the assistance of the parties and their legal representatives, to discuss and identify the orders sought and issues in dispute between the parties arising from the applications before the court;
(b) in the ordinary course, to hear and determine any interlocutory issues or interim applications that are outstanding on the first day before the Judge, or to make appropriate arrangements for the determination of those applications;
(c) to consider the balance sheet; and
(d) to consider and determine a plan for the trial.
16.12 Further days before the Judge
The purpose of any further days before the Judge is:
(a) to further identify the issues for which evidence is required;
(b) to make procedural orders about filing and exchange of all remaining evidence; and
(c) to allocate dates for any further days before the Judge and the trial.
16.13 The trial
(1) The trial takes place on the day or dates allocated.
(2) At the trial the Judge will hear the evidence and receive submissions.
Part 16.5 Proceedings before the Judge — combined parenting and financial cases
16.14 Conduct of combined cases
For a combined parenting case and financial case:
(a) rules 16.08, 16.09 and 16.10 apply to the parenting case; and
(b) subject to subrule 16.04 (2), rules 16.11, 16.12 and 16.13 apply to the financial case.
Chapter 16A Division 12A of Part VII of the Act
Summary of Chapter 16A
Chapter 16A sets out the requirements for consent to the application of Division 12A of Part VII of the Act to a case and the additional procedures for certain trials to which Division 12A of Part VII of the Act applies.
Division 12A of Part VII of the Act applies to proceedings:
· that come wholly or partly under Part VII of the Act, or any other proceedings which involve the court’s jurisdiction under the Act if the parties in those proceedings consent to Division 12A applying to those proceedings; and
· that were commenced by application:
(a) on or after 1 July 2006; or
(b) before 1 July 2006 if the parties to the proceedings consent, and the court grants permission (the court’s permission may be sought in accordance with rule 12.04 of these Rules).
The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.
If a rule in another Chapter (other than Chapter 1) conflicts with a rule in this Chapter, the rule in this Chapter applies.
A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.
Part 16A.1 Consent for Division 12A of Part VII of the Act to apply to a case
16A.01 Definition
In this Part:
the prescribed form means a form authorised by the Principal Registrar for the purposes of a party in a case giving consent to the application of Division 12A of Part VII of the Act to the case.
16A.02 Application of Part 16A.1
This Part applies if the consent of the parties to a case is necessary before Division 12A of Part VII of the Act can apply to the case.
16A.03 Consent for Division 12A of Part VII of the Act to apply
If a party to a case seeks to consent to the application of Division 12A of Part VII of the Act to the case, or part of the case, the party must:
(a) give consent in accordance with the prescribed form; and
(b) file a copy of the form.
16A.04 Application for Division 12A of Part VII of the Act to apply for case commenced by application before 1 July 2006
For the purposes of seeking the leave of the court for Division 12A of Part VII of the Act to apply to a case commenced by an application filed before 1 July 2006, an application for permission may be made to the court at a procedural hearing.
Part 16A.2 Trials of certain cases to which Division 12A of Part VII of the Act applies
16A.05 Definitions
In this Part:
trial Judge means the Judge to whom a trial, in a case to which Division 12A of Part VII of the Act applies, is allocated.
trial Judicial Registrar means the Judicial Registrar to whom a trial, in a case to which Division 12A of Part VII of the Act applies, is allocated.
16A.06 Application
(1) Subject to subrules (2) and (3), this Part applies to the trial of a case:
(a) that is pending in the Family Court; and
(b) to which Division 12A of Part VII of the Act applies.
(2) This Part does not apply to the trial of a case which involves 1 or more of the following applications only:
(a) a Medical Procedure Application referred to in Division 4.2.3 of these Rules;
(b) a Maintenance Application referred to in Division 4.2.4 of these Rules;
(c) a child support application referred to in Division 4.2.5 of these Rules;
(d) an application relating to a passport referred to in Division 4.2.7 of these Rules.
(4) To the extent to which a rule in this Part applies to the trial of a case mentioned in subrule (1), and does not conflict with a rule in Chapter 1, the rule in this Part applies to the case and overrides all other provisions in these Rules.
16A.10 Parties to be sworn etc
(1) On the first day of a trial, all parties, and any family consultant, may be administered an oath or affirmation.
(2) A person is bound by the oath or affirmation administered under subrule (1) until the end of the trial.
Chapter 17 Orders
Summary of Chapter 17
Chapter 17 sets out when an order is made, how errors in orders are corrected, the rate of interest and other requirements in relation to certain monetary orders.
The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.
A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.
17.01 When an order is made
(1) An order is made:
(a) in a hearing or trial — when it is pronounced in court by the judicial officer; or
(b) in any other case — when the judicial officer signs the order (see paragraph 11.16 (3) (b)).
(2) An order takes effect on the date when it is made, unless otherwise stated.
Note After an order is made, it is issued by the court. The issued order embodies the terms of the order in a document that is signed and sealed.
(3) A party is entitled to receive:
(a) a sealed copy of an order;
(b) if the order is rectified by the court — a sealed copy of the rectified order; and
(c) a copy of any published reasons for judgment.
(4) Subrule (3) does not apply to a procedural order.
(5) The judicial officer may direct who is to be responsible for engrossing an order and how it is to be engrossed.
17.02 Errors in orders
(1) If a party claims that there is an error in an order issued by the court, the party must give written notice of the error to the Registry Manager and all parties.
(2) A Registrar may rectify an error that appears obvious on reading the order.
Example
A kind of amendment that a Registrar may make under subrule (2) is the correction of a typographical error.
(3) If the Registrar:
(a) is in doubt about whether there is an error in an order; or
(b) believes that an error in an order has, or may have, arisen from an accidental slip or omission;
the Registrar may take action under subrule (4).
(4) If subrule (1) or (3) applies, the party or Registrar may, after giving reasonable notice to each party, refer the order to the judicial officer who made it.
Note If the judicial officer who made the order is unavailable, it may be referred to another judicial officer (see rule 1.13).
(5) A judicial officer may, after giving each party a reasonable opportunity to be heard, rectify a suspected error referred to the judicial officer.
Note An amendment of an order may be made under this rule only if it is an error obvious when reading the order. Any other amendment must be remedied by appeal or consent.
17.03 Rate of interest
The prescribed rate at which interest is payable under paragraphs 87 (11) (b) and 90KA (b) and subsection 117B (1) of the Act is:
(a) in respect of the period from 1 January to 30 June in any year — the rate that is 6% above the cash rate last published by the Reserve Bank of Australia before that period commenced; and
(b) in respect of the period from 1 July to 31 December in any year — the rate that is 6% above the cash rate last published by the Reserve Bank of Australia before that period commenced.
Note For the date from which interest is payable, see paragraphs 87 (11) (b) and 90KA (b) and subsection 117B (1) of the Act.
17.04 Order for payment of money
(1) This rule applies if a person is ordered by the court (other than by way of consent) to pay money and:
(a) the person is not present, or represented by a lawyer, in court when the order is made; or
(b) the order is made in chambers.
(2) The person must be served with a sealed copy of the order:
(a) if the order imposes a fine — by the Marshal or other officer of the court; or
(b) in any other case — by the person who benefits from the order.
Note A party must not personally serve another party by hand but may be present when service takes place (see subrule 7.06 (3)). For service of documents generally, see Chapter 7.
17.05 Order for payment of fine
If a court orders the payment of a fine or the forfeiture of a bond, the fine or forfeited amount must be paid immediately into the filing registry.
Note 1 A person may apply to the court for more time to pay a fine (see rule 1.14).
Note 2 If the court makes an order on an application without notice to the respondent, the order will operate until a time specified in the order (see rule 5.13).
Chapter 18 Powers of Judicial Registrars, Registrars and Deputy Registrars
Summary of Chapter 18
Chapter 18 sets out:
· the powers of the court that are delegated to Judicial Registrars, Registrars and Deputy Registrars of the Family Court of Australia; and
· the process for reviewing an order made by a Judicial Registrar or Registrar.
Note A power or function expressed by these Rules to be conferred on a Registrar may also be exercised in the Family Court by a Judge or a Judicial Registrar.
The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.
A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.
Part 18.1 Delegation of powers to Judicial Registrars and Registrars
Division 18.1.1 General
18.01A Definitions
In this Chapter:
Deputy Registrar means a Deputy Registrar of the Family Court of Australia.
Registrar means the Principal Registrar of the Family Court of Australia or a Registrar of the Family Court of Australia.
18.01 Exercise of powers and functions
(1) A power or function expressed by these Rules to be conferred on a Deputy Registrar may also be exercised by a Judicial Registrar or a Registrar.
(2) A power or function expressed by these Rules to be conferred on a Registrar may also be exercised by a Judicial Registrar.
(3) A Judicial Registrar, Registrar or Deputy Registrar exercising a power of the court or performing any function in connection with a power of the court has the same protection and immunity as a Judge or Magistrate.
Division 18.1.2 Delegation to Judicial Registrars
18.02 Delegation of powers to Judicial Registrars
(1) All of the powers vested in the Family Court by legislative provisions in relation to a case in which the court is exercising original jurisdiction are delegated to each Judicial Registrar except the power to make:
(a) an excluded child order;
(b) an order setting aside a registered award under section 13K of the Act;
(c) an order or declaration under section 78, 79 or 79A, subsection 87 (8), 90J (3) or 90K (1), section 90SL, 90SM or 90SN or subsection 90UL (3) or 90UM (1) of the Act, if the gross value of the property is more than $2 000 000;
(d) an order under section 70NFD of the Act to vary or discharge an order under paragraph 70NFB (2) (a) of the Act that was not made by a Judicial Registrar;
(e) an order under section 112AK of the Act to vary or discharge an order under section 112AD of the Act that was not made by a Judicial Registrar;
(ea) an order under section 118 of the Act;
(f) an order under the Marriage Act 1961;
(g) an order reviewing the exercise of a power by a Judicial Registrar, Registrar or Deputy Registrar; and
(h) any of the orders under these Rules mentioned in Table 18.1.
Table 18.1 Powers not delegated to Judicial Registrars
| Item | Provision of these Rules |
| 1 | rule 4.07 |
| 2 | Division 4.2.3 |
| 3 | Part 10.3 |
| 4 | rule 11.04 |
| 5 | rule 11.05 |
Note The powers of the court in its appellate jurisdiction, set out in Part X of the Act, are not delegated to Judicial Registrars.
(2) Despite paragraph (1) (f), the power to make an order under subsection 92 (1) of the Marriage Act 1961 is delegated to a Judicial Registrar.
(3) Paragraphs (1) (c), (d) and (e) do not apply to an order that is:
(a) an order until further order;
(b) an order made in an undefended case; or
(c) an order made with the consent of all the parties to the case.
(4) Paragraph (1) (c) does not apply if:
(a) the order is a flagging order; or
(b) the parties consent to the exercise of the power by a Judicial Registrar.
(5) For paragraph (1) (c), the value of any superannuation interest must be included in the calculation of the gross value of the property.
Note Under section 90MC of the Act, a superannuation interest is to be treated as property for the purposes of paragraph (ca) of the definition of matrimonial cause in section 4 of the Act.
18.03 Property value exceeding limit — power to determine case
If, in a case:
(a) a Judicial Registrar exercises the power of the court mentioned in paragraph 18.02 (1) (c); and
(b) it becomes apparent during the trial that the gross value
of the property to be dealt with in the case exceeds $2 000 000;
the Judicial Registrar may continue to hear and determine the case.
Note Under section 90MC of the Act, a superannuation interest is to be treated as property for the purposes of paragraph (ca) of the definition of matrimonial cause in section 4 of the Act.
Division 18.1.3 Delegation of powers to Registrars and Deputy Registrars
18.04 Application of Division 18.1.3
This Division applies:
(a) to a Registrar or Deputy Registrar who is enrolled as
a lawyer of the High Court or of the Supreme Court of a State or Territory; and
(b) subject to any arrangement made under subsection 37B (2) of the Act.
Note Under subsection 37B (2) of the Act, the Principal Registrar may direct which Registrars or Deputy Registrars are to perform any functions or exercise any power under the Act, Regulations or these Rules in particular matters or classes of matters.
18.05 Registrars
(1) Each power of the court mentioned in an item of Table 18.2 is delegated to each Registrar who is approved, or is in a class of Registrars approved, by a majority of the Judges to exercise the power.
Table 18.2 Powers delegated to Registrars
| Item | Legislative provision | |
| Family Law Act | |
| 1 | subsection 46 (3A) | |
| 2 | section 63H | |
| 3 | section 65D (except an excluded child order) | |
| 5 | section 65L | |
| 6 | sections 66G, 66M, 66P and 66Q | |
| 7 | section 66S | |
| 8 | section 66W | |
| 9 | subsection 67D (1) and section 67E | |
| 10 | subsection 67M (2) | |
| 11 | subsection 67N (2) | |
| 11A | section 67U | |
| 12 | section 67ZD | |
| 13 | subsections 68B (1) and (2) | |
| 15 | sections 69V and 69VA, subsection 69W (1), section 69X and subsection 69ZC (2) | |
| 16 | sections 74 and 77 | |
| 17 | subsection 83 (1) | |
| 18 | subsection 87 (3) | |
| 18A | sections 90SE and 90SG | |
| 18B | section 90SI | |
| 19 | section 100B | |
| 20 | section 102A | |
| 21 | section 106A | |
| 21A | subsection 117 (2) | |
| Assessment Act | |
| 22 | section 139 | |
| Registration Act |
| 23 | subsection 105 (2) | |
| | | |
(2) Each power vested in the court by these Rules and mentioned in an item of Table 18.3 is delegated to each Registrar.
Table 18.3 Powers under Rules delegated to Registrars
| Item | Provision of Family Law Rules |
| 2 | Part 6.3 |
| 3 | subrule 10.11 (5) |
| 4 | rule 13.14 |
| 5 | rule 15.02 |
| 6 | Part 15.4 |
| 8 | Division 20.3.2 |
| 9 | rule 20.37 |
| 9A | rule 20.39 |
| 10 | Part 20.5 |
| 11 | Part 20.6 |
| 12 | Part 20.7 |
| 13 | Part 21.4 |
18.06 Deputy Registrars
(1) Each power of the court mentioned in an item of Table 18.4 is delegated to each Deputy Registrar.
Table 18.4 Powers delegated to Deputy Registrars
| Item | Legislative provision |
| Family Law Act | |
| 1 | section 11F |
| 2 | section 11G |
| 3 | section 13B |
| 4 | section 13C |
| 5 | section 13D |
| 6 | sections 13E and 13F |
| 7 | section 27A |
| 8 | sections 33B and 33C |
| 9 | subsection 37A (1) (except subparagraph (e) (iv) and paragraph (f) and subject to subsection 37A (6)) |
| 10 | subsection 44 (1C) |
| 11 | subsection 45 (2) |
| 12 | section 48 (if the case is undefended) |
| 13 | subsection 55 (2) |
| 14 | section 55A |
| 15 | section 57 |
| 16 | subsection 60I (9) |
| 16A | subsection 60I (10) |
| 16B | subsection 60J (1) |
| 16C | paragraphs 60K (2) (a), (b) and (c) (procedural orders only) |
| 17 | section 62G |
| 18 | subsection 63E (3) |
| 18A | paragraph 65G (2) (b) |
| 19 | section 68L |
| 19A | subsection 68M (2) |
| 20 | section 69ZW |
| 21 | paragraphs 79 (9) (c) and 90SM (9) (c) |
| 22 | subsection 91B (1) |
| 23 | subsections 92 (1) and (2) |
| 24 | subsection 97 (1A) |
| 25 | subsection 97 (2) |
| 26 | section 98A |
| 27 | section 101 |
| 30 | subsection 117 (2) (except an order as to security for costs) |
| Family Law Regulations | |
| 31 | subregulation 4 (1) |
| 32 | regulation 5 |
| 33 | paragraph 6 (1) (a) |
| Bankruptcy Act | |
| 34 | section 33 |
| 35 | section 81 |
| 36 | section 264B |
| 37 | subsection 309 (2) |
| | |
(2) Each power vested in the court by these Rules and mentioned in an item of Table 18.5 is delegated to each Deputy Registrar.
Table 18.5 Powers under Rules delegated to
Deputy Registrars
| Item | Provision of Rules |
| 1 | Part 1.2 |
| 2 | Part 1.3 |
| 3 | rule 5.06 |
| 4 | rule 5.07 |
| 5 | Part 5.4 |
| 6 | rule 6.04 |
| 6A | rule 6.05 |
| 7 | rule 6.15 |
| 8 | Chapter 7 |
| 9 | rule 8.02 |
| 10 | rule 10.11 (except subrule (5)) |
| 11 | Part 10.4 |
| 12 | rule 11.01 (except paragraphs 3 (d) and (k) of Table 11.1) |
| 13 |