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Federal Circuit Court Rules 2001

Authoritative Version
SR 2001 No. 195 Rules/Court & Tribunal Rules as amended, taking into account amendments up to Federal Circuit Court Amendment (Notice of Child Abuse, Family Violence or Risk) Rules 2020
Administered by: Attorney-General's
Registered 04 Nov 2020
Start Date 31 Oct 2020

Commonwealth Coat of Arms of Australia

Federal Circuit Court Rules 2001

Statutory Rules No. 195, 2001

made under the

Federal Circuit Court of Australia Act 1999

Compilation No. 27

Compilation date:                              31 October 2020

Includes amendments up to:            F2020L01362

Registered:                                         4 November 2020

About this compilation

This compilation

This is a compilation of the Federal Circuit Court Rules 2001 that shows the text of the law as amended and in force on 31 October 2020 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

  

  

  


Contents

Chapter 1—All proceedings                                                                                1

Part 1—Introduction                                                                                                            1

1.01....................... Name of Rules.................................................................... 1

1.02A.................... Authority............................................................................ 1

1.03....................... Objects................................................................................ 1

1.04....................... Dictionary........................................................................... 1

1.05....................... Application......................................................................... 1

1.06....................... Court may dispense with rules............................................ 2

1.07....................... Applications for orders about procedures........................... 2

Part 2—Documents                                                                                                               3

Division 2.1—General                                                                                                  3

2.01....................... Requirements for documents.............................................. 3

2.02....................... Document must have distinctive number............................ 3

2.03....................... Document to be signed....................................................... 3

2.04....................... Forms................................................................................. 4

Division 2.2—Filing documents                                                                               5

2.05....................... How documents may be filed............................................. 5

2.06....................... Registrar may refuse to accept document............................ 5

2.07....................... Filing by fax....................................................................... 5

2.07A.................... Filing by electronic communication.................................... 6

2.07B..................... Other requirements for filing by electronic communication 7

Division 2.3—Custody and inspection of documents                                   9

2.08....................... Searching records in family law proceedings or child support proceedings             9

2.08A.................... Custody of documents in general federal law proceedings 10

2.08B..................... Inspection of documents in general federal law proceedings 10

Division 2.4—Seal and stamp of Court                                                             12

2.09....................... Use of seal of Court.......................................................... 12

2.10....................... Stamp of Court................................................................. 12

2.11....................... Methods of attaching the seal or stamp............................. 12

Part 3—Sittings, registry hours and time                                                              13

Division 3.1—Sittings, holidays and registry hours                                   13

3.01....................... Sittings.............................................................................. 13

3.02....................... Registry hours.................................................................. 13

Division 3.2—Time                                                                                                       14

3.03....................... Meaning of month............................................................ 14

3.04....................... Calculating time................................................................ 14

3.05....................... Extension or shortening of time fixed............................... 14

Part 4—Starting proceedings                                                                                        15

Division 4.1—General rules about starting proceedings                         15

4.01....................... Application....................................................................... 15

4.02....................... Content of application....................................................... 15

4.03....................... Response to application.................................................... 15

4.05....................... Affidavit to be filed with application or response............. 16

4.07....................... Reply in certain circumstances.......................................... 16

4.08....................... Application in a case......................................................... 16

Division 4.2—Rules for proceedings if Civil Dispute Resolution Act applies     17

4.09....................... Applicant’s genuine steps statement................................. 17

4.10....................... Respondent’s genuine steps statement.............................. 17

Part 5—Urgent applications                                                                                          18

5.01....................... Urgent application............................................................. 18

5.02....................... Form of application........................................................... 18

5.03....................... Evidence........................................................................... 18

Part 6—Service                                                                                                                      19

Division 6.1—General                                                                                                19

6.01....................... Address for service........................................................... 19

6.02....................... Change of address for service........................................... 19

6.03....................... Service of documents........................................................ 19

6.04....................... Court’s discretion in relation to service............................. 20

6.05....................... Affidavit of service........................................................... 20

Division 6.2—Service by hand in particular cases                                      21

6.06....................... When is service by hand required..................................... 21

6.07....................... Service by hand................................................................ 21

6.08....................... Service by hand on a corporation, unincorporated association or organisation        21

6.09....................... Service of application on unregistered business................ 22

6.10....................... Service of application on partnership................................ 22

Division 6.3—Ordinary service                                                                            23

6.11....................... Service other than by hand................................................ 23

6.12....................... When service is effected................................................... 23

6.13....................... Special requirements for service by fax............................ 24

Division 6.4—Substituted service and dispensing with service             25

6.14....................... Substituted service............................................................ 25

6.15....................... Matters to be taken into account........................................ 25

6.16....................... Failure to comply with condition...................................... 25

Division 6.5—Time for service                                                                              26

6.17....................... General time limit.............................................................. 26

6.18....................... Time for service of subpoena............................................ 26

6.19....................... Time for service of applications........................................ 26

Part 7—Amendment                                                                                                          27

Division 7.1—General                                                                                                27

7.01....................... Power to amend................................................................ 27

7.02....................... Who may be required to make amendment....................... 27

Division 7.2—General federal law proceedings                                           28

7.03....................... Amendment after limitation period.................................... 28

Part 8—Transfer of proceedings                                                                                29

8.01....................... Change of venue............................................................... 29

8.02....................... Transfer to Federal Court or Family Court....................... 29

8.03....................... Proceeding transferred to Federal Court or Family Court. 29

8.04....................... Proceeding transferred from Federal Court or Family Court 30

8.05....................... Proceeding transferred from Federal Court or Family Court 30

Part 9—Lawyers                                                                                                                   31

9.01....................... Change between acting in person and by lawyer.............. 31

9.02....................... Change of lawyer.............................................................. 31

9.03....................... Withdrawal as lawyer....................................................... 31

9.04....................... Corporation must be represented...................................... 32

Part 10—How to conduct proceedings                                                                    33

Division 10.1—First court date                                                                             33

10.01..................... Directions and orders........................................................ 33

10.02..................... Adjournment of first court date......................................... 33

10.03..................... Fixing date for final hearing.............................................. 34

Division 10.2—Dispute Resolution                                                                      35

10.04..................... Agreement reached by dispute resolution......................... 35

10.05..................... Conciliation conference..................................................... 35

Division 10.3—Notice of constitutional matter                                             36

10.06..................... Party to file notice of constitutional matter........................ 36

Part 11—Parties and litigation guardians                                                             37

Division 11.1—Parties                                                                                                37

11.01..................... Necessary parties.............................................................. 37

11.02..................... Party may include another person as a party..................... 37

11.03..................... Person may apply to be included...................................... 37

11.04..................... Party may apply to be removed......................................... 38

11.05..................... Court may order notice to be given................................... 38

11.06..................... Intervention by Attorney‑General..................................... 38

11.07..................... Child to whom state welfare law applies........................... 38

Division 11.2—Litigation guardian                                                                     39

11.08..................... Person who needs a litigation guardian............................. 39

11.09..................... Starting, continuing, defending or inclusion in proceeding 39

11.10..................... Who may be a litigation guardian...................................... 39

11.11..................... Appointment of litigation guardian................................... 39

11.12..................... Manager of the affairs of a party....................................... 39

11.13..................... Notice of becoming litigation guardian............................. 40

11.14..................... Costs and expenses of litigation guardian......................... 40

11.15..................... Service.............................................................................. 40

Part 12—Court referral for legal assistance                                                        41

12.01..................... Definitions for Part 12...................................................... 41

12.02..................... Referral for legal assistance.............................................. 41

12.03..................... A party has no right to apply for a referral........................ 41

12.04..................... Acceptance of referral certificate and provision of legal assistance          41

12.05..................... Ceasing to provide legal assistance................................... 41

Part 13—Ending a proceeding early                                                                        42

Division 13.1—Discontinuance                                                                              42

13.01..................... Discontinuance................................................................. 42

13.02..................... Costs................................................................................. 42

Division 13.1A—Order or judgment on default                                           43

13.03..................... Definitions........................................................................ 43

13.03A.................. When a party is in default................................................. 43

13.03B................... Orders on default.............................................................. 43

13.03C................... Default of appearance of a party....................................... 44

13.03D.................. Court’s powers in relation to contempt etc not affected.... 45

Division 13.2—Consent orders                                                                              46

13.04..................... Application for order by consent...................................... 46

13.04A.................. Consent parenting orders and allegations of abuse, family violence or other risk factors.......................................................................................... 46

13.05..................... Additional information...................................................... 47

Division 13.3—Summary disposal and stay                                                    48

13.07..................... Disposal by summary judgment....................................... 48

13.08..................... Residue of proceeding...................................................... 48

13.09..................... Application....................................................................... 48

13.10..................... Disposal by summary dismissal....................................... 48

13.11..................... Certificate of vexatious proceedings order........................ 49

13.11A.................. Application for leave to institute proceedings................... 49

13.12..................... Dormant proceedings........................................................ 49

Part 14—Disclosure                                                                                                            51

Division 14.1—Answers to specific questions                                                51

14.01..................... Declaration to allow specific questions............................. 51

Division 14.2—Obligation to disclose                                                                52

14.02..................... Declaration to allow discovery.......................................... 52

14.03..................... Affidavit of documents..................................................... 52

14.04..................... Production of documents to Court.................................... 52

14.05..................... Claim for privilege............................................................ 52

14.06..................... Order for particular disclosure.......................................... 52

14.07..................... Inspection of documents................................................... 53

14.08..................... Copies of documents inspected......................................... 53

14.09..................... Documents not disclosed or produced.............................. 53

14.10..................... Documents referred to in document or affidavit................ 53

14.11..................... Use of documents............................................................. 54

Part 15—Evidence                                                                                                               55

Division 15.1—General                                                                                             55

15.01..................... Court may give directions................................................. 55

15.02..................... Evidence if there is an independent children’s lawyer....... 55

15.03..................... Decisions without oral hearing......................................... 55

15.04..................... Court may call evidence.................................................... 56

15.06..................... Transcript receivable in evidence...................................... 56

Division 15.2—Expert evidence                                                                            57

15.06A.................. Definition.......................................................................... 57

15.07..................... Duty to Court and form of expert evidence....................... 57

15.08..................... Expert evidence for 2 or more parties............................... 57

15.09..................... Court expert...................................................................... 58

15.10..................... Report of court expert....................................................... 58

15.11..................... Remuneration and expenses of court expert...................... 58

15.12..................... Further expert evidence..................................................... 58

Division 15.4—Affidavits                                                                                          59

15.25..................... Form of affidavit............................................................... 59

15.26..................... Making an affidavit........................................................... 59

15.27..................... Affidavit of illiterate or vision impaired person etc........... 59

15.28..................... Documents annexed or exhibited...................................... 60

15.29..................... Objectionable material may be struck out.......................... 60

15.29A.................. Use of affidavit without cross‑examination of maker....... 61

Division 15.5—Admissions                                                                                       62

15.30..................... Admission........................................................................ 62

15.31..................... Notice to admit facts or documents................................... 62

Part 15A—Subpoenas and notices to produce                                                   63

Division 15A.1—General                                                                                          63

15A.01.................. Definitions for Part 15A................................................... 63

15A.02.................. Issue of subpoena............................................................. 63

15A.03.................. Documents and things in possession of another court...... 64

15A.04.................. Time limits........................................................................ 64

15A.05.................. Limit on number of subpoenas......................................... 64

15A.06.................. Service.............................................................................. 64

15A.07.................. Conduct money................................................................. 65

15A.08.................. Undertaking not to require compliance with subpoena..... 65

15A.09.................. Setting aside subpoena...................................................... 65

15A.10.................. Order for cost of complying with subpoena..................... 65

15A.11.................. Cost of complying with subpoena if not a party............... 65

Division 15A.2—Production of documents and access by parties      67

15A.12.................. Application of Division 15A.2......................................... 67

15A.13.................. Right to inspection of document....................................... 67

15A.14.................. Objection to production or inspection or copying of document                67

15A.15.................. Subpoena for production of documents or things............. 68

15A.16.................. Failure to comply with subpoena...................................... 68

Division 15A.3—Notices to produce                                                                   69

15A.17.................. Notice to produce.............................................................. 69

Part 16—Judgments and orders                                                                                 70

16.01..................... Court may make any judgment or order............................ 70

16.02..................... Date of effect.................................................................... 70

16.03..................... Time for compliance......................................................... 70

16.04..................... Fines................................................................................. 70

16.05..................... Setting aside or varying judgments or orders.................... 70

16.06..................... Undertakings.................................................................... 71

16.07..................... When must an order be entered......................................... 71

16.08..................... Entry of orders.................................................................. 71

Part 17—Separate decision on question                                                                 73

17.01..................... Definition.......................................................................... 73

17.02..................... Order for decision............................................................. 73

17.03..................... Separate question.............................................................. 73

17.04..................... Orders, directions on decision.......................................... 73

17.05..................... Disposal of proceeding..................................................... 73

Part 18—Referral of matter to officer of Court                                               74

18.01..................... Court may refer matter...................................................... 74

Part 19—Contempt                                                                                                             75

19.01..................... Contempt in the face or hearing of Court.......................... 75

19.02..................... Contempt other than in the face or hearing of Court......... 75

Part 20—Registrars’ powers                                                                                         77

Division 20.1—Delegation of powers to Registrars                                   77

20.00A.................. Delegation of powers to Registrars................................... 77

Division 20.2—Review of exercise of Registrars’ powers                      95

20.01..................... Time for application for review......................................... 95

20.02..................... Application for review...................................................... 95

20.03..................... Procedure for review........................................................ 95

Part 21—Costs                                                                                                                       96

Division 21.1—Security for costs                                                                         96

21.01..................... Security for costs.............................................................. 96

Division 21.2—Orders for costs                                                                           97

21.02..................... Order for costs.................................................................. 97

21.03..................... Determination of maximum costs..................................... 97

21.04..................... Costs reserved.................................................................. 97

21.05..................... Costs if proceedings transferred....................................... 97

21.07..................... Order for costs against lawyer.......................................... 98

21.08..................... Interest on outstanding costs............................................. 98

Division 21.3—Costs and disbursements                                                          99

21.09..................... Application....................................................................... 99

21.10..................... Costs and disbursements.................................................. 99

21.11..................... Taxation of costs............................................................... 99

21.12..................... Expenses for attendance by witness.................................. 99

21.13..................... Expenses for preparation of report by expert.................. 100

21.14..................... Solicitor as advocate....................................................... 100

21.15..................... Advocacy certificate........................................................ 100

21.16..................... Counsel as advocate........................................................ 100

Chapter 2—Family law and child support proceedings   101

Part 22—General                                                                                                               101

22.01..................... Rate of interest................................................................ 101

Part 22A—Notice of Child Abuse, Family Violence or Risk etc.          102

Division 1—Notice of Child Abuse, Family Violence or Risk             102

22A.01.................. Definitions...................................................................... 102

22A.02.................. Notice of Child Abuse, Family Violence or Risk must be filed with application for parenting order............................................................................... 102

22A.03.................. Notice of Child Abuse, Family Violence or Risk filed by interested person            102

22A.04.................. Amendment of Notice of Child Abuse, Family Violence or Risk            103

22A.05.................. Proceedings transferred from another court.................... 103

22A.06.................. Content of Notice of Child Abuse, Family Violence or Risk 104

22A.07.................. Notice of Child Abuse, Family Violence or Risk for the purposes of subsection 67Z(2) or 67ZBA(2) of the Family Law Act.................................. 104

Division 2—Family violence orders                                                                  105

22A.08.................. Family violence orders.................................................... 105

Part 23—Family counselling and family dispute resolution                     106

Division 23.1—Family counselling, family dispute resolution and family reports           106

23.01A.................. Family reports................................................................. 106

23.01..................... Report after family counselling or family dispute resolution 107

Division 23.2—Family dispute resolution                                                      108

23.02..................... Referral for family dispute resolution............................. 108

Part 24—Financial matters                                                                                          109

24.01..................... Application of Part.......................................................... 109

24.01A.................. Interpretation................................................................... 109

24.02..................... Financial statement.......................................................... 109

24.03..................... Full and frank disclosure................................................ 110

24.04..................... Production of documents (proceeding other than for maintenance only)  110

24.05..................... Production of documents (proceedings for maintenance only) 111

24.06..................... Amendment of financial statement.................................. 111

24.07..................... Service of application or order for superannuation interest 111

Part 25—Divorce                                                                                                                113

Division 25.1—Application                                                                                    113

25.01..................... Application for divorce order.......................................... 113

25.02..................... Service of application...................................................... 113

25.03..................... Additional requirements for service by post................... 113

25.04..................... Acknowledgment of service........................................... 113

25.05..................... Affidavit of service......................................................... 114

25.06..................... Evidence of service......................................................... 114

25.07..................... Evidence of signature and identity of person served....... 114

Division 25.2—Response                                                                                         115

25.08..................... Response........................................................................ 115

25.10..................... Time for filing response.................................................. 115

Division 25.3—Attendance at hearing                                                             116

25.11..................... Attendance at hearing by electronic communication........ 116

25.12..................... Failure to attend hearing.................................................. 116

Division 25.4—Hearing in absence of parties                                             118

25.13..................... Seeking a hearing in absence of parties........................... 118

25.14..................... Hearing in absence of parties—joint application............. 118

25.15..................... Request not to hear case in parties’ absence.................... 118

Division 25.5—Events affecting divorce order                                           119

25.16..................... Application for rescission of divorce order..................... 119

25.17..................... Discontinuance of application......................................... 119

25.18..................... Death of party................................................................. 119

Part 25A—Child support and child maintenance                                          120

25A.01.................. Application of Part 25A.................................................. 120

25A.02.................. Commencing proceedings............................................... 120

25A.03.................. Documents to be filed with applications......................... 120

25A.04.................. Child support agreements............................................... 120

25A.05.................. Appeals from the Tribunal or Child Support Registrar... 121

25A.06.................. Time limits...................................................................... 121

25A.07.................. Service of application or notice of appeal........................ 121

25A.08.................. Evidence to be provided.................................................. 122

Part 25B—Enforcement                                                                                                124

Division 25B.1—Applications for contravention of orders                  124

25B.01................... Application of Division 25B.1........................................ 124

25B.02................... How to apply for an order.............................................. 124

25B.03................... Failure of respondent to attend........................................ 124

25B.04................... Procedure at hearing....................................................... 125

Division 25B.2—Enforcement of financial orders and obligations  126

Subdivision 25B.2.1—General                                                                            126

25B.05................... Application..................................................................... 126

25B.06................... Interpretation................................................................... 126

25B.07................... Enforceable obligations................................................... 126

25B.08................... When an agreement may be enforced.............................. 127

25B.09................... When a child support liability may be enforced.............. 128

25B.10................... Who may enforce an obligation...................................... 128

25B.11................... Enforcing an obligation to pay money............................ 128

25B.12................... Affidavit to be filed for enforcement order..................... 129

25B.13................... General enforcement powers of Court............................ 129

25B.14................... Enforcement order.......................................................... 130

25B.15................... Discharging, suspending or varying enforcement order. 130

Subdivision 25B.2.2—Information for aiding enforcement                       130

25B.16................... Processes for obtaining financial information................. 130

25B.17................... Enforcement hearing....................................................... 131

25B.18................... Obligations of payer....................................................... 131

25B.19................... Subpoena of witness....................................................... 132

25B.20................... Failure concerning financial statement or enforcement hearing                132

Subdivision 25B.2.3—Enforcement warrants                                                132

25B.21................... Definitions...................................................................... 132

25B.22................... Request for Enforcement Warrant................................... 133

25B.23................... Period during which Enforcement Warrant is in force.... 133

25B.24................... Enforcement officer’s responsibilities............................. 133

25B.25................... Directions for enforcement............................................. 134

25B.26................... Effect of Enforcement Warrant....................................... 135

25B.27................... Advertising before sale................................................... 135

25B.28................... Sale of property at reasonable price................................ 136

25B.29................... Conditions of sale of property........................................ 136

25B.30................... Result of sale of property under Enforcement Warrant... 136

25B.31................... Payee’s responsibilities................................................... 137

25B.32................... Orders for real property.................................................. 137

25B.33................... Notice of claim................................................................ 138

25B.34................... Payee to admit or dispute claim....................................... 138

25B.35................... Admitting claim.............................................................. 139

25B.36................... Denial or no response to claim........................................ 139

25B.37................... Hearing of application..................................................... 139

Subdivision 25B.2.4—Third Party Debt Notice                                              139

25B.38................... Application of Subdivision 25B.2.4............................... 139

25B.39................... Money deposited in a financial institution....................... 140

25B.40................... Request for Third Party Debt Notice.............................. 140

25B.41................... Service of Third Party Debt Notice................................. 140

25B.42................... Effect of Third Party Debt Notice—general.................... 141

25B.43................... Employer’s obligations................................................... 141

25B.44................... Duration of Third Party Debt Notice.............................. 141

25B.45................... Response to Third Party Debt Notice............................. 141

25B.46................... Discharge of Third Party Debt Notice............................ 142

25B.47................... Claim by affected person................................................ 142

25B.48................... Cessation of employment................................................ 142

25B.49................... Compliance with Third Party Debt Notice...................... 143

Subdivision 25B.2.5—Sequestration of property                                           143

25B.50................... Application for sequestration of property....................... 143

25B.51................... Order for sequestration................................................... 144

25B.52................... Order relating to sequestration........................................ 144

25B.53................... Procedural orders for sequestration................................ 144

Subdivision 25B.2.6—Receivership                                                                   145

25B.54................... Application for appointment of receiver.......................... 145

25B.55................... Appointment and powers of receiver.............................. 145

25B.56................... Security........................................................................... 146

25B.57................... Accounts......................................................................... 146

25B.58................... Objection to accounts...................................................... 146

25B.59................... Removal of receiver........................................................ 146

25B.60................... Compliance with orders and Rules................................. 146

Subdivision 25B.2.7—Enforcement of obligations other than an obligation to pay money       147

25B.61................... Application for other enforcement orders....................... 147

25B.62................... Warrant for possession of real property.......................... 147

25B.63................... Warrant for delivery........................................................ 147

25B.64................... Warrant for seizure and detention of property................. 147

Subdivision 25B.2.8—Other provisions about enforcement                       148

25B.65................... Service of order.............................................................. 148

25B.66................... Certificate for payments under maintenance order.......... 148

25B.67................... Enforcement by or against a non‑party........................... 148

25B.68................... Powers of enforcement officer........................................ 148

Division 25B.3—Location and recovery orders                                        149

25B.69................... Application of Division 25B.3........................................ 149

25B.70................... Application for order under Division 25B.3................... 149

25B.71................... Service of recovery order................................................ 149

25B.72................... Application for directions for execution of recovery order 149

Division 25B.4—Warrants for arrest                                                              150

25B.73................... Application for warrant................................................... 150

25B.74................... Execution of warrant....................................................... 150

25B.75................... Duration of warrant........................................................ 150

25B.76................... Procedure after arrest...................................................... 150

25B.77................... Application for release or setting aside warrant.............. 152

Chapter 3—Proceedings other than family law or child support   153

Part 26—General                                                                                                               153

26.01..................... Rate of interest................................................................ 153

Part 27—Dispute resolution                                                                                         154

Division 27.1—General                                                                                           154

27.01..................... Proceeding referred to mediator or arbitrator.................. 154

27.02..................... Adjournment of proceeding............................................ 154

27.03..................... Court may end mediation or arbitration........................... 154

Division 27.2—Mediation                                                                                       155

27.04..................... Nomination of mediator.................................................. 155

27.05..................... Mediation conference...................................................... 155

27.06..................... Mediator may end mediation........................................... 155

Division 27.3—Arbitration                                                                                    156

27.07..................... Appointment of arbitrator............................................... 156

Part 28—Cross‑claims                                                                                                     157

28.01..................... Cross‑claim against applicant.......................................... 157

28.02..................... Cross‑claim after application........................................... 157

28.03..................... Cross‑claim against additional party............................... 157

28.04..................... Cross‑claim to be included in response........................... 157

28.05..................... Response to cross‑claim................................................. 157

28.06..................... Conduct of cross‑claim................................................... 158

28.07..................... Exclusion of cross‑claim................................................. 158

28.08..................... Cross‑claim after judgment etc........................................ 158

28.09..................... Judgment for balance...................................................... 158

28.10..................... Stay of claim................................................................... 158

28.11..................... Cross‑claim for contribution or indemnity...................... 158

28.12..................... Offer of contribution....................................................... 159

Part 29—Enforcement                                                                                                    160

29.01..................... Definition for Part 29...................................................... 160

29.02..................... Application without notice for directions........................ 160

29.03..................... Condition precedent not fulfilled..................................... 160

29.04..................... Application for stay of judgment or order....................... 160

29.05..................... Failure to comply with Court order................................. 160

29.06..................... Failure to attend Court in response to subpoena or order 160

29.07..................... Endorsement on order..................................................... 161

29.08..................... Service of order.............................................................. 161

29.09..................... Application where person fails to comply with order..... 161

29.10..................... Substituted performance................................................. 162

29.11..................... Execution generally......................................................... 162

29.12..................... Stay of execution............................................................ 163

Chapter 5—Human rights proceedings                                             164

Part 41—Proceedings alleging unlawful discrimination                            164

41.01..................... Application of Chapter.................................................... 164

41.02..................... Interpretation................................................................... 164

41.02A.................. Form of application......................................................... 164

41.03..................... Copy of application to be given to Commission............. 164

41.04..................... Form of response to application...................................... 164

41.05..................... Appearance by special‑purpose Commissioner.............. 165

Chapter 6—Judicial review proceedings and administrative appeals       166

Part 42—Judicial review                                                                                                166

42.01..................... Application of Part.......................................................... 166

42.02..................... Application for order of review...................................... 166

42.03..................... Application for extension of time.................................... 166

42.04..................... Documents to be filed and served................................... 166

42.05..................... Service............................................................................ 167

42.06..................... Notice of objection to competency.................................. 167

Part 43—Administrative Appeals Tribunal                                                       168

43.01..................... Definitions for Part 43.................................................... 168

43.02..................... Application of Part.......................................................... 168

43.03..................... Form of application for stay of Tribunal decision........... 168

43.04..................... Notice of cross‑appeal.................................................... 168

43.05..................... Notice of contention........................................................ 169

43.06..................... Directions....................................................................... 169

43.07..................... Preparation of appeal papers........................................... 169

Part 44—Proceedings under the Migration Act 1958                                  171

Division 44.1—Preliminary                                                                                   171

44.01..................... Definitions for Part 44.................................................... 171

44.02..................... Application of Part 44..................................................... 171

44.03..................... Application of Chapters 1 and 3..................................... 171

Division 44.2—Matters commenced in the Court                                     172

44.04..................... Application of Division 44.2.......................................... 172

44.05..................... Application for order to show cause............................... 172

Division 44.3—Matters remitted by the High Court                               173

44.07..................... Application of Division 44.3.......................................... 173

44.08..................... Filing of order of remittal................................................ 173

44.09..................... Service of notice and order............................................. 173

Division 44.4—General                                                                                           174

44.10..................... Stay of proceedings........................................................ 174

44.11..................... First court date................................................................ 174

44.12..................... Show cause hearing........................................................ 174

44.13..................... Relief and grounds.......................................................... 174

44.14..................... Writs............................................................................... 175

44.15..................... Costs............................................................................... 175

Chapter 7—Fair Work Division                                                                 176

Part 45—Proceedings in the Fair Work Division                                           176

Division 45.1—General                                                                                           176

45.01..................... Definitions for Part 45.................................................... 176

45.02..................... Expressions used in Part 45............................................ 176

45.03..................... Application of Part 45..................................................... 176

Division 45.2—Unlawful termination of employment (Workplace Relations Act)          177

45.04..................... Application in relation to alleged unlawful termination of employment (Workplace Relations Act)................................................................................. 177

45.05..................... Application in relation to other alleged contraventions of the Workplace Relations Act........................................................................................ 177

Division 45.3—Contraventions of the Fair Work Act                            178

45.06..................... Application in relation to dismissal from employment in contravention of a general protection (Fair Work Act, s 539(2), table, item 11)........................ 178

45.07..................... Application in relation to alleged unlawful termination of employment (Fair Work Act, s 539(2), table, item 35)..................................................... 178

45.08..................... Application in relation to other alleged contraventions of Fair Work Act general protections........................................................................................ 178

45.09..................... Application in relation to other alleged contraventions of the Fair Work Act           179

Division 45.3A—Contraventions of the Registered Organisations Act 180

45.09A.................. Application in relation to taking a reprisal (Registered Organisations Act, s 337BB)........................................................................................ 180

Division 45.4—Small claims                                                                                  181

45.10..................... Definitions for Division 45.4.......................................... 181

45.11..................... Small claims procedure................................................... 181

45.12..................... Starting proceedings....................................................... 181

45.13..................... Lawyers—Fair Work Act small claims proceeding........ 181

45.13A.................. Representation for corporations—Fair Work Act small claims proceeding              182

Division 45.4A—Dispute resolution                                                                  183

45.13B................... Mediation—Fair Work Act and Registered Organisations Act proceedings            183

Division 45.5—Proceedings under the Building and Construction Industry Act              185

45.14..................... Applications for orders etc. under the Building and Construction Industry Act       185

Chapter 8—Proceedings under National Consumer Credit Protection Act                                                                                                                       186

Part 46—Small claims application under National Consumer Credit Protection Act     186

46.1....................... Definitions...................................................................... 186

46.2....................... Small claims proceeding—National Consumer Credit Protection Act      186

46.3....................... Starting a small claims proceeding.................................. 186

46.4....................... Lawyers—National Consumer Credit Protection Act small claims proceeding        186

46.5....................... Representation for corporations—National Consumer Credit Protection Act small claims proceeding...................................................................... 187

Chapter 9—Transitional provisions                                                       188

Part 47—Transitional provisions relating to the Federal Circuit Court Amendment (Notice of Child Abuse, Family Violence or Risk) Rules 2020             188

47.01..................... Definitions...................................................................... 188

47.02..................... Application of amendments of rule 22A.02.................... 188

47.03..................... Application of amendments of rule 22A.03.................... 188

47.04..................... Application of amendments of rule 22A.04.................... 188

47.05..................... Application of amendments of rule 22A.05.................... 189

47.06..................... Application of amendments of rule 22A.07.................... 189

Part 48—Transitional provisions relating to the Federal Circuit Court Amendment (Powers Delegated to Registrars) Rules 2020                                                    190

48.01..................... Application—powers delegated to Registrars................. 190

Schedule 1—Costs                                                                                                     191

Part 1A—Application of this Schedule                                                                 191

1............................ Application of this Schedule........................................... 191

Part 1—Family law proceedings and general federal law proceedings 192

Part 2—Child support proceedings                                                                        194

Division 1—Application for enforcement order in relation to child support proceedings                                                                                                                    194

Division 2—Costs for appeal of a Tribunal or Child Support Registrar decision           195

Part 3—Migration proceedings                                                                                 196

Division 1—Costs for migration proceedings that have concluded 196

Division 2—Costs for migration proceedings that have been discontinued         197

Schedule 2—Notice of Child Abuse, Family Violence or Risk            198

Schedule 3—Family Law Rules and Federal Court Rules applied                212

Part 1—Family Law Rules                                                                                           212

Part 2—Federal Court Rules                                                                                      213

Dictionary                                                                                                                           214

Endnotes                                                                                                                                  217

Endnote 1—About the endnotes                                                                          217

Endnote 2—Abbreviation key                                                                              218

Endnote 3—Legislation history                                                                           219

Endnote 4—Amendment history                                                                         221

Endnote 5—Editorial changes                                                                             240


Chapter 1All proceedings

Part 1Introduction

  

1.01  Name of Rules

                   These Rules are the Federal Circuit Court Rules 2001.

1.02A  Authority

                   These Rules are made under the Federal Circuit Court of Australia Act 1999.

1.03  Objects

             (1)  The object of these Rules is to assist the just, efficient and economical resolution of proceedings.

             (2)  In accordance with the objects of the Act, the Rules aim to help the Court:

                        •  to operate as informally as possible

                        •  to use streamlined processes

                        •  to encourage the use of appropriate dispute resolution procedures.

             (3)  The Court will apply the Rules in accordance with their objects.

             (4)  To assist the Court, the parties must:

                        •  avoid undue delay, expense and technicality

                        •  consider options for primary dispute resolution as early as possible.

             (5)  If appropriate, the Court will help to implement primary dispute resolution.

1.04  Dictionary

                   The dictionary defines terms used in these Rules.

1.05  Application

             (1)  It is intended that the practice and procedure of the Court be governed principally by these Rules.

             (2)  However, if in a particular case the Rules are insufficient or inappropriate, the Court may apply the Family Law Rules, the Federal Court Rules or the Federal Court (Criminal Proceedings) Rules 2016, in whole or in part and modified or dispensed with, as necessary.

             (3)  Without limiting subrule (2):

                     (a)  the provisions of the Family Law Rules set out in Part 1 of Schedule 3 apply, with necessary changes, to family law or child support proceedings; and

                     (b)  the provisions of the Federal Court Rules set out in Part 2 of Schedule 3, apply, with necessary changes, to general federal law proceedings.

Note:          These Rules have effect subject to any provision made by an Act, or by rules or regulations under an Act, with respect to the practice and procedure in particular matters:  see subsection 81(2) of the Act.

 

General outline:

·          Chapter 1 applies to all proceedings

·          Chapter 2 applies to family law and child support proceedings

·          Chapter 3 applies to all proceedings other than family law and child support proceedings

·          Chapter 5 applies to proceedings under the Australian Human Rights Commission Act 1986

·          Chapter 6 applies to proceedings under other Acts including the Administrative Decisions (Judicial Review) Act 1977 and the Administrative Appeals Tribunal Act 1975.

1.06  Court may dispense with rules

             (1)  The Court may in the interests of justice dispense with compliance, or full compliance, with any of these Rules at any time.

             (2)  If, in a proceeding, the Court gives a direction or makes an order that is inconsistent with any of these Rules, the direction or order of the Court prevails in that proceeding.

1.07  Applications for orders about procedures

                   A person who wants to start a proceeding, or take a step in a proceeding, may apply to the Court for an order about the procedure to be followed if:

                     (a)  the procedure is not prescribed by the Act, these Rules or by or under any other Act; or

                     (b)  the person is in doubt about the procedure.

Part 2Documents

Division 2.1General

2.01  Requirements for documents

             (1)  A document (other than a form) to be filed must:

                     (a)  be set out on 1 side only of size A4 durable white paper of good quality; and

                     (b)  be legible and without erasures, blotting out or material disfigurement; and

                     (c)  have a margin at the left side of at least 30 mm; and

                     (d)  have clear margins of at least 10 mm on the top, bottom and right sides; and

                     (e)  be written in English; and

                      (f)  be:

                              (i)  printed in a font of not less than 12 points; or

                             (ii)  hand‑printed clearly in ink in a way that is permanent and can be photocopied to produce a copy satisfactory to the registrar; and

                     (g)  have a space of not less than 8 mm between the lines of printing.

          (1A)  However, unless the Court otherwise orders, strict compliance with subrule (1) is not required if the document:

                     (a)  is readable, including when it is bound; and

                     (b)  can be easily scanned and photocopied.

             (2)  This rule does not apply to a document annexed to an affidavit.

Note:          The Court may give directions limiting the length of documents to be filed:  see section 51 of the Act.

2.02  Document must have distinctive number

                   A document filed in connection with a particular proceeding must bear the distinctive number of the proceeding.

2.03  Document to be signed

             (1)  A document to be filed (other than an affidavit, annexure or exhibit) must be signed by a party or by the lawyer for the party unless the nature of the document is such that signature is inappropriate.

             (2)  If a document (other than an affidavit) is required by these Rules to be signed, that requirement is met if the signature is attached to the document by electronic means, by, or at the direction of, the signatory.

2.04  Forms

          (1A)  The Chief Judge may approve a form for a provision of these Rules.

          (1B)  A reference in these Rules to the Notice of Child Abuse, Family Violence or Risk is a reference to the form in Schedule 2, with any variations that are necessary or as the Chief Judge directs.

             (1)  Unless the Court otherwise orders, strict compliance with forms is not required and substantial compliance is sufficient.

             (2)  A document prepared in the form prescribed for a similar purpose for the Family Court or the Federal Court may be taken to substantially comply with the appropriate form for a proceeding.

             (3)  However, unless otherwise provided in these Rules, a document to be filed in a proceeding must be headed:

                   FEDERAL CIRCUIT COURT OF AUSTRALIA

                   At (Registry).

Division 2.2Filing documents

2.05  How documents may be filed

             (1)  A document may be filed by:

                     (a)  delivering it to the registry; or

                     (b)  sending it to the registry by post; or

                     (c)  fax or electronic communication, as permitted by this Division.

Note:          The Federal Court and Federal Circuit Court Regulation 2012 and the Family Law (Fees) Regulation 2012 provide that a document may not be filed in a registry of the Court unless the fee payable for the filing has been paid. Both regulations also provide for an exemption or deferral of a fee, or payment of the fee on invoice, in certain circumstances.

          (1A)  However, a document may not be filed by electronic communication if the document (including an attachment) is over 100 pages long.

             (2)  A document is filed when it is accepted for filing by a Registrar and sealed with the seal of the Court or marked with a Court stamp, as required by Division 2.4.

Note:          For the design, custody and affixation of the seal and validity of stamps: see sections 47 and 48 of the Act.

             (3)  However, a document sent by fax or electronic communication, if accepted, is taken to have been filed:

                     (a)  if the whole document is received by 4.30 pm on a day the Registry is open for business—on that day; and

                     (b)  in any other case—on the next day the Registry is open for business.

Note:          Because of the Court’s computer security firewall, there may be a delay between the time a document is sent by electronic communication and the time the document is filed.

2.06  Registrar may refuse to accept document

                   A Registrar may refuse to accept a document for filing if:

                     (a)  the Registrar is satisfied that the document, on its face or by reference to any other documents filed or submitted for filing with the document, is an abuse of process or is frivolous, scandalous or vexatious; or

                     (b)  the document is filed in connection with a pending proceeding and the registry is not the appropriate registry; or

                     (c)  the rules relating to the electronic filing of documents have not been complied with.

2.07  Filing by fax

             (1)  An authorised Registrar may approve at least 1 fax number for each Registry for receiving documents.

             (2)  A document sent to a Registry by fax must be:

                     (a)  sent to an approved fax number for the Registry; and

                     (b)  accompanied by a cover sheet stating:

                              (i)  the sender’s name, postal address, telephone number, fax number and any document exchange number; and

                             (ii)  the number of pages sent; and

                            (iii)  the action sought in relation to the document.

             (3)  If the document is in an existing proceeding, it must be sent to an approved fax number for the Registry that is the appropriate place for the proceeding.

             (4)  If the document is required to be signed or stamped, and is accepted at the Registry, the Registrar must:

                     (a)  make 1 copy of the document; and

                     (b)  if the sender asks that the document be held for collection—hold it for collection for 7 days; and

                     (c)  if the sender does not ask for the document to be held for collection, or having asked does not collect the document within 7 days—return the document by sending it:

                              (i)  by fax to the fax number stated on the cover sheet; or

                             (ii)  if no fax number is stated, to the postal address stated on the cover sheet.

             (5)  The sender of a document to a Registry by fax must:

                     (a)  keep the original document and the transmission report evidencing successful transmission; and

                     (b)  produce the original document or the transmission report as directed by the Court.

             (6)  If the Court directs that the original document be produced, the first page of the document must be endorsed with:

                     (a)  a statement that the document is the original of a document sent by fax; and

                     (b)  the day that the document was sent by fax.

2.07A  Filing by electronic communication

             (1)  An authorised Registrar:

                     (a)  may approve the formats for electronic versions of documents that will be accepted by a Registry; and

                     (b)  may approve at least one email address for any Registry for the purpose of receiving documents by electronic communication.

             (2)  A document sent to a Registry for filing by electronic communication must:

                     (a)  be sent using the Commonwealth Courts Portal at http://www.comcourts.gov.au; and

                     (b)  be in an electronic format approved for the Registry; and

                     (c)  be in a form that complies with rule 2.04; and

                     (d)  be able to be printed with the content, and in the form, created.

             (3)  An affidavit may be filed by electronic communication only by sending an image of the affidavit as required by subrule (2).

             (4)  If the document is in an existing proceeding, it must be sent to the Registry that is the appropriate place for the proceeding by using:

                     (a)  the Court’s Internet home page at http://www.federalcircuitcourt.gov.au; or

                     (b)  the Commonwealth Courts Portal at http://www.comcourts.gov.au.

2.07B  Other requirements for filing by electronic communication

             (1)  If a document sent by a person by electronic communication is required to be signed or stamped, and is accepted at a Registry, a Registrar must:

                     (a)  for a document that, under these Rules, must be endorsed with a date for hearing—insert a notice of filing and hearing as the first page of the document; and

                     (b)  for any other document—insert a notice of filing as the first page of the document; and

                     (c)  make 1 copy of the document (including the notice mentioned in paragraph (a) or (b) (whichever applies)); and

                     (d)  if the sender requests that the document be held for collection—hold it for collection for 7 days; and

                     (e)  if the sender does not request that the document be held for collection or, having made a request, does not collect the document within 7 days—return the document by sending it:

                              (i)  by electronic communication to the email address stated on the cover sheet; or

                             (ii)  if no email address is stated, to the postal address stated on the cover sheet.

             (2)  A notice mentioned in paragraph (1)(a) or (b) is part of the document for the purpose of these Rules.

             (3)  The person who sent the document must, as directed by the Court:

                     (a)  if the document is an image of an affidavit—produce the original of the affidavit; or

                     (b)  in any other case—produce a paper copy of the document.

             (4)  If the Court directs that an original affidavit or a paper copy of a document be produced, the person who sent the document must:

                     (a)  for an original affidavit—attach a statement to the affidavit stating the following:

                              (i)  that it is the original of the affidavit sent by electronic communication;

                             (ii)  the date that the affidavit was sent by electronic communication; or

                     (b)  in any other case—endorse the first page with a statement that the paper copy is a true copy of the document sent by electronic communication, and the date that the document was sent by electronic communication.

             (5)  If a document has been filed electronically and a notice has been inserted as the first page of the document as required by paragraph (1)(a) or (b), the notice is treated as part of the document for the Act and these Rules (including any rules about service of the document).

Division 2.3Custody and inspection of documents

2.08  Searching records in family law proceedings or child support proceedings

             (1)  The following persons may search the court record relating to a family law or child support case, and inspect and copy a document forming part of the court record:

                     (a)  the Attorney‑General;

                     (b)  a party, a lawyer for a party, or an independent children’s lawyer, in the case;

                   (ba)  if the case affects, or may affect, the welfare of a child—a child welfare officer of a State or Territory;

                     (c)  with the permission of the Court or a Registrar, a person with a proper interest:

                              (i)  in the case; or

                             (ii)  in information obtainable from the court record in the case;

                     (d)  with the permission of the Court or a Registrar, a person researching the court record relating to the case.

             (2)  For subrule (1), the parts of the court record that may be searched, inspected and copied are:

                     (a)  court documents; and

                     (b)  with the permission of the Court or a Registrar, any other part of the court record.

          (2A)  A permission:

                     (a)  for paragraphs (1)(c) and (d) and (2)(b)—may include conditions, including a requirement for consent from a person, or a person in a class of persons, mentioned in the court record; and

                     (b)  for paragraph (1)(d)—must specify the research to which it applies.

             (3)  In considering whether to give permission under this rule, the Court or a Registrar must consider the following matters:

                     (a)  the purpose for which access is sought;

                     (b)  whether the access sought is reasonable for that purpose;

                     (c)  the need for security of court personnel, parties, children and witnesses;

                     (d)  any limits or conditions that should be imposed on access to, or use of, the court record.

             (5)  In this rule:

court document includes a document filed in a case, but does not include correspondence or a transcript forming part of the court record.

Note 1:       Section 121 of the Family Law Act restricts the publication of court proceedings.

Note 2:       Access to court records may be affected by the National Security Information (Criminal and Civil Proceedings) Act 2004.

2.08A  Custody of documents in general federal law proceedings

             (1)  The District Registrar of a District Registry of the Federal Court of Australia is to have custody of, and control over:

                     (a)  each document filed in the Registry in a general federal law proceeding; and

                     (b)  the records of the Registry relating to a general federal law proceeding.

             (2)  A person may remove a document in a general federal law proceeding from a Registry if:

                     (a)  a Registrar has given written permission for the removal because it is necessary to transfer the document to another Registry; or

                     (b)  the Court or a Registrar has given the person leave for the removal.

             (3)  If the Court or Registrar permits a person to remove a document from the Registry, the person must comply with any conditions on the removal imposed by the Court or Registrar.

2.08B  Inspection of documents in general federal law proceedings

             (1)  A party may inspect any document in a general federal law proceeding except:

                     (a)  a document for which a claim of privilege has been made:

                              (i)  but not decided by the Court; or

                             (ii)  that the Court has decided is privileged; or

                     (b)  a document that the Court or a Registrar has ordered be confidential.

             (2)  A person who is not a party may inspect the following documents in a general federal law proceeding in the appropriate registry:

                     (a)  an application starting the proceeding or cross‑claim;

                     (b)  a response or reply;

                     (c)  a notice of address for service;

                     (d)  a pleading or particulars of a pleading or similar document;

                     (e)  a statement of agreed facts or an agreed statement of facts;

                      (f)  an application in a case;

                     (g)  a judgment or an order of the Court;

                     (h)  a notice of discontinuance;

                      (i)  a notice of change of lawyer;

                      (j)  a notice of withdrawal;

                     (k)  reasons for judgment;

                      (l)  a transcript of a hearing heard in open court.

             (3)  However, a person who is not a party is not entitled to inspect a document if:

                     (a)  the Court or a Registrar has ordered the document be confidential; or

                     (b)  the person is not entitled to inspect the document because of a suppression order or non‑publication order by the Court.

Note:          For the power of the Court to make a suppression order or non‑publication order, see sections 88F and 88J of the Act.

             (4)  A person may apply to the Court or a Registrar for leave to inspect a document that the person is not otherwise entitled to inspect.

             (5)  A person may be given a copy of a document, except a copy of the transcript in the proceeding, if the person:

                     (a)  is entitled to inspect the document; and

                     (b)  has paid the prescribed fee.

Note 1:       For the prescribed fee, see the Federal Court and Federal Circuit Court Regulation 2012.

Note 2:       If there is no order that a transcript is confidential, a person may, on payment of the applicable charge, obtain a copy of the transcript of a proceeding from the Court’s transcript provider.

Division 2.4Seal and stamp of Court

2.09  Use of seal of Court

                   The seal of the Court must be attached to:

                     (a)  Rules of Court; and

                     (b)  any other documents the Court or a Judge directs or the law requires.

Note 1:       The seal must be attached to all writs, commissions and process issued from the Court: see subsection 49(1) of the Act. It may also be used to enter an order: see rule 16.08.

Note 2:       The design of the seal is decided by the Minister and the seal is kept in custody as directed by the Chief Judge: see section 47 of the Act.

2.10  Stamp of Court

             (1)  The Registrar must keep in his or her custody a stamp designed, as nearly as practicable, to be the same as the design of the seal of the Court.

             (2)  The stamp of the Court must be attached to all process filed in the Court and orders entered and to other documents as directed by the Court.

Note:          Documents marked with the stamp are as valid and effectual as if sealed with the seal of the Court: see subsection 48(2) of the Act.

2.11  Methods of attaching the seal or stamp

                   The seal or stamp of the Court may be attached to a document:

                     (a)  by hand; or

                     (b)  by electronic means; or

                     (c)  in another way.

Part 3Sittings, registry hours and time

Division 3.1Sittings, holidays and registry hours

3.01  Sittings

             (1)  The Court sits at times and places as directed by the Chief Judge.

             (2)  Unless the Judge constituting the Court otherwise directs, the Court does not sit:

                     (a)  on a Saturday or Sunday; or

                     (b)  on a day that is a public holiday where the registry is located.

3.02  Registry hours

             (1)  A registry must be open for business when the registry facilities shared by the registry under arrangements made under section 92 of the Act are open for business.

             (2)  A registry may be open at other times for urgent business at the direction of a Judge.

Division 3.2Time

3.03  Meaning of month

                   In these Rules and in a judgment, decree, order or any document in a proceeding, unless the context otherwise indicates:

month means a calendar month.

3.04  Calculating time

             (1)  This rule applies to a period of time fixed by these Rules or by a judgment, decree, order or any document in a proceeding.

             (2)  If a period of more than 1 day is to be calculated by reference to a particular day or event, the particular day or the day of the event must not be counted.

             (3)  If a period of 5 days or less would, but for this subrule, include a day when the registry is closed, that day must not be counted.

             (4)  If the last day for taking an action that requires attendance at a registry is a day when the registry is closed, the action may be taken on the next day when the registry is open.

             (5)  Subsection 36(2) of the Acts Interpretation Act 1901 does not apply to these Rules.

3.05  Extension or shortening of time fixed

             (1)  The Court may extend or shorten a time fixed by these Rules or by a judgment, decree or order.

             (2)  A Registrar may extend or shorten a time fixed by these Rules.

             (3)  The time fixed may be extended even if the time fixed has passed.

             (4)  A time fixed by these Rules or by a judgment, decree or order for service, filing or amendment of a document may be extended by consent without an order.

Part 4Starting proceedings

Division 4.1General rules about starting proceedings

4.01  Application

             (1)  Unless otherwise provided in these Rules, a proceeding must be started by filing an application in accordance with the approved form.

             (2)  An application for final orders may include an application for interim or procedural orders.

             (3)  A person may not file an application for an interim or procedural order unless:

                     (a)  an application for a final order has been made in the proceeding; or

                     (b)  the application includes an application for a final order.

             (4)  If a person makes an application in a case before final orders have been made in a proceeding, the application must be made in accordance with rule 4.08.

Note:          An application for a parenting order must be accompanied by a Notice of Child Abuse, Family Violence or Risk: see rule 22A.02.

4.02  Content of application

                   An application must precisely and briefly state the orders sought and (if the application is for a general federal law proceeding) the basis on which the orders are sought.

4.03  Response to application

             (1)  A respondent to an application who seeks to do any of the following must file a response in accordance with the approved form:

                     (a)  indicate consent to an order sought by the applicant;

                     (b)  ask the Court to make another order;

                     (c)  ask the Court to dismiss the application;

                     (d)  seek orders in a matter other than the matter set out in the application;

                     (e)  make a cross‑claim against the applicant, or another party.

             (2)  A response must precisely and briefly state any orders sought and (if the proceeding is a general federal law proceeding) the basis on which the orders are sought.

             (3)  A response must be filed and served within 28 days of service of the application to which it relates.

Note:          A response to an application for a parenting order, or a response seeking a parenting order, must be accompanied by a Notice of Child Abuse, Family Violence or Risk: see rule 22A.02.

4.05  Affidavit to be filed with application or response

             (1)  A person filing an application or response, whether seeking final, interim or procedural orders, must also file an affidavit stating the facts relied on.

             (2)  However, an affidavit is not required:

                     (a)  in an application for interim or procedural orders—if the evidence relied on is in an affidavit or affidavits filed in the pending proceeding; or

                     (b)  in a proceeding that is not a child support proceeding or family law proceeding—if the person filing an application files a statement of claim or points of claim; or

                     (c)  in an application filed in the Fair Work Division in accordance with rule 45.04, 45.06, 45.07, 45.08, 45.09A or 45.12; or

                     (d)  in an application filed in accordance with rule 46.3.

             (3)  If a statement of claim or points of claim are filed under paragraph (2)(b), a respondent:

                     (a)  must file a defence or points of defence instead of an affidavit; and

                     (b)  may file a cross‑claim.

Note:          Subsection 43(2) of the Act provides for the Rules of Court made under the Family Law Act and Federal Court of Australia Act 1976 to apply, with necessary modifications, to the practice and procedure of the Court for particular jurisdictions of the Court if the Rules are insufficient. Those Rules may be used to direct how pleadings are to be dealt with in the Court, if subrules 4.05(2) and (3) apply.

4.07  Reply in certain circumstances

             (1)  If a response to an application or cross‑claim seeks orders in a matter (other than the orders set out in the application) the applicant may file and serve a reply to the response in accordance with the approved form.

             (2)  A reply must be filed and served within 14 days of service of the response to which it relates.

4.08  Application in a case

             (1)  An application in a case must be made in accordance with the approved form.

             (2)  In addition to the requirements in rule 4.05, the application must state:

                     (a)  the name and address of the person making the application in a case; and

                     (b)  the names and addresses for service of all persons affected by the order which is sought; and

                     (c)  the names and addresses of the parties in the application filed for starting proceedings, as stated in that application.

             (3)  The application and supporting affidavit must be served on all persons against whom the order is sought, in accordance with Part 6.

Division 4.2Rules for proceedings if Civil Dispute Resolution Act applies

4.09  Applicant’s genuine steps statement

             (1)  If Part 2 of the Civil Dispute Resolution Act applies to a proceeding, the applicant to the proceedings must, when filing the application mentioned in subrule 4.01(1), file the applicant’s genuine steps statement in accordance with the approved form.

             (2)  The applicant’s genuine steps statement must comply with section 6 of the Civil Dispute Resolution Act.

             (3)  The applicant’s genuine steps statement must be no more than 2 pages.

Note 1:       Civil Dispute Resolution Act is defined in the Dictionary.

Note 2:       A party who wants to start a proceeding must have regard to the Civil Dispute Resolution Act before starting the proceeding to determine whether the Civil Dispute Resolution Act applies to the proceeding that the party wants to start.

Note 3:       A lawyer must comply with section 9 of the Civil Dispute Resolution Act if that Act applies to the proceeding.

4.10  Respondent’s genuine steps statement

             (1)  If an applicant has filed a genuine steps statement, the respondent must file the respondent’s genuine steps statement in accordance with the approved form within 14 days of service of the applicant’s application.

             (2)  The respondent’s genuine steps statement must comply with section 7 of the Civil Dispute Resolution Act.

             (3)  The respondent’s genuine steps statement must be no more than 2 pages.

Note 1:       Civil Dispute Resolution Act is defined in the Dictionary.

Note 2:       Rule 4.09 requires an applicant in a proceeding to which the Civil Dispute Resolution Act applies to file an applicant’s genuine dispute resolution statement at the same time as the application is filed.

Part 5Urgent applications

  

5.01  Urgent application

                   In an urgent case where service on the respondent is not practicable, on application the Court may make an order until a specified time or until further order.

5.02  Form of application

                   Unless the Court orders otherwise, an urgent application must be made in the form approved for the purpose of starting a proceeding under subrule 4.01(1) or an application in a case under subrule 4.08(1).

5.03  Evidence

             (1)  Unless the Court otherwise orders, the applicant must establish by affidavit or, with the leave of the Court, orally:

                     (a)  whether there are previous proceedings between the parties and, if so, the nature of the proceedings; and

                     (b)  whether there are any current proceedings in any court in which the applicant or the respondent are parties; and

                     (c)  the particulars of any orders currently in force between the parties, including the courts in which they were made; and

                     (d)  the steps that have been taken to tell the respondent or the respondent’s legal representative of the applicant’s intention to make the application or the reasons why no steps were taken; and

                     (e)  the nature and immediacy of the damage or harm which may result if the order is not made; and

                      (f)  why the making of the order is a matter of urgency and why an abridgement of the time for service of the application and the fixing of an early hearing date would not be more appropriate; and

                     (g)  if the application relates to a financial matter, the capacity of the applicant to give an undertaking as to damages; and

                     (h)  the other facts, matters and circumstances relied on by the applicant in support of the application.

             (2)  Paragraph (1)(d) does not apply to an application for an interim injunction under section 46PP of the Human Rights Act.

Part 6Service

Division 6.1General

6.01  Address for service

             (1)  A party to a proceeding must give an address for service.

             (2)  A party may give an address for service:

                     (a)  by filing a relevant document that includes an address for service; or

                     (b)  by filing a notice of address for service in accordance with the approved form.

             (3)  An address for service:

                     (a)  must be an address in Australia; and

                     (b)  must include a telephone number at which the party may be contacted during normal business hours; and

                     (c)  may include a fax number or an email address for the party.

             (4)  If the party is represented by a lawyer who has general authority to act for the party, the address for service for the party must be the address of the lawyer.

             (5)  If the party is represented by a lawyer and the notice for service provides the lawyer’s email address, the party agrees for the party’s lawyer to receive documents at the lawyer’s email address.

             (6)  If the party is not represented by a lawyer but provides an email address, the party agrees to receive documents at the email address.

Note:          The parties may agree on how service is to be carried out. For example, the parties may agree that service be at a fax number.

6.02  Change of address for service

                   If a party’s address for service changes for any reason during a proceeding, the party must file a notice of address for service and serve the notice on each other party within 7 days of the change.

6.03  Service of documents

             (1)  A document to be served in a proceeding must be filed and sealed.

             (2)  An application and any document filed with it must be served on each party in the proceeding within the time mentioned in rule 6.19.

             (3)  If a document, other than an application and its related documents, is required to be served, the person who files the document must serve a copy of it as soon as practicable:

                     (a)  on each other party in the proceeding who has an address for service in the proceeding; and

                     (b)  on any independent children’s lawyer in the proceeding.

6.04  Court’s discretion in relation to service

                   Nothing in this Part affects the power of the Court:

                     (a)  to authorise service of a document in a way that is not provided for in this Part; or

                     (b)  to find that a document has been served; or

                     (c)  to find that a document has been served on a particular day.

6.05  Affidavit of service

             (1)  Unless the Court otherwise orders, any evidence of service to be given must be given by affidavit.

             (2)  For subrule (1), the approved form may be used.

Division 6.2Service by hand in particular cases

6.06  When is service by hand required

             (1)  Service by hand is required for an application starting a proceeding or a subpoena requiring attendance of a person.

             (2)  However, service by hand is not required if:

                     (a)  there are current proceedings for which there is a notice of address for service for the person to be served; or

                     (b)  the Court directs that an application may be served in another way; or

                     (c)  a lawyer accepts service for a party and subsequently files an address of service; or

                     (d)  a lawyer accepts service for a person other than a party.

6.07  Service by hand

             (1)  A person serving a document by hand on an individual must give a copy of the document to the person to be served.

             (2)  However, if the person to be served does not take the copy of the document, the person serving it may put it down in the presence of the person to be served and tell the person what it is.

             (3)  In a family law or child support proceeding, the person serving a document must not be the party on whose behalf it is served.

6.08  Service by hand on a corporation, unincorporated association or organisation

             (1)  Unless the Court otherwise orders, a person serving a document by hand on a corporation, unincorporated association or organisation must leave a copy of the document with a person apparently an officer of or in the service of the corporation, unincorporated association or organisation:

                     (a)  for a corporation:

                              (i)  at the registered office of the corporation; or

                             (ii)  if there is no registered office, at the principal place of business or the principal office of the corporation; and

                     (b)  for an unincorporated association—at the principal place of business or the principal office of the association or on an officer holder; and

                     (c)  for an organisation—at the office of the organisation shown in the copy records of the organisation lodged in the Industrial Registry under section 268 of the Workplace Relations Act 1996.

             (2)  Despite subrule (1), service by hand may be effected:

                     (a)  on a company, as defined in section 9 of the Corporations Act 2001, in any manner permitted by section 109X of that Act; and

                     (b)  on the liquidator of a company, in the manner permitted by paragraph 109X(1)(c) of that Act; and

                     (c)  on an administrator of a company, in the manner permitted by paragraph 109X(1)(d) of that Act.

6.09  Service of application on unregistered business

             (1)  This rule applies if:

                     (a)  a proceeding is brought against a person in relation to a business carried on by the person under a name other than the person’s name; and

                     (b)  the name is not registered under an applicable State or Territory law; and

                     (c)  the proceeding is started in the name under which the person carries on the business.

             (2)  The application may be served by leaving a copy at the person’s place of business with a person who appears to have control or management of the business there.

6.10  Service of application on partnership

             (1)  An application against a partnership must be served:

                     (a)  on 1 or more of the partners; or

                     (b)  on a person at the principal place of business of the partnership who appears to have control or management of the business there; or

                     (c)  if there is a registered office of the partnership, at that office.

             (2)  An application served in accordance with this rule is taken to be served on each of the partners who are partners when the application is filed.

             (3)  However, the application must also be served on any person whom the applicant seeks to make liable as a partner who is not a partner when the application is filed.

Division 6.3Ordinary service

6.11  Service other than by hand

             (1)  If a document is not required to be served by hand, the document may be served on a person at the person’s address for service:

                     (a)  by delivering it to the address in a sealed envelope addressed to the person; or

                     (b)  by sending it to the address by pre‑paid post in a sealed envelope addressed to the person; or

                     (c)  by fax transmission addressed to the person and sent to a fax receiver at the address; or

                     (d)  if the address includes the number of a document exchange box of a lawyer, by sealing the document in an envelope that complies with any prepayment requirements of the document exchange and is addressed to the lawyer (at that box address) and placing the envelope:

                              (i)  in that box; or

                             (ii)  in a box provided at another branch of the document exchange for delivery of documents to the box address; or

                     (e)  if the person has filed a notice authorising service by email—by sending the document to the email address; or

                      (f)  if the party is represented by a lawyer, and the address for service provides the lawyer’s email address—by sending it to the lawyer’s email address.

             (2)  If the person does not have an address for service, the document may be served on the person:

                     (a)  by delivering it to the person’s last known address or place of business in a sealed envelope addressed to the person; or

                     (b)  by sending it by pre‑paid post in a sealed envelope addressed to the person at the person’s last known address or place of business; or

                     (c)  if a law of the Commonwealth or of the State or Territory in which service is to be effected provides for service of a document on a corporation or organisation, by serving the document in accordance with such provision.

6.12  When service is effected

                   A document served by post, fax or electronic communication is taken to have been served:

                     (a)  if it was posted to an address in Australia—on the day when the document would be delivered in the ordinary course of the post; or

                     (b)  if it was posted by airmail to an address outside Australia—on the twenty‑eighth day after posting; or

                     (c)  if the document was sent by fax—on the next business day after the document was sent; or

                     (d)  if the document was sent by electronic communication—on the next business day after the document was sent.

6.13  Special requirements for service by fax

             (1)  A document served by fax transmission must include a cover page stating the following:

                     (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)  the telephone number from which the document is transmitted;

                      (f)  the name and telephone number of a person to contact if there is a problem with transmission;

                     (g)  that the transmission is for service.

             (2)  An affidavit of service of a document by fax transmission must have the transmission report indicating successful transmission annexed.

Division 6.4Substituted service and dispensing with service

6.14  Substituted service

             (1)  If, for any reason, it is impracticable to serve a document in a way required under this Part, the Court may make an order dispensing with service or substituting another way of serving the document.

             (2)  The Court may specify the steps to be taken for bringing the document to the attention of the person to be served.

             (3)  The Court may specify that the document is to be taken to have been served on the happening of a specified event or at the end of a specified time.

6.15  Matters to be taken into account

                   When making an order for dispensing with service or for substituted service, the Court may have regard to:

                     (a)  whether reasonable steps have been taken to attempt to serve the document; and

                    (aa)  whether it is likely that the steps that have been taken have brought the existence and nature of the document to the attention of the person to be served; and

                     (b)  whether the person to be served could become aware of the existence and nature of the document by means of advertising or another means of communication that is reasonably available; and

                     (c)  the likely cost to the party serving the document, the means of that party and the nature of the proceedings; and

                     (d)  any other relevant matter.

6.16  Failure to comply with condition

                   Failure to comply with a condition of an order for substituted service does not prevent the Court from finding that the document is taken to have been served on a date specified in the order.

Division 6.5Time for service

6.17  General time limit

                   Unless the Court otherwise orders, a document may not be served more than 12 months after it is filed.

6.18  Time for service of subpoena

                   A subpoena may not be served more than 3 months after it is issued.

6.19  Time for service of applications

                   Unless the Court orders otherwise, an application and any document filed with it may not be served:

                     (a)  less than 3 days before the day fixed for the hearing of an application in a case; or

                     (b)  less than 7 days before the day fixed for the hearing of any other application.

Part 7Amendment

Division 7.1General

7.01  Power to amend

             (1)  At any stage in a proceeding, the Court or a Registrar may allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions the Court or the Registrar thinks fit.

             (2)  Subject to rule 7.03, the Court or a Registrar may allow an amendment even if the effect would be to include a cause of action arising after the proceeding was started.

7.02  Who may be required to make amendment

                   If the Court orders an amendment to be made to a document, the Court may order a party, a Registrar, a Judge’s associate or another appropriate person to make the amendment.

Division 7.2General federal law proceedings

7.03  Amendment after limitation period

             (1)  This rule applies if an application in a general federal law proceeding for leave to make an amendment is made after the end of a relevant period of limitation current at the date when the proceeding was started.

             (2)  The Court may give leave to make an amendment correcting the name of a party, even if it is alleged that the effect would be to substitute a new party, if:

                     (a)  the Court considers it appropriate; and

                     (b)  the Court is satisfied that the mistake sought to be corrected was genuine and was not misleading or such as to cause reasonable doubt as to the identity of the party.

             (3)  The Court may give leave to make an amendment changing the capacity in which a party seeks orders (whether as applicant or respondent by counterclaim) if:

                     (a)  the Court considers it appropriate; and

                     (b)  the capacity in which the party will seek orders is one in which, at the time when the proceeding was started by the party, the party might have sought orders.

             (4)  The Court may give leave to make an amendment even if the effect is to include a new cause of action, if:

                     (a)  the Court considers it appropriate; and

                     (b)  the new cause of action arises out of the same, or substantially the same, facts as a cause of action for which relief has already been claimed in the proceeding by the party seeking leave to amend.

Part 8Transfer of proceedings

  

8.01  Change of venue

             (1)  A party who files an application or response in a proceeding may apply to have the proceeding heard in another registry of the Court.

             (2)  In considering an application, the Court must have regard to:

                     (a)  the convenience of the parties; and

                     (b)  the limiting of expense and the cost of the proceeding; and

                     (c)  whether the matter has been listed for final hearing; and

                     (d)  any other relevant matter.

8.02  Transfer to Federal Court or Family Court

             (1)  The Court may, at the request of a party or of its own motion, transfer a proceeding to the Federal Court or the Family Court.

             (2)  Unless the Court otherwise orders, a request for transfer must be made on or before the first court date for the proceeding.

             (3)  Unless the Court otherwise orders, the request must be included in a response or made by application supported by an affidavit.

             (4)  In addition to the factors required to be considered by the Court under subsections 39(3) and (4) of the Act for transfer of proceedings to the Federal Court or the Family Court, the following factors are relevant:

                     (a)  whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court or the Family Court on one or more of the points in issue;

                     (b)  whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred;

                     (c)  whether the proceeding will be heard earlier in the Court;

                     (d)  the availability of particular procedures appropriate for the class of proceeding;

                     (e)  the wishes of the parties.

Note:          See subsections 39(3) and (4) of the Act for matters the Court must have regard to in deciding whether to transfer a proceeding to the Federal Court or the Family Court.

8.03  Proceeding transferred to Federal Court or Family Court

                   If a proceeding is transferred to the Federal Court or the Family Court, the Registrar must:

                     (a)  send to the proper officer of that court all documents filed and orders made in the proceeding; and

                     (b)  retain in the Court a copy of all orders made in the proceeding.

8.04  Proceeding transferred from Federal Court or Family Court

                   A sealed copy of the order of the Federal Court or the Family Court transferring a proceeding or appeal to the Court must, unless the Federal Court or the Family Court otherwise directs, be filed:

                     (a)  if the order is obtained by a party—by the party; and

                     (b)  if the order is made by the Federal Court or the Family Court of its own motion—by the applicant in the proceeding.

8.05  Proceeding transferred from Federal Court or Family Court

                   If a proceeding or appeal is transferred to the Court from the Federal Court or the Family Court, the Registrar must give it a distinctive number and, unless impractical to do so, allocate a first court date within 14 days of the transfer.

Part 9Lawyers

  

9.01  Change between acting in person and by lawyer

             (1)  If a party acts in person in a proceeding and later appoints a lawyer, the lawyer must, as soon as practicable, file and serve notice of the appointment on each other party.

             (2)  If a party appoints a lawyer and later decides to act in person, the party must, as soon as practicable, file and serve notice of acting in person on the lawyer and each other party.

             (3)  The party’s former lawyer remains the lawyer on the record until the party serves the notice on the former lawyer.

             (4)  Notice under this rule must contain details of an address for service in accordance with the approved form.

9.02  Change of lawyer

             (1)  A party may, at any stage in a proceeding, appoint another lawyer in place of the lawyer then acting for the party.

             (2)  The newly appointed lawyer must, as soon as practicable, file and serve on each other party and the party’s former lawyer notice of the appointment.

             (3)  The party’s former lawyer remains the lawyer on the record until the newly appointed lawyer has complied with subrule (2).

             (4)  Notice for this rule must contain details of an address for service in accordance with the approved form.

9.03  Withdrawal as lawyer

             (1)  A lawyer for a party may withdraw from the record in a proceeding by filing a notice of withdrawal, in accordance with the approved form, and serving the notice on each other party.

             (2)  However, a lawyer may not file or serve a notice of withdrawal without leave of the Court unless the lawyer has, not less than 7 days before filing the notice, served a notice of intention to withdraw on the party for whom the lawyer is acting.

             (3)  A notice of intention to withdraw must be in accordance with the approved form.

             (4)  A lawyer may serve a party with a notice of intention to withdraw by posting it to the residential or business address of the party last known to the lawyer.

             (5)  If a party’s lawyer withdraws from the record, the party’s last known residential or business address is the address for service until:

                     (a)  the party appoints another lawyer; or

                     (b)  the party files a notice of address for service.

Note:          If a party’s address for service changes for any reason during a proceeding, the party must file a notice of address for service: see rule 6.02.

9.04  Corporation must be represented

                   Except as provided by or under an Act or regulations made under an Act, or with the leave of the Court, a corporation may not start or carry on a proceeding otherwise than by a lawyer.

Part 10How to conduct proceedings

Division 10.1First court date

10.01  Directions and orders

             (1)  At the first court date, the Court or a Registrar is to give orders or directions for the conduct of the proceeding.

             (2)  Without limiting subrule (1), the Court or a Registrar may hear and determine all or part of the proceedings.

             (3)  The Court or a Registrar may make orders or directions in relation to the following:

                     (a)  the manner and sufficiency of service;

                     (b)  the amendment of documents;

                     (c)  defining of issues;

                     (d)  the filing of affidavits;

                     (e)  cross‑claims;

                      (f)  the joinder of parties;

                     (g)  dispute resolution;

                    (ga)  family counselling;

                     (h)  the admissibility of affidavits;

                      (i)  discovery and inspection of documents;

                      (j)  interrogatories;

                     (k)  inspections of real or personal property;

                      (l)  admissions of fact or of documents;

                    (m)  the giving of particulars;

                     (n)  the giving of evidence at hearing (including the use of statements of evidence and the taking of evidence by video link or telephone or other means);

                     (o)  expert evidence and court experts;

                     (p)  transfer of proceedings;

                     (q)  costs;

                      (r)  hearing date;

                      (s)  any other matter that the Court or Registrar considers appropriate.

10.02  Adjournment of first court date

             (1)  If the parties agree that, because of short service or other special circumstances, it is not appropriate to proceed on the date fixed the parties may ask a Registrar in writing to adjourn the first court date to another date.

             (2)  The Registrar may adjourn the first court date to the date requested by the parties or to another date that is practicable.

10.03  Fixing date for final hearing

                   At the first court date the Court or a Registrar may:

                     (a)  fix a date for final hearing; or

                     (b)  direct the parties to arrange with the Registrar a date for final hearing; or

                     (c)  fix a date after which either party may request a date for final hearing; or

                     (d)  remove the matter from the list.

Division 10.2Dispute Resolution

10.04  Agreement reached by dispute resolution

                   If the parties to a proceeding resolve the issues between them following a dispute resolution process, the parties may:

                     (a)  discontinue the proceeding; or

                     (b)  ask the Court to make consent orders.

Note 1:       For proceedings (other than family law proceedings), parties may be advised to use dispute resolution processes. For the duty of the Court to advise people to use dispute resolution processes, see section 23 of the Act. For the duty of lawyers to advise parties to use dispute resolution processes, see section 24 of the Act.  For the duty of designated officers of the Court to advise parties to use dispute resolution processes, see section 25 of the Act. For the duties imposed on the Court and lawyers to provide information about non‑court‑based family services and Court’s processes and services in family law proceedings, see Part IIIA of the Family Law Act.

Note 2:       For proceedings (other than family law proceedings), see sections 26, 34 and 35 of the Act, which contain provisions dealing with the Court’s power to refer a matter for conciliation, mediation or arbitration.

Note 3:       For family law proceedings, see in particular Parts II, III, IIIA and IIIB of the Family Law Act, which contain provisions dealing with family counselling, family dispute resolution and other processes that apply to the Court in relation to proceedings under that Act.

Note 4:       For family counselling and family dispute resolution in family law and child support proceedings, see Part 23.

Note 5:       For mediation and arbitration in general federal law proceedings, see Part 27.

10.05  Conciliation conference

             (1)  The Court may refer a proceeding, or a part of a proceeding or a matter arising out of a proceeding, for conciliation.

             (2)  A conciliation conference must be held with:

                     (a)  a Judge; or

                     (b)  a Registrar; or

                     (c)  another person appointed by the Court for the purpose.

             (3)  Unless the Court or a Registrar otherwise orders:

                     (a)  the parties must attend the conference in person; and

                     (b)  each lawyer representing a party must also attend.

             (4)  The parties must make a genuine effort to reach agreement on relevant matters in issue.

             (5)  If an issue between the parties remains unresolved at the end of a conciliation conference, the Judge or Registrar may:

                     (a)  give further directions; and

                     (b)  make any other order, including an order for costs.

Division 10.3Notice of constitutional matter

10.06  Party to file notice of constitutional matter

             (1)  Unless the Court otherwise orders, a party to a proceeding who becomes aware that the proceeding involves a matter arising under the Constitution or involving its interpretation, within the meaning of section 78B of the Judiciary Act 1903, must file a notice of a constitutional matter and serve a copy on each other party to the proceeding.

             (2)  The notice may be in the form prescribed for the purpose under the Federal Court Rules and must state:

                     (a)  the nature of the matter; and

                     (b)  the facts showing that the matter is a matter to which subrule (1) applies.

Part 11Parties and litigation guardians

Division 11.1Parties

11.01  Necessary parties

             (1)  Subject to any order of the Court, a person whose participation is necessary for the Court to completely and finally determine all matters in dispute in a proceeding must be included as a party in the proceeding.

             (2)  The Court may require a person to be included as a party.

             (3)  A person required to be included as an applicant who does not consent to be included may be included as a respondent.

             (4)  The Court may decide a proceeding even if a person is incorrectly included or not included as a party.

11.02  Party may include another person as a party

             (1)  A party to a proceeding may include any person as a party by:

                     (a)  naming the person as a party in the application, response or reply; and

                     (b)  serving on the person a copy of the application, response or reply and all other relevant documents filed in the proceeding.

             (2)  A party may not include a person as a party after the first court date without the leave of the Court.

             (3)  The Court may at any time order a party who has included a person as a party to file and serve on each other party in the proceeding an affidavit setting out the basis on which the person has been included.

11.03  Person may apply to be included

             (1)  A person may apply to the Court to be included as a party to a proceeding.

             (2)  Unless the Court otherwise orders, the application must be supported by an affidavit stating:

                     (a)  the person’s interest in the proceeding or any matter in dispute between the person and a party in the proceeding; and

                     (b)  the orders (if any) that the person will seek if included as a party.

             (3)  The person must serve a copy of the application and affidavit on each party in the proceeding.

             (4)  An order for inclusion of the party may be on limited terms.

11.04  Party may apply to be removed

             (1)  A party to a proceeding may apply to the Court to be removed as a party.

             (2)  The party must file an affidavit stating:

                     (a)  the relationship (if any) of the applicant to each other party; and

                     (b)  the evidence in support of the application.

             (3)  The party must serve a copy of the application and affidavit on each other party in the proceeding.

11.05  Court may order notice to be given

                   The Court may at any time order a party, or a person applying to be included as a party, to notify any person of:

                     (a)  the proceeding; or

                     (b)  the application of the person to be included as a party.

11.06  Intervention by Attorney‑General

                   If intervening in a proceeding, the Attorney‑General must:

                     (a)  file a notice setting out the basis or grounds of the intervention and the orders (if any) sought; and

                     (b)  if the proceeding is under section 58 of the Family Law Act—file an affidavit setting out the facts and matters relied on in support of the intervention; and

                     (c)  serve a copy of the notice and affidavit (if any) on each other party in the proceeding.

11.07  Child to whom state welfare law applies

                   If, on an application under section 92 of the Family Law Act for leave to intervene in a proceeding in relation to a child to whom subsection 69ZK(1) of that Act applies, the Court does not grant leave, it may adjourn the proceeding and give the Attorney‑General notice of its refusal to grant leave and of the date to which the proceeding is adjourned.

Division 11.2Litigation guardian

11.08  Person who needs a litigation guardian

             (1)  For these Rules, a person needs a litigation guardian in relation to a proceeding if the person does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.

             (2)  Unless the Court otherwise orders, a minor in a proceeding is taken to need a litigation guardian in relation to the proceeding.

11.09  Starting, continuing, defending or inclusion in proceeding

             (1)  A person who needs a litigation guardian may start, continue, respond to or seek to be included as a party to a proceeding only by his or her litigation guardian.

             (2)  The litigation guardian of a party to a proceeding:

                     (a)  must do anything required by these Rules to be done by the party; and

                     (b)  may do anything permitted by these Rules to be done by the party.

11.10  Who may be a litigation guardian

                   A person may be a litigation guardian in a proceeding if he or she is an adult and has no interest in the proceeding adverse to the interest of the person needing the litigation guardian.

11.11  Appointment of litigation guardian

             (1)  The Court may, at the request of a party or of its own motion, appoint or remove a litigation guardian or substitute another person as litigation guardian in a proceeding in the interests of a person who needs a litigation guardian.

             (2)  A person becomes a litigation guardian if he or she consents to the appointment by filing an affidavit of consent in the proceeding.

             (3)  The Court may remove a litigation guardian at the request of the litigation guardian.

11.12  Manager of the affairs of a party

             (1)  In this rule:

manager of the affairs of a party includes a person who is authorised by or under a Commonwealth, State or Territory law to conduct legal proceedings in the name of, or for, a person who needs a litigation guardian.

             (2)  A person who is a manager of the affairs of a party is entitled to be the litigation guardian in any proceeding to which the authority extends.

             (3)  The Attorney‑General may appoint in writing a person to be a manager of the affairs of a party for this rule, either generally or for a particular person.

             (4)  A manager of the affairs of a party becomes the litigation guardian of a person who needs a litigation guardian in a proceeding if the manager of the affairs of the party files an affidavit of consent in relation to the person.

11.13  Notice of becoming litigation guardian

                   A person appointed as the litigation guardian of a party to a proceeding must, as soon as practicable after the appointment, give notice of the appointment to each other party and any independent children’s lawyer in the proceeding.

11.14  Costs and expenses of litigation guardian

                   The Court may make orders for the payment of the costs and expenses of a litigation guardian (including the costs of an application for the appointment of the litigation guardian):

                     (a)  by a party; or

                     (b)  from the income or assets of the person for whom the litigation guardian is appointed.

11.15  Service

             (1)  A document required to be served by hand on a person who needs a litigation guardian must be served:

                     (a)  on the person’s litigation guardian for the proceeding; or

                     (b)  if there is no litigation guardian—on a person who is entitled under subrule 11.12(1) to be the person’s litigation guardian for the proceeding; 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), a superintendent or other person in direct charge of a hospital or nursing home is taken to have the care of a person who is a patient in the hospital or nursing home.

Part 12Court referral for legal assistance

  

12.01  Definitions for Part 12

                   In this Part:

assisted party means a party receiving legal assistance under this Part.

legal assistance means any of the following:

                     (a)  advice in relation to the proceeding;

                     (b)  representation at a directions, interlocutory or final hearing or mediation;

                     (c)  drafting or settling documents to be used in the proceeding;

                     (d)  representation generally in the conduct of the proceeding.

Pro Bono lawyer means a lawyer who has agreed to accept a referral under rule 12.02 to provide pro bono legal assistance.

12.02  Referral for legal assistance

             (1)  The Court may refer a party to a lawyer for legal assistance by issuing a referral certificate, in accordance with the approved form.

             (2)  When making a referral under subrule (1), the Court may take the following matters into account:

                     (a)  the means of the party;

                     (b)  the capacity of the party to otherwise obtain legal assistance;

                     (c)  the nature and complexity of the proceeding;

                     (d)  any other matters the Court considers appropriate.

             (3)  The referral certificate may state the kind of legal assistance for which the party has been referred.

             (4)  The Registrar will attempt to arrange for the provision of legal assistance in accordance with the referral certificate to a Pro Bono lawyer.

12.03  A party has no right to apply for a referral

                   A party is not entitled to apply to the Court for a referral under rule 12.02.

12.04  Acceptance of referral certificate and provision of legal assistance

                   If a lawyer agrees to accept a referral under rule 12.02, the lawyer must provide legal assistance in accordance with the referral certificate.

12.05  Ceasing to provide legal assistance

                   If a Pro Bono lawyer no longer wishes to provide legal assistance, the lawyer must withdraw in accordance with rule 9.03.

Part 13Ending a proceeding early

Division 13.1Discontinuance

13.01  Discontinuance

             (1)  A party may discontinue an application or response by filing a notice of discontinuance in accordance with the approved form.

             (2)  A notice of discontinuance may be filed:

                     (a)  at least 14 days before the day fixed for the final hearing of the application; or

                     (b)  with the leave of the Court or a Registrar, at a later time.

             (3)  However, a party may not file a notice of discontinuance without the leave of the Court or a Registrar if:

                     (a)  in a proceeding under the Family Law Act:

                              (i)  the proceeding relates to the property of a party; and

                             (ii)  one of the parties dies before the proceeding is decided; or

                     (b)  the proceeding is a creditor’s petition.

             (4)  A party filing a notice of discontinuance must, as soon as practicable, serve a copy of the notice on each other party in the proceeding.

13.02  Costs

             (1)  If a party discontinues an application, or part of an application, another party in the proceeding may apply for costs.

             (2)  Unless the Court or a Registrar directs otherwise, an application for costs must be made by a party within 28 days after service on the party of the notice of discontinuance.

             (3)  If an order for costs is made against a party and the party brings against the party to whom the costs are payable a further proceeding on the same or substantially the same matter, the Court may stay the further proceeding until the costs are paid.

Division 13.1AOrder or judgment on default

13.03  Definitions

                   In this Division:

applicant includes a cross‑claimant.

claim includes a cross‑claim.

respondent includes a cross‑respondent.

13.03A  When a party is in default

             (1)  For rule 13.03B, an applicant is in default if the applicant fails to:

                     (a)  comply with an order of the Court in the proceeding; or

                     (b)  file and serve a document required under these Rules; or

                     (c)  produce a document as required by Part 14; or

                     (d)  do any act required to be done by these Rules; or

                     (e)  prosecute the proceeding with due diligence.

             (2)  For rule 13.03B, a respondent is in default if the respondent:

                     (a)  has not satisfied the applicant’s claim; and

                     (b)  fails to:

                              (i)  give an address for service before the time for the respondent to give an address has expired; or

                             (ii)  file a response before the time for the respondent to file a response has expired; or

                            (iii)  comply with an order of the Court in the proceeding; or

                            (iv)  file and serve a document required under these Rules; or

                             (v)  produce a document as required by Part 14; or

                            (vi)  do any act required to be done by these Rules; or

                           (vii)  defend the proceeding with due diligence.

13.03B  Orders on default

             (1)  If an applicant is in default, the Court may order that:

                     (a)  the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or

                     (b)  a step in the proceeding be taken within the time limited in the order; or

                     (c)  if the applicant does not take a step in the time mentioned in paragraph (b)—the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.

             (2)  If a respondent is in default, the Court may:

                     (a)  order that a step in the proceeding be taken within the time limited in the order; or

                     (b)  if the claim against the respondent is for a debt or liquidated damages—grant leave to the applicant to enter judgment against the respondent for:

                              (i)  the debt or liquidated damages; and

                             (ii)  if appropriate—costs; or

                     (c)  if the proceeding was commenced by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings—give judgment against the respondent for the relief that:

                              (i)  the applicant appears entitled to on the statement of claim; and

                             (ii)  the Court is satisfied it has power to grant; or

                     (d)  give judgment or make any other order against the respondent; or

                     (e)  make an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time limited in the order.

             (3)  The Registrar must enter judgment for the debt or liquidated damages, costs and interest against the respondent as specified in leave granted under paragraph (2)(b), without giving notice, or further notice, to the respondent, if the applicant has filed in the Registry:

                     (a)  an affidavit, or affidavits, proving:

                              (i)  service of the application claiming judgment for the debt or liquidated damages; and

                             (ii)  that the respondent is in default; and

                     (b)  an affidavit for the debt or liquidated damages in accordance with the approved form.

             (4)  Unless the Court otherwise orders, if a respondent to a cross‑claim is in default:

                     (a)  a judgment or decision on any claim, question or issue in the proceeding on the originating process; or

                     (b)  any other cross‑claim in the proceeding;

is binding as between the cross‑claimant and the respondent to the cross‑claim, to the extent that the judgment or decision is relevant to any claim, question or issue in the proceeding on the cross‑claim.

             (5)  In subrule (4):

decision includes a decision by consent.

judgment includes a judgment by default or by consent.

             (6)  The Court may make an order of the kind mentioned in subrule (1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non‑compliance with the order, that the Court thinks just.

13.03C  Default of appearance of a party

             (1)  If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do 1 or more of the following:

                     (a)  adjourn the hearing to a specific date or generally;

                     (b)  order that there is not to be any hearing, unless:

                              (i)  the proceeding is again set down for hearing; or

                             (ii)  any other steps that the Court or the Registrar directs are taken;

                     (c)  if the absent party is an applicant—dismiss the application;

                     (d)  if the absent party is a party who has made an interlocutory application or a cross‑claim—dismiss the interlocutory application or cross‑claim;

                     (e)  proceed with the hearing generally or in relation to any claim for relief in the proceeding.

             (2)  If a party to a proceeding is absent from a hearing, the Court or a Registrar may also make an order of the kind mentioned in subrule 13.03B(1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non‑compliance with the order, that the Court or the Registrar thinks just.

13.03D  Court’s powers in relation to contempt etc not affected

                   Nothing in rule 13.03A, 13.03B or 13.03C is intended to limit the Court’s powers in relation to contempt or sanctions for failure to comply with an order.

Division 13.2Consent orders

13.04  Application for order by consent

             (1)  The parties to a proceeding may apply for an order in terms of an agreement reached about a matter in dispute in the proceeding by filing a draft consent order signed by each party.

             (2)  The draft consent order must state that it is made by consent.

             (3)  The Court may make such orders as the Court considers appropriate in the circumstances.

             (4)  If a Registrar has power to make the order, the Registrar may, unless the Registrar considers that the matter should be brought before the Court, make an order in accordance with the terms of the draft consent order.

13.04A  Consent parenting orders and allegations of abuse, family violence or other risk factors

             (1)  This rule applies if an application is made to the Court for a parenting order by consent in relation to a family law proceeding.

             (2)  The parties must advise the Court whether or not any of the following allegations have been made in the proceeding:

                     (a)  allegations of child abuse or neglect, or a risk of child abuse or neglect;

                     (b)  allegations of family violence, or a risk of family violence;

                     (c)  allegations of mental ill‑health that is alleged to adversely impact on parenting capacity;

                     (d)  allegations of drug or alcohol abuse;

                     (e)  allegations of serious parental incapacity;

                      (f)  any other allegation involving a risk to the child.

          (2A)  Each party must also advise the Court, apart from any allegations made during the proceedings:

                     (a)  whether the party considers that the child concerned has been, or is at risk of being, subjected or exposed to abuse, neglect or family violence; and

                     (b)  whether the party considers that he or she, or another party to the proceedings, has been, or is at risk of being, subjected to family violence.

             (3)  If an allegation mentioned in subrule (2) has been made, or a party advises the Court of any concerns mentioned in subrule (2A), the parties must explain to the Court how the parenting order attempts to deal with the allegation.

             (4)  If the application for the parenting order will be considered in chambers, the parties must attach to the draft parenting order the approved form signed by each party or their legal representative.

13.05  Additional information

                   At any time before making a consent order, the Court or a Registrar may require a party to provide additional information.

Division 13.3Summary disposal and stay

13.07  Disposal by summary judgment

             (1)  This rule applies if, in a proceeding:

                     (a)  in relation to the whole or part of a party’s claim there is evidence of the facts on which the claim or part is based; and

                     (b)  either:

                              (i)  there is evidence given by a party or by some responsible person that the opposing party has no answer to the claim or part; or

                             (ii)  the Court is satisfied that the opposing party has no reasonable prospect of successfully defending the claim or part.

             (2)  The Court may give judgment on that claim or part and make any orders or directions that the Court considers appropriate.

             (3)  If the Court gives judgment against a party who claims relief against the party obtaining the judgment, the Court may stay execution on, or other enforcement of, the judgment until determination of that claim.

13.08  Residue of proceeding

             (1)  This rule applies if in a proceeding:

                     (a)  a party applies for judgment or an order for stay or dismissal under this Division; and

                     (b)  the proceeding is not wholly disposed of by judgment or dismissal or is not wholly stayed.

             (2)  The proceeding may be continued in relation to any claim or part of a claim not disposed of by judgment or dismissal and not stayed.

             (3)  The Court may give directions for the further conduct of the proceeding.

13.09  Application

                   An application for judgment or for an order that a proceeding be stayed or dismissed must be made by filing an application in accordance with the approved form.

13.10  Disposal by summary dismissal

                   The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:

                     (a)  the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or

                     (b)  the proceeding or claim for relief is frivolous or vexatious; or

                     (c)  the proceeding or claim for relief is an abuse of the process of the Court.

Note:          For additional powers of the Court in relation to family law proceedings that are frivolous or vexatious, see sections 102QB and 118 of the Family Law Act.

13.11  Certificate of vexatious proceedings order

             (1)  A person who wants the Chief Executive Officer of the Court to issue a certificate under section 88R of the Act, or section 102QC of the Family Law Act, must make the request in writing and include in the request:

                     (a)  the applicant’s name and address; and

                     (b)  the person’s interest in making the request.

             (2)  The request must be lodged in the Registry in which the vexatious proceedings order was made.

             (3)  The certificate will state:

                     (a)  the name of the person subject to the vexatious proceedings order; and

                     (b)  if applicable, the name of the person who applied for the vexatious proceedings order; and

                     (c)  the date on which the vexatious proceedings order was made; and

                     (d)  the orders made by the Court.

13.11A  Application for leave to institute proceedings

                   An application under subsection 88T(2) of the Act, or subsection 102QE(2) of the Family Law Act, for leave to institute a proceeding that is subject to a vexatious proceedings order must be made:

                     (a)  in accordance with the approved form; and

                     (b)  without notice to any other person.

Note 1:       See subsection 88T(2) of the Act, and subsection 102QE(2) of the Family Law Act, for the power for a person who is subject to a vexatious proceedings order to apply to the Court to institute a proceeding.

Note 2:       See subsection 88T(3) of the Act, and subsection 102QE(3) of the Family Law Act, for the contents of the affidavit that must be filed with the application.

13.12  Dormant proceedings

             (1)  If a party has not taken a step in a proceeding for 6 months, the Court may, on its own initiative, order that the proceeding, or a part of the proceeding, be dismissed.

             (2)  The Court must not make an order under subrule (1) if:

                     (a)  there is a future listing for the proceeding or a part of the proceeding; or

                     (b)  an application in a case relating to the proceeding has not been determined; or

                     (c)  a party to the proceeding satisfies the Court that the proceeding, or part of the proceeding, should not be dismissed; or

                     (d)  the Court has not given the parties to the proceeding notice under subrule (3).

             (3)  The Court must, at least 14 days before making the order, give each party to the proceeding written notice of the date and time when it will consider whether to make the order.

             (4)  Notice under subrule (3) must be sent by post in an envelope marked with the Court’s return address:

                     (a)  to each party’s address for service; and

                     (b)  if a party has no address for service—to the party’s last‑known address.

Part 14Disclosure

Division 14.1Answers to specific questions

14.01  Declaration to allow specific questions

             (1)  A declaration may be made under subsection 45(1) of the Act to allow interrogatories on the application of a party or on the Court’s own motion.

             (2)  If a declaration is made, the Court or a Registrar may make appropriate orders in relation to answers to specific questions, having regard to any relevant Family Law Rules or Federal Court Rules.

Note:          Interrogatories are not allowed in relation to a proceeding unless the Court or a Judge declares that it is appropriate in the interests of the administration of justice: see section 45 of the Act.

Division 14.2Obligation to disclose

14.02  Declaration to allow discovery

             (1)  A declaration may be made under subsection 45(1) of the Act to allow discovery on the application of a party or on the Court’s own motion.

Note:          Discovery is not allowed in relation to a proceeding unless the Court or a Judge declares that it is appropriate in the interests of the administration of justice: see section 45 of the Act.

             (2)  If a declaration is made, the Court or a Registrar may make an order for disclosure:

                     (a)  generally; or

                     (b)  in relation to particular classes of documents; or

                     (c)  in relation to particular issues; or

                     (d)  by a specified date.

14.03  Affidavit of documents

                   A party who is ordered to disclose documents must file an affidavit of documents.

14.04  Production of documents to Court

                   The Court may order a party to a proceeding to produce to it a document in the possession, custody or control of the party.

14.05  Claim for privilege

             (1)  This rule applies if, on application for the production by a party of a document for inspection by the party making the application or to the Court:

                     (a)  privilege from production or inspection is claimed; or

                     (b)  objection is made to production or inspection on any other ground.

             (2)  The Court may inspect the document for the purpose of determining whether the claim or objection is valid.

14.06  Order for particular disclosure

                   If, at any stage of a proceeding, it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed, that some document or class of document relating to a matter in question in the proceeding may be, or may have been, in the possession, custody or control of a party, the Court may order the party:

                     (a)  to file an affidavit stating:

                              (i)  whether the document, or a document of that class, is or has been in the possession, custody or control of the party; and

                             (ii)  if it has been but is not then in the possession, custody or control of the party, when the party parted with it and what has become of it; and

                     (b)  to serve the affidavit on another party.

14.07  Inspection of documents

                   A document produced under an order may be inspected:

                     (a)  at the time and place specified in the order; or

                     (b)  at a time and place agreed by the parties.

14.08  Copies of documents inspected

                   Unless the Court otherwise orders, a party who inspects a document under this Division may make a copy of, or extract from, the document.

14.09  Documents not disclosed or produced

                   Unless the Court gives leave, a party is not entitled to put a document or a copy of a document in evidence or give, or cause to be given, evidence of the contents of a document:

                     (a)  if:

                              (i)  the party has filed an affidavit of documents; and

                             (ii)  the document was, when the party made the affidavit, in the possession, custody or control of the party or had been, in the possession, custody or control of the party; and

                            (iii)  the document was not referred to in the affidavit or in any other affidavit of documents filed by the party under an order of the Court; or

                     (b)  if the party has been served with a subpoena to produce and does not produce the document.

14.10  Documents referred to in document or affidavit

             (1)  If a document or affidavit filed by a party refers to another document, another party may request the party in writing for a copy of the document or to produce it for inspection.

             (2)  The party requested to provide a copy of, or produce, a document must, within 4 days of the request, in writing to the party making the request:

                     (a)  provide a copy of the document or appoint a time within 7 days, and a place where, it may be inspected; or

                     (b)  claim that the document is privileged from production and state the grounds; or

                     (c)  state that the document is not in his or her possession, custody or power and state his or her knowledge, information or belief about its whereabouts.

14.11  Use of documents

             (1)  An order or undertaking, whether express or implied, not to use a document for any purpose other than for the proceeding in which it is disclosed does not apply to the document after it has been read to or by the Court or referred to in open Court in such terms as to disclose its contents.

Note:          An implied undertaking arises where documents are produced in the process of discovery: Harman v Secretary of State for the Home Department [1983] 1 AC 280.

             (2)  Subrule (1) does not apply to a family law or child support proceeding and is subject to any order of the Court on the application of a party or of a person to whom the document belongs.

Part 15Evidence

Note:          Section 69ZT of the Family Law Act provides that particular provisions of the Evidence Act 1995 dealing with:

(a)    general rules about giving evidence, examination in chief, re‑examination and cross‑examination;

(b)    documents and other evidence;

(c)    hearsay, opinion, admissions, evidence of judgements and convictions, tendency and coincidence, credibility and character;

                   do not apply to child‑related proceedings unless the Court is satisfied that there are exceptional circumstances and has taken into account the matters set out in paragraph 69ZT(3)(b) of that Act.

Division 15.1General

15.01  Court may give directions

                   The Court may give directions:

                     (a)  as to the order of evidence and addresses; and

                     (b)  generally as to the conduct of a hearing.

15.02  Evidence if there is an independent children’s lawyer

             (1)  This rule:

                     (a)  applies if an independent children’s lawyer is to adduce evidence; and

                     (b)  is subject to any direction made under rule 15.01.

             (2)  If an applicant is to adduce evidence, the evidence must be adduced before evidence is adduced by a respondent, or an independent children’s lawyer.

             (3)  If a respondent is to adduce evidence, the evidence must be adduced before evidence is adduced by an independent children’s lawyer.

             (4)  A party or an independent children’s lawyer may make an opening address immediately before adducing evidence.

             (5)  If an independent children’s lawyer is to make a closing address, the address must be made before a closing address is made by a respondent or an applicant.

             (6)  If a respondent makes a closing address, the address must be made before a closing address is made by an applicant.

15.03  Decisions without oral hearing

                   The Court or a Judge may make a decision in a proceeding without an oral hearing if the parties to the proceeding consent to the making of the decision without an oral hearing.

15.04  Court may call evidence

             (1)  The Court may of its own motion call any person as a witness in proceedings and give directions as to examination and cross‑examination.

             (2)  The Court may order a party to pay the expenses of the attendance of the witness.

Note:          The Court may put a question to any witness to resolve or expedite proceedings: see section 63 of the Act.

15.06  Transcript receivable in evidence

                   A transcript of proceedings prepared at the direction of the Court may be received in evidence as a true record of the proceedings except to the extent that it is shown not to be a true record.

Division 15.2Expert evidence

15.06A  Definition

                   In this Division:

expert, in relation to a question, means a person (other than a family and child counsellor or a welfare officer) who has specialised knowledge about matters relevant to the question based on that person’s training, study or experience.

15.07  Duty to Court and form of expert evidence

                   For an expert’s duty to the Court and for the form of expert evidence, an expert witness should be guided by the Federal Court practice direction guidelines for expert witnesses.

Note:          While not intended to address all aspects of an expert’s duties, the key points in the guidelines are:

·      an expert witness has a duty to assist the Court on matters relevant to the expert’s area of expertise

·      an expert witness is not an advocate for a party

·      the overriding duty of an expert witness is to the Court and not to the person retaining the expert

·      if expert witnesses confer at the direction of the Court it would be improper for an expert to be given or to accept instructions not to reach agreement.

15.08  Expert evidence for 2 or more parties

             (1)  This rule applies if 2 or more parties to a proceeding call expert witnesses to give opinion evidence about the same, or a similar, question.

             (2)  The Court may give any direction that it thinks fit in relation to:

                     (a)  the preparation by the expert witnesses (in conference or otherwise) of a joint statement of how their opinions on the question agree and differ; or

                     (b)  the giving by an expert witness of an oral or written statement of:

                              (i)  his or her opinion on the question; or

                             (ii)  his or her opinion on the opinion of another expert on the question; or

                            (iii)  whether in the light of factual evidence led at trial, he or she adheres to, or wishes to modify, any opinion earlier given; or

                     (c)  the order in which the expert witnesses are to be sworn, are to give evidence, are to be cross‑examined or are to be re‑examined; or

                     (d)  the position of witnesses in the courtroom (not necessarily in the witness box).

Example:    The Court may direct that the expert witnesses be sworn one immediately after another, and that they give evidence after all or certain factual evidence has been led, or after each party’s case is closed (subject only to hearing the evidence of expert witnesses) in relation to the question.

15.09  Court expert

             (1)  The Court may, at the request of a party or of its own motion:

                     (a)  appoint an expert as court expert to inquire into and report on a question arising in the proceeding; and

                     (b)  give directions about an experiment or test (other than a testing procedure for section 69W of the Family Law Act) for the purposes of the inquiry or report; and

                     (c)  give further directions, including to extend or supplement the inquiry or report.

             (2)  If possible, the court expert should be a person agreed upon between the parties.

15.10  Report of court expert

             (1)  The court expert must give the report to the Registrar together with the number of copies the Registrar directs.

             (2)  The Registrar must send a copy of the report to each party.

             (3)  The Court may:

                     (a)  receive the report in evidence; or

                     (b)  allow the examination of the court expert; or

                     (c)  give other directions as to the use of the report.

             (4)  A party wishing to cross‑examine the court expert:

                     (a)  must arrange for the attendance of the court expert; and

                     (b)  may issue a subpoena requiring his or her attendance; and

                     (c)  unless the Court otherwise directs, must pay the reasonable expenses of the attendance.

15.11  Remuneration and expenses of court expert

                   Unless the Court otherwise directs, the parties are jointly liable to pay the reasonable remuneration and expenses of the court expert for preparing a report.

15.12  Further expert evidence

                   If a court expert has made a report on a question, a party may adduce evidence of another expert on the question with the leave of the court.

Division 15.4Affidavits

15.25  Form of affidavit

                   The body of an affidavit must be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct part of the subject.

15.26  Making an affidavit

             (1)  The person making the affidavit must sign each page of the affidavit.

Note:          For the persons before whom an affidavit may be made: see section 59 of the Act.

             (2)  The affidavit must:

                     (a)  contain a jurat including:

                              (i)  the full name of the person making the affidavit; and

                             (ii)  whether the affidavit is sworn or affirmed; and

                            (iii)  the day and place the person makes the affidavit; and

                            (iv)  the full name and capacity of the person before whom the affidavit is made; and

                     (b)  be signed by the person making the affidavit in the presence of the person before whom it is made; and

                     (c)  then be signed by the person before whom it is made.

Note:          A jurat is a clause placed at the end of an affidavit stating the time, place and officer before whom the affidavit is made.

             (3)  Any interlineation, erasure or other alteration in the affidavit must be initialled by the person making the affidavit and the person before whom the affidavit is made.

15.27  Affidavit of illiterate or vision impaired person etc

             (1)  If the person making an affidavit is unable to read, or is physically incapable of signing it, the person before whom the affidavit is made must certify in or below the jurat that:

                     (a)  the affidavit was read to the person making it; and

                     (b)  the person seemed to understand the affidavit; and

                     (c)  in the case of a person physically incapable of signing, the person indicated that the contents were true.

          (1A)  Subrule (1) does not apply if the person making the affidavit has read the affidavit using:

                     (a)  a computer with a screen reader, text‑to‑speech software or a braille display; or

                     (b)  other technology for the vision impaired.

             (2)  If the person making an affidavit does not have an adequate command of English:

                     (a)  a translation of the affidavit and oath or affirmation must be read or given in writing to the person in a language that the person understands; and

                     (b)  the translator must certify in or below the jurat that he or she has done so.

             (3)  If an affidavit is made by a person who is incapable of reading it or incapable of signing it and a certificate under subrule (1) or (2) does not appear on the affidavit, it may not be used in a proceeding unless the Court or a Registrar is satisfied that:

                     (a)  the affidavit was read, or if appropriate a translation read or given in writing, to the person; and

                     (b)  the person seemed to understand the affidavit; and

                     (c)  in the case of a person physically incapable of signing—the person indicated that the contents were true.

15.28  Documents annexed or exhibited

             (1)  A document to be used in conjunction with an affidavit must be annexed to the affidavit.

             (2)  However, if because of the nature of the document or its length it is impractical to annex the document, it may be made an exhibit to the affidavit.

             (3)  An annexure must:

                     (a)  be paginated; and

                     (b)  bear a statement signed by the person before whom the affidavit is made identifying it as the particular annexure mentioned in the affidavit.

             (4)  If there is more than 1 annexure, the pagination must be consecutive until the last page of the annexures and identified by page number in the affidavit.

Example:    For an affidavit with 10 annexures totalling 100 pages, the first page of the first annexure is page 1 and the last page of the last annexure is page 100.  An annexure would be identified in the affidavit in the following way: ‘Annexed and marked with the letter G (pages 72‑81) is a copy of the agreement for sale’.

             (5)  An exhibit must:

                     (a)  be marked with the title and number of the proceeding; and

                     (b)  be paginated; and

                     (c)  bear a statement signed by the person before whom the affidavit is made identifying it as the particular exhibit mentioned in the affidavit.

             (6)  A document annexed or exhibited to an affidavit must be served with the affidavit.

15.29  Objectionable material may be struck out

             (1)  The Court or a Registrar may order material to be struck out of an affidavit at any stage in a proceeding if the material:

                     (a)  is inadmissible, unnecessary, irrelevant, prolix, scandalous or argumentative; or

                     (b)  contains opinions of persons not qualified to give them.

             (2)  Unless the Court or a Registrar otherwise directs, any costs caused by the material struck out must be paid by the party who filed the affidavit.

15.29A  Use of affidavit without cross‑examination of maker

                   The Court may:

                     (a)  dispense with the attendance for cross‑examination of a person making an affidavit; or

                     (b)  direct that an affidavit be used without the person making the affidavit being cross‑examined on the affidavit.

Division 15.5Admissions

15.30  Admission

                   If an admission is made by a party, the Court may, on the application of another party, make an order to which the party applying is entitled on the admission.

15.31  Notice to admit facts or documents

             (1)  A party to a proceeding (the first party) may, by notice in accordance with the approved form, ask another party to admit, for the proceeding, the facts or documents specified in the notice.

             (2)  If the other party does not, within 14 days, serve a notice on the first party disputing the fact or the authenticity of the document, the other party is taken to admit, for the proceeding only, the fact or the authenticity of the document.

             (3)  The other party may, with the Court’s leave, withdraw an admission taken to have been made under subrule (2).

             (4)  Unless the Court otherwise orders, if the other party serves a notice disputing a fact or the authenticity of a document and the fact or the authenticity of the document is later proved in the proceeding, the party must pay the costs of the proof.

Part 15ASubpoenas and notices to produce

Division 15A.1General

15A.01  Definitions for Part 15A

                   In this Part:

child welfare record means a record relating to child welfare held by a State or Territory agency mentioned in Schedule 9 to the Family Law Regulations 1984.

criminal record, for a person, means a record of offences for which the person has been found guilty.

interested person, for a subpoena, means a person who might reasonably have an interest in the subject matter of the subpoena.

issuing party means the party at whose request a subpoena is issued.

medical record, for a person, means the histories, reports, diagnoses, prognoses, interpretations and other data or records, written or electronic, relating to the person’s medical condition, that are maintained by a physician, hospital or other provider of services or facilities for medical treatment.

person subpoenaed means a person required by a subpoena to produce a document or give evidence.

police record, for a person, means records relating to the person kept by police, including statements, police notes and records of interview.

15A.02  Issue of subpoena

             (1)  The Court or a Registrar may, on the Court’s or the Registrar’s own initiative or at the request of a party, issue:

                     (a)  a subpoena for production; or

                     (b)  a subpoena to give evidence; or

                     (c)  a subpoena for production and to give evidence.

             (2)  A subpoena must be in accordance with the approved form.

             (3)  A subpoena must specify the name or designation by office or position of the person subpoenaed.

             (4)  A subpoena requiring a person to produce a document or thing must include an adequate description of the document or thing and the time and place for production.

             (5)  A party should not request the issue of a subpoena for production and to give evidence if production would be sufficient in the circumstances.

15A.03  Documents and things in possession of another court

             (1)  The court must not issue a subpoena requiring the production of a document or thing in the possession of the Court or another court.

             (2)  A party who seeks production of a document or thing in the possession of another court must give to a Registrar a written notice setting out:

                     (a)  the name and address of the court having possession of the document; and

                     (b)  a description of the document to be produced; and

                     (c)  the date when the document is to be produced; and

                     (d)  the reason for seeking production.

             (3)  On receiving a notice under subrule (2), a Registrar may ask the other court, in writing, to send the document to the filing registry by a specified date.

             (4)  A party may apply for permission to inspect and copy a document produced to the court.

15A.04  Time limits

             (1)  A subpoena requiring production only may be made returnable at a time fixed by the Court.

             (2)  A subpoena requiring attendance of a person must be made returnable on a day when the proceeding is listed for a hearing.

             (3)  Unless the Court directs otherwise:

                     (a)  a subpoena requiring attendance must be served at least 7 days before attendance under the subpoena is required; and

                     (b)  a subpoena requiring production must be served at least 10 days before production under the subpoena is required.

Note:          A subpoena must be served within 3 months of issue: see rule 6.18.

15A.05  Limit on number of subpoenas

             (1)  Unless the Court directs otherwise, a party or independent children’s lawyer must not request the issue of more than 5 subpoenas in a proceeding.

             (2)  For this rule:

proceeding does not include part of a proceeding.

15A.06  Service

             (1)  A subpoena must be served in accordance with Part 6.

Note:          Under subrule 6.06(1), service by hand is required for an application starting a proceeding or a subpoena requiring the attendance of a person.

             (2)  The issuing party must serve by ordinary service a copy of the subpoena on each other party, any interested person and any independent children’s lawyer in the proceeding.

15A.07  Conduct money

             (1)  The person serving a subpoena must give the person subpoenaed conduct money sufficient for return travel between the place of residence or employment (as appropriate) of the person subpoenaed and the court.

             (2)  The amount of conduct money must be at least $25.

15A.08  Undertaking not to require compliance with subpoena

                   The issuing party for a subpoena may, by notice in writing served on the person subpoenaed and on each other party, undertake not to require the person subpoenaed to comply with the subpoena.

15A.09  Setting aside subpoena

                   On application, the Court may make an order setting aside all or part of a subpoena.

15A.10  Order for cost of complying with subpoena

                   Subject to rule 15A.11, the Court may, on application, make an order for the payment of any loss or expense incurred in complying with a subpoena.

15A.11  Cost of complying with subpoena if not a party

             (1)  This rule applies if:

                     (a)  a subpoena is addressed to a person who is not a party in the proceeding; and

                     (b)  before complying with the subpoena, the person subpoenaed has given the issuing party notice that substantial loss or expense would be incurred in properly complying with the subpoena, including an estimate of the loss or expense; and

                     (c)  the Court is satisfied that substantial loss or expense is incurred in properly complying with the subpoena.

             (2)  Unless the Court or a Registrar otherwise directs, the amount of the loss or expense estimated under paragraph (1)(b) is payable by the issuing party.

             (3)  The Court may fix the amount payable having regard to the scale of fees and allowances payable to witnesses in the Supreme Court of the State or Territory where the person is required to attend.

             (4)  The amount payable is in addition to any conduct money paid.

             (5)  If a party who is to pay an amount under this rule obtains an order for the costs of the proceeding, the Court may:

                     (a)  allow the amount to be included in the costs recoverable; or

                     (b)  make any other order it thinks fit.

Division 15A.2Production of documents and access by parties

15A.12  Application of Division 15A.2

             (1)  This Division:

                     (a)  applies to a subpoena for production; and

                     (b)  does not apply to a subpoena for production and to give evidence.

             (2)  A person who inspects or copies a document under these Rules or an order must:

                     (a)  use the documents only for the purpose of the proceedings; and

                     (b)  not disclose the contents of the document or give a copy of it to any other person without the Court’s permission.

             (3)  However:

                     (a)  a solicitor may disclose the contents or give a copy of the document to the solicitor’s client or counsel; and

                     (b)  a client may disclose the contents or give a copy of the document to his or her solicitor.

15A.13  Right to inspection of document

             (1)  This rule applies if:

                     (a)  the Court or a Registrar issues a subpoena for production of a document under rule 15A.02; and

                     (b)  the issuing party serves a copy of the subpoena on each other party, any interested person and any independent children’s lawyer in accordance with rule 15A.06, at least 10 days before the day stated in the subpoena for production; and

                     (c)  the issuing party files a notice of request to inspect in an approved form.

             (2)  If a person subpoenaed, another party or an interested person has not made an objection under rule 15A.14 by the date required for production, each party and any independent children’s lawyer may, after that day:

                     (a)  inspect a subpoenaed document; and

                     (b)  take copies of a subpoenaed document, other than a child welfare record, criminal record, medical record or police record.

             (3)  Unless otherwise ordered, the inspection is by appointment and without an order.

Note:          For child welfare records, there may be restrictions on inspection imposed by protocols entered into between the Court and the relevant child welfare department.

15A.14  Objection to production or inspection or copying of document

             (1)  A person who objects to producing a document subpoenaed, or another party or an interested person who objects to the inspection or copying of a document subpoenaed by a party to the proceedings, must notify the Registrar and the issuing party, in writing, of the objection and the grounds of the objection before the day stated in the subpoena for production.

             (2)  If an issuing party seeks the production of a person’s medical records, the person may, before the day stated in the subpoena for production, notify the Registrar in writing that he or she wants to inspect the records for the purpose of determining whether to object to the inspection or copying of the document by any other party.

             (3)  If notice is given under subrule (2):

                     (a)  the person may inspect the medical records and notify the Registrar in writing of an objection (including the grounds of the objection) within 7 days after the day stated in the subpoena for production; and

                     (b)  unless otherwise ordered, no other person may inspect the medical records until the later of:

                              (i)  7 days after the day stated in the subpoena for production; or

                             (ii)  the hearing and determination of the objection, if any.

             (4)  A subpoena that is the subject of a notice of objection under this rule must be referred to the Court or Registrar for the hearing and determination of the objection.

15A.15  Subpoena for production of documents or things

             (1)  If a person is served with a subpoena for production:

                     (a)  the person, or the person’s agent, must produce the documents or things described in the subpoena at the registry stated in the subpoena; and

                     (b)  the Registrar must issue a receipt to the person producing the document or thing.

             (2)  Unless the subpoena specifically requires the production of the original documents or things, the person, or the person’s agent, may produce a copy of the document or things.

             (3)  The copy of the document or things may be:

                     (a)  a photocopy; or

                     (b)  in PDF on a CD‑ROM; or

                     (c)  in any other electronic form that the issuing party has indicated is acceptable.

15A.16  Failure to comply with subpoena

             (1)  If a person fails, without lawful excuse, to comply with a subpoena, the Court or a Registrar may issue a warrant for the arrest of the person and order that person to pay any costs of failure to comply.

             (2)  Subrule (1) does not affect any power of the Court to punish a person for failure to comply with a subpoena.

Division 15A.3Notices to produce

15A.17  Notice to produce

             (1)  A party may, by notice in writing, require another party to produce, at the hearing of the proceeding, a specified document that is in the possession, custody or control of that other party.

             (2)  Unless the Court otherwise orders, the party given notice to produce must produce the document at the hearing.

Part 16Judgments and orders

  

16.01  Court may make any judgment or order

                   The Court may, at any stage in a proceeding on the application of a party, give any judgment or make any order even if the claim was not made in an originating process.

16.02  Date of effect

                   Unless the Court otherwise orders, a judgment or order takes effect on the day when it is given or made.

16.03  Time for compliance

             (1)  Unless the Court otherwise orders, if an order (other than a parenting order) requires a person to do an act, the person must do so within 14 days after service of the order on the person.

             (2)  Subrule (1) does not apply to that part of an order that requires a person to pay money unless the requirement is to pay money into Court.

             (3)  If an order requires a person to do an act within a specified time, the Court may make an order requiring the person to do the act within another specified time.

16.04  Fines

             (1)  If the Court imposes a fine on a person, the Court must make an order requiring the person to pay the fine to a Registrar within a specified time.

             (2)  The Registrar must pay into the Consolidated Revenue Fund all moneys paid to the Registrar as a fine imposed by the Court.

16.05  Setting aside or varying judgments or orders

             (1)  The Court or a Registrar may vary or set aside a judgment or order before it has been entered.

             (2)  The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:

                     (a)  it was made in the absence of a party; or

                     (b)  it was obtained by fraud; or

                     (c)  it is interlocutory; or

                     (d)  it is an injunction or for the appointment of a receiver; or

                     (e)  it does not reflect the intention of the Court; or

                      (f)  the party in whose favour it was made consents; or

                     (g)  there is a clerical mistake in the judgment or order; or

                     (h)  there is an error arising in the judgment or order from an accidental slip or omission.

             (3)  This rule does not affect the power of the Court or a Registrar to vary or terminate the operation of an order by a further order.

Note:          See sections 57 and 58 of the Family Law Act in relation to rescission of a divorce order.

16.06  Undertakings

                   Unless the Court otherwise orders, an undertaking to the Court has the same force and effect as an order of the Court.

16.07  When must an order be entered

             (1)  An order must be entered if:

                     (a)  the order takes effect on the signing of the order; or

                     (b)  the order is to be served; or

                     (c)  the order is to be enforced; or

                     (d)  an appeal from the order has been instituted or an application for leave to appeal has been made; or

                     (e)  some step is to be taken under the order; or

                      (f)  the Court directs that the order be entered.

             (2)  However, an order need not be entered if it merely (in addition to any provision as to costs):

                     (a)  makes an extension or abridgment of time; or

                     (b)  grants leave or makes a direction:

                              (i)  to amend a document (other than an order); or

                             (ii)  to file a document; or

                            (iii)  for an act to be done by an officer of the Court other than a lawyer; or

                     (c)  gives directions about the conduct of proceedings.

16.08  Entry of orders

             (1)  An order may be entered:

                     (a)  under an arrangement under section 90 of the Act; or

                     (b)  under the seal of the Court signed by:

                              (i)  a Judge; or

                             (ii)  a Registrar; or

                            (iii)  an officer of the Court acting with the authority of the Chief Executive Officer.

          (1A)  For paragraph (1)(b), an order may be signed by electronic means.

             (2)  An order may be entered, in accordance with subrule (1):

                     (a)  in the registry; or

                     (b)  in court; or

                     (c)  in chambers.

Part 17Separate decision on question

  

17.01  Definition

                   In this Part:

question includes a question or issue in a proceeding, whether of fact or law, or partly of fact and partly of law, and whether raised in a document, by agreement of the parties or otherwise.

17.02  Order for decision

                   The Court may make an order for the decision by the Court of a question separately from another question at any time in a proceeding.

17.03  Separate question

                   A separate question must:

                     (a)  set out the question or questions to be decided; and

                     (b)  be divided into paragraphs numbered consecutively.

17.04  Orders, directions on decision

                   If a question is decided under this Part, the Court may make the orders and directions that the nature of the case requires.

17.05  Disposal of proceeding

                   The Court may, in relation to a decision of a question under this Part:

                     (a)  dismiss the proceeding or any part of the proceeding; or

                     (b)  give judgment, including a declaratory judgment; or

                     (c)  make another order.

Part 18Referral of matter to officer of Court

  

18.01  Court may refer matter

             (1)  The Court may refer to a Registrar, including in relation to assessment of damages or taking accounts, any claim or application for, or relating to, any matter before the Court for:

                     (a)  investigation; and

                     (b)  report; and

                     (c)  recommendation.

             (2)  A Registrar to whom a claim or application is referred for investigation may:

                     (a)  take evidence on oath or affirmation; and

                     (b)  obtain and receive in evidence a report from a family and child counsellor or welfare officer; and

                     (c)  summon witnesses for the purpose of giving evidence or producing documents.

Part 19Contempt

  

19.01  Contempt in the face or hearing of Court

             (1)  If it appears to the Court that a person is guilty of contempt in the face of or in the hearing of the Court, the Court may:

                     (a)  direct that the person attend before the Court; or

                     (b)  issue a warrant for the person’s arrest.

             (2)  When the person attends before the Court, the Court must:

                     (a)  tell the person of the contempt with which the person is charged; and

                     (b)  allow the person to state his or her defence to the charge; and

                     (c)  after hearing the defence, determine the charge; and

                     (d)  make an order for the punishment or discharge of the person.

             (3)  The Court may direct that the person be kept in custody or released until the charge is determined.

             (4)  The Court may direct that the person give security for the person’s attendance before the Court to answer the charge.

19.02  Contempt other than in the face or hearing of Court

             (1)  If it is alleged that a person has committed a contempt of the Court (other than contempt in the face or hearing of the Court), an application may be made to the Court for the person to be dealt with for the contempt.

             (2)  An application must:

                     (a)  be in accordance with the approved form; and

                     (b)  state the contempt alleged; and

                     (c)  be supported by an affidavit setting out the facts relied on.

             (3)  An application may be made:

                     (a)  if the contempt is in connection with a proceeding, by a party in the proceeding; or

                     (b)  by the Marshal of the Court; or

                     (c)  by an officer or staff member of the Australian Federal Police; or

                     (d)  by a member of the police force of a State or Territory.

             (4)  The Court may direct the Marshal to make an application.

             (5)  If the Court considers that the person is likely to leave the jurisdiction of the Court, the Court may issue a warrant for the arrest and detention of the person in custody until the person:

                     (a)  attends before the Court to answer the charge; or

                     (b)  gives security, as directed by the Court, for his or her attendance before the Court to answer the charge.

             (6)  When the person attends before the Court, the Court must:

                     (a)  tell the person of the allegation; and

                     (b)  ask the person to state whether he or she admits or denies the allegation; and

                     (c)  hear any evidence in support of the allegation.

             (7)  After hearing evidence in support of the allegation, the Court may:

                     (a)  if the Court decides there is no prima facie case, dismiss the application; or

                     (b)  if the Court decides there is a prima facie case:

                              (i)  invite the person to state his or her defence to the allegation; and

                             (ii)  after hearing any defence, determine the charge.

             (8)  If the Court finds the charge proved, the Court may make an order for the punishment of the person.

Part 20Registrars’ powers

Division 20.1Delegation of powers to Registrars

20.00A  Delegation of powers to Registrars

             (1)  For subsection 103(1) of the Act, a power of the Court mentioned in an item of the following table is delegated to a Registrar who is approved, or is in a class of Registrars who are approved, by the Chief Judge for the exercise of the power.

Note:          Subrule (1A) of this rule provides that certain powers mentioned in the table may only be exercised by an approved Registrar who is also a Registrar (other than a Deputy Registrar) of the Family Court.

 

Item

Legislative provision

Description of power (for information only)

 

Act

 

1AA

section 39 (but only to the extent that it gives the Court the power to transfer proceedings to the Family Court)

To transfer a proceeding to the Family Court

1AB

subsection 43(2) (but only for a proceeding that is within the power of a Registrar to hear and determine)

To give directions about the practice and procedure to be followed in relation to a proceeding or a part of a proceeding

1AC

section 51 (but only for a proceeding that is within the power of a Registrar to hear and determine)

To give directions about the length of documents required or permitted to be filed in the Court

1

section 52

To order, at any stage, a change of venue

1A

section 55 (but only for a proceeding that is within the power of a Registrar to hear and determine)

To give directions about limiting the time for oral argument in a proceeding

1B

section 56 (but only for a proceeding that is within the power of a Registrar to hear and determine)

To give directions about the use, or length, of written submissions in a proceeding

1C

subsection 57(2)

To make an order declaring that a proceeding is not invalid by reason of a formal defect or an irregularity

1D

section 62 (but only for a proceeding that is within the power of a Registrar to hear and determine)

To give directions about limiting the time for giving testimony in a proceeding

1E

subsection 64(2) (but only for a proceeding that is within the power of a Registrar to hear and determine)

To give directions that particular testimony is to be given orally or by affidavit

1F

subsection 66(1) (but only for a proceeding that is within the power of a Registrar to hear and determine)

To direct or allow testimony to be given by video link or audio link

1G

subsection 67(1) (but only for a proceeding that is within the power of a Registrar to hear and determine)

To direct or allow a person to appear by way of video link or audio link

1H

subsection 68(1) (but only for a proceeding that is within the power of a Registrar to hear and determine)

To direct or allow a person to make a submission by way of video link or audio link

1J

section 72 (but only for a proceeding that is within the power of a Registrar to hear and determine)

To make orders for the payment of expenses incurred in connection with giving testimony, appearing, or making submissions, by video link or audio link

1K

subparagraphs 102(2)(k)(iv) and (l)(i) (except the reference in subparagraph (l)(i) to an order under section 77 or 90SG)

To do the following:

(a) make an order under paragraph 70NEB(1)(a) of the Family Law Act;

(b) in family law or child support proceedings—make an order under section 66Q or 67E of the Family Law Act

2

subject to items 19D, 19F, 19Q and 19S of this table, subsection 102(2) (except subparagraph (k)(iv) and the reference in subparagraph (l)(i) to an order under section 66Q or 67E)

All of the following:

(a) to dispense with the service of any process of the Court

(b) to make orders in relation to substituted service

(c) to make orders in relation to discovery, inspection and production of documents

(d) to make orders in relation to interrogatories

(e) to make an order adjourning the hearing of proceedings

(f) to make an order as to costs

(g) to make an order about security for costs

(h) to make an order exempting a party to proceedings from compliance with a provision of these Rules

(i) to exercise a power of the Court prescribed by these Rules

(j) to direct a party in family law or child support proceedings to answer particular questions

 

 

(k) to make orders under the following provisions of the Family Law Act:

(i) sections 11F and 11G

(ii) sections 13C and 13D

(iii) subsection 65LA(1)

(ka) to direct a family consultant to give a report under section 62G of the Family Law Act

(l) in family law or child support proceedings—to make:

(i) an order under section 77 or 90SG of the Family Law Act or

(ii) an order for the payment of maintenance pending the disposal of the proceedings

(m) to make an order the terms of which have been agreed upon by all the parties to the proceedings

(n) to make orders for the enforcement of maintenance orders under the Family Law Act

(o) to make an order exempting a party to family law or child support proceedings from compliance with a provision of regulations under the Family Law Act

 

Fair Work Act 2009

 

2A

paragraph 545(2)(b)

To order a person to pay compensation

2B

subsection 548(4)

To amend the papers commencing the proceeding

2C

subsections 548(5) and (6)

To grant leave for a party to a small claims proceeding to be represented by a lawyer

2D

section 570

To order a party to pay costs incurred by another party

 

Family Law Act

 

3AA

section 11F

To order parties to attend, or arrange for a child to attend, an appointment (or a series of appointments) with a family consultant

3AB

section 11G

To make a further order because of failure to comply with an order under section 11F of the Family Law Act or an instruction given by the family consultant

3

section 13B

To adjourn proceedings and advise parties to attend family counselling

3A

section 13C

To order parties to attend family counselling, family dispute resolution and other family services and to make other related orders

3B

section 13D

To make a further order because of a failure to comply with an order under section 13C of the Family Law Act

4

sections 13E and 13F

To refer parties to arbitration with their consent and make procedural orders to assist arbitration

5

subsection 44(1C)

To give leave for an application for a divorce order to be filed within 2 years after the date of marriage

5A

paragraphs 44(3A)(d) and (3B)(d) (but only if all parties consent to leave being granted)

To grant leave for proceedings to be instituted out of time

5B

subsection 44(6) (but only if all parties consent to leave being granted)

To grant leave to a party to a de facto relationship to make certain applications out of time

6

subsection 45(2)

To transfer a case to another court

6A

subsection 46(3A)

To order that proceedings be removed from a court of summary jurisdiction to the Court

7

section 48

To make a divorce order in undefended proceedings

8

subsection 55(2)

To extend or reduce the time for a divorce order to take effect

9

section 55A

To make a declaration about arrangements for children after a divorce

10

section 57

To rescind a divorce order where the parties have become reconciled

11

subsection 60I(9)

To decide if subsection 60I(7) applies to an application for a Part VII order about a child

12

subsection 60I(10)

To order that a person attend family dispute resolution

13

subsection 60J(2)

To decide if subsection 60J(1) applies to an application for a Part VII order about a child because of a risk of child abuse or family violence

15

subsection 63E(3)

To register a revocation agreement

15A

section 63H

To make an order in relation to a parenting plan

15B

section 65D

To make a parenting order (except an excluded child order)

15C

section 65D (but only if:

(a) both of the following apply:

(i) the order is made in an undefended case;

(ii) the order is to come into effect at least 21 days after the order is served on the non‑appearing party; or

(b) the order is made with the consent of all the parties to the case)

To make a parenting order (except an excluded child order)

15D

paragraph 65G(2)(b)

To make a parenting order by consent in favour of a non‑parent even though the parties have not attended a conference with a family consultant

15E

section 65L

To make an order requiring family consultants to supervise or assist compliance with a parenting order

15F

section 66G

To make a child maintenance order

15G

section 66M

To make an order determining that it is proper for a step‑parent to have a duty of maintaining a step‑child

15H

section 66P

To make an order referred to in subsection 66P(1) of the Family Law Act

15J

section 66Q

To make an urgent child maintenance order, pending the disposal of the proceedings for a child maintenance order

15K

section 66S

To make an order discharging, suspending, reviving or varying a child maintenance order

15L

subsection 66W(2)

To discharge or vary a child maintenance order if arrears are due under the order when it ceases to be in force

15M

section 67D

To make an order in relation to the birth of a child, including for financial assistance

15N

section 67E

To make an urgent order in relation to the birth of a child, including for financial assistance

16

subsection 67M(2)

To make a location order

17

subsection 67N(2)

To make a Commonwealth information order

17AA

section 67U

To make a recovery order

17A

subsection 67ZBB(2)

To make procedural orders for allegations of child abuse or family violence

17B

section 67ZD

To order a passport or other travel document to be delivered to the court

17C

subsections 68B(1) and (2)

To make an order or grant an injunction

18

section 68L

To make an order that a child’s interests are to be independently represented

18A

subsection 68M(2)

To order a person to make a child available for an examination for the purpose of preparing a report about the child for use by the independent children’s lawyer

18B

section 69V

To make an order requiring any person to give evidence in relation to the parentage of a child

18C

section 69VA

To issue a declaration of the parentage of a child

18D

subsection 69W(1)

To order a parentage testing procedure to be carried out on a person

18E

section 69X

To make orders associated with a parentage testing order

18F

subsection 69ZC(2)

To order a person to appear before the court and give evidence in relation to a report of a parentage testing procedure

19

section 69ZW

To make an order in child‑related proceedings requesting a State or Territory agency to provide documents or information

19A

subject to item 19B of this table, Division 13A of Part VII except paragraph 70NFB(2)(e) and only if:

(a) the order made is an order until further order; or

(b) the power is exercised in an undefended case; or

(c) the power is exercised with the consent of all the parties to the case

To make orders to enforce compliance with orders under the Family Law Act affecting children, and to do any other thing referred to in Division 13A of Part VII of the Family Law Act

19B

sections 70NBA and 70NFD (but only if the order to be varied or discharged:

(a) was made by a Registrar; or

(b) is an order until further order; or

(c) was made in an undefended case; or

(d) was made with the consent of all the parties to the case)

To vary a parenting order, and to vary or discharge a community service order that was made under paragraph 70NFB(2)(a) of the Family Law Act

19C

section 74

To make an order for the maintenance of a party to a marriage

19D

section 74 (but only if:

(a) all of the following apply:

(i) the order is an order until further order;

(ii) the order is made in an undefended case;

(iii) the order is to come into effect at least 21 days after the order is served on the other party; or

(b) the order is made with the consent of all the parties to the case)

To make an order for the maintenance of a party to a marriage

19E

section 77

To make an urgent order for the maintenance of a party to a marriage, pending the disposal of the proceedings

19F

section 77 (but only if:

(a) both of the following apply:

(i) the order is made in an undefended case;

(ii) the order is to come into effect at least 21 days after the order is served on the other party; or

(b) the order is made with the consent of all the parties to the case)

To make an urgent order for the maintenance of a party to a marriage, pending the disposal of the proceedings

19G

sections 78, 79 and 79A (but only if:

(a) the declaration or order made is a declaration or an order until further order; or

(b) the power is exercised in an undefended case)

To make a declaration or order in relation to the property interests of the parties to a marriage, and to do any other thing referred to in section 79 or 79A of the Family Law Act

19H

sections 78, 79 and 79A (but only if:

(a) both of the following apply:

(i) the power is exercised in an undefended case;

(ii) the declaration or order is to come into effect at least 21 days after the declaration or order is served on the non‑appearing party; or

(b) the power is exercised with the consent of all the parties to the case)

To make a declaration or order in relation to the property interests of the parties to a marriage, and to do any other thing referred to in section 79 or 79A of the Family Law Act

19J

subsection 83(1)

To discharge, suspend, revive or vary a spousal maintenance order

19K

subsection 83(1) (but only if:

(a) all of the following apply:

(i) the order to be discharged, suspended, revived or varied is an order until further order;

(ii) the order to discharge, suspend, revive or vary is made in an undefended case;

(iii) the order to discharge, suspend, revive or vary is to come into effect at least 21 days after the order is served on the non‑appearing party; or

(b) the order to discharge, suspend, revive or vary is made with the consent of all the parties to the case)

To discharge, suspend, revive or vary a spousal maintenance order

19L

subsection 87(3)

To approve, or refuse to approve, a maintenance agreement

19M

subsections 87(8), 90J(3) and 90K(1) (but only if the order is:

(a) an order until further order; or

(b) made in an undefended case)

To make an order revoking the approval of a maintenance agreement, or after a financial agreement has been terminated, or setting aside a financial agreement or termination agreement

19N

subsections 87(8), 90J(3) and 90K(1) (but only if:

(a) both of the following apply:

(i) the order is made in an undefended case;

(ii) the order is to come into effect at least 21 days after the order is served on the non‑appearing party; or

(b) the order is made with the consent of all the parties to the case)

To make an order revoking the approval of a maintenance agreement, or after a financial agreement has been terminated, or setting aside a financial agreement or termination agreement

19P

section 90SE

To make an order for the maintenance of a party to a de facto relationship

19Q

section 90SE (but only if:

(a) all of the following apply:

(i) the order is an order until further order;

(ii) the order is made in an undefended case;

(iii) the order is to come into effect at least 21 days after the order is served on the other party; or

(b) the order is made with the consent of all the parties to the case)

To make an order for the maintenance of a party to a de facto relationship

19R

section 90SG

To make an urgent order for the maintenance of a party to a de facto relationship, pending the disposal of the proceedings

19S

section 90SG (but only if:

(a) both of the following apply:

(i) the order is made in an undefended case;

(ii) the order is to come into effect at least 21 days after the order is served on the other party; or

(b) the order is made with the consent of all the parties to the case)

To make an urgent order for the maintenance of a party to a de facto relationship, pending the disposal of the proceedings

19T

section 90SI

To discharge, suspend, revive or vary an order with respect to the maintenance of a party to a de facto relationship

19U

section 90SI (but only if:

(a) all of the following apply:

(i) the order to be discharged, suspended, revived or varied is an order until further order;

(ii) the order to discharge, suspend, revive or vary is made in an undefended case;

(iii) the order to discharge, suspend, revive or vary is to come into effect at least 21 days after the order is served on the non‑appearing party; or

(b) the order to discharge, suspend, revive or vary is made with the consent of all the parties to the case)

To discharge, suspend, revive or vary an order with respect to the maintenance of a party to a de facto relationship

19V

sections 90SL, 90SM and 90SN and subsections 90UL(3) and 90UM(1) (but only if:

(a) the declaration or order is a declaration or an order until further order; or

(b) the power is exercised in an undefended case)

To make a declaration or order, and to do any other thing referred to in sections 90SM and 90SN of the Family Law Act, in relation to the property interests of the parties to a de facto relationship and to make an order after a financial agreement has been terminated or setting aside a financial agreement or termination agreement

19W

sections 90SL, 90SM and 90SN and subsections 90UL(3) and 90UM(1) (but only if:

(a) both of the following apply:

(i) the power is exercised in an undefended case;

(ii) the declaration or order is to come into effect at least 21 days after the declaration or order is served on the non‑appearing party; or

(b) the power is exercised with the consent of all the parties to the case)

To make a declaration or order, and to do any other thing referred to in sections 90SM and 90SN of the Family Law Act, in relation to the property interests of the parties to a de facto relationship and to make an order after a financial agreement has been terminated or setting aside a financial agreement or termination agreement

21

subsection 91B(1)

To request that a child welfare officer intervene in a case

22

subsections 92(1) and (2)

To make an order entitling a person to intervene in a case

23

subsection 97(1A)

To hear proceedings sitting in chambers

24

subsection 97(2)

To make an order about specified persons being present in Court

25

section 98A

To make an order approving an undefended application for divorce without the parties being present

25A

section 100B

To make an order allowing a child to swear an affidavit or be called as a witness in, or be present during, proceedings

26

section 101

To protect a witness in a case

26A

subsection 102A(3)

To give leave for a child to be examined

27

section 106A

To appoint a person to execute a deed or instrument

27A

subject to item 27B of this table, Part XIIIA (except paragraph 112AD(2)(d) and only if:

(a) the order is an order until further order; or

(b) the power is exercised in an undefended case; or

(c) the power is exercised with the consent of all the parties to the case)

To make orders in relation to imposing sanctions for failure to comply with orders, and other obligations, that do not affect children

27B

subsection 112AK(1) (but only if the order to be varied or discharged:

(a) was made by a Registrar; or

(b) is an order until further order; or

(c) was made in an undefended case; or

(d) was made with the consent of all the parties to the case)

To vary or discharge an order made under section 112AD of the Family Law Act in respect of a contravention of an order

28

subsection 114(3)

To grant an injunction

28A

subsection 117(2) (but only for a proceeding that is within the power of a Registrar to hear and determine)

To make an order for costs or security for costs

 

Family Law Regulations

 

29

subregulation 4(1)

To make an order about practice and procedure in particular circumstances

30

regulation 5

To direct proceeding is void for non‑compliance with the Family Law Regulations, these Rules or procedures related to these Rules

30A

paragraph 6(1)(a)

To relieve a party from the consequences of non‑compliance with the Family Law Regulations, a rule of practice or procedure or an order made by a registrar

30B

subregulation 23(6)

To register an overseas child order

30C

subregulation 67Q(4)

To register an award made in an arbitration

 

Federal Circuit Court Rules 2001

 

31AA

subrule 1.05(2) (but only to the extent that it gives the Court the power to apply the Family Law Rules)

To apply the Family Law Rules if in a particular case these Rules are insufficient or inappropriate

31AB

subrule 1.06(1)

To dispense with compliance with these Rules

31AC

rule 1.07

To make an order about procedure

31AD

subrule 2.01(1A)

To make orders in relation to compliance with requirements for documents

31AE

subrule 2.04(1)

To make orders in relation to compliance with forms

31AF

paragraph 2.07(5)(b)

To direct that the original of a document or transmission report be produced

31AG

subrule 2.07B(3)

To direct that the original of an affidavit or a paper copy of a document be produced

31AH

paragraph 2.09(b)

To direct that the seal of the Court be attached to a document

31AI

subrule 2.10(2)

To direct that the stamp of the Court be attached to a document

31AJ

rule 6.04

To exercise discretion in relation to service of a document

31AK

subrule 6.05(1)

To order evidence of service of a document to be given otherwise than by affidavit

31AL

paragraph 6.06(2)(b)

To direct that an application be served other than by hand

31AM

subrule 6.08(1)

To make an order in relation to the requirements for service by hand on a corporation, unincorporated association or organisation

31AN

subrule 6.14(1)

To make an order dispensing with service of a document or substituting another way of serving a document

31AO

subrule 6.14(2)

To specify the steps to be taken for bringing a document to the attention of the person to be served

31AP

subrule 6.14(3)

To specify that a document is to be taken to have been served on the happening of a specified event or at the end of a specified time

31AQ

rule 6.15

To have regard to certain matters when making an order dispensing with service of a document or for substituted service of a document

31AR

rule 6.16

To find that a document is taken to have been served on a date specified in an order for substituted service despite failure to comply with a condition of the order

31AS

rule 6.17

To order that a document may be served more than 12 months after it is filed

31AT

rule 6.19

To make an order permitting an application and any document filed with it to be served otherwise than as provided by rule 6.19

31AU

rule 7.02 (but only to the extent that it gives the Court the power to order a party or another appropriate person to make an amendment)

To order a party or another appropriate person to make an amendment to a document

31AV

rule 8.01

To consider an application to have a proceeding heard in another registry of the Court and to have regard to certain matters when considering the application

31AW

subrule 8.02(1) (but only to the extent that it gives the Court the power to transfer a proceeding to the Family Court)

To transfer a proceeding to the Family Court

31AX

subrules 8.02(2) and (3) (but only in relation to a request for transfer of a proceeding to the Family Court)

To make orders in relation to a request for transfer of a proceeding to the Family Court

31AY

subrule 8.02(4) (but only in relation to a request for transfer of a proceeding to the Family Court)

To have regard to additional factors in deciding whether to transfer a proceeding to the Family Court

31AZ

subrule 9.03(2)

To give leave to a lawyer to file or serve a notice of withdrawal without satisfying the requirement to serve, within the time specified in subrule 9.03(2), a notice of intention to withdraw on the party for whom the lawyer is acting

31BA

paragraph 10.04(b)

To make consent orders where parties resolve the issues between them following a dispute resolution process

31BB

subrule 10.05(1)

To refer a proceeding, a part of a proceeding or a matter arising out of a proceeding, for conciliation

31BC

paragraph 10.05(2)(c)

To appoint a person to hold a conciliation conference

31BD

subrules 11.01(1) and (2)

To make orders in relation to persons who must be included as parties to a proceeding

31BE

subrule 11.02(2)

To give leave to a party to include a person as a party to a proceeding after the first court date

31BF

subrule 11.02(3)

To order a party who has included a person as a party to file and serve on each other party an affidavit setting out the basis on which the person has been included as a party

31BG

subrule 11.03(2)

To make an order that an application to be included as a party to a proceeding be supported otherwise than by an affidavit stating the matters referred to in subrule 11.03(2)

31BH

subrule 11.04(1)

To consider an application by a party to be removed as a party

31BI

rule 11.05

To, at any time, order a party, or a person applying to be included as a party, to give notice to any person of certain matters

31BJ

subrule 11.08(2)

To order that a minor in a proceeding is not taken to need a litigation guardian in relation to the proceeding

31BK

subrule 11.11(1)

To appoint or remove a litigation guardian, or substitute another person as litigation guardian, in a proceeding

31BL

subrule 11.11(3)

To remove a litigation guardian at the request of the litigation guardian

31BM

rule 11.14

To make orders for the payment of the costs and expenses of a litigation guardian

31BN

subrules 12.02(1) and (2)

To refer a party to a lawyer for legal assistance and to take certain matters into account when making such a referral

31BO

subrule 13.02(3)

To stay further proceedings until costs are paid by the party bringing the further proceedings

31BP

subrule 13.04(3) (but only if the order is made with the consent of all the parties to the case)

To make such orders as the Court considers appropriate in the circumstances

31BQ

subrule 13.07(3)

To stay execution on, or other enforcement of, a judgment until determination of a claim

31BR

subrule 13.08(3)

To give directions for the further conduct of a proceeding in relation to any claim or part of a claim not disposed of by judgment or dismissal and not stayed

31BS

rule 13.10

To order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding

31BT

subrules 13.12(1), (2) and (3)

To order that a proceeding, or a part of a proceeding, be dismissed if a party has not taken a step in the proceeding for 6 months, and to give notice to each party of the date and time when the Court will consider whether to make such an order

31BU

rule 14.04

To order a party to produce to the Court a document in the possession, custody or control of the party

31BV

rule 14.05

To inspect a document for the purpose of determining whether a claim for privilege, or an objection, is valid

31BW

rule 14.06

To order a party to file and serve an affidavit regarding the possession, custody or control of a document or class of document by the party

31BX

rule 14.08

To order otherwise than permitting a party who inspects a document under Division 14.2 to make a copy of, or take an extract from, the document

31BY

subrule 15.08(2)

To give a direction in relation to opinion evidence by expert witnesses

31BZ

rule 15.09

To appoint an expert as court expert to inquire into and report on a question arising in a proceeding, and give directions for the purposes of the inquiry or report

31CA

subrule 15.10(3)

To do a thing referred to in subrule 15.10(3) in relation to a report prepared by a court expert

31CB

rule 15.11

To direct otherwise than that the parties are jointly liable to pay the reasonable remuneration and expenses of a court expert for preparing a report

31CC

rule 15.12

To grant leave to a party to adduce evidence of another expert on a question on which a court expert has made a report

31CD

subrule 15A.04(3)

To fix time limits for service of a subpoena otherwise than as required by paragraph 15A.04(3)(a) or (b)

31CE

rule 15A.05

To direct that a party or independent children’s lawyer may request the issue of more than 5 subpoenas in a proceeding

31CF

rule 15A.09

To make an order setting aside all or part of a subpoena

31CG

rule 15A.10

To make an order for the payment of any loss or expense incurred in complying with a subpoena

31CH

rule 15A.11

To make orders with respect to the payment of costs incurred by a person in complying with a subpoena where the person is not a party to the proceedings

31CI

paragraph 15A.12(2)(b)

To permit a person who inspects or copies a document under these Rules to disclose the contents of the document or give a copy of it to another person

31CJ

subrule 21.01(1)

To order the applicant to give the security the Court considers appropriate for the respondent’s costs of the proceeding

31CK

paragraph 21.02(1)(c)

To allow further time for an application for an order for costs to be made

31CL

subrule 21.02(2)

To do a thing referred to in any of paragraphs 21.02(2)(a) to (d) in making an order for costs in a proceeding

31CM

subrule 21.03(1)

To specify the maximum costs that may be recovered on a party and party basis

31CN

subrule 21.03(3)

To vary the maximum costs specified if there are special reasons and it is in the interests of justice to do so

31CO

rule 21.04

If costs of a motion, application or other proceeding are reserved, to order otherwise than that the costs follow the event

31CP

rule 21.08

To order otherwise than that interest is payable on outstanding costs at the rate specified in paragraph 21.08(a) or (b) (as applicable)

31CQ

rule 21.10

To order otherwise than that a party is entitled to costs in accordance with Parts 1 and 2 of Schedule 1 and disbursements properly incurred

31CR

paragraph 21.12(b)

To authorise or approve an amount for attendance by a witness

31CS

paragraph 21.13(b)

To authorise or approve an amount for preparation of a report by an expert

31CT

rule 23.01A

To order that a family report be prepared, make other orders or do any other thing referred to in rule 23.01A

31CU

rule 23.02

To make an order referring any or all of the matters in dispute for family dispute resolution and to do any other thing referred to in paragraphs 23.02(a) to (c)

31

Division 25B.2

To enforce financial orders and obligations

31A

Division 25B.4

To make orders in relation to warrants for arrest and to do any other thing referred to in Division 25B.4

32

rule 29.04

To give a direction for the enforcement or execution of an order

32A

rule 29.11

To make an order, issue a writ or take another step to enforce a judgment or order

33

rule 45.13

To grant leave for a party to a small claims application to be represented by a lawyer

34

rule 46.4

To grant leave for a party to a small claims proceeding to be represented by a lawyer

 

National Consumer Credit Protection Act 2009

 

35

section 178

To order a person to pay compensation

36

subsection 199(6)

To amend the papers commencing the proceedings

37

subsections 199(7) and (8)

To grant leave for a party to a small claims proceeding to be represented by a lawyer

38

section 200

To order a party to pay costs incurred by another party

 

National Credit Code

 

39

section 37

To order a credit provider to provide a statement

40

subsection 38(7)

To determine a disputed liability and make consequential orders

41

subsection 74(2)

To make orders changing, or refusing to change, the terms of a credit contract

42

subsection 74(3)

To stay enforcement proceedings or make other orders relating to a debtor’s application to change the terms of a credit contract

43

subsection 75(1)

To vary or revoke an order under subsection 74(2)

44

subsection 75(2)

To vary or revoke a stay or order under subsection 74(3)

45

section 76

To reopen an unjust transaction that gave rise to an unjust contract, mortgage or guarantee

46

section 78

To annul or reduce an unconscionable change to a rate, fee or charge

47

subsection 96(2)

To order or refuse to order a postponement

48

subsection 96(3)

To stay enforcement proceedings until an application for postponement has been heard

49

subsection 101(1)

To order a person to deliver mortgaged goods to a credit provider

50

subsection 101(2)

To make orders varying the place at which, or time or period within which, mortgaged goods must be delivered to a credit provider

51

subsection 106(1)

To order a credit provider to credit a mortgagor

52

subsection 106(2)

To order a credit provider to compensate a mortgagor or mortgagee

53

subsection 107(3)

To determine the amount of enforcement expenses that may be recovered by a credit provider

54

section 108

To order a credit provider to return possession of goods to a mortgagor

55

section 118

To order a credit provider to pay compensation to a debtor or guarantor

 

Assessment Act

 

55A

Divisions 4 and 5 of Part 7

To make orders in relation to the provision of child support in certain circumstances

55B

Divisions 4 and 5 of Part 7 (but only if the order is:

(a) made in an undefended case; or

(b) made with the consent of all the parties to the case)

To make orders in relation to the provision of child support in certain circumstances

55C

section 139

To order payment of maintenance if a child is in urgent need of financial assistance

55D

section 139 (but only if the order:

(a) is made in an undefended case; or

(b) is made with the consent of all the parties to the case)

To order payment of maintenance if a child is in urgent need of financial assistance

 

Registration Act

 

56AA

subsection 105(2)

To give directions and make orders to resolve a difficulty arising in the application of subsection 105(1) of the Registration Act in or in relation to a particular proceeding

56AB

section 111B

To do a thing referred to in subsection 111B(1) of the Registration Act

56

section 113

To make orders for the recovery of debts

          (1A)  The powers of the Court mentioned in the following items of the table may only be exercised by an approved Registrar who is also a Registrar (other than a Deputy Registrar) of the Family Court:

                     (a)  item 1K;

                     (b)  item 6A;

                     (c)  items 15A, 15B and 15E to 15N;

                     (d)  items 17AA, 17B and 17C;

                     (e)  items 18B to 18F;

                      (f)  items 19A to 19C, 19E, 19G, 19J, 19L, 19M, 19P, 19R, 19T and 19V;

                     (g)  item 25A;

                     (h)  item 26A;

                      (i)  items 27A and 27B;

                      (j)  item 28;

                     (k)  items 55A and 55C.

             (2)  The powers of the Court mentioned in items 2A and 2D of the table may only be exercised by an approved Registrar when dealing with a claim mentioned in section 548 of the Fair Work Act 2009.

          (2A)  The powers of the Court mentioned in item 31A of the table may only be exercised by:

                     (a)  an approved Registrar who is also a Registrar (other than a Deputy Registrar) of the Family Court; or

                     (b)  an approved Registrar when dealing with a case in relation to which a Registrar who is also a Deputy Registrar of the Family Court has, or has been delegated, the power to exercise the Court’s jurisdiction.

             (3)  The powers of the Court mentioned in items 35 and 38 to 53 of the table may only be exercised by an approved Registrar when dealing with an application for an order mentioned in subsection 199(2) of the National Consumer Credit Protection Act 2009.

Note:          If a power of the Court is delegated to the Registrar under this rule:

(a)    the Registrar has, in exercising the power, the same protection and immunity as a Judge has in exercising that power; and

(b)    a party, legal practitioner or witness appearing before a Registrar on the hearing of any application or matter, or on the conducting of any conference or enquiry, has the same protection and immunity as if appearing in a proceeding in the Court.

Division 20.2Review of exercise of Registrars’ powers

20.01  Time for application for review

             (1)  For subsection 104(2) of the Act, application for review of the exercise of a power by a Registrar must be made within:

                     (a)  for the exercise of a power of the Court under the Family Law Act or Family Law Regulations mentioned in items 3AA to 30C of the table in rule 20.00A—21 days; and

                     (b)  otherwise—7 days.

             (2)  A time prescribed under subrule (1) may be extended in a proceeding:

                     (a)  by the Court or a Registrar on any terms as the Court or Registrar thinks fit; or

                     (b)  with the consent of the parties to the proceeding.

20.02  Application for review

             (1)  An application for review of an exercise of power by a Registrar must be in accordance with the approved form.

             (2)  An application must be listed for a hearing as soon as possible and, unless impractical to do so, within 14 days after the date of filing.

             (3)  The applicant must serve a sealed copy of the application on each other party to the proceeding within 7 days after it is filed.

             (4)  Unless the Court or a Registrar otherwise orders, the application does not operate as a stay of the exercise of power under review.

20.03  Procedure for review

                   The review of an exercise of power by a Registrar:

                     (a)  must proceed by way of a hearing de novo; and

                     (b)  may receive as evidence any affidavit or exhibit tendered before the Registrar; and

                     (c)  may with leave receive further evidence; and

                     (d)  may receive as evidence:

                              (i)  any transcript of the proceeding before the Registrar; or

                             (ii)  if there is no transcript, an affidavit sworn by a person who was present at the proceeding before the Registrar as a record of the proceeding.

Part 21Costs

Division 21.1Security for costs

21.01  Security for costs

             (1)  On application by a respondent, the Court may order the applicant to give the security that the Court considers appropriate for the respondent’s costs of the proceeding.

             (2)  For this rule:

respondent includes an applicant if a cross‑claim is made or the response to the application seeks orders in relation to matters not covered by the applicant.

             (3)  An application must be made in accordance with the approved form and supported by an affidavit setting out the facts relied on.

Note:          For the power of the Court to order an applicant in a proceeding to give security for the payment of costs and for other matters relating to security for costs: see section 80 of the Act in relation to proceedings other than family law or child support proceedings and section 117 of the Family Law Act for family law and child support proceedings.

Division 21.2Orders for costs

21.02  Order for costs

             (1)  An application for an order for costs may be made:

                     (a)  at any stage in a proceeding; or

                     (b)  within 28 days after a final decree or order is made; or

                     (c)  within any further time allowed by the Court.

             (2)  In making an order for costs in a proceeding, the Court may:

                     (a)  set the amount of the costs; or

                     (b)  set the method by which the costs are to be calculated; or

                     (c)  refer the costs for taxation under Part 40 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or

                     (d)  set a time for payment of the costs, which may be before the proceeding is concluded.

21.03  Determination of maximum costs

             (1)  The Court may specify the maximum costs that may be recovered on a party and party basis:

                     (a)  by order at the first court date; and

                     (b)  of its own motion or on the application of a party.

             (2)  However, an amount specified must not include an amount that a party is ordered to pay because the party:

                     (a)  has failed to comply with, or has sought an extension of time for complying with, an order or with any of these Rules; or

                     (b)  has sought leave to amend a document; or

                     (c)  has otherwise caused another party to incur costs that were not necessary for the economic and efficient progress of the proceeding or hearing of the proceeding.

             (3)  The Court may vary the maximum costs specified if, in the Court’s opinion, there are special reasons and it is in the interests of justice to do so.

21.04  Costs reserved

                   If the costs of a motion, application or other proceeding are reserved, the costs reserved follow the event unless the Court otherwise orders.

21.05  Costs if proceedings transferred

             (1)  This rule applies if a proceeding is transferred to the Court from the Family Court or the Federal Court.

             (2)  If the court from which the proceeding is transferred has not made an order for costs, the Court may make an order for costs including costs before the transfer.

             (3)  Unless the court from which the proceeding is transferred otherwise orders, costs before the transfer must be in accordance with this Part.

21.07  Order for costs against lawyer

             (1)  The Court or a Registrar may make an order for costs against a lawyer if the lawyer, or an employee or agent of the lawyer, has caused costs:

                     (a)  to be incurred by a party or another person; or

                     (b)  to be thrown away;

because of undue delay, negligence, improper conduct or other misconduct or default.

             (2)  A lawyer may be in default if a hearing may not proceed conveniently because the lawyer has unreasonably failed:

                     (a)  to attend, or send another person to attend, the hearing; or

                     (b)  to file, lodge or deliver a document as required; or

                     (c)  to prepare any proper evidence or information; or

                     (d)  to do any other act necessary for the hearing to proceed.

             (3)  An order for costs against a lawyer may be made on the motion of the Court or Registrar, or on application by a party to the proceeding or by another person who has incurred the costs or costs thrown away.

             (4)  The order may provide:

                     (a)  that the costs, or part of the costs, as between the lawyer and party be disallowed; or

                     (b)  that the lawyer pay the costs, or part of the costs incurred by the other person; or

                     (c)  that the lawyer pay to the party or other person the costs, or part of the costs, that the party has been ordered to pay to the other person.

             (5)  Before making an order for costs, the Court or Registrar:

                     (a)  must give the lawyer, and any other person who may be affected by the decision, a reasonable opportunity to be heard; and

                     (b)  may order that notice of the order, or of any proceeding against the lawyer be given to a party for whom the lawyer may be acting or any other person.

21.08  Interest on outstanding costs

                   Unless the Court otherwise orders, interest is payable on outstanding costs:

                     (a)  for a family law or child support proceeding—at the rate applying for rule 22.01; and

                     (b)  for any other proceeding—at the rate applying for rule 26.01.

Division 21.3Costs and disbursements

21.09  Application

             (1)  This Subdivision applies to costs payable, or to be taxed, under an Act, these Rules or an order of the Court, in a proceeding.

             (2)  Subject to paragraphs 21.02(2)(c) and 21.11(2)(a), Chapter 19 of the Family Law Rules does not apply to a family law or child support proceeding in the Court.

             (3)  Unless otherwise provided, these Rules do not regulate the fees to be charged by lawyers as between lawyer and client in relation to proceedings in the Court.

Note:          For any dispute between a lawyer and a client about the fees charged by the lawyer, see the State or Territory legislation governing the legal profession in the State or Territory where the lawyer practises.

21.10  Costs and disbursements

                   Unless the Court otherwise orders, a party entitled to costs in a proceeding (other than a proceeding to which the Bankruptcy Act applies) is entitled to:

                     (a)  costs in accordance with Parts 1 and 2 of Schedule 1; and

                     (b)  disbursements properly incurred.

Note:          For costs in a proceeding to which the Bankruptcy Act 1966 applies, see Part 13 of the Federal Circuit Court (Bankruptcy) Rules 2016.

21.11  Taxation of costs

             (2)  When taxing a statement of costs, a taxing officer must apply:

                     (a)  for a family law or child support proceeding—the scale of costs set out in Schedule 3 to the Family Law Rules; and

                     (b)  for a general federal law proceeding—the scale of costs set out in Schedule 2 to the Federal Court Rules.

             (3)  In this rule:

taxing officer means a Registrar.

21.12  Expenses for attendance by witness

                   An amount paid, or to be paid, for attendance by a witness at a hearing is a disbursement properly incurred for a proceeding if:

                     (a)  the attendance is reasonably required; and

                     (b)  the amount is reasonable or is authorised, or approved, by the Court.

21.13  Expenses for preparation of report by expert

                   An amount paid, or to be paid, to an expert for preparation of a report for a party or an independent children’s lawyer is a disbursement properly incurred for a proceeding if:

                     (a)  the report is reasonably required; and

                     (b)  the amount is reasonable or is authorised, or approved, by the Court.

21.14  Solicitor as advocate

             (1)  If a solicitor appeared for a party on a hearing alone or instructed by another solicitor who is a member of the same firm, the amount to which the party is entitled for the hearing is limited to:

                     (a)  150% of the daily hearing fee for 1 solicitor; and

                     (b)  a fee for preparation.

             (2)  The party is not entitled to an amount for the preparation of a brief on hearing.

21.15  Advocacy certificate

                   The Court or a Registrar may certify that it was reasonable to employ an advocate, or more than 1 advocate, to appear for a party in a proceeding.

21.16  Counsel as advocate

                   If the employment of an advocate is certified as reasonable, the amount payable for counsel to appear is the daily hearing fee and advocacy loading in accordance with Parts 1 and 2 of Schedule 1.

Chapter 2Family law and child support proceedings

Part 22General

  

22.01  Rate of interest

                   For paragraphs 87(11)(b), 90KA(b) and 90UN(b) and subsection 117B(1) of the Family Law Act, the rate of interest is the rate prescribed by the Family Law Rules for those provisions.

Note 1:       See rule 17.03 of the Family Law Rules.

Note 2:       If the Court makes an order for the payment of money as mentioned in subsection 117B(1) of the Family Law Act, the Court may order that interest is payable at a rate other than the rate prescribed by the Family Law Rules for that subsection: see subsection 117B(2) of that Act.

Part 22ANotice of Child Abuse, Family Violence or Risk etc.

Division 1Notice of Child Abuse, Family Violence or Risk

22A.01  Definitions

                   In this Division:

interested person:

                     (a)  in a proceeding to which section 67Z of the Family Law Act applies—has the meaning given by subsection (4) of that section; and

                     (b)  in a proceeding to which section 67ZBA of the Family Law Act applies—has the meaning given by subsection (4) of that section.

22A.02  Notice of Child Abuse, Family Violence or Risk must be filed with application for parenting order

             (1)  A person who:

                     (a)  makes an application to the Court for a parenting order; or

                     (b)  files a response to such an application;

must file a Notice of Child Abuse, Family Violence or Risk with the application or response.

Note 1:       A Notice of Child Abuse, Family Violence or Risk must be in accordance with the form in Schedule 2, with any variations that are necessary or as the Chief Judge directs: see subrule 2.04(1B).

Note 2:       For additional obligations when an application is made to the Court for a parenting order by consent, see rule 13.04A.

             (2)  If the Notice of Child Abuse, Family Violence or Risk includes one or more allegations of child abuse, family violence or risk of harm to a child, the affidavit filed with the application or response, in accordance with rule 4.05, must state the evidence on which each allegation set out in the notice is based.

Note 1:       If a Notice of Child Abuse, Family Violence or Risk filed in a proceeding alleges that a child to whom the proceeding relates has been abused or is at risk of being abused, or there has been family violence or there is a risk of family violence by one of the parties to the proceeding, a true copy of the notice must be served on the person to whom the allegations relate: see subsections 67Z(2) and 67ZBA(2) of the Family Law Act.

Note 2:       If a Notice of Child Abuse, Family Violence or Risk filed in a proceeding alleges that a child to whom the proceeding relates has been abused or is at risk of being abused, the Registry Manager must notify a prescribed child welfare authority: see subsection 67Z(3) and paragraph 67ZBA(3)(b) of the Family Law Act.

22A.03  Notice of Child Abuse, Family Violence or Risk filed by interested person

                   If:

                     (a)  an interested person files a Notice of Child Abuse, Family Violence or Risk in a proceeding for the purposes of subsection 67Z(2) or 67ZBA(2) of the Family Law Act; and

                     (b)  the notice was not filed under rule 22A.02;

the interested person must file an affidavit stating the evidence relied on to support each allegation set out in the notice.

22A.04  Amendment of Notice of Child Abuse, Family Violence or Risk

                   If:

                     (a)  a person who is a party to a proceeding, or an interested person in a proceeding, has filed a Notice of Child Abuse, Family Violence or Risk in the proceeding; and

                     (b)  after filing the notice, the person becomes aware of new facts or circumstances that would require the person to file a Notice of Child Abuse, Family Violence or Risk for the purposes of subsection 67Z(2) or 67ZBA(2) of the Family Law Act in relation to those new facts or circumstances;

the person must file:

                     (c)  a Notice of Child Abuse, Family Violence or Risk setting out those new facts or circumstances; and

                     (d)  an affidavit stating the evidence relied on to support each allegation set out in the notice.

Note 1:       A true copy of a Notice of Child Abuse, Family Violence or Risk that is filed for the purposes of subsection 67Z(2) or 67ZBA(2) of the Family Law Act must be served on the person to whom the allegations relate: see subsections 67Z(2) and 67ZBA(2) of the Family Law Act.

Note 2:       If a Notice of Child Abuse, Family Violence or Risk alleges that a child has been abused or is at risk of being abused, the Registry Manager must notify a prescribed child welfare authority: see subsection 67Z(3) and paragraph 67ZBA(3)(b) of the Family Law Act.

22A.05  Proceedings transferred from another court

             (1)  This rule applies if a proceeding in which a parenting order is sought is transferred to the Court from another court.

             (2)  Each party to the proceeding must file and serve on each other party to the proceeding:

                     (a)  a Notice of Child Abuse, Family Violence or Risk; and

                     (b)  an affidavit stating the evidence relied on to support each allegation (if any) set out in the notice.

             (3)  The Notice of Child Abuse, Family Violence or Risk must be filed and served before the first court date for the proceeding in the Court.

22A.06  Content of Notice of Child Abuse, Family Violence or Risk

                   A Notice of Child Abuse, Family Violence or Risk filed in a proceeding must set out particulars of the facts and circumstances on which each allegation (if any) set out in the notice is based.

22A.07  Notice of Child Abuse, Family Violence or Risk for the purposes of subsection 67Z(2) or 67ZBA(2) of the Family Law Act

             (1)  A Notice of Child Abuse, Family Violence or Risk is the prescribed form for a notice mentioned in subsections 67Z(2) and 67ZBA(2) of the Family Law Act.

Note:          A Notice of Child Abuse, Family Violence or Risk is the method by which the Court may fulfil its obligations under paragraph 69ZQ(1)(aa) of the Family Law Act.

             (2)  If:

                     (a)  a person who is a party to a proceeding, or an interested person in the proceeding, has filed a Notice of Child Abuse, Family Violence or Risk in the proceeding; and

                     (b)  the Notice of Child Abuse, Family Violence or Risk alleges:

                              (i)  that a child to whom the proceeding relates has been abused or is at risk of being abused; or

                             (ii)  that there has been family violence, or there is a risk of family violence, by one of the parties to the proceeding;

the person is taken to have filed a notice in the prescribed form for the purposes of subsection 67Z(2) or 67ZBA(2) of the Family Law Act in relation to the allegation.

Division 2Family violence orders

22A.08  Family violence orders

             (1)  A party to a proceeding who is seeking a parenting order in relation to a child must file a copy of any family violence order affecting the child or a member of the child’s family.

             (2)  However, if a copy of a family violence order is not available, the party must file a written notice setting out:

                     (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.

             (3)  The family violence order, or the notice under subrule (2), must be filed:

                     (a)  when the proceeding commences; or

                     (b)  as soon as practicable after the family violence order is made.

Part 23Family counselling and family dispute resolution

Note:          The Family Law Act imposes duties on the Court and lawyers to provide information about non‑court based family services and court’s processes and services (including services provided by family counsellors and family dispute resolution practitioners), and services available to help with a reconciliation:  see sections 12E and 12F of that Act.

Division 23.1Family counselling, family dispute resolution and family reports

23.01A  Family reports

             (1)  A party to an application for final orders may apply for an order that a family report be prepared.

             (2)  The Court may take the following matters into consideration when deciding whether to order a family report:

                     (a)  whether the proceeding involves:

                              (i)  an intractable or complex parenting proceeding; or

                             (ii)  if a child is mature enough for the child’s views to be significant in determining the proceeding—a dispute about the child’s views; or

                            (iii)  a dispute about the existence or quality of the relationship between a parent, or other significant person, and a child; or

                            (iv)  allegations that a child is at risk of abuse; or

                             (v)  family violence;

                     (b)  whether there is any other relevant independent expert evidence available.

             (3)  An application for a family report (whether made orally or in writing), and any order made, must identify the issues to be addressed by the report.

             (4)  When ordering a family report, the Court may order a party or a child to attend for the purposes of preparing the report.

             (5)  If a family report is prepared in accordance with an order made under this rule, the Court may do any of the following:

                     (a)  by order or otherwise, give a copy of the report to any of the following:

                              (i)  a party, a lawyer for a party, or an independent children’s lawyer, in the proceeding;

                             (ii)  a children’s court (however described) of a State or Territory;

                            (iii)  a prescribed child welfare authority (within the meaning of the Family Law Act);

                            (iv)  an authority established by or under a law of a State or Territory for purposes including the provision of legal assistance;

                             (v)  the convenor of any legal dispute resolution conference;

                     (b)  receive the report in evidence;

                     (c)  permit oral examination of the person making the report;

                     (d)  order that the report not be released to a person or that access to the report be restricted.

             (6)  If the Court, other than by order, gives a copy of a family report under subrule (5), the copy must be accompanied by a notice that states the following information:

                     (a)  the people to whom a copy of the report may be provided;

                     (b)  the status of the report at the time of its preparation;

                     (c)  information about the potential consequences for unauthorised publication of information contained in the report.

23.01  Report after family counselling or family dispute resolution

                   At the end of court‑ordered family counselling or family dispute resolution, the family counsellor or family dispute resolution practitioner must give to the Court a report of:

                     (a)  the number of family counselling and family dispute resolution sessions; and

                     (b)  the outcome; and

                     (c)  the recommended future management of the matter.

Note:          In certain circumstances the Court may direct the parties to attend family counselling or family dispute resolution: see Part IIIB and Division 3 of Part VII (which deals with counselling in matters affecting children) of the Family Law Act.

Division 23.2Family dispute resolution

23.02  Referral for family dispute resolution

                   If the Court makes an order referring any or all of the matters in dispute in a proceeding for family dispute resolution, the Court must:

                     (a)  refer the matter directly to a family dispute resolution practitioner for assessment so that the practitioner may proceed with family dispute resolution if assessed as appropriate; or

                     (b)  refer the matter to the Dispute Resolution Coordinator for assessment so that the Coordinator may arrange for family dispute resolution if assessed as appropriate; or

                     (c)  make any other order necessary to facilitate the family dispute resolution.

Part 24Financial matters

  

24.01  Application of Part

                   This Part applies to proceedings in relation to financial matters.

24.01A  Interpretation

             (1)  In this Part:

superannuation information form has the same meaning as in the Family Law Rules.

             (2)  An expression used in this Part and in Part VIIIB of the Family Law Act has the same meaning in this Part as it has in the Family Law Act.

Note:          The following expressions are defined in Part VIIIB of the Family Law Act:

·      eligible superannuation plan

·      flagging order

·      payment split

·      splitting order

·      superannuation interest.

24.02  Financial statement

             (1)  An applicant, or a respondent who files a response, must file and serve with the application or response:

                     (a)  a financial statement in accordance with the approved form; or

                     (b)  an affidavit of financial circumstances.

             (2)  If an applicant, or a respondent who files a response, is seeking an order for property settlement and has a superannuation interest, he or she must attach to the financial statement or affidavit a completed superannuation information form in relation to the interest.

             (3)  However, an applicant or respondent need not comply with subrule (2) if, when the statement or affidavit is filed:

                     (a)  the person has, in accordance with section 90MZB of the Family Law Act, made an application to the trustee of the eligible superannuation plan in which the superannuation interest is held for information about the interest; and

                     (b)  the trustee has not provided the information.

             (4)  An applicant or respondent to whom subrule (3) applies must file and serve a completed superannuation information form within 7 days after receiving the information from the trustee.

24.03  Full and frank disclosure

             (1)  A party required under this Part to file a financial statement or affidavit of financial circumstances must make in the statement or affidavit a full and frank disclosure of his or her financial circumstances, including details of:

                     (a)  any vested or contingent interest in property (including real or personal property, superannuation and legal and equitable interests); and

                     (b)  income from all sources, including any benefit received in relation to, or in connection with, the party’s employment or business interests; and

                     (c)  the party’s other financial resources; and

                     (d)  any trust:

                              (i)  of which the party is, or has been since the separation of the parties, the appointor or trustee; or

                             (ii)  of which the party, or the party’s child, spouse or de facto partner is, or has been since the separation of the parties, an eligible beneficiary as to capital or income; or

                            (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 partner is, or has been since the separation of the parties, a shareholder or director of the corporation; or

                            (iv)  over which the party has, or has had since the separation of the parties, any direct or indirect power or control; or

                             (v)  of which the party has, or has had since the separation of the parties, the direct or indirect power to remove or appoint a trustee; or

                            (vi)  of which the party has, or has had since the separation of the parties, the power (whether subject to the concurrence of another person or not) to amend the terms; or

                           (vii)  of which the party has, or has had since the separation of the parties, 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, or has had since the separation of the parties, a power mentioned in subparagraphs (iv) to (vii), if the party is a director or shareholder of the corporation; and

                     (e)  any gift or other disposition of property made by the party since the separation of the parties; and

                      (f)  if there is a partnership, trust or company (except a public company) in which the party has an interest, copies of the 3 most recent financial statements and the last 4 business activity statements lodged by the partnership, trust or company.

24.04  Production of documents (proceeding other than for maintenance only)

             (1)  Unless the Court or a Registrar otherwise orders, a party required under this Part to file a financial statement or affidavit of financial circumstances (other than a respondent in a proceeding for maintenance only) must serve on each other party who has an address for service in the proceeding the following documents:

                     (a)  copies of the party’s 3 most recent taxation returns;

                     (b)  copies of the party’s 3 most recent taxation assessments;

                     (c)  if the party is a member of a superannuation plan:

                              (i)  if not already filed or exchanged—the completed superannuation information form for any superannuation interest of the party; and

                             (ii)  for a self‑managed superannuation fund—the trust deed and copies of the 3 most recent financial statements for the fund;

                     (d)  if the party has an Australian Business Number, copies of the last 4 business activity statements lodged;

                     (e)  if there is a partnership, trust or company (except a public company) in which the party has an interest, copies of the 3 most recent financial statements and the last 4 business activity statements lodged by the partnership, trust or company.

             (2)  The documents must be served within 14 days after the first court date.

24.05  Production of documents (proceedings for maintenance only)

                   A respondent to an application for maintenance only must bring to the court on the first court date the following documents:

                     (a)  a copy of the respondent’s taxation return for the most recent financial year;

                     (b)  a copy of the respondent’s taxation assessment for the most recent financial year;

                     (c)  copies of the respondent’s bank records for the 12 months immediately before the date when the application was filed;

                     (d)  the respondent’s most recent pay slip;

                     (e)  if the respondent has an Australian Business Number, copies of the last 4 business activity statements lodged;

                      (f)  any document in the respondent’s possession, custody or control that may assist the Court in determining the income, needs and financial resources of the respondent.

24.06  Amendment of financial statement

                   If there is a significant change in the circumstances of a party who has filed a financial statement or affidavit of financial circumstances under this Part, the party must amend the statement or affidavit as soon as practicable by:

                     (a)  if the amendment may be clearly set out in 3 pages or less—filing and serving an affidavit setting out the amendment; or

                     (b)  otherwise—filing and serving an amended financial statement or affidavit.

24.07  Service of application or order for superannuation interest

             (1)  This rule applies if, in an application, response or reply, a person:

                     (a)  seeks a flagging order or splitting order in relation to a superannuation interest under Part VIIIB of the Family Law Act; or

                     (b)  applies under section 79A or 90SN of that Act for an order to set aside an earlier order made in relation to a superannuation interest.

             (2)  The person must, immediately after filing the application, response or reply, serve a sealed copy of that document on the trustee of the eligible superannuation plan in which the interest is held.

             (3)  If the court makes a flagging order or splitting order or any other order in relation to the superannuation interest, the applicant must serve a copy of it on the trustee of the eligible superannuation plan in which the interest is held.

Part 25Divorce

Division 25.1Application

25.01  Application for divorce order

             (1)  An application for a divorce order must be in accordance with the approved form.

             (2)  The applicant must file with the application the relevant marriage certificate, unless the applicant has already filed it in relation to other proceedings in the same registry.

             (3)  If the applicant is unable to file the marriage certificate, the applicant must:

                     (a)  file an affidavit setting out the reasons; or

                     (b)  give a Registrar an undertaking, satisfactory to the Registrar, to file the marriage certificate within a specified time.

             (4)  If the marriage certificate is not in English, the applicant must file with the application:

                     (a)  a translation of the marriage certificate in English; and

                     (b)  an affidavit by the person who made the translation verifying the translation and setting out the person’s qualifications.

25.02  Service of application

                   An application for a divorce order must be served on the respondent by:

                     (a)  service by hand in accordance with rule 6.07; or

                     (b)  sending it by pre‑paid post in a sealed envelope addressed to the respondent at the respondent’s last known address.

25.03  Additional requirements for service by post

                   A person serving a document by post must include with the document:

                     (a)  a form of acknowledgment of service in accordance with the approved form; and

                     (b)  an envelope that:

                              (i)  is addressed to the address for service of the person on whose behalf the document is served; and

                             (ii)  if the document is to be sent to an address in Australia, bears the correct postage for the return by post of the acknowledgment of service.

25.04  Acknowledgment of service

             (1)  A person served with a document may acknowledge service of the document by an acknowledgment of service in accordance with the approved form.

             (2)  An acknowledgment of service may be signed by the person on whom the document is served or by the person’s lawyer.

             (3)  If a lawyer signs, the filing of the acknowledgment is taken to be proof of service of the document to which it refers on the date on which service is acknowledged.

25.05  Affidavit of service

             (1)  Unless the Court or a Registrar otherwise orders, any evidence of service to be given (other than for acknowledgment of service) must be given by affidavit in accordance with the appropriate approved form.

             (2)  If the person making an affidavit of service can give evidence relating to the identity of the person served, the evidence may be included in the affidavit of service.

25.06  Evidence of service

             (1)  Subject to the Court or a Registrar being satisfied that the identity of the person served is established, an acknowledgment of service of a document that is signed by the person served is evidence of service in accordance with the acknowledgment.

             (2)  If the server of a document can identify the person served, service may be proved by evidence to that effect by the server.

             (3)  If the server of a document can identify a photograph of the person served, and another person who knows the person served identifies the photograph as a photograph of the person served, service may be proved by evidence to that effect by the server and the other person.

             (4)  If a person other than the server of a document saw the document handed to, or put down in the presence of, the person served and can identify the person served, service may be proved by evidence to that effect given by that other person.

25.07  Evidence of signature and identity of person served

                   Evidence that the signature on an acknowledgment of service is the signature of the person required to be served may be given by an affidavit proving signature in accordance with the approved form.

Division 25.2Response

25.08  Response

             (1)  A party who wishes to oppose an application for a divorce order, or to object to the jurisdiction of the Court, must file a response in accordance with the approved form.

             (2)  The party must serve the response on the applicant as soon as practicable after it is filed.

25.10  Time for filing response

                   A respondent’s response to an application must be filed within:

                     (a)  if the respondent is served with the application in Australia—28 days after service; and

                     (b)  otherwise—42 days after service.

Division 25.3Attendance at hearing

25.11  Attendance at hearing by electronic communication

             (1)  A party may apply to attend the hearing of an application for a divorce order by electronic communication.

             (2)  Before making an application, the party must ask any other party whether the other party agrees, or objects, to the use of electronic communication for attending the hearing.

             (3)  An application must:

                     (a)  be in writing; and

                     (b)  be made at least 7 days before the date fixed for the hearing; and

                     (c)  set out the following information:

                              (i)  the kind of electronic communication to be used;

                             (ii)  the expense of using the electronic communication, including any expense to the court, and the applicant’s proposals for paying those expenses; and

                     (d)  set out details of the notice in relation to the application that has been given to any other party; and

                     (e)  state whether any other party agrees or objects to the application.

             (4)  An application may be considered in chambers, on the documents.

             (5)  The Court or a Registrar may take the following matters into account when considering an application:

                     (a)  the distance between the party’s residence and the place where the Court or the Registrar 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 or a Registrar grants the application, the Court or the Registrar may:

                     (a)  order a party to pay the expense of using the electronic communication; or

                     (b)  apportion the expense between the parties.

             (7)  If an application is granted, the party who made the application must immediately give written notice to each other party.

25.12  Failure to attend hearing

                   Subject to Division 25.4:

                     (a)  if the applicant fails to attend the hearing in person or by a lawyer, the Court or a Registrar may dismiss the application; 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.

Division 25.4Hearing in absence of parties

25.13  Seeking a hearing in absence of parties

                   If, in an application for a divorce order (other than a case started by a joint application):

                     (a)  no response has been filed; and

                     (b)  at the date fixed for the hearing, there are no children of the marriage within the meaning of subsection 98A(3) of the Family Law Act; and

                     (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.

25.14  Hearing in absence of parties—joint application

                   If, in a joint application for a divorce order, the applicants request that the case be heard in their absence, the court may so determine the case.

Note:          See subsection 98A(2A) of the Family Law Act.

25.15  Request not to hear case in parties’ absence

                   A respondent to an application for a divorce order 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.

Division 25.5Events affecting divorce order

25.16  Application for rescission of divorce order

             (1)  An application under section 57 or 58 of the Family Law Act must be in accordance with the approved form.

             (2)  The applicant must file and serve with the application an affidavit setting out:

                     (a)  the reasons why the divorce order should be rescinded; and

                     (b)  the evidence in support of the application.

25.17  Discontinuance of application

             (1)  An application for a divorce order may be discontinued with the leave of the Court or a Registrar.

             (2)  The Court or Registrar may impose conditions, including conditions in relation to service.

             (3)  A notice of discontinuance must be in accordance with the approved form.

25.18  Death of party

                   If a party to an application for a divorce order dies after the divorce order is made but before the order takes effect, the surviving party must inform the Court or a Registrar 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.

Part 25AChild support and child maintenance

  

25A.01  Application of Part 25A

             (1)  This Part applies to:

                     (a)  an application or appeal under the Assessment Act or the Registration Act; and

                    (aa)  an appeal under section 44AAA of the AAT Act; and

                     (b)  an application under Division 7 of Part VII of the Family Law Act; and

                     (c)  an application under the Child Support (Assessment) (Overseas‑related Maintenance Obligations) Regulations 2000; and

                     (d)  an application under Parts III and IV of the Family Law Regulations.

             (2)  Nothing in this Part affects the operation of Division 25B.2.

25A.02  Commencing proceedings

             (1)  An application under this Part must be made in accordance with the approved form.

             (2)  A notice of appeal under this Part must be made in accordance with the approved form.

Note:          For the procedure on the first court date see rule 10.01.

25A.03  Documents to be filed with applications

             (1)  A person must file with an application under this Part, the following documents:

                     (a)  an affidavit setting out the facts and circumstances relied on and the grounds of the application, attaching:

                              (i)  a copy of any assessment relevant to the application made by the Child Support Registrar; and

                             (ii)  a copy of any decision relevant to the application made by the Child Support Registrar or the Tribunal, and any statement of reasons for that decision; and

                            (iii)  a copy of any orders relevant to the application;

                     (b)  a completed financial statement in accordance with the approved form.

             (2)  However, paragraph (1)(b) does not apply to:

                     (a)  an appeal from a decision of the Tribunal or the Child Support Registrar; or

                     (b)  an application under subsection 106A(2) or 107(1) of the Assessment Act.

25A.04  Child support agreements

                   A person who makes an application about a child support agreement must register a copy of the agreement with the Court by filing 1 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 accepted by the Child Support Registrar.

25A.05  Appeals from the Tribunal or Child Support Registrar

             (1)  A person seeking to appeal a decision of the Tribunal or the Child Support Registrar must attach to the notice of appeal:

                     (a)  a copy of the Tribunal’s or Child Support Registrar’s decision; and

                     (b)  the statement of reasons for that decision.

             (2)  The person may also file a completed financial statement in accordance with the approved form and any affidavits that are to be relied on in the appeal.

             (3)  Rules 43.03, 43.04 and 43.05 apply, so far as they are relevant and not inconsistent with this rule, to an appeal to which this Part applies from the Tribunal or the Child Support Registrar.

Note:          Rule 43.03 relates to amendment of a notice of appeal, rule 43.04 relates to a notice of cross‑appeal and contention, and rule 43.05 relates to directions at the first court date.

25A.06  Time limits

                   A person must file an application for a declaration under subsection 106A(2) or 107(1) of the Assessment Act within 56 days of the service on the applicant of a notice given under section 33 or 34 of that Act.

Note 1:       An appeal by a person under section 44AAA of the AAT Act from a decision of the Tribunal in a child support first review proceeding must be filed within 28 days after the person receives a written statement of reasons for the decision under section 95P of the Registration Act: see subsection 44(2A) of the AAT Act (as applied by paragraph 44AAA(2)(a) of that Act).

Note 2:       The Court may extend or shorten the time fixed by this rule: see rule 3.05.

25A.07  Service of application or notice of appeal

             (1)  The persons to be served with an application or appeal under this Part are:

                     (a)  each respondent; and

                     (b)  a parent or eligible carer of the child in relation to whom the application or appeal is made; and

                     (c)  the Child Support Registrar; and

                     (d)  for appeals from the Tribunal to which this Part applies:

                              (i)  the Registrar of the Tribunal; and

                             (ii)  any other parties to the appeal.

             (2)  An application or appeal must be served at least 28 days before the hearing date, except an application for:

                     (a)  an order staying a decision; or

                     (b)  an order staying or otherwise affecting the operation or implementation of the Assessment Act or the Registration Act; or

                     (c)  an urgent order for child maintenance.

             (3)  A person seeking to appeal a decision of the Tribunal must serve a notice of the appeal on the Tribunal within 7 days of the day of filing the appeal.

             (4)  Any documents on which the applicant or the appellant intends to rely must be served on the persons mentioned in subrule (1) at least 21 days before the hearing date.

             (5)  An applicant or an appellant must serve on each respondent, with the application or notice of appeal, a brochure called Child Support Applications approved by the Chief Judge.

Note 1:       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 may intervene in the case if served with a copy of the application.

Note 2:       For service of an application see Part 6.

Note 3:       A response to an application must be filed and served within 14 days of service of the application to which it relates:  see subrule 4.03(3).

Note 4:       A response is not required in appeals but a notice of address for service under rule 6.01 must be filed and served.

25A.08  Evidence to be provided

             (1)  This rule applies to applications other than applications under subsection 106A(2) or 107(1) of the Assessment Act.

             (2)  On the first court date and the hearing date of an application each party (other than the Child Support Registrar) 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 when the application was filed;

                     (d)  if the party receives wage or salary payments—the party’s payslips for the past 4 pay periods;

                     (e)  if the party owns or controls a business, either as a sole trader, in partnership or through a company—the business activity statements and the financial statements and accounts (including profit and loss statements and balance sheets) for the business for the 3 most recent financial years;

                      (f)  any other document relevant to determining the income, needs and financial resources of the party.

Note:          Documents that may need to be produced under paragraph (f) include documents setting out the details mentioned in rule 24.03.

             (3)  Before the hearing date, a party must produce for inspection, if the documents mentioned in subrule (2) 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.

Part 25BEnforcement

Division 25B.1Applications for contravention of orders

25B.01  Application of Division 25B.1

                   This Division applies to an application for an order:

                     (a)  under Division 13A of Part VII of the Family Law Act; or

                     (b)  under Part XIIIA of the Family Law Act.

Note 1:       Subsection 69C(2) of the Family Law Act specifies who may apply for an order in relation to a child. Division 13A of Part VII of the Family Law Act sets out the consequences of failing to comply with an order or other obligation that affects children. Part XIIIA of the Family Law Act sets out the sanctions the Court may impose on a person who fails to comply with an order or other obligation that does not affect children. Part XIIIB of the Family Law Act sets out the punishment the Court may impose on a person found to be in contempt of court.

Note 2:       If a maintenance order is complied with before an application for contravention is heard by the Court, the failure to comply with the order that led to the application being filed does not constitute a contravention of the maintenance order (see subsection 112AP(1A) of the Family Law Act).

Note 3:       The Court:

(a)    must not impose a sentence of imprisonment:

(i)      for non‑compliance with a maintenance order unless it is satisfied that the contravention was intentional or fraudulent (see subsections 70NFB(4) and 112AD(2A) of the Family Law Act); or

(ii)     if it considers that another consequence is more appropriate (see subsections 70NFG(2) and 112AE(2) of the Family Law Act); and

(b)    cannot enforce an order of another court unless the order is registered in the first‑mentioned court (see section 105 of the Family Law Act and regulation 17 of the Family Law Regulations).

Note 4:       Part 19 sets out the rules relating to contempt.

25B.02  How to apply for an order

             (1)  An application must be in accordance with the approved form.

             (2)  The applicant must file with the application an affidavit that:

                     (a)  states the facts necessary to enable the Court to make the orders sought in the application; and

                     (b)  has attached to it a copy of any order, bond, agreement or undertaking that the Court is asked to enforce or that is alleged to have been contravened.

25B.03  Failure of respondent to attend

                   If a respondent fails to attend the hearing of the application in person or by a lawyer, the Court may:

                     (a)  determine the proceeding; or

                     (b)  issue a warrant for the respondent’s arrest to bring the respondent before a court; or

                     (c)  adjourn the application.

25B.04  Procedure at hearing

                   At the hearing of the application, the Court must:

                     (a)  inform the respondent of the allegation; and

                     (b)  ask the respondent whether the respondent wishes to admit or deny the allegation; and

                     (c)  hear any evidence supporting the allegation; and

                     (d)  ask the respondent to state the response to the allegation; and

                     (e)  hear any evidence for the respondent; and

                      (f)  determine the proceeding.

Note:          For the orders that may be made by the Court, see sections 67X, 70NBA, 70NCB, 70NDB, 70NDC, 70NEB, 70NFB, 70NFF, 112AD, 112AH and 112AP of the Family Law Act.

Division 25B.2Enforcement of financial orders and obligations

Subdivision 25B.2.1General

25B.05  Application

                   This Division applies to family law and child support proceedings.

Note:          This Division is a modified form of Chapter 20 of the Family Law Rules.

25B.06  Interpretation

             (1)  In this Division:

enforcement officer, for the purpose of enforcing an order, includes:

                     (a)  the Sheriff or a delegate of the Sheriff; and

                     (b)  an officer of the Court or a person appointed by the Court.

financial statement has the same meaning as in rule 24.02.

             (2)  Subject to a contrary intention, a word or expression used in this Division that is also used in the Family Law Rules has the same meaning in this Division as it has in those Rules.

Note:          The following words or expressions used in this Division are defined in the Dictionary at the end of the Family Law Rules:

·      child support liability

·      enforcement order

·      Family Court

·      payee

·      payer

·      sealed copy

·      Third Party Debt Notice

·      third party debtor.

25B.07  Enforceable obligations

             (1)  The following obligations may be enforced under this Division:

                     (a)  an obligation to pay money;

                     (b)  an obligation to sign a document under section 106A of the Family Law Act (see Subdivision 25B.2.7);

                     (c)  an order entitling a person to the possession of real property (see Subdivision 25B.2.7);

                     (d)  an order entitling a person to the transfer or delivery of personal property (see Subdivision 25B.2.7).

             (2)  For paragraph (1)(a), an obligation to pay money includes:

                     (a)  a provision requiring a payer to pay money under:

                              (i)  an order made under the Family Law Act, the Assessment Act or the Registration Act; or

                             (ii)  a registered parenting plan; or

                            (iii)  an award made in arbitration and registered under section 13H of the Family Law Act; or

                            (iv)  a maintenance agreement registered under subsection 86(1) of the Family Law Act; or

                             (v)  a maintenance agreement approved under section 87 of the Family Law Act; or

                            (vi)  a financial agreement or termination agreement under Part VIIIA of the Family Law Act; or

                           (vii)  a financial agreement under Part VIIIAB of the Family Law Act or a termination agreement under Part VIIIAB of the Family Law Act; or

                          (viii)  an agreement varying or revoking an original agreement dealing with the maintenance of a child under section 66SA of the Family Law Act; or

                            (ix)  an overseas maintenance order or agreement that, under the Family Law Regulations, is enforceable in Australia; and

                     (b)  a liability to pay arrears accrued under an order or agreement; and

                     (c)  a debt due to the Commonwealth under section 30 or 67 of the Registration Act; and

                     (d)  a child support liability; and

                     (e)  a fine or the forfeiture of a bond; and

                      (f)  costs, including the costs of enforcement.

             (3)  For paragraph (1)(a), an obligation to pay money does not include an obligation arising out of costs for work done for a fresh application payable by a person to the person’s lawyer.

Note:          For enforcement of lawyer‑client costs for a fresh application, see the State or Territory legislation governing the legal profession in the State or Territory where the lawyer practices.

             (4)  This Division applies to an agreement mentioned in paragraph (2)(a) as if it were an order of the Court in which it is registered or taken to be registered.

25B.08  When an agreement may be enforced

                   A person seeking to enforce an agreement must first obtain an order:

                     (a)  for an agreement approved under section 87 of the Family Law Act—under paragraph 87(11)(c) of the Family Law Act; or

                     (b)  for a Part VIIIA financial agreement under the Family Law Act—under paragraph 90KA(c) of that Act; or

                     (c)  for a Part VIIIAB financial agreement under the Family Law Act—under paragraph 90UN(c) of that Act.

Note:          A party seeking to enforce an order made in another court or registry, must first register a copy of the order (see subsection 105(2) of the Family Law Act). A payee must obtain the Court’s permission to enforce an order against a deceased payer’s estate (see subsection 105(3) of the Family Law Act).

25B.09  When a child support liability may be enforced

             (1)  This rule applies to a person seeking to enforce payment of a child support liability that is not an order and is not taken to be an order.

             (2)  Before an enforcement order is made, the person must first obtain an order for payment of the amount owed by filing:

                     (a)  an application in a case and an affidavit setting out the facts relied on in support of the application; and

                     (b)  if the payee is the Child Support Agency or is seeking to recover a liability under section 113A of the Registration Act—a certificate under section 116 of the Registration Act.

             (3)  A payee who seeks to recover a child support liability in his or her own name under section 113A of the Registration Act must attach to the affidavit filed with the application a copy of the copy notice, given to the Child Support Agency, of his or her intention to institute proceedings to recover the debt due.

Note 1:       After the Court has ordered payment of the amount owed, it may immediately make an enforcement order (see rule 25B.11).

Note 2:       A payee who is enforcing a child support liability must notify the Registrar in writing of his or her intention to institute proceedings to recover the debt due (see subsection 113A(1) of the Registration Act).

25B.10  Who may enforce an obligation

                   The following persons may enforce an obligation:

                     (a)  if the obligation arises under an order (except an order mentioned in paragraph (c))—a party;

                     (b)  if the obligation arises under an order to pay money for the benefit of a party or child:

                              (i)  the party or child; or

                             (ii)  a person entitled, under the Family Law Act or Family Law Regulations, to enforce the obligation for the party or child;

                     (c)  if the obligation is a fine or an order that a bond be forfeited—the Sheriff of the Court, a Deputy Sheriff of the Court or an officer of the Court;

                     (d)  if the obligation is a child support liability—a person entitled to do so under the Registration Act or the Assessment Act.

Note:          The payee of a liability may enforce an obligation—see section 113 of the Registration Act and section 79 of the Assessment Act.

25B.11  Enforcing an obligation to pay money

                   An obligation to pay money may be enforced by one or more of the following enforcement orders:

                     (a)  an order for seizure and sale of real or personal property, including under an Enforcement Warrant (see Subdivision 25B.2.3);

                     (b)  an order for the attachment of earnings and debts, including under a Third Party Debt Notice (see Subdivision 25B.2.4);

                     (c)  an order for sequestration of property (see Subdivision 25B.2.5);

                     (d)  an order appointing a receiver (or a receiver and manager) (see Subdivision 25B.2.6).

Note:          The Court may imprison a person for failure to comply with an order (see section 112AD of the Family Law Act). Division 25B.1 sets out the relevant procedure.

25B.12  Affidavit to be filed for enforcement order

                   If these Rules require a person seeking an enforcement order to file an affidavit, the affidavit must:

                     (a)  if it is not required to be filed with an application—state the orders sought; and

                     (b)  have attached to it a copy of the order or agreement to be enforced; and

                     (c)  set out the facts relied on, including the following:

                              (i)  the name and address of the payee;

                             (ii)  the name and address of the payer;

                            (iii)  that the payee is entitled to proceed to enforce the obligation;

                            (iv)  that the payer is aware of the obligation and is liable to satisfy it;

                             (v)  that any condition has been fulfilled;

                            (vi)  details of any dispute about the amount of money owed;

                           (vii)  the total amount of money currently owed and any details showing how the amount is calculated, including:

                                        (A)  interest, if any; and

                                        (B)  the date and amount of any payments already made;

                          (viii)  what other legal action has been taken in an effort to enforce the obligation;

                            (ix)  details of any other current applications to enforce the obligation;

                             (x)  the amount claimed for costs, including costs of any proposed enforcement; and

                     (d)  be sworn no more than 2 days before it is filed.

Examples for paragraph (a):

1                 An Enforcement Warrant.

2                 A Third Party Debt Notice.

3                 An order for filing and service of financial statement.

4                 An order for production of documents.

25B.13  General enforcement powers of Court

                   The Court may make any of the following orders:

                     (a)  an order declaring the total amount owing under an obligation;

                     (b)  an order that the total amount owing must be paid in full or by instalments and when the amount must be paid;

                   (ba)  an order for payment under rule 25B.09;

                     (c)  an order for enforcement (see rule 25B.11);

                     (d)  an order in aid of the enforcement of an obligation;

                     (e)  an order to prevent the dissipation or wasting of property;

                      (f)  an order for costs;

                     (g)  an order staying the enforcement of an obligation (including an enforcement order);

                     (h)  an order requiring the payer to attend an enforcement hearing;

                      (i)  an order requiring a party to give further information or evidence;

                      (j)  an order that a payer must file a financial statement;

                     (k)  an order that a payer must produce documents for inspection by the Court;

                      (l)  an order dismissing an application;

                    (m)  an order varying, suspending or discharging an enforcement order.

Note:          For the collection of child support, the Court has general powers set out in section 111B of the Registration Act.

25B.14  Enforcement order

             (1)  An enforcement order must state:

                     (a)  the kind of enforcement order it is (see rule 25B.11); and

                     (b)  the full name and address for service of the payee; and

                     (c)  the full name and address of the payer; and

                     (d)  the total amount to be paid.

Note:          A document filed in or issued by the Court must meet the requirements set out in Division 2.1.

             (2)  For paragraph (1)(d), a statement about the total amount to be paid must include:

                     (a)  the amount owing under the obligation to pay money; and

                     (b)  the amount of interest owing, if any; and

                     (c)  any costs of enforcing the order.

25B.15  Discharging, suspending or varying enforcement order

             (1)  A party to an enforcement order may apply to the Court at any time to discharge, suspend or vary the order.

Note:          An application under this subrule must be in an application in a case (see rule 4.08).

             (2)  An application under subrule (1) does not stay the operation of the enforcement order.

Subdivision 25B.2.2Information for aiding enforcement

Note:          The duty of disclosure set out in rule 24.03 applies to a party to an enforcement application.

25B.16  Processes for obtaining financial information

             (1)  Before applying for an enforcement order, a payee may:

                     (a)  give a payer a written notice requiring the payer to complete and serve a financial statement in accordance with the approved form within 14 days after receiving the notice; or

                     (b)  by filing an application in a case and an affidavit that complies with rule 25B.12, apply for an order, without notice to the respondent:

                              (i)  requiring the payer to complete and file a financial statement in accordance with the approved form; or

                             (ii)  requiring the payer to disclose information or produce to the payee copies of documents relevant to the payer’s financial affairs.

             (2)  A Registrar may hear an application under subrule (1), in chambers, in the absence of the parties, on the documents filed.

25B.17  Enforcement hearing

             (1)  A payee may, by filing an application in a case and an affidavit that complies with rule 25B.12, require:

                     (a)  the payer; or

                     (b)  if the payer is a corporation—an officer of the corporation;

to attend an enforcement hearing.

             (2)  The payee may require the payer to produce documents at the enforcement hearing that are in the payer’s possession or control and relevant to the enforcement application by serving with the application mentioned in subrule (1):

                     (a)  a list of the documents required; and

                     (b)  a written notice requiring that the documents be produced.

             (3)  A payee must serve on a payer at least 14 days before an enforcement hearing:

                     (a)  the documents mentioned in subrules (1) and (2); and

                     (b)  a brochure approved by the Chief Judge, giving information about enforcement hearings and the consequences of failing to comply with an obligation.

Note 1:       An enforcement hearing does not have to be held before the Court makes an enforcement order. The purpose of an enforcement hearing is to obtain information to help the enforcement of an order or other obligation and, if applicable, to help the Court to determine a dispute or issue an enforcement order.

Note 2:       Rule 25B.13 sets out the orders that the Court may make at an enforcement hearing.

25B.18  Obligations of payer

             (1)  A payer served with the documents mentioned in rule 25B.17 must:

                     (a)  attend the enforcement hearing:

                              (i)  to answer questions; and

                             (ii)  to produce any documents required; and

                     (b)  at least 7 days before the enforcement hearing, serve on the payee a financial statement in accordance with the approved form setting out the payer’s financial circumstances.

             (2)  Before the day of the enforcement hearing, the payer may produce any documents required to the payee at a mutually convenient time and place.

25B.19  Subpoena of witness

                   A party may request the Court to issue a subpoena to a witness for an enforcement hearing.

Note:          Part 15A sets out the requirements for issuing subpoenas.

25B.20  Failure concerning financial statement or enforcement hearing

             (1)  A person commits an offence if the person does not:

                     (a)  comply with a notice under paragraph 25B.16(1)(a) requiring the person to complete and serve a financial statement; or

                     (b)  comply with an order that the person complete and file a financial statement or produce copies of documents to the payee (see paragraph 25B.16(1)(b)); or

                     (c)  if the person is served with an application for an enforcement hearing:

                              (i)  comply with subparagraph 25B.18(1)(a)(ii) and paragraph 25B.18(1)(b); and

                             (ii)  attend the enforcement hearing in accordance with the application or an order; or

                     (d)  on attending an enforcement hearing in accordance with an application for an enforcement hearing or order, answer a question put to the person to the Court’s satisfaction.

Penalty:  50 penalty units.

             (2)  An offence against subrule (1) is an offence of strict liability.

Note:          The Court may issue a warrant for the arrest of a payer if it is satisfied that the payer has received an application for an enforcement hearing and did not attend the enforcement hearing (see Division 25B.4).

             (3)  If a person is prosecuted under section 112AP of the Family Law Act for an act or omission mentioned in subrule (1), an application must not be made