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Family Law Amendment Rules 2012 (No. 2)

Authoritative Version
  • - F2012L02577
  • No longer in force
SLI 2012 No. 331 Rules/Court & Tribunal Rules as made
These Rules amend the Family Law Rules 2004
Administered by: Attorney-General's
Registered 21 Dec 2012
Tabling HistoryDate
Tabled HR05-Feb-2013
Tabled Senate05-Feb-2013
Date of repeal 12 Jun 2013
Repealed by Division 1 of Part 5A of the Legislative Instruments Act 2003
Table of contents.

Commonwealth Coat of Arms

Family Law Amendment Rules 2012 (No. 2)1

Select Legislative Instrument 2012 No. 331

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

Dated 19 December 2012

D BRYANT CJ

J FAULKS DCJ

I COLEMAN J
M MAY J

S STRICKLAND J
J RYAN J

P MURPHY J

J STEVENSON J
P YOUNG J
G WATTS J
R BENJAMIN J

V BENNETT J
P CRONIN J

S FOWLER J

S AUSTIN J

M CLEARY J

W JOHNSTON J

I LOUGHNAN J
C FORREST J

M KENT J

A REES J

K MACMILLAN J

M ALDRIDGE J

 

 

Judges of the Family Court

Of Australia

 

ANGELA FILIPPELLO

Principal Registrar

Family Court of Australia

 

J CRISFORD J

S MONCRIEFF J

S DUNCANSON J

 

 

Judges of the Family Court

of Western Australia

 

DAVID MONAGHAN

Principal Registrar
Family Court of Western Australia


Contents

                        1      Name of Rules                                                                3

                        2      Commencement                                                              3

                        3      Amendment of Family Law Rules 2004                             3

                        4      Amendment of Family Law Rules 2004                             3

Schedule 1                  Amendments commencing on 1 January 2013               4

Schedule 2                  Amendments commencing on the commencement of Schedule 3 to the Access to Justice (Federal Jurisdiction) Amendment Act 2012                 10

 

 


1              Name of Rules

                These Rules are the Family Law Amendment Rules 2012 (No. 2).

2              Commencement

                These Rules commence as follows:

                (a)    on 1 January 2013—sections 1 to 3 and Schedule 1;

               (b)    on the commencement of Schedule 3 to the Access to Justice (Federal Jurisdiction) Amendment Act 2012—section 4 and Schedule 2.

3              Amendment of Family Law Rules 2004

                Schedule 1 amends the Family Law Rules 2004.

4              Amendment of Family Law Rules 2004

                Schedule 2 amends the Family Law Rules 2004.


Schedule 1        Amendments commencing on 1 January 2013

(section 3)

  

[1]           Rule 2.02, Table 2.2, item 9, column 3, paragraph (b)

substitute

 

 

  (b)  if the orders sought relate to a superannuation interest (see rule 10.16)—a completed superannuation information form for the superannuation interest;

 

 

   (c)  if the orders sought relate to parenting—the annexure mentioned in subrule 10.15A (3)

[2]           Rule 5.19, heading

substitute

5.19        Application for suppression or non‑publication order

[3]           Paragraph 5.19 (e)

substitute

                (e)    whether a summary of the judgment should be made publicly available if publication of the judgement is suppressed;

                (f)    one or more of the grounds, mentioned in subsection 102PF (1) of the Act, on which the application is made.

[4]           Paragraph 15.17 (5) (b)

substitute

               (b)    the subpoena requires each named person to produce the same document (rather than the same class of documents).

[5]           Subrule 18.05 (1), Table 18.2, after item 18B

insert

18C

paragraphs 94 (2D) (b), (h), (i) and (j)

18D

paragraphs 94AAA (10) (b), (h), (i) and (j)

[6]           Subrule 18.06 (2), Table 18.5, item 29A

omit

[7]           Subrule 19.08 (3), after Note 3

insert

Note 4   For costs orders related to appeals, see Part 22.10.

[8]           Subrule 21.02 (1), Table 21.1, item 2

omit

70NB

insert

4

[9]           After Part 22.9

insert

Part 22.10          Costs orders

  

22.53      Order for costs

         (1)   A party to an appeal or an application for leave to appeal may apply for an order that another person pay costs.

         (2)   An application for costs may be made:

                (a)    at any stage during an appeal or an application for leave to appeal; or

               (b)    by filing an application in relation to an appeal within 28 days after the court makes an order disposing of the appeal or an application for leave to appeal.

         (3)   A party applying for an order for costs on an indemnity basis must inform the court if the party is bound by a costs agreement in relation to those costs and, if so, the terms of the costs agreement.

Note 1   The court may make an order for costs on its own initiative (see rule 1.10).

Note 2   A party may apply for an order for costs within 28 days after:

(a)   the filing of a notice of discontinuance by the other party (see rule 22.42); or

(b)   the abandonment of an appeal (see rule 22.43); or

(c)   the dismissal of an appeal (see rule 22.45); or

(d)   the dismissal of an application in relation to an appeal (see rule 22.45).

Note 3   A party may apply for an extension of time to make an application (see rule 1.14).

         (4)   In making an order for costs, the court may set a time for payment of the costs that may be before the appeal is finished.

[10]         Schedule 3, Part 1, table

substitute

Item

Matter for which charge is made

Charge

101

Drafting documents (other than letters)

$18.64 per 100 words

102

Producing documents in printed form (other than letters)

$6.37 per 100 words

103

Drafting and producing letters (including fax or e‑mail transmissions)

$21.41 per 100 words

104

Reading documents

$8.73 per 100 words

105

Scanning of documents (where reading is not necessary)

$3.44 per 100 words

106

For a document or letter mentioned in item 101, 102, 103, 104 or 105 containing more than 3 000 words

The amount allowed by the Registrar

107

Photocopy or other reproduction of a document

74 cents per page

108

Time reasonably spent by a lawyer on work requiring the skill of a lawyer (except work to which any other item in this Part applies)

$218.60 per hour

109

Time reasonably spent by a lawyer, or by a clerk of a lawyer, on work (except work to which any other item in this Part applies)

$141.73 per hour

[11]         Schedule 3, Part 2, table

substitute

Item

Matter for which charge is made

Charge

Senior counsel

Charge

Junior counsel

201

Chamber work (including preparing or settling any necessary document, opinion, advice or evidence, and any reading fee (if allowed))

$420.40–$720.70 per hour

$251.00–$357.96 per hour

202

Conferences (including court appointed conferences), if necessary

$420.40–$720.70 per hour

$251.00–$357.96 per hour

203

Short attendances (for example, procedural hearings, summary hearings (taking less than 3 hours)

$420.40–$3 002.74

$224.55–$1 052.16

204

A hearing or trial taking at least 3 hours but not more than 1 day

$780.72–$6 006.05

$744.42–$1 720.74

205

Other hearings or trials

$1 981.90–$6 006.05 per day

$1 774.09–$2 607.65 per day

206

Reserved judgment

$420.40–$720.70 per hour

$251.00–$357.96 per hour

[12]         Schedule 3, Part 3, table

substitute

Item

Matter for which charge is made

Charge

301

If the lawyer employed another lawyer to attend at court for the applicant and there is a child of the marriage under 18

$923.27

302

If the lawyer employed another lawyer to attend at court for the applicant and there is no child of the marriage under 18

$686.91

303

If the lawyer did not employ another lawyer to attend at court for the applicant and there is a child of the marriage under 18

$866.79

304

If the lawyer did not employ another lawyer to attend at court for the applicant and there is no child of the marriage under 18

$648.60

305

If the lawyer did not attend at court for the hearing under section 98A of the Act

$558.07

[13]         Schedule 3, Part 4, table

substitute

Item

Matter for which charge is made

Charge

401

An Enforcement Warrant under rule 20.16

$558.07

402

A Third Party Debt Notice under rule 20.32

$558.07

Schedule 2        Amendments commencing on the commencement of Schedule 3 to the Access to Justice (Federal Jurisdiction) Amendment Act 2012

(section 4)

  

[1]           Rule 11.04

omit

[2]           Rule 11.05

substitute

11.05      Application for leave to institute proceedings after vexatious proceedings order made

         (1)   This rule applies if the court has made an order under:

                (a)    subsection 102QB (2) of the Act; or

               (b)    any of the following, as in force immediately before the commencement of Schedule 3 to the Access to Justice (Federal Jurisdiction) Amendment Act 2012:

                          (i)    paragraph 118 (1) (c) or subsection 118 (2) of the Act;

                         (ii)    paragraph 11.04 (1) (b) of these Rules;

and the person against whom the order was made applies for leave to institute or continue proceedings.

         (2)   An application under subsection 102QE (2) of the Act must be:

                (a)    in the form of an Application in a Case; and

               (b)    made without notice to any other party.

Note 1   For the contents of the affidavit that must be filed with the application, see subsection 102QE (3) of the Act.

Note 2   For rules 11.04 and 11.05 as in force immediately before the commencement of Schedule 3 to the Access to Justice (Federal Jurisdiction) Amendment Act 2012, see Schedule 7 of these Rules.

         (3)   On the first court date for the application, the court may:

                (a)    dismiss the application; or

               (b)    order the person to:

                          (i)    serve the application and affidavit; and

                         (ii)    file and serve any further affidavits in support of the application; and

                        (iii)    list the application for hearing.

[3]           After Chapter 26

insert

Chapter 27  Transitional provisions

Part 1                 Provisions for Access to Justice (Federal Jurisdiction) Amendment Act 2012

  

27.01      Rules for vexatious proceedings immediately before the commencement of Schedule 3 to the Access to Justice (Federal Jurisdiction) Amendment Act 2012

                Schedule 7 sets out rules 11.04 and 11.05 as in force immediately before the commencement of Schedule 3 to the Access to Justice (Federal Jurisdiction) Amendment Act 2012.

Note   For the application of these rules to proceedings that were pending in the court immediately before the commencement of Schedule 3 to the Access to Justice (Federal Jurisdiction) Amendment Act 2012, see subitem 12 (3) of Part 2 of Schedule 3 to that Act.

[4]           After Schedule 6

insert

Schedule 7        Rules for vexatious proceedings immediately before the commencement of Schedule 3 to the Access to Justice (Federal Jurisdiction) Amendment Act 2012

(rule 27.01)

  

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.


Note

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