Federal Register of Legislation - Australian Government

Primary content

Rules/Court & Tribunal Rules as made
This instrument provides for the conduct of family law and child support proceedings in the Federal Circuit and Family Court of Australia.
Administered by: Attorney-General's
Exempt from sunsetting by the Legislation Act 2003 s 8(8)(d)
Registered 27 Aug 2021
Tabling HistoryDate
Tabled HR30-Aug-2021
Tabled Senate31-Aug-2021
Table of contents.

 

 

 

 

 

 

 

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
 (FAMILY LAW) RULES 2021

 

EXPLANATORY STATEMENT


 

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (FAMILY LAW)
RULES 2021

 

EXPLANATORY STATEMENT

 

Issued by the authority of the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1)

 

Section 8 of the Federal Circuit and Family Court of Australia Act 2021 (‘the FCFCOA Act’) provides that, from the commencement day of the FCFCOA Act, the Family Court of Australia will be continued in existence as the Federal Circuit and Family Court of Australia (Division 1) (‘the FCFCOA (Division 1)’).  The Federal Circuit Court of Australia will continue in existence as the Federal Circuit and Family Court of Australia (Division 2) (‘the FCFCOA (Division 2)’).

Section 76 of the FCFCOA Act provides, among other things, that the Chief Justice of the FCFCOA (Division 1) may make Rules of Court providing for, or in relation to, the practice and procedure to be followed in the FCFCOA (Division 1), or any matter or thing in respect of which Rules of Court may be made under the Family Law Act 1975 (Cth) (‘the Family Law Act’) for the purposes of their application to the FCFCOA (Division 1).

Section 5 of the FCFCOA Act provides that one of the objects of the FCFCOA Act is to provide a framework to facilitate cooperation between the FCFCOA (Division 1) and the FCFCOA (Division 2), with the aim of ensuring common rules of court and forms, common practices and procedures, and common approaches to case management. Relatedly, section 75 provides that for the purposes of ensuring the efficient resolution of family law or child support proceedings, the Chief Justice of the FCFCOA (Division 1) must work cooperatively with the Chief Judge of the FCFCOA (Division 2) with the aim of ensuring common rules of court and forms, and common practices and procedures.

The existing Family Law Rules 2004 (‘FLR 2004’) made under section 123 of the Family Law Act commenced on 29 March 2004. They have been regularly reviewed and amended since that date. These new Rules, the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (‘2021 Rules’) have been made by the Chief Justice of the FCFCOA (Division 1), in consultation with the Judges of the FCFCOA (Division 1), to replace the FLR 2004 with effect from the commencement day of the FCFCOA Act.

The 2021 Rules will apply in the FCFCOA (Division 1). They have separately been adopted as Rules of the FCFCOA (Division 2) that will apply to family law and child support matters in that court. The 2021 Rules have the effect of harmonising the FLR 2004 with the existing Federal Circuit Court Rules 2001 (‘FCCR 2001’), creating common rules of court suitable for use in family law and child support matters from the commencement of the FCFCOA Act.

The 2021 Rules have also been adopted by the Chief Justice of the FCFCOA (Division 1) under section 123 of the Family Law Act as the rules of court to apply in other courts exercising jurisdiction under the Family Law Act, and will operate as the standard Rules of Court for the purposes of the Family Law Act from the commencement day of the FCFCOA Act.

Subsection 76(4) of the FCFCOA Act provides that the Legislation Act 2003 (Cth) (other than sections 8, 9, 10, 16 and Part 4 of Chapter 3) applies to rules of court. In this application, a reference to a legislative instrument is to be read as a reference to a rule of court.

The Court has proceeded on the basis that a statement of compatibility with human rights is not required to be included in an explanatory statement to rules of court, as whilst the FCFCOA Act applies the Legislation Act 2003 (Cth) to rules of court, it does not expressly translate a reference to a legislative instrument in legislation other than the Legislation Act 2003 (Cth) into a reference to rules of court, such as in the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).

The Court notes that different views are held as to whether a statement of compatibility with human rights is formally required to be included in an explanatory statement to rules of court. However for the avoidance of doubt, a statement of compatibility with human rights is included below.


 

Statement of Compatibility with Human Rights

Federal Circuit and Family Court of Australia (Family Law) Rules 2021

This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).

 

Human rights implications

This legislative instrument engages applicable human rights or freedoms, including the following:

·        The best interests of the child: Article 3(1) of the Convention on the Rights of the Child (CRC) provides that in all actions concerning children, including by courts, the best interests of the child shall be a primary consideration. Article 7(2) of the Convention on the Rights of Persons with Disabilities (CRPD) provides for this right in relation to children with disabilities. Article 3(2) of the CRC requires all legislative, administrative and judicial bodies and institutions to systematically consider how children’s rights and interests are or will be affected directly or indirectly by their decisions and actions. Article 9(1) of the CRC provides that a child shall not be separated from their parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Article 12(1) of the CRC provides that a child capable of forming their own views has a right to express those views in matters affecting the child and that those views should be given due weight in accordance with the child’s age and maturity.

·        The right to protection from exploitation, violence and abuse: Article 20(2) of the International Covenant on Civil and Political Rights (ICCPR) provides for the right to protection from exploitation, violence and abuse. Article 16(1) of the CRPD provides for the same protection in relation to persons with disabilities. Article 24(1) of the ICCPR provides for the protection of all children, without discrimination, by virtue of their status as minors. Article 19(1) of the CRC provides for the right of children to be protected from exploitation, violence and abuse, and requires States to ‘take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person’. Article 34 of the CRC additionally provides for the right of children to be protected from all forms of sexual exploitation and sexual abuse.

·        The rights of parents and children: Article 5 of the CRC provides that States shall respect the responsibilities, rights and duties of parents, legal guardians or other persons legally responsible for a child to provide direction and guidance in the child’s exercise of the rights recognised in the CRC. Article 18 of the CRC provides for the recognition of the principle that both parents (or legal guardians) have common responsibilities for the upbringing and development of a child.

·        The right to respect for the family: Article 23 of the ICCPR provides that the family is entitled to the protection of the State and that States shall take appropriate steps to ensure the equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. Article 10(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) provides that the widest possible protection and assistance should be accorded to the family. Article 17(1) of the ICCPR provides that a person has a right not to be subjected to arbitrary or unlawful interference with their family. Article 16(1) of the CRC provides for this right in relation to children. Article 23(3) of the CRPD provides that children with disabilities have equal rights with respect to family life.

·        The right to a fair hearing: Article 9(2) of the CRC provides that in proceedings involving the separation of a child from their parents in the best interests of the child, all interested parties shall be given the opportunity to participate in the proceedings and make their views known. Article 14(1) of the ICCPR provides that all persons shall be equal before the courts and that where their rights or obligations are to be determined in legal proceedings they shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Article 12(2) of the CRPD provides that persons with disabilities shall be recognised as enjoying legal capacity on an equal basis with others in all aspects of life and Article 12(3) provides that States shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.

The provisions in the 2021 Rules broadly replicate existing provisions in the FLR 2004 and the FCCR 2001, with some reorganisation and harmonisation to promote greater procedural efficiency and enhance access to justice for parties.

The 2021 Rules relate principally to proceedings under the Family Law Act. In proceedings in which a parenting order is sought in relation to a child, section 60CA of the Family Law Act provides that the court must regard the best interests of the child as the paramount consideration. The 2021 Rules provide mechanisms for the Court to receive information relevant to the consideration of a child’s best interests, including through the Notice of Child Abuse, Family Violence or Risk, the Parenting Questionnaire and a family consultant’s report. In addition, parties to parenting proceedings are generally required to comply with pre-action procedures, in which they must at all stages have regard to the best interests of the child.

The 2021 Rules broadly replicate existing provisions in the FLR 2004 and the FCCR 2001 providing for the Court and relevant child welfare authorities to be informed of allegations of child abuse, family violence or other risks to children and parties in parenting proceedings. Recent amendments to those provisions which are replicated in the 2021 Rules require the provision of risk-related information at the commencement of family law parenting proceedings through the Notice of Child Abuse, Family Violence or Risk. This form includes questions about a broad variety of risk factors, enabling the Court to better understand and respond to those risks, and protect children and vulnerable parties from violence and abuse.

The 2021 Rules additionally protect children and parties from exploitation, violence and abuse by providing for:

·        exceptions to requirements for parties to comply with pre-action procedures or to attempt to settle interlocutory applications where proceedings involve allegations of, or a risk of, child abuse or family violence;

·        requirements for parties to certain proceedings to file a copy of any relevant family violence order;

·        a requirement for a party making an application without notice to disclose a history or allegation of child abuse or family violence;

·        requirements for each party to consent parenting orders to inform the Court whether or not the party considers that the child in relation to whom the orders are sought has been, or is at risk of being, subjected to or exposed to abuse, neglect or family violence, and whether any party to the proceedings has been, or is at risk of being, subjected to family violence;

·        exemptions from requirements to provide a physical address as an address for service where disclosing the address would compromise a person’s safety;

·        requirements for the Court to take account of the available facilities having regard to any safety concerns when considering whether to transfer a family law or child support proceeding between courts, or to another registry of the Court; and

·        a process by which parties can seek to attend court events by electronic communication if they hold concerns about security, including family violence and intimidation.

The 2021 Rules provide that the parents or any other persons responsible for the care, welfare and development of a child must be parties to any application for parenting orders in relation to the child. This ensures that the rights of parents (and legal guardians) are respected and that all interested parties have an opportunity to participate in proceedings and make their views known.

Equality of access to the Court is promoted by the provision in the 2021 Rules for:

·        the right of a person who has a right to be heard in a proceeding to conduct the proceeding on their own behalf or to be represented by a lawyer;

·        the appointment of independent children’s lawyers to secure the independent representation of children’s interests; and

·        the appointment of litigation guardians for persons who do not understand the nature or possible consequences of a proceeding or who are not capable of adequately conducting, or giving instruction for the conduct of, a proceeding.

The 2021 Rules further facilitate the conduct of fair hearings by setting out the practices and procedures to be followed in family law proceedings, such as:

·        the procedures for parties to be served with court documents to ensure they receive and can respond to material the Court may take into account;

·        the procedures for disclosure of documents to ensure parties have timely access to relevant material;

·        the procedures governing the appointment of expert witnesses and the clarification and use of expert reports; and

·        the provision for an interlocutory application to be determined in the absence of the parties without an oral hearing only if the parties consent to the application being determined in that way and the Court considers it appropriate to determine the application in that way.

The 2021 Rules thereby support and enhance the treatment of the rights listed above.

 

Conclusion

This legislative instrument is compatible with human rights as it provides procedures which improve the Court’s capacity to make substantive decisions in the best interests of children and to protect children and vulnerable parties from violence and abuse. The legislative instrument also provides procedures which facilitate equality of access to court proceedings, participation by parents and other interested parties, and the fair and safe conduct of hearings.

 


 

TABLE OF CONTENTS

INTRODUCTION.. 28

1.    How the chapters relate to each other 28

2.    General philosophy behind the 2021 Rules. 28

3.    Consultation. 29

4.    Defined terms in this document 29

5.    Annexures – cross-reference tables. 30

CHAPTER 1 – Purpose and Case Management 31

Part 1.1: Preliminary. 31

Rule 1.01: Name. 31

Rule 1.02: Commencement 31

Rule 1.03: Authority. 31

Rule 1.04: Overarching purpose. 31

Rule 1.05: Definitions. 31

Part 1.2: Case management 31

Division 1.2.1: General case management procedures. 31

Rule 1.06: Court’s general powers of case management 31

Rule 1.07: Case Management Practice Direction. 31

Rule 1.08: Other practice directions. 32

Division 1.2.2: Case management procedures in particular proceedings. 32

Overview.. 32

Rule 1.09: Divorce proceedings. 32

Rule 1.10: Surrogacy proceedings. 32

Rule 1.11: Medical procedure proceedings. 32

Rule 1.12: Financial proceedings. 32

Rule 1.13: Child support and child maintenance proceedings. 33

Division 1.2.3: Proceedings to which the Trans-Tasman Proceedings Act 2010 applies. 33

Rule 1.14: Application of Division 34.4 of the Federal Court Rules 2011. 33

Rule 1.15: Modification of the Federal Court Rules 2011. 33

Rule 1.16: Service of subpoena. 33

Division 1.2.4: Applications under the Corporations Act 2001 and the Corporations (Aboriginal and Torres Strait Islander) Act 2006. 34

Rule 1.17: Application of Division 1.2.4. 34

Rule 1.18: Application of the Corporations Rules. 34

Rule 1.19: Modification of the Corporations Rules. 34

Rule 1.20: Application under the Corporations Act 2001 or the Corporations (Aboriginal and Torres Strait Islander) Act 2006. 34

Division 1.2.5: Proceedings to which the Bankruptcy Act 1966 applies. 34

Rule 1.21: Application of Division 1.2.5. 34

Rule 1.22: Application of the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021  35

Rule 1.23: Modification of Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021  35

Rule 1.24: Forms in proceedings to which the Bankruptcy Act applies. 35

Division 1.2.6: Arbitration. 35

Rule 1.25: Application of Division 1.2.6. 35

Rule 1.26: Referral of question of law by an arbitrator 36

Rule 1.27: Referral of other matters to the court by the arbitrator 36

Rule 1.28: Informing the court about awards made in arbitration. 36

Rule 1.29: Registration of awards made in arbitration. 36

Rule 1.30: Response to applications in relation to arbitration. 36

Part 1.3: Court’s powers in relation to the Rules. 36

Rule 1.31: Court may make orders or dispense with these Rules. 36

Rule 1.32: Applications for orders about procedures. 37

Rule 1.33: Failure to comply with a legislative provision or order 37

Rule 1.34: Relief from orders. 37

CHAPTER 2 – Starting a Proceeding. 37

Part 2.1: Required documents. 37

Rule 2.01: Which application form must be filed. 37

Part 2.2: Notification in certain proceedings. 37

Division 2.2.1: Child abuse, family violence or other risks of harm to children. 37

Rule 2.02: Definitions for Division 2.2.1. 37

Rule 2.03: Approved form for the purposes of sections 67Z and 67ZBA of the Family Law Act 38

Rule 2.04: Requirement to file Notice of Child Abuse, Family Violence or Risk in parenting proceedings  38

Rule 2.05: Notice of Child Abuse, Family Violence or Risk filed by an interested person. 38

Rule 2.06: Amendment of Notice of Child Abuse, Family Violence or Risk. 38

Rule 2.07: Proceedings transferred from another court 39

Rule 2.08: Content of Notice of Child Abuse, Family Violence or Risk. 39

Rule 2.09: When a notice in an approved form for the purposes of sections 67Z and 67ZBA of the Family Law Act is taken to have been filed. 39

Rule 2.10: Requirement to file family violence orders in certain proceedings. 39

Division 2.2.2: Notification of other matters. 39

Rule 2.11: Notification of proceeds of crime order or forfeiture application. 39

Rule 2.12: Proceeds of crime. 40

Rule 2.13: Notice of constitutional matter 40

Part 2.3: Form of documents. 40

Rule 2.14: Formal requirements for documents. 40

Rule 2.15: Corporation as a party. 40

Rule 2.16: Change of name of party. 40

Rule 2.17: Documents not in English. 40

Part 2.4: Responding to an application. 41

Rule 2.18: When to respond to an application. 41

Rule 2.19: Response objecting to jurisdiction. 41

Rule 2.20: When to file an affidavit with a response. 41

Rule 2.21: How to reply to a response. 41

Rule 2.22: If the application or response is not contested. 41

Part 2.5: Filing documents. 42

Rule 2.23: How documents may be filed. 42

Rule 2.24: Rejection of documents. 42

Part 2.6: Serving documents in Australia. 42

Division 2.6.1: General 42

Rule 2.25: Address for service. 42

Rule 2.26: Change of address for service. 42

Rule 2.27: General requirements for service of documents. 43

Rule 2.28: Manner of service. 43

Rule 2.29: General time limit for service. 43

Rule 2.30: Time for service of subpoena. 43

Rule 2.31: Time for service of applications. 43

Rule 2.32: Proof of service. 43

Rule 2.33: Court’s discretion in relation to service. 43

Rule 2.34: Service with conditions or dispensing with service. 44

Division 2.6.2: Personal service. 44

Rule 2.35: Personal service—general 44

Rule 2.36: Personal service through a lawyer 44

Rule 2.37: Personal service on a person with a legal incapacity. 44

Rule 2.38: Personal service on a prisoner 44

Rule 2.39: Personal service on a corporation. 44

Division 2.6.3: Ordinary service. 44

Rule 2.40: Ordinary service. 44

Rule 2.41: When service is effected. 44

Division 2.6.4: Service of Application for Divorce. 45

Rule 2.42: Service of application. 45

Rule 2.43: Additional requirements for service by post 45

Rule 2.44: Acknowledgment of service. 45

Rule 2.45: Affidavit of service. 45

Rule 2.46: Evidence of service. 45

Rule 2.47: Evidence of signature and identity of person served. 45

Part 2.7: Serving documents overseas. 45

Rule 2.48: Serving documents in New Zealand. 45

Rule 2.49: Serving documents in all other countries. 45

Part 2.8: Amending documents. 46

Rule 2.50: Amendment by a party or court order 46

Rule 2.51: Time limit for amendment 46

Rule 2.52: Amending a document 46

Rule 2.53: Response to amended document 46

Rule 2.54: Disallowance of amendment 46

CHAPTER 3 – Parties and Representation. 46

Part 3.1: Necessary parties. 46

Rule 3.01: Necessary parties. 46

Rule 3.02: Necessary parties to applications for parenting orders. 47

Part 3.2: Adding and removing a party. 47

Rule 3.03: Adding a party. 47

Rule 3.04: Person may apply to be included. 47

Rule 3.05: Party may apply to be removed. 47

Rule 3.06: Court may order notice to be given. 47

Rule 3.07: Intervention by a person entitled to intervene. 47

Part 3.3: Legal representation. 47

Rule 3.08: Right to be heard and representation. 47

Rule 3.09: Corporation must be represented. 48

Rule 3.10: Lawyer—ceasing to act 48

Part 3.4: Independent children’s lawyer 48

Rule 3.11: Independent children’s lawyer 48

Part 3.5: Litigation guardians. 48

Overview.. 48

Rule 3.12: Person who needs a litigation guardian. 49

Rule 3.13: Starting, continuing, defending or inclusion in proceeding. 49

Rule 3.14: Who may be a litigation guardian. 49

Rule 3.15: Appointment of litigation guardian. 49

Rule 3.16: Manager of the affairs of a party. 49

Rule 3.17: Notice of becoming litigation guardian. 50

Rule 3.18: Costs and expenses of litigation guardian. 50

Part 3.6: Death or bankruptcy of a party. 50

Division 3.6.1: Death of a party. 50

Rule 3.19: Death of party. 50

Division 3.6.2: Bankruptcy or insolvency of party. 50

Rule 3.20: Definitions for Division 3.6.2. 50

Rule 3.21: Notice of bankruptcy or personal insolvency agreement 50

Rule 3.22: Notice under paragraph 3.21(1)(b) 51

Rule 3.23: Notice under paragraph 3.21(1)(c) 51

Rule 3.24: Notice of bankruptcy proceedings. 51

Rule 3.25: Notice of application under section 139A of the Bankruptcy Act 51

Rule 3.26: Official name of trustee. 51

CHAPTER 4 – Dispute Resolution. 51

Part 4.1: Requirements before applying for orders. 51

Rule 4.01: Compliance with pre-action procedures. 51

Rule 4.02: Requirement to file family dispute resolution certificate with application for a parenting order 52

Rule 4.03: Requirements before seeking an interlocutory order 52

Rule 4.04: Consequences of failure to comply with rules 4.01 to 4.03. 52

Rule 4.05: Court’s powers to require attendance at dispute resolution event 53

Part 4.2: Offers to settle a proceeding. 53

Division 4.2.1: General 53

Rule 4.06: How to make an offer 53

Rule 4.07: Open and without prejudice offers. 53

Rule 4.08: How to withdraw an offer 53

Rule 4.09: How to accept an offer 53

Rule 4.10: Counter-offer 53

Division 4.2.2: Offers in property proceedings. 53

Rule 4.11: Compulsory offer to settle. 53

Rule 4.12: Withdrawal of offer 54

CHAPTER 5 – Interlocutory Orders. 54

Part 5.1: General 54

Rule 5.01: Effect of final orders on interlocutory orders. 54

Rule 5.02: Restrictions on applications for interlocutory orders. 54

Rule 5.03: Time for applications seeking parenting orders for end-of-year school holiday period  54

Rule 5.04: Supporting affidavit to be filed with application. 54

Rule 5.05: Responding to an Application in a Proceeding. 54

Rule 5.06: When affidavit in reply to a response may be filed. 54

Rule 5.07: Time for filing affidavits. 55

Rule 5.08: Limit on number and length of affidavits. 55

Rule 5.09: Duration of hearing of interlocutory application. 55

Rule 5.10: Administrative postponement of interlocutory hearing. 55

Part 5.2: Applications without notice. 55

Rule 5.11: Applications without notice. 55

Rule 5.12: Necessary procedural orders. 55

Part 5.3: Hearing on papers in absence of parties without oral hearing. 55

Rule 5.13: Decisions in the absence of the parties without an oral hearing. 55

Rule 5.14: Court decision to require attendance. 56

Rule 5.15: Procedure for hearing in absence of parties without an oral hearing. 56

Part 5.4: Applications in relation to property. 56

Division 5.4.1: Orders for inspection, etc, of property. 56

Rule 5.16: Orders about property. 56

Rule 5.17: Service of application. 56

Rule 5.18: Inspection by court 56

Division 5.4.2: Search orders. 56

Rule 5.19: Application for search order 56

Rule 5.20: Requirements for grant of search order 57

Rule 5.21: Independent lawyers. 57

Rule 5.22: Costs. 57

Division 5.4.3: Freezing orders. 57

Rule 5.23: Application for freezing order 57

Rule 5.24: Ancillary orders. 57

Rule 5.25: Order may be against a person not a party to proceeding. 57

Rule 5.26: Costs. 57

Part 5.5: Applications for suppression or non-publication orders. 57

Rule 5.27: Application for a suppression or non-publication order 57

CHAPTER 6 – Disclosure and Subpoenas. 57

Part 6.1: Duty of disclosure. 58

Division 6.1.1: General duty of disclosure. 58

Rule 6.01: General duty of disclosure. 58

Rule 6.02: Undertaking by party. 58

Rule 6.03: Duty of disclosure – documents. 58

Rule 6.04: Use of documents. 58

Division 6.1.2: Duty of disclosure in specific types of proceedings. 59

Rule 6.05: Duty of disclosure – parenting proceedings. 59

Rule 6.06: Duty of disclosure – financial proceedings. 59

Part 6.2: Disclosure procedures. 59

Division 6.2.1: Introduction. 59

Rule 6.07: Application of Part 6.2. 59

Division 6.2.2: Processes of disclosure, production and inspection. 60

Rule 6.08: Application of Division 6.2.2. 60

Rule 6.09: Disclosure by list of documents. 60

Rule 6.10: Request for disclosed document 60

Rule 6.11: Request for other identified document 61

Rule 6.12: Request to inspect original document 61

Rule 6.13: Provision of copies of documents. 61

Rule 6.14: Production of documents for inspection. 61

Rule 6.15: Documents that need not be produced. 61

Division 6.2.3: Objecting to production. 61

Rule 6.16: Objection to production. 61

Division 6.2.4: Orders in relation to disclosure. 62

Rule 6.17: Consequences of non-disclosure. 62

Rule 6.18: Application for order for disclosure, production or inspection. 62

Rule 6.19: Costs of compliance. 62

Rule 6.20: Electronic disclosure. 62

Part 6.3: Specific questions. 62

Rule 6.21: Application of Part 6.3. 62

Rule 6.22: Service of specific questions. 62

Rule 6.23: Answering specific questions. 62

Rule 6.24: Orders in relation to specific questions. 63

Part 6.4: Disclosure from employer 63

Rule 6.25: Disclosure of employment information in proceedings for financial orders. 63

Part 6.5: Subpoenas and notices to produce. 63

Division 6.5.1: Subpoenas: general 63

Rule 6.26: Issue of subpoena. 63

Rule 6.27: Limits on requests for subpoenas. 63

Rule 6.28: Documents and things in possession of another court 63

Rule 6.29: Time limits. 64

Rule 6.30: Service. 64

Rule 6.31: Conduct money and witness fees. 64

Rule 6.32: Undertaking not to require compliance with subpoena. 64

Rule 6.33: Setting aside subpoena. 64

Rule 6.34: Order for cost of complying with subpoena. 64

Rule 6.35: Cost of complying with subpoena if not a party. 65

Division 6.5.2: Subpoenas: production of documents and access by parties. 65

Rule 6.36: Use of documents produced in compliance with subpoena for production. 65

Rule 6.37: Right to inspection of document 65

Rule 6.38: Objection to production or inspection or copying of document 65

Rule 6.39: Subpoena for production of documents or things. 65

Rule 6.40: Return of documents produced. 65

Division 6.5.3: Non-compliance with subpoena. 66

Rule 6.41: Failure to comply with subpoena. 66

Division 6.5.4: Notices to produce. 66

Rule 6.42: Notice to produce. 66

CHAPTER 7 – Experts and Assessors. 66

Part 7.1: Experts. 66

Division 7.1.1: Introduction. 66

Rule 7.01: Application of Part 7.1. 66

Rule 7.02: Purpose of Part 7.1. 67

Division 7.1.2: Single expert witness. 67

Rule 7.03: Appointment of single expert witness by parties jointly. 67

Rule 7.04: Order for single expert witness. 67

Rule 7.05: Orders the court may make. 67

Rule 7.06: Single expert witness’s fees and expenses. 67

Rule 7.07: Single expert witness’s report 67

Rule 7.08: Appointing another expert witness. 67

Rule 7.09: Cross-examination of single expert witness. 68

Division 7.1.3: Permission for expert’s evidence. 68

Rule 7.10: Permission for expert’s reports and evidence. 68

Rule 7.11: Application for permission for expert witness. 68

Division 7.1.4: Instructions and disclosure of expert’s report 68

Rule 7.12: Application of Division 7.1.4. 68

Rule 7.13: Instructions to expert witness. 68

Rule 7.14: Mandatory disclosure of expert’s report 68

Rule 7.15: Provision of information about fees. 69

Rule 7.16: Application for provision of information. 69

Rule 7.17: Failure to disclose report 69

Division 7.1.5: Expert witness’s duties and rights. 69

Rule 7.18: Expert witness’s duty to the court 69

Rule 7.19: Expert witness’s right to seek orders. 69

Rule 7.20: Expert witness’s evidence in chief. 69

Rule 7.21: Form of expert’s report 69

Rule 7.22: Contents of expert’s report 70

Rule 7.23: Consequences of non-compliance. 70

Division 7.1.6: Clarification of single expert witness reports. 70

Rule 7.24: Purpose of Division 7.1.6. 70

Rule 7.25: Conference. 70

Rule 7.26: Questions to single expert witness. 70

Rule 7.27: Single expert witness’s answers. 70

Rule 7.28: Single expert witness’s costs. 71

Rule 7.29: Application for directions. 71

Division 7.17: Evidence from 2 or more expert witnesses. 71

Rule 7.30: Application of Division 7.1.7. 71

Rule 7.31: Conference of expert witnesses. 71

Rule 7.32: Conduct of trial with expert witnesses. 71

Part 7.2: Assessors. 71

Rule 7.33: Application of Part 7.2. 71

Rule 7.34: Appointing an assessor 71

Rule 7.35: Assessor’s report 72

Rule 7.36: Remuneration of assessor 72

CHAPTER 8 – Admissions and evidence. 72

Part 8.1: Admissions. 72

Rule 8.01: Request to admit 72

Rule 8.02: Notice disputing fact or document 72

Rule 8.03: Withdrawing admission. 72

Part 8.2: Evidence. 72

Division 8.2.1: General rules about evidence. 72

Rule 8.04: How evidence may be given. 72

Rule 8.05: Court may call evidence. 72

Rule 8.06: Order for examination of witness. 73

Rule 8.07: Letters of request 73

Rule 8.08: Transcript receivable in evidence. 73

Division 8.2.2: Evidence in proceedings involving children. 73

Rule 8.09: Parenting questionnaire. 73

Rule 8.10: Restriction on child’s evidence. 73

Rule 8.11: Reports from family consultant 73

Rule 8.12: Report after family counselling or family dispute resolution. 73

Part 8.3: Affidavits. 74

Rule 8.13: No general right to file affidavits. 74

Rule 8.14: Reliance on affidavits. 74

Rule 8.15: Requirements for affidavits. 74

Rule 8.16: Making an affidavit 74

Rule 8.17: Affidavit of illiterate or vision impaired person etc. 74

Rule 8.18: Objectionable material may be struck out 74

Rule 8.19: Use of affidavit without cross-examination of maker 74

Rule 8.20: Notice to attend for cross-examination. 75

Rule 8.21: Deponent’s attendance and expenses. 75

CHAPTER 9 – Transferring Proceedings. 75

Part 9.1: Change of venue. 75

Rule 9.01: Change of venue. 75

Part 9.2: Transfer from Federal Circuit and Family Court (Division 1) to Federal Circuit and Family Court (Division 2) 75

Rule 9.02: Transfer to Federal Circuit and Family Court (Division 2) 75

Rule 9.03: Proceeding transferred to Federal Circuit and Family Court (Division 2) – transfer of documents  76

Part 9.3: Other transfers between courts exercising family law jurisdiction. 76

Rule 9.04: Application of Part 9.3. 76

Rule 9.05: Transfer of proceeding between courts exercising family law jurisdiction. 76

Rule 9.06: Proceeding transferred between courts exercising family law jurisdiction – transfer of file  76

Part 9.4: Removal of proceedings from court of summary jurisdiction. 76

Rule 9.07: Removal of proceedings from court of summary jurisdiction. 76

Rule 9.08: Proceeding removed from court of summary jurisdiction – transfer of file. 77

Part 9.5: Transfers to or from a State court – cross-vesting. 77

Rule 9.09: Application of Part 9.5. 77

Rule 9.10: Cross-vesting matters. 77

Rule 9.11: Transfer of proceeding. 77

CHAPTER 10 – Finalising a Proceeding. 77

Part 10.1: Discontinuing a proceeding. 77

Rule 10.01: Application of Part 10.1. 77

Rule 10.02: Discontinuance. 77

Rule 10.03: Costs. 77

Part 10.2: Consent orders. 78

Rule 10.04: Application for order by consent 78

Rule 10.05: Consent parenting orders and allegations of child abuse, family violence or other risks of harm to children. 78

Rule 10.06: Notice to superannuation trustee. 78

Rule 10.07: Dealing with an application for a consent order 79

Rule 10.08: Lapsing of respondent’s consent 79

Part 10.3: Summary orders and separate decisions. 79

Rule 10.09: Application for summary orders. 79

Rule 10.10: Application for separate decision. 79

Rule 10.11: Orders that may be made under this Part 79

Part 10.4: Judgment 79

Rule 10.12: Court may make any judgment or order 79

Rule 10.13: Varying or setting aside orders. 80

Rule 10.14: Varying or setting aside reasons for judgment 80

Rule 10.15: Order for payment of money. 80

Rule 10.16: Fines. 80

Rule 10.17: Rate of interest 80

Rule 10.18: Undertakings. 80

Rule 10.19: When an order is made. 80

Rule 10.20: When must an order be entered. 80

Rule 10.21: Entry of orders. 81

Part 10.5: Summary disposal 81

Rule 10.22: Dismissal for want of prosecution. 81

Rule 10.23: Certificate of vexatious proceedings order 81

Rule 10.24: Application for leave to institute proceedings. 81

Part 10.6: Default 81

Rule 10.25: Application of Part 10.6. 81

Rule 10.26: When a party is in default 81

Rule 10.27: Orders on default 82

CHAPTER 11 – Enforcement of court orders and judgments. 82

Part 11.1: Enforcement of financial orders and obligations. 82

Division 11.1.1: General 82

Rule 11.01: Enforceable obligations. 82

Rule 11.02: When an agreement may be enforced. 82

Rule 11.03: When a child support liability may be enforced. 82

Rule 11.04: Who may enforce an obligation. 82

Rule 11.05: Enforcing an obligation to pay money. 83

Rule 11.06: Affidavit to be filed for enforcement order 83

Rule 11.07: General enforcement powers of court 83

Rule 11.08: Enforcement order 83

Rule 11.09: Discharging, suspending or varying enforcement order 83

Division 11.1.2: Information for aiding enforcement 83

Rule 11.10: Processes for obtaining financial information. 83

Rule 11.11: Enforcement hearing. 83

Rule 11.12: Obligations of payer 83

Rule 11.13: Subpoena of witness. 84

Rule 11.14: Failure concerning Financial Statement or enforcement hearing. 84

Division 11.1.3: Enforcement warrants. 84

Rule 11.15: Request for Enforcement Warrant 84

Rule 11.16: Payee’s responsibilities if Enforcement Warrant is issued. 84

Rule 11.17: Period during which Enforcement Warrant is in force. 84

Rule 11.18: Enforcement officer’s responsibilities. 84

Rule 11.19: Directions for enforcement 84

Rule 11.20: Effect of Enforcement Warrant 85

Rule 11.21: Notice of sale. 85

Rule 11.22: Sale of property at reasonable price. 85

Rule 11.23: Conditions of sale of property. 85

Rule 11.24: Result of sale of property under Enforcement Warrant 85

Rule 11.25: Payee’s responsibilities. 85

Rule 11.26: Orders for real property. 85

Rule 11.27: Notice of claim by person affected by an Enforcement Warrant 85

Rule 11.28: Payee to admit or dispute claim.. 86

Rule 11.29: Admitting claim.. 86

Rule 11.30: Denial or no response to claim.. 86

Rule 11.31: Hearing of application. 86

Division 11.1.4: Third Party Debt Notice. 86

Rule 11.32: Application of Division 11.1.4. 86

Rule 11.33: Money deposited in a financial institution. 86

Rule 11.34: Request for Third Party Debt Notice. 86

Rule 11.35: Service of Third Party Debt Notice. 86

Rule 11.36: Effect of Third Party Debt Notice – general 86

Rule 11.37: Employer’s obligations. 87

Rule 11.38: Duration of Third Party Debt Notice. 87

Rule 11.39: Response to Third Party Debt Notice. 87

Rule 11.40: Discharge of Third Party Debt Notice. 87

Rule 11.41: Claim by affected person. 87

Rule 11.42: Cessation of employment 87

Rule 11.43: Compliance with Third Party Debt Notice. 87

Division 11.1.5: Sequestration of property. 88

Rule 11.44: Application for sequestration of property. 88

Rule 11.45: Order for sequestration. 88

Rule 11.46: Order relating to sequestration. 88

Rule 11.47: Procedural orders for sequestration. 88

Division 11.1.6: Receivership. 88

Rule 11.48: Application for appointment of receiver 88

Rule 11.49: Appointment and powers of receiver 88

Rule 11.50: Security. 88

Rule 11.51: Accounts. 88

Rule 11.52: Objection to accounts. 89

Rule 11.53: Removal of receiver 89

Rule 11.54: Compliance with orders and Rules. 89

Division 11.1.7: Enforcement of obligations other than an obligation to pay money. 89

Rule 11.55: Application for other enforcement orders. 89

Rule 11.56: Warrant for possession of real property. 89

Rule 11.57: Warrant for delivery. 89

Rule 11.58: Warrant for seizure and detention of property. 89

Division 11.1.8: Other provisions about enforcement 89

Rule 11.59: Service of order 89

Rule 11.60: Certificate for payments under maintenance order 90

Rule 11.61: Enforcement by or against a non-party. 90

Rule 11.62: Powers of enforcement officer 90

Part 11.2: Enforcement of parenting orders, contravention of orders and contempt 90

Division 11.2.1: Applications for enforcement of orders and on contravention of orders. 90

Rule 11.63: Application of Division 11.2.1. 90

Rule 11.64: How to apply for an order 90

Rule 11.65: Application made or continued by Marshal 90

Rule 11.66: Fixing of hearing date. 90

Rule 11.67: Response to an application. 91

Rule 11.68: Failure of respondent to attend. 91

Rule 11.69: Procedure at hearing. 91

Division 11.2.2: Contempt 91

Rule 11.70: Contempt in the face or hearing of the court 91

Rule 11.71: Contempt applications. 91

Division 11.2.3: Parenting orders: compliance. 91

Rule 11.72: Duties of program provider 91

Rule 11.73: Relisting for hearing. 92

Division 11.2.4: Location and recovery orders. 92

Rule 11.74: Application of Division 11.2.4. 92

Rule 11.75: Application for order under Division 11.2.4. 92

Rule 11.76: Fixing of hearing date. 92

Rule 11.77: Service of recovery order 92

Rule 11.78: Application for directions for execution of recovery order 92

Division 11.2.5: Warrants for arrest 92

Rule 11.79: Application for warrant 92

Rule 11.80: Execution of warrant 93

Rule 11.81: Duration of warrant 93

Rule 11.82: Procedure after arrest 93

Rule 11.83: Application for release or setting aside warrant 93

CHAPTER 12 – Costs. 93

Part 12.1: Introduction. 93

Rule 12.01: Application of Chapter 12. 93

Part 12.2: Security for costs. 93

Rule 12.02: Application for security for costs. 93

Rule 12.03: Order for security for costs. 94

Rule 12.04: Finalising security. 94

Part 12.3: Costs disclosure obligations. 94

Rule 12.05: Duty to inform about costs. 94

Rule 12.06: Costs notices. 94

Rule 12.07: Costs notices and case management 95

Part 12.4: Management of legal costs. 95

Division 12.4.1: Costs principles. 95

Rule 12.08: Legal costs to be fair, reasonable and proportionate. 95

Division 12.4.2: Maximum costs orders. 95

Rule 12.09: Application of Division 12.4.2. 95

Rule 12.10: Maximum costs orders – general 95

Rule 12.11: Application for a maximum costs order 96

Rule 12.12: Application to vary a maximum costs order 96

Part 12.5: Orders for costs. 96

Rule 12.13: Order for costs. 96

Rule 12.14: Costs order for proceedings in other courts. 96

Rule 12.15: Costs order against lawyer 96

Rule 12.16: Notice of costs order 96

Part 12.6: Calculation of costs. 96

Rule 12.17: Method of calculation of costs. 96

Rule 12.18: Maximum amount of party and party costs recoverable. 97

Rule 12.19: Interest on outstanding costs. 97

Part 12.7: Specific costs matters. 97

Rule 12.20: Costs in court of summary jurisdiction. 97

Rule 12.21: Charge for each page. 97

Rule 12.22: Proportion of costs. 97

Rule 12.23: Costs for reading. 97

Rule 12.24: Postage within Australia. 97

Rule 12.25: Waiting and travelling time. 97

Rule 12.26: Agent’s fees. 98

Rule 12.27: Costs of proceedings not started together 98

Rule 12.28: Certificate as to counsel 98

Rule 12.29: Lawyer as counsel—party and party costs. 98

Rule 12.30: Lawyer as counsel—assessment of fees. 98

Rule 12.31: Expenses for attendance by witness. 98

Rule 12.32: Expenses for preparation of report by expert 98

Part 12.8: Claiming and disputing costs. 98

Division 12.8.1: Itemised costs account 98

Rule 12.33: Request for itemised costs account 98

Rule 12.34: Service of lawyer’s itemised costs account 99

Rule 12.35: Lawyer’s itemised costs account 99

Rule 12.36: Disputing itemised costs account 99

Rule 12.37: Assessment of disputed costs. 99

Rule 12.38: Amendment of itemised costs account and Notice Disputing Itemised Costs Account 99

Division 12.8.2: Assessment process. 99

Rule 12.39: Fixing first court date. 99

Rule 12.40: Notification of hearing. 99

Rule 12.41: Settlement conference. 99

Rule 12.42: Preliminary assessment 99

Rule 12.43: Objection to preliminary assessment amount 100

Rule 12.44: No objection to preliminary assessment 100

Rule 12.45: Assessment hearing. 100

Rule 12.46: Powers of Judicial Registrars. 100

Rule 12.47: Assessment principles. 100

Rule 12.48: Allowance for matters not specified. 100

Rule 12.49: Neglect or delay before Judicial Registrar 100

Rule 12.50: Costs assessment order—costs account not disputed. 101

Rule 12.51: Setting aside a costs assessment order 101

Part 12.9: Review of assessment 101

Rule 12.52: Application for review.. 101

Rule 12.53: Time for filing an application for review.. 101

Rule 12.54: Hearing of application. 101

CHAPTER 13 – Appeals. 101

Part 13.1: Introduction. 101

Rule 13.01: Application of Chapter 13. 101

Part 13.2: Starting an appeal 101

Rule 13.02: Starting an appeal 101

Rule 13.03: Time for appeal 102

Rule 13.04: Parties to an appeal 102

Rule 13.05: Service. 102

Rule 13.06: Notice about appeal to other courts. 102

Rule 13.07: Cross-appeal 102

Rule 13.08: Notice of Contention. 102

Rule 13.09: Submitting notice. 102

Rule 13.10: Amendment of Notice of Appeal 103

Rule 13.12: Stay. 103

Rule 13.13: Procedural orders in relation to an application for leave to appeal 103

Rule 13.14: Filing draft index to appeal book. 103

Part 13.3: Appeals to Full Court 103

Rule 13.15: Application of Part 13.3. 103

Rule 13.16: Procedural hearing. 103

Rule 13.17: Attendance at first procedural hearing. 103

Rule 13.18: Orders to be made at procedural hearing. 104

Rule 13.19: Preparation of appeal book and obtaining transcript 104

Rule 13.20: Contents of appeal book. 104

Rule 13.21: Form of appeal book. 104

Rule 13.22: Failure to file appeal book or transcript by due date. 104

Rule 13.23: Summary of argument and list of authorities. 104

Part 13.4: Appeal from Federal Circuit and Family Court (Division 2) or a Family Law Magistrate of Western Australia heard by single Judge. 105

Rule 13.24: Application of Part 13.4. 105

Rule 13.25: Procedural hearing. 105

Rule 13.26: Attendance at procedural hearing. 105

Rule 13.27: Procedural orders for conduct of appeal 105

Rule 13.28: Documents for appeal hearing if appeal book not required. 105

Part 13.5: Appeal from court of summary jurisdiction other than a Family Law Magistrate of Western Australia  105

Rule 13.29: Application of Part 13.5. 105

Rule 13.30: Fixing of hearing date. 105

Part 13.6: Powers of appeal courts and conduct of appeal 106

Rule 13.31: Non-attendance by party. 106

Rule 13.32: Attendance by electronic communication. 106

Rule 13.33: Attendance by party in prison. 106

Rule 13.34: Subpoenas. 106

Part 13.7: Applications in relation to appeals. 106

Division 13.7.1: How to make an application. 106

Rule 13.35: Application of Part 13.7. 106

Rule 13.36: Application in relation to appeal 106

Rule 13.37: Hearing date for application. 106

Rule 13.38: Decision in the absence of parties without an oral hearing. 107

Division 13.7.2: Specific applications relating to appeals. 107

Rule 13.39: Further evidence on appeal 107

Rule 13.40: Review of Appeal Judicial Registrar’s order 107

Part 13.8: Concluding an appeal, an application for leave to appeal or any other application in relation to an appeal 107

Rule 13.41: Consent orders on appeal 107

Rule 13.42: Discontinuance of appeal or application. 107

Rule 13.43: Abandoning an appeal 107

Rule 13.44: Application for reinstatement of appeal 107

Rule 13.45: Dismissal of appeal and applications for non-compliance or delay. 107

Part 13.9: Case stated. 108

Rule 13.46: Application of Part 13.9. 108

Rule 13.47: Case stated. 108

Rule 13.48: Objection to draft case stated. 108

Rule 13.49: Settlement and signing. 108

Rule 13.50: Filing of case stated. 108

Rule 13.51: Fixing of hearing date. 108

Rule 13.52: Summary of argument and list of authorities. 108

Part 13.10: Costs orders. 109

Rule 13.53: Filing of costs schedule in certain appeals. 109

Rule 13.54: Order for costs. 109

CHAPTER 14 – Registrars and delegated powers. 109

Part 14.1: Introduction. 109

Rule 14.01: Definitions. 109

Part 14.2: Delegation of Powers to Senior Judicial Registrars and Judicial Registrars. 109

Rule 14.02: Application of Part 14.2. 109

Rule 14.03: Delegation of powers to Senior Judicial Registrars and Judicial Registrars. 109

Part 14.3: Review of exercise of power by Senior Judicial Registrar or Judicial Registrar 110

Rule 14.04: Application of Part 14.3. 110

Rule 14.05: Application for review of order or decision. 110

Rule 14.06: Stay. 110

Rule 14.07: Procedure for review.. 110

CHAPTER 15 – General 110

Part 15.1: Seal 110

Rule 15.01: Use of seal of court 110

Rule 15.02: Stamp of court 110

Rule 15.03: Methods of attaching the seal or stamp. 111

Part 15.2: Time. 111

Rule 15.04: Meaning of month. 111

Rule 15.05: Calculating time. 111

Rule 15.06: Shortening or extension of time. 111

Rule 15.07: Time for compliance with orders. 111

Part 15.3: Registration of documents. 111

Rule 15.08: Registration of agreements. 111

Rule 15.09: Registration of State child orders under section 70C or 70D of the Family Law Act 111

Rule 15.10: Registration of de facto maintenance orders under section 90SI of the Family Law Act 112

Rule 15.11: Registration of debt due to the Commonwealth under child support legislation. 112

Part 15.4: Custody of documents. 112

Rule 15.12: Removal of document from registry. 112

Rule 15.13: Searching court record and copying documents. 112

Rule 15.14: Exhibits. 112

Part 15.5: Attendance. 112

Rule 15.15: Party’s attendance. 112

Rule 15.16: Attendance by electronic communication. 113

Rule 15.17: Foreign evidence by electronic communication. 113

Rule 15.18: Attendance by party or witness in prison. 113

Rule 15.19: Failure to attend a court event 113

Part 15.6: Additional matters. 113

Rule 15.20: Notes, examples etc. 113

Rule 15.21: Forms. 114

Rule 15.22: Sittings. 114

Rule 15.23: Prohibition on recording. 114

Rule 15.24: Publishing lists of proceedings. 114

Rule 15.25: Venue for proceedings. 114

SCHEDULE 1 – Pre-action procedures. 114

SCHEDULE 2 – Conduct money and witness fees. 114

SCHEDULE 3 – Scale of costs in family law and child support matters. 114

SCHEDULE 4 – Delegated powers. 115

ANNEXURE A – Cross-reference table between the FLR 2004 and the 2021 Rules. 116

ANNEXURE B – Cross-reference table between the FCCR 2001 and the 2021 Rules. 129

 

INTRODUCTION

1.      How the chapters relate to each other

Each chapter deals with a particular subject or stage of the court process. All rules dealing with a given topic have been placed in the same chapter so far as possible, however many of the chapters are interrelated and there are some general chapters which apply to all applications and must be read with all other chapters, for example Chapter 1 Purpose and Case Management and Chapter 15 General.

If a particular part or division does not apply to a particular application or procedure, that is stated in the Rules.

2.      General philosophy behind the 2021 Rules

Many of the rules comprising the 2021 Rules derive from either the FLR 2004 or the FCCR 2001, or both. The 2021 Rules do not represent a complete rewriting of the existing Rules of Court but involve the rearrangement and streamlining of those Rules, the harmonisation of differences between those Rules, and modifications directed at modernising particular processes and achieving compatibility with the FCFCOA Act.

The general objectives of the 2021 Rules are:

·         to provide harmonised Rules of Court suitable for use in family law matters following the commencement of the FCFCOA Act;

·         to update and modernise the structure, language, forms and processes of the Rules applicable in family law matters;

·         to ensure that issues of child abuse and/or family violence come to the attention of the court at an early stage of a family law proceeding to promote the safety of children and of all parties to proceedings and inform the management of proceedings;

·         to facilitate access to justice by implementing procedures that are in the best interests of children and fair for all parties to family law proceedings;

·         to promote the fair and efficient use of court resources;

·         to facilitate flexibility in the case management approaches applicable to different types of family law applications;

·         to increase the accessibility and utility of the Rules for the courts, legal practitioners and self-represented parties;

·         to address issues of non-compliance with rules and procedural orders;

·         to adopt modern drafting practices;

·         to facilitate the filing and management of court documents in an electronic environment; and

·         to aim for uniformity of rules and forms between all courts exercising family law jurisdiction.

Some of the main concepts underlying the 2021 Rules include:

·         parties should be encouraged to resolve disputes before they start a proceeding;

·         parties should be fully informed about costs, the processes available, the consequences of non-compliance, and the likely timetable of events;

·         court events should be conducted and disposed of in a manner, at a cost, and within a time scale which is appropriate, taking into account the issues involved and the means of the parties;

·         wherever possible parties must be encouraged to identify the issues which are in dispute and those which are agreed; and

·         only such discovery should take place, and only such evidence should be before the court, as is necessary for the just and appropriate disposal of the proceedings and the evidence should be in a form which is most appropriate in all circumstances.

3.      Consultation

The Legislation Act 2003 (Cth) provides for certain consultation obligations when Rules are made.

The Family Court and Federal Circuit Court undertook extensive internal and external consultation on the 2021 Rules. Internally, consultation took place with Judges of both Courts, Registrars, and other staff. The Courts also consulted on the 2021 Rules with approximately 55 external stakeholders including the Family Law Section of the Law Council of Australia, the Commonwealth Attorney-General’s Department, State and Territory Law Societies and Bar Associations, Legal Aid commissions and child welfare agencies, women’s and men’s legal groups, other Government departments and the Family Court of Western Australia, amongst other stakeholders. The consultation took the form of an opportunity to make submissions on an exposure draft of the 2021 Rules.

Consultation with the same stakeholders also occurred in relation to exposure drafts of various practice directions referred to in, and intended to operate alongside, the 2021 Rules.

No further consultation was required. The 2021 Rules substantially reflect the exposure draft on which consultation was conducted and only minor amendments were made based on the submissions received. 

4.      Defined terms in this document

The following abbreviations and defined terms are used in this Explanatory Statement:

2021 Rules                                         Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Family Law Act                                  Family Law Act 1975 (Cth)

Family Law Regulations                     Family Law Regulations 1984 (Cth)

FCCR 2001                                         Federal Circuit Court Rules 2001 (Cth)

FCFCOA Act                                      Federal Circuit and Family Court Act 2021 (Cth)

FCFCOA Bankruptcy Rules                Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth)

FCR 2011                                           Federal Court Rules 2011 (Cth)

FCR Corporations Rules                     Federal Court (Corporations) Rules 2000 (Cth)

FLR 2004                                           Family Law Rules 2004 (Cth)

 

5.      Annexures – cross-reference tables

As set out above, these Rules are largely a harmonisation of the FLR 2004 and the FCCR 2001. To assist in understanding where rules in the FLR 2004 and FCCR 2001 have been included in these Rules, or otherwise if they have been omitted, cross-reference tables between these Rules and each of the FLR 2004 and the FCCR 2001 have been prepared.

Annexure A to this Explanatory Statement is the cross-reference table between the FLR 2004 and these Rules.

Annexure B to this Explanatory Statement is the cross-reference table between the FCCR 2001 and these Rules.


 

CHAPTER 1 – Purpose and Case Management

Part 1.1: Preliminary

Rule 1.01: Name

The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (‘2021 Rules’) replace the FLR 2004 as from the date of commencement.

Rule 1.02: Commencement

The 2021 Rules commence on 1 September 2021. From that date, all new proceedings commenced in the FCFCOA, and any existing proceeding in the FCFCOA, will be conducted in accordance with the 2021 Rules. Judicial officers have the discretion to order otherwise, for example if this would create an unjust or unfair result in a given proceeding.

Rule 1.03: Authority

The 2021 Rules are made as rules of the FCFCOA (Division 1) under Chapter 3 of the FCFCOA Act.

Rule 1.04: Overarching purpose

Subrule 1 identifies the overarching purpose of the 2021 Rules as the purpose set out in section 67 of the FCFCOA Act. A note refers to the obligation imposed by subsection 67(3) of the FCFCOA Act to interpret and apply the 2021 Rules, and to exercise or carry out any power conferred or duty imposed by them, in the way that best promotes the overarching purpose. A further note identifies sections 190 and 191 of the FCFCOA Act as the equivalent provisions relevant to the application of the 2021 Rules in the FCFCOA (Division 2).

Subrule 2 provides that the parties to a family law proceeding have a duty to conduct the proceeding act in a way that is consistent with the overarching purpose of the Rules set out in rule 1.03. Subrule 3 provides that a party’s lawyer must take account of the duty imposed on the party and assist the party to comply with the duty. These obligations replicate those imposed by subsections 68(1)–(2) of the FCFCOA Act, and are included in the Rules for ease of reference. Subsections 191(1)–(2) are the equivalent provisions relevant to FCFCOA (Division 2).

Rule 1.05: Definitions

This rule defines various terms for the purposes of the 2021 Rules.

Part 1.2: Case management

Division 1.2.1: General case management procedures

Rule 1.06: Court’s general powers of case management

This rule sets out in one place a comprehensive list of powers that the court may exercise at any stage of a proceeding to manage it in a way that achieves the overarching purpose of the Rules. The list does not purport to be exhaustive. This rule is based on FLR 2004 rule 11.01.

Rule 1.07: Case Management Practice Direction

This rule provides for the Chief Justice of the FCFCOA (Division 1) or the Chief Judge of the FCFCOA (Division 2) to issue a Case Management Practice Direction setting out how the case management system works, the arrangements that regulate the progression of a proceeding and what court events occur as a proceeding progresses. The Case Management Practice Direction is to be published on the court’s website and is subject to the Rules.

Rule 1.08: Other practice directions

This rule provides for the Chief Justice of the FCFCOA (Division 1) or the Chief Judge of the FCFCOA (Division 2) to issue other practice directions setting out the procedural arrangements applicable to particular types of proceeding. Practice directions are to be published on the court’s website and are subject to the Rules.

Division 1.2.2: Case management procedures in particular proceedings

Overview

The Division contains some rules specific to particular types of proceedings. These rules supplement, modify or exclude other provisions of the Rules according to their terms.

Rule 1.09: Divorce proceedings

Paragraph (a) provides the procedure for a person to apply to set aside a divorce order, before it becomes final, under Family Law Act sections 57 (if the parties have become reconciled) or 58 (if there has been a miscarriage of justice). An application may be made by filing an Application for Review with a supporting affidavit.

Paragraph (b) puts in place a mechanism for a party to inform the Court if a party dies before a divorce order becomes final so that the Court can stop the issue of the divorce order (see Family Law Act section 55(4)).

This rule is based on FLR 2004 rules 3.12 and 3.13 and FCCR 2001 rules 25.16 and 25.18.

Rule 1.10: Surrogacy proceedings

This rule applies to applications for parenting orders in relation to a child who was born under a surrogacy arrangement, where no final parenting order in relation to the child has already been made under Part VII of the Family Law Act. The rule sets out particular evidence that must be filed in support of an application to which the rule applies. These requirements are based on FLR 2004 rules 4.32 to 4.36, although the application of the rule has been narrowed to proceedings where no final parenting order in relation to the child has already been made.

Rule 1.11: Medical procedure proceedings

This rule applies to applications for orders authorising certain medical procedures for children. It sets out who may make the application, who must be joined as a party, and the evidence which is required. The evidence will ordinarily be included in an affidavit filed with the application but may be given orally with the permission of the Court. The application and any document filed with it must be served on the prescribed child welfare authority (as well as the parties to the application and any independent children’s lawyer), unless the Court dispenses with this requirement.

The rule is based on FLR 2004 rules 4.08 to 4.10. The corresponding FLR 2004 rules apply only to applications for orders authorising procedures that are not for the purpose of treating a bodily malfunction or disease. The new rule will also apply to applications where there is a dispute about the Gillick competence of, or diagnosis or treatment of a child for gender dysphoria (see Re Imogen (No 6) [2020] FamCA 761).

Rule 1.12: Financial proceedings

This rule applies to applications for financial orders (other than those in child support or child maintenance proceedings).

Subrules (2) to (4) require applicants for orders under Part VIII or Part VIIIAB of the Family Law Act to serve written notices containing certain information on persons who are entitled to become party to a property settlement proceeding under the Family Law Act. This requirement is based on FLR 2004 rule 14.07, with the clarification that the obligation is to serve the persons within that category of whom the person applying for the order is aware.

Subrule (5) requires a person seeking a flagging order or splitting order in relation to a superannuation interest or who applies for an order setting aside an earlier order made in relation to a superannuation interest to serve court documents on the trustee of the eligible superannuation plan in which the superannuation interest is held. This requirement is based on FCCR 2001 rule 24.07. If the court makes a flagging order, splitting order, or any other order in relation to the superannuation interest, the party in favour of whom the order is made must serve a copy of the order on the trustee.

Subrule (6) requires that when a property proceeding is listed for trial, a party seeking an order to bind the trustee of an eligible superannuation plan must notify the trustee of the date of the trial and the terms of the order that will be sought to bind the trustee. This requirement is based on FLR 2004 rule 14.06. If an order binding the trustee of an eligible superannuation plan is made, the party in favour of whom the order is made must serve a copy of the order on the trustee.

Rule 1.13: Child support and child maintenance proceedings

This rule applies to child support or child maintenance proceedings as identified in subrule (1). It is based on FLR 2004 rule 4.16 and FCCR 2001 rule 25A.01.

Subrule (2) states that the Parts 6.2 (Disclosure procedures) and 6.3 (Specific questions) of the Rules do not apply to these proceedings. Subrule (2) is based on FLR 2004 paragraphs 13.19(1)(b)-(c) and 13.25(b)-(c).

Subrule (3) requires applications for a declaration under subsection 106A(2) or 107(1) of the Child Support (Assessment) Act 1989 to be served within 56 days of the service of a notice under section 33 or 34 of that Act. It is based on FCCR 2001 rule 25A.06.

Subrule (4) lists the persons to be served with an application or appeal to which the rule applies. It is based on FCCR 2001 subrule 25A.07(1).

Division 1.2.3: Proceedings to which the Trans-Tasman Proceedings Act 2010 applies

Rule 1.14: Application of Division 34.4 of the Federal Court Rules 2011

This rule applies Division 34.4 of the FCR 2011, as modified by rule 1.15 or an order, to proceedings in a Family Court or the family law jurisdiction of the FCFCOA (Division 2) as if the rules in that Division were provisions of the 2021 Rules.

This rule is based on FLR 2004 rule 26A.01.

Rule 1.15: Modification of the Federal Court Rules 2011

Division 34.4 of the FCR 2011 is modified in its application under rule 1.14 in the way set out in this rule, principally to substitute certain references to particular applications, forms and rules for their equivalent terms under the 2021 Rules.

This rule is based on FLR 2004 rule 26A.02.

Rule 1.16: Service of subpoena

This rule requires a subpoena to which Division 2 of Part 5 of the Trans-Tasman Proceedings Act 2010 applies to be accompanied by an information sheet in a form approved by the Chief Executive Officer.

This rule is based on FLR 2004 rule 26A.03.

Division 1.2.4: Applications under the Corporations Act 2001 and the Corporations (Aboriginal and Torres Strait Islander) Act 2006

Rule 1.17: Application of Division 1.2.4

The Corporations Act 2001 (Cth) and Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), as amended by the FCFCOA Consequential Amendments Act, confer jurisdiction on the FCFCOA (Division 1) with respect to civil matters arising under the Corporations legislation (see, eg, Corporations Act 2001 ss 1337C(1), 1337J, 1337L; Corporations (Aboriginal and Torres Strait Islander) Act 2006 ss 586-10(1), 586-40, 586-50).

This Division applies only to proceedings brought pursuant to one of those Acts which has been started in a Family Court or transferred to a Family Court. The note is a reminder that neither of those Acts confers jurisdiction on the FCFCOA (Division 2).

This rule is based on FLR 2004 rule 25.01.

Rule 1.18: Application of the Corporations Rules

This rule provides that the FCR Corporations Rules, as modified by rule 1.19 or an order, apply to an application in a Family Court under the Corporations legislation as if those rules were provisions of the 2021 Rules. This has the effect that the procedures and forms in the FCR Corporations Rules apply to proceedings started in or transferred to a Family Court under Corporations legislation.

This rule is based on FLR 2004 rule 25.02.

Rule 1.19: Modification of the Corporations Rules

The Corporations Rules are modified in their application under rule 1.18 in the way set out in this rule, the effect of which is that certain references to a Registrar are modified so as to be references to a Judicial Registrar, and the reference to the powers which may be exercised by a Registrar is modified so that the relevant FCFCOA Act provision is referred to instead of a provision of the Federal Court of Australia Act 1976 (Cth).

This rule is based on FLR 2004 rule 25.03.

Rule 1.20: Application under the Corporations Act 2001 or the Corporations (Aboriginal and Torres Strait Islander) Act 2006

This rule provides that an application under the Corporations legislation must not be dismissed only because it is made in the wrong form.

This rule is based on FLR 2004 rule 25.04.

Division 1.2.5: Proceedings to which the Bankruptcy Act 1966 applies

Rule 1.21: Application of Division 1.2.5

Sections 35 and 35A of the Bankruptcy Act 1966 (Cth), as amended by the FCFCOA Consequential Amendments Act, confer bankruptcy jurisdiction on the FCFCOA (Division 1) and section 35B confers bankruptcy jurisdiction on the Family Court of Western Australia.

This Division only applies to proceedings in which a Family Court has jurisdiction in bankruptcy under one of those provisions. The note is a reminder that the Division does not apply to bankruptcy proceedings in the FCFCOA (Division 2), to which the FCFCOA Bankruptcy Rules generally apply.

Where this Division applies to a proceeding, Division 1.2.4 (relating to Corporations jurisdiction) does not apply to the proceeding.

Rule 1.22: Application of the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021

This rule applies Parts 1, 2, 7, 8 and 12 and Divisions 6.2, 6.3 and 13.1 of the FCFCOA Bankruptcy Rules to proceedings in which a Family Court has jurisdiction in bankruptcy under section 35, 35A or 35B of the Bankruptcy Act 1966 as if those rules were provisions of the 2021 Rules.

Currently, FLR 2004 Chapter 26 contains rules which are substantially the same as parts of the Federal Circuit Court (Bankruptcy) Rules 2016, but with different form names. The 2021 Rules shift to an approach of adopting the relevant parts of the FCFCOA Bankruptcy Rules (with necessary modifications) to facilitate greater uniformity between the bankruptcy rules applied in the different courts.

Rule 1.23: Modification of Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021

The FCFCOA Bankruptcy Rules are modified in the way set out in this rule, the effect of which is that:

·         references to particular types of application are modified so that the terms used in the 2021 Rules apply;

·         particular rules which do not have an equivalent in FLR 2004 Chapter 26 are not adopted;

·         terminology used in the FCFCOA Bankruptcy Rules is modified so that the terminology used in the 2021 Rules applies; and

·         a reference to the FCCR 2001 rule about the entry of orders is replaced by a reference to the equivalent rule in the 2021 Rules.

Rule 13.01 of the FCFCOA Bankruptcy Rules provides that a person who is entitled to costs in a proceeding to which the Bankruptcy Act 1966 applies is, subject to some exceptions, entitled to costs in accordance with Part 40 of the FCR 2011. Subrule (2) modifies the scope of reference of certain terms in FCR 2011 Part 40 for the purposes of a proceeding in a Family Court.

This rule is based on FLR 2004 rule 26.31.

Rule 1.24: Forms in proceedings to which the Bankruptcy Act applies

This rule enables the Chief Justice of the FCFCOA (Division 1) to approve forms for the purpose of any provision of the FCFCOA Bankruptcy Rules which may apply to a proceeding in the FCFCOA (Division 1) by reason of this Division. As this Division also applies to proceedings in the bankruptcy jurisdiction of the Family Court of Western Australia under section 35B of the Bankruptcy Act 1966, the rule gives a corresponding power to the Chief Judge of that Court to avoid the need for separate provision.

In case there is confusion as to which form to use, this rule provides that an application to which the Bankruptcy Act 1966 applies must not be dismissed only because it is made in the wrong form.

Division 1.2.6: Arbitration

Rule 1.25: Application of Division 1.2.6

This Division only applies to an arbitration under the Family Law Act, which is defined in section 10L of the Family Law Act as either an arbitration carried out as a result of an order made under section 13E of the Family Law Act, or a relevant property or financial arbitration. The note is a reminder that Part 5 of the Family Law Regulations contain further requirements that apply to arbitrations.

Rule 1.26: Referral of question of law by an arbitrator

Section 13G of the Family Law Act will permit an arbitrator to refer a question of law arising in relation to an arbitration for determination by a court. From the commencement of the Federal Circuit and Family Court of Australia (Consequential Amendments) Act 2021 (Cth) (‘FCFCOA Consequential Amendments Act’), it will only be possible to make such a referral to the FCFCOA (Division 2) or a single judge of a Family Court of a State.

This rule requires the referral to be made by an application in accordance with the approved form and requires the arbitrator to give each party to the arbitration a copy of the application within 7 days of making the application. It is based on FLR 2004 rule 26B.30.

Rule 1.27: Referral of other matters to the court by the arbitrator

Regulations 67H, 67K and 67L of the Family Law Regulations permit an arbitrator to refer a matter to the court in certain circumstances.

This rule requires such a referral to occur by written notice to the Registry Manager and, in the case of a referral under regulation 67L, within 7 days of the termination of the arbitration. It is based on FLR 2004 rule 26B.31.

Rule 1.28: Informing the court about awards made in arbitration

This rule requires an arbitrator to inform the court of the matters referred to in paragraph 67P(4)(b) of the Family Law Regulations within 7 days after an award is made. It is based on FLR 2004 rule 26B.32.

Rule 1.29: Registration of awards made in arbitration

Subregulation 67Q(2) of the Family Law Regulations requires a party who applies under section 13H of the Family Law Act to register an award made in an arbitration to serve a copy of the application on each other party to the award.

This rule requires such service to occur within 14 days of the day on which the application is filed, and requires the party applying to register the award to file an Affidavit of Service within 7 days of the day on which a copy of the application is served. It is based on FLR 2004 rule 26B.33.

Rule 1.30: Response to applications in relation to arbitration

This rule applies if a respondent to an application in relation to an arbitration seeks to oppose the application or seeks different orders to those sought in the application. The respondent must file a response in the approved form together with an affidavit stating the facts relied upon in support of the response. The response and affidavit must be filed and served within 7 days of the day on which the application is served.

This rule is based on FLR 2004 rule 26B.34.

Part 1.3: Court’s powers in relation to the Rules

Rule 1.31: Court may make orders or dispense with these Rules

This rule permits the court, in the interests of justice, to dispense with compliance, or full compliance, with any of the Rules at any time. It also states that a direction or order of the court prevails in the event of any inconsistency with the Rules.

The rule is based on FCCR 2001 rule 1.06. FLR 2004 rules 1.10 and 1.12 cover similar concepts.

Rule 1.32: Applications for orders about procedures

This rule permits a person who wants to start a proceeding or take a step in a proceeding to apply to the court for an order about the procedure to be followed, where the procedure is not prescribed by the Family Law Act, the 2021 Rules, or by or under another Act, or if the person is in doubt about the procedure.

The rule is based on FCCR 2001 rule 1.07. FLR 2004 rule 1.09 contains a similar procedure.

Rule 1.33: Failure to comply with a legislative provision or order

Subrule (1) states that if a step is taken after the time specified for taking the step by the 2021 Rules, the Family Law Regulations or a procedural order, the step is of no effect. It has the effect of reversing the onus by requiring a party in default to apply for permission to take a procedural step after the time allowed.

Subrule (2) sets out a non-exhaustive list of the court’s powers of case management where a party has not complied with the 2021 Rules, the Family Law Regulations or a procedural order. The powers must be exercised in the way that best promotes the overarching purpose of the 2021 Rules. Consequences must be relevant and proportionate to the breach, appropriate to the seriousness of the breach, and responsive to the particular breach.

The rule is based on FLR 2004 rule 11.02.

Rule 1.34: Relief from orders

This rule enables a party to apply for relief from the effect of the consequences of non-compliance. It sets out a non-exhaustive list of considerations that may be relevant to the exercise of the court’s discretion in determining such an application.

This rule is based on FLR 2004 rule 11.03.

CHAPTER 2 – Starting a Proceeding

Part 2.1: Required documents

Rule 2.01: Which application form must be filed

This rule requires a proceeding to be started by filing an application for final orders in the relevant approved form. An application for an interlocutory order may be included in an application for final orders, but if it is sought after the start of the proceeding it must be made by filing the Application in a Proceeding form. Subrules (1)-(4) are based on FCCR 2001 rule 4.01.

Subrule (6) and Table 2.1 identify the relevant approved forms for particular types of application.

Part 2.2: Notification in certain proceedings

Division 2.2.1: Child abuse, family violence or other risks of harm to children

Rule 2.02: Definitions for Division 2.2.1

This rule defines ‘interested person’ for the purposes of this Division.

Where section 67Z of the Family Law Act applies to a proceeding, the definition of ‘interested person’ given by subsection (4) of that section applies. Where section 67ZBA of the Family Law Act applies to a proceeding, the definition of ‘interested person’ given by subsection (4) of that section applies. This continues the existing definition used in FCCR 2001 rule 22A.01 and FLR 2004 rule 2.04.

Rule 2.03: Approved form for the purposes of sections 67Z and 67ZBA of the Family Law Act

From the commencement of the FCFCOA Consequential Amendments Act, subsections 67Z(2) and 67ZBA(2) of the Family Law Act will require an interested person who makes certain allegations in proceedings for an order under Part VII of that Act to file a notice in an approved form. Currently, the Notice is a prescribed form.

This rule provides that the Notice of Child Abuse, Family Violence and Risk is the approved form for the purposes of those provisions of the Family Law Act.

The rule is based on FCCR 2001 rule 22A.07, updated to reflect the change in the status of the form.

Rule 2.04: Requirement to file Notice of Child Abuse, Family Violence or Risk in parenting proceedings

This rule requires a Notice of Child Abuse, Family Violence or Risk to be filed with any application for a parenting order, any response to such an application, or any response which seeks a parenting order. The Notice must be filed regardless of whether any allegations of child abuse, family violence or risk of harm to a child are made.

Where the Notice includes one or more allegations of child abuse, family violence or risk of harm to a child, the person filing the Notice must also file an affidavit stating the evidence on which each allegation made in the Notice is based, except where the Notice is filed with an Application for Consent Orders.

The rule harmonises FCCR 2001 rule 22A.02 and FLR 2004 subrules 2.02(1) (items 2A, 2C and 9 of Table 2.2) and 2.04D(2)–(3).

Rule 2.05: Notice of Child Abuse, Family Violence or Risk filed by an interested person

This rule applies where an interested person (as defined in rule 2.02) files a Notice of Child Abuse, Family Violence or Risk for the purposes of subsection 67Z(2) or 67ZBA(2) of the Family Law Act, other than under rule 2.04. It requires the interested person to file an affidavit stating the evidence on which each allegation set out in the Notice is based.

The rule is based on FCCR 2001 rule 22A.03. It complements rule 2.04 and ensures that an affidavit supporting any allegations in a Notice of Child Abuse, Family Violence or Risk is filed, whether the Notice is filed pursuant to the obligation imposed by rule 2.04 or pursuant to the obligations imposed by sections 67Z or 67ZBA of the Family Law Act.

Rule 2.06: Amendment of Notice of Child Abuse, Family Violence or Risk

This rule applies where a person who has filed a Notice of Child Abuse, Family Violence or Risk in a proceeding becomes aware of new facts or circumstances that would require the person to file a notice under subsection 67Z(2) or subsection 67ZBA(2) of the Family Law Act. It requires the person to file a new Notice of Child Abuse, Family Violence or Risk setting out those new facts or circumstances, and an affidavit stating the evidence on which each allegation set out in the new Notice is based.

The rule is based on FCCR 2001 rule 22A.04 and FLR 2004 rule 2.04B. Two notes to the rule remind the person filing the Notice to serve it on the person to whom the allegations relate, and reiterate the obligation of the Registry Manager to notify a prescribed child welfare authority if the Notice alleges that a child has been abused or is at risk of being abused.

Rule 2.07: Proceedings transferred from another court

This rule applies where a proceeding in which a parenting order is transferred to the FCFCOA from another court. It requires each party to the proceeding to file a Notice of Child Abuse, Family Violence or Risk and, if the Notice contains allegations of child abuse, family violence or a risk of harm to a child, a supporting affidavit. The effect of the rule is to ensure the court receives the information it would have received under rule 2.04 if the proceeding had been commenced in the court.

The rule is based on FCCR 2001 rule 22A.05. New subrule (4) makes clear that the rule does not require a party to refile any document which has already been filed in the transferring court.

Rule 2.08: Content of Notice of Child Abuse, Family Violence or Risk

This rule requires a Notice of Child Abuse, Family Violence or Risk to set out brief particulars of the facts and circumstances on which any allegation in the Notice is based.

It is based on FCCR 2001 rule 22A.06.

Rule 2.09: When a notice in an approved form for the purposes of sections 67Z and 67ZBA of the Family Law Act is taken to have been filed

This rule provides that a person who files a Notice of Child Abuse, Family Violence or Risk is to be taken to have filed a notice for the purposes of subsections 67Z(2) or 67ZBA(2) in relation to any allegation of child abuse or family violence that is made in the Notice.

The rule is based on FCCR 2001 rule 22A.07, updated to reflect the change in the status of the form.

Rule 2.10: Requirement to file family violence orders in certain proceedings

Subrule (1) requires a party who is seeking a parenting order or other order under Part VII of the Family Law Act in relation to a child to file a copy of any family violence order affecting the child or a member of the child’s family.

New subrule (2) also requires a party to a financial proceeding to file a copy of any family violence order affecting the party.

Where a copy of a family violence order is not available, subrule (3) requires the filing of a written notice informing the court of certain details of the order and the giving of an undertaking to file the order within a specified time.

Subrules (1) and (3) to (5) harmonise FLR 2004 rule 2.05 and FCCR 2001 rule 22A.08. New subrule (6) makes clear that the rule does not require a party to file a copy of any document that has already been filed in the proceeding by another party.

Division 2.2.2: Notification of other matters

Rule 2.11: Notification of proceeds of crime order or forfeiture application

Subsections 79B(3), 90M(3) and 90VA(3) of the Family Law Act require parties to property settlement or spousal maintenance proceedings, or de facto property settlement or maintenance proceedings, to give the Registry Manager written notice of a proceeds of crime order or forfeiture application in certain circumstances. This rule requires such a notice to be filed as soon as possible after receiving notification from the proceeds of crime authority, attaching the documents which the Family Law Act requires to be given to the Registry Manager.

This rule is based on FLR 2004 rule 2.06.

Rule 2.12: Proceeds of crime

This rule requires a proceeds of crime authority applying under section 79C, 90N or 90VB of the Family Law act to stay a property settlement or spousal maintenance proceeding, or a de facto property settlement or maintenance proceeding, to file a sealed copy of the proceeds of crime or forfeiture application if not already filed. It also sets out the documents that must accompany an application under section 79D, 90P or 90VC of the Family Law act to list a stay of such a proceeding.

This rule is based on FLR 2004 rule 2.07.

Rule 2.13: Notice of constitutional matter

This rule requires a party who is or becomes aware that a proceeding involves a matter that arises under the Constitution or involves its interpretation, within the meaning of section 78B of the Judiciary Act 1903 (Cth), to give written notice of the matter to the Attorneys-General of the Commonwealth and each State and Territory, and to each other party to the proceeding. The obligation applies only if the matter is a genuine issue in the proceeding. The rule sets out the required content of the notice to be given to the Attorneys-General.

This rule is based on FLR 2004 rule 6.07. FCCR 2001 rule 10.06 imposes a similar obligation.

Part 2.3: Form of documents

Rule 2.14: Formal requirements for documents

This rule sets out the formal requirements for documents filed with the court. It harmonises FCCR 2001 rules 2.01 to 2.03 and FLR 2004 rule 24.01, and additionally specifies that electronic documents should be filed in PDF format.

Subrule (5) provides that the requirements in subrules (1) to (4) do not need to be strictly complied with if the nature of the document or the manner of filing means that strict compliance would be impracticable.

Rule 2.15: Corporation as a party

This rule requires that where a corporation is a party, the Corporation’s full name, registered office and Australian Company Number (ACN) must be included in a document filed with the court.

This rule is based on FLR 2004 rule 24.02. The existing requirement to include the Corporation’s Australian Business Number has been replaced with a requirement to include its ACN.

Rule 2.16: Change of name of party

This rule requires that if a party changes their name, they must give written notice of the change to the court and each other party. All documents subsequently filed in the proceeding must use the new name.

The rule is based on FLR 2004 rule 24.03.

Rule 2.17: Documents not in English

This rule requires that if a document to be filed with the court is not in English, the person filing the document must, additionally, file an English translation of the document and an affidavit by the person who made the translation setting out their qualifications to make the translation and verifying the translation.

This rule is based on FLR 2004 subrule 2.02(4).

Part 2.4: Responding to an application

Rule 2.18: When to respond to an application

This rule sets out the circumstances in which a respondent to an application must file a response. A response may include a request for another order, except any order listed in subrule (3). Requests for those orders can only be made by a separate application.

Subrule (2) requires any response to be filed and served within 28 days of service of the application to which it relates. Notes serve as reminders about the obligation under rule 2.04 to file a Notice of Child Abuse, Family Violence or Risk if filing a response in a parenting proceeding, the obligation to file family violence orders under rule 2.10, and the potential for costs orders to follow from a failure to comply with the rule.

This rule harmonises FCCR 2001 rule 4.03 and FLR 2004 rules 9.01 and 9.08.

Rule 2.19: Response objecting to jurisdiction

This rule requires a respondent who intends to object to the jurisdiction of the court to file a response. The respondent is not taken to have submitted to the jurisdiction of the court by seeking other orders in the response. The objection to jurisdiction must be determined before any other orders sought in the response.

This rule is based on FLR 2004 rule 9.03.

Rule 2.20: When to file an affidavit with a response

This rule provides that a respondent must not file an affidavit with a response to an application unless responding to interlocutory orders sought in the application, seeking interlocutory orders in the response, or required to file an affidavit by another provision of the 2021 Rules or a practice direction.

This rule is based on FLR 2004 rule 9.02. There will be no general requirement in family law proceedings to file an affidavit with any application or response (compare FCCR 2001 rule 4.05).

Rule 2.21: How to reply to a response

This rule sets out when an applicant, or a person other than an applicant (‘additional party’), must file a reply to a response. It is based on FLR 2004 rules 9.04 and 9.04A and harmonises these rules with FCCR 2001 subrule 4.07(1).

Subrule (3) requires any reply to be filed and served within 14 days of service of the response to which it relates. This requirement is based on FCCR 2001 subrule 4.07(2) rather than FLR 2004 subrule 9.08(2).

Rule 2.22: If the application or response is not contested

This rule sets out the circumstances in which a party may serve a submitting notice, and the required content of a submitting notice. Subrule (4) requires any submitting notice to be filed before the first court date, or before the next procedural hearing if the party was added to the proceeding after the first court date. A party may apply for leave withdraw a submitting notice by filing an application accompanied by an affidavit meeting the requirements of subrule (6).

The rule is based on FLR 2004 rule 8.07. Provisions relating to submitting notices file by a party served with a Notice of Appeal have been moved to Chapter 13 Appeals.

Part 2.5: Filing documents

Rule 2.23: How documents may be filed

This rule sets out how documents may be filed with the court. It harmonises FLR 2004 rule 24.05 and FCCR 2001 rule 2.05, and makes electronic filing the default position.

Where it is not reasonably practicable to file a document electronically, a document may be filed by delivering or posting it to the registry. Subrule (3) provides that a document is filed when the filing fee has been paid (unless an exemption or deferral applies) and the document is accepted for filing by the Registry Manager and marked with the court seal or stamp.

Subrule (4) maintains the position under FLR 2004 subrule 24.05(2) that a document sent for filing by electronic communication after 4:30pm in the Australian Capital Territory is taken to have been received by the filing registry on the next day the filing registry is open.

Subrule (5) provides that unless otherwise required by the Rules or an order, a document to be relied on in a court event must be filed at least one day beforehand.

If, notwithstanding the general requirement to file documents electronically and in advance, a Judge or Judicial Registrar accepts a document for filing, subrule (6) provides that the Judge or Judicial Registrar may require a party to give an undertaking to pay a filing fee before accepting the document.

Subrule (7) requires a person who pays money into court to file a Notice of Payment into Court stating the amount and purpose for which the money is being paid into court.

Rule 2.24: Rejection of documents

This rule sets out the circumstances in which the court may refuse to accept a document filed or received for filing.

The rule is based on FLR 2004 rule 24.10 and FCCR 2001 rule 2.06.

Part 2.6: Serving documents in Australia

Division 2.6.1: General

Rule 2.25: Address for service

This rule requires every party to give an address for service, by filing a document including an address for service or filing a notice of address for service.

This rule harmonises FLR 2004 rule 8.05 and FCCR 2001 rule 6.01 and reflects the standard use of email communication. In addition to a physical address and telephone number, an email address is now a required part of an address for service.

In a further change from the existing rules, a party may now withhold their physical address if its disclosure would compromise the party’s safety. However, in a parenting proceeding, if a party has withheld the address where the party or a child is living, the address must be provided to the Court by email, with the address not to be disclosed without an order of the court. This approach prioritises party safety while ensuring the Court continues to be aware of where parties and their children reside.

Rule 2.26: Change of address for service

This rule requires a party whose address for service changes during a proceeding to file a notice of address for service and serve it on each other party as soon as practicable and in any event within 7 days of the change.

It is based on FCCR 2001 rule 6.02 and FLR 2004 rule 8.06. Notice of a change of address for service must now be filed ‘as soon as practicable’ and at the latest within 7 days of the change.

A note identifies various example situations when a notice of address for service must be filed. A second note is a reminder that all documents will be served at a party’s existing address for service until a notice of address for service is filed and served, unless subrule 3.10(2) applies.

Rule 2.27: General requirements for service of documents

This rule requires a document to be served to be filed and sealed. It introduces the following rules which deal with the manner and time of service. It requires all documents (apart from an application and its related documents) to be served as soon as practicable after filing. It is based on FCCR 2001 rule 6.03.

Rule 2.28: Manner of service

This rule sets out the manner in which different types of documents must be served. It is based on FLR 2004 rules 2.03, 7.03 and 20.11. Generally, documents must be served by either personal or ordinary service, but some types of documents have specific service requirements. The service requirements for some documents differ from the equivalent rules in the FLR 2004 and FCCR 2001.

Rule 2.29: General time limit for service

This rule requires a document to be served as soon as possible after the date of filing and no more than 12 months after that date, unless another time is specified by another provision of the 2021 Rules. It harmonises FLR 2004 rule 7.04 and FCCR 2001 rule 6.17.

Rule 2.30: Time for service of subpoena

This rule requires a subpoena to be served within 3 months of issue. It is based on FCCR 2001 rule 6.18.

Rule 2.31: Time for service of applications

This rule requires an application and any document filed with it to be served no less than 3 days before the day fixed for the hearing of an interlocutory application or no less than 7 days before the day fixed for the hearing of any other application, unless the court otherwise directs. The note is a reminder that a person may apply for an extension of time to make an application under rule 15.06.

This rule is based on FCCR 2001 rule 6.19.

Rule 2.32: Proof of service

This rule sets out the ways in which service of an application may be proved. It harmonises FLR 2004 rules 7.13 and 7.15 and FCCR 2001 rule 6.05. Service may be proved by an affidavit of service, by the respondent filing a notice of address for service or a response, or by filing an acknowledgement of service signed by a lawyer if service was carried out by giving the document to the lawyer.

Rule 2.33: Court’s discretion in relation to service

This rule provides that nothing in Part 2.6 affects the power of the court to authorise service of a document in a way that is not provided for in the Part, or to find that a document has been served, or to find that a document has been served on a particular day.

This rule is based on FCCR 2001 rule 6.04.

Rule 2.34: Service with conditions or dispensing with service

This rule permits a party who is unable to serve a document to apply, without notice, for an order to serve the document in another way, or to dispense with service of the document. Subrule (2) sets out the factors to which the court may have regard when considering such an application.

This rule is based on FLR 2004 rule 7.18. FCCR 2001 rules 6.14 and 6.15 address the same topic.

Division 2.6.2: Personal service

Rule 2.35: Personal service—general

This rule sets out how personal service on an individual is carried out. It is based on FCCR 2001 rule 6.07 (service by hand) and FLR 2004 rule 7.06 (special service by hand).

Rule 2.36: Personal service through a lawyer

This rule is based on FLR 2004 rule 7.08. A document is taken to be served by personal service (previously special service) on a person if a lawyer representing the person agrees in writing to accept service of the document for the person, and the lawyer is served by personal service or in a way agreed to by the lawyer, for example, by post or email with an Acknowledgement of Service for the lawyer to sign and return.

Rule 2.37: Personal service on a person with a legal incapacity

This rule provides that a document that is required to be served personally on a person with a legal incapacity must be served on the person’s litigation guardian, on the person’s guardian appointed under a State or Territory law, or in the absence of either of those options, on an adult who has the care of the person.

This rule is based on FLR 2004 rule 7.09 and FCCR 2001 rule 11.15. The language ‘person with a disability’ in the FLR 2004 rule has been updated to ‘person with a legal incapacity’.

Rule 2.38: Personal service on a prisoner

This rule provides that personal service of a document on a prisoner is to occur by personal service on the person in charge of the prison or by post or electronic communication to the person in charge of the prison with an Acknowledgement of Service for signature and return.

It is based on FLR 2004 rule 7.10.

Rule 2.39: Personal service on a corporation

This rule provides that personal service of a document on a corporation must occur in accordance with section 109X of the Corporations Act 2001 (Cth). It is based on FLR 2004 rule 7.11 and FCCR 2001 subrule 6.08(2). The note sets out the content of section 109X for ease of reference.

Division 2.6.3: Ordinary service

Rule 2.40: Ordinary service

This rule sets out how a document which does not have to be served personally may be served. It harmonises FCCR 2001 rule 6.11 and FLR 2004 rule 7.12. Service by email has been given greater emphasis and references to facsimile transmission have been removed.

Rule 2.41: When service is effected

This rule sets out when a document served electronically or by post is taken to have been served. A document served electronically is taken to have been served on the next business day after it was sent. A document sent by post to an address in Australia is taken to have been served on the day by which it would be delivered in the ordinary course of the post (which may differ from time to time, or depending on the location of the sender and/or recipient). A document sent by airmail to an address outside Australia is taken to have been served on the 28th day after it was posted.

This rule harmonises FLR 2004 rule 7.17 and FCCR 2001 rule 6.12. The court retains the ability to order that a document is taken to have been served on a different date (see rule 2.32).

Division 2.6.4: Service of Application for Divorce

Rule 2.42: Service of application

This rule sets out how an Application for Divorce is to be served on a respondent. This can occur by personal service or by sending the application by pre-paid post to the respondent at their last known address. This rule is based on FCCR 2001 rule 25.02.

Rule 2.43: Additional requirements for service by post

This rule requires that if an Application for Divorce is served by post, it must be accompanied by an acknowledgment of service in the approved form and a stamped self-addressed envelope to facilitate the return of the acknowledgment of service. This rule is based on FCCR 2001 rule 25.03.

Rule 2.44: Acknowledgment of service

This rule provides that a person served with an Application for Divorce may acknowledge service by an acknowledgment of service in the approved form. This may be signed by the person or their lawyer. Once filed, an acknowledgment of service signed by a lawyer is taken to be proof of service of the document to which it refers on the date on which service is acknowledged. This rule is based on FCCR 2001 rule 25.04.

Rule 2.45: Affidavit of service

This rule requires any evidence of service of an Application for Divorce to be given by affidavit. This requirement does not apply to an acknowledgment of service. An affidavit of service may include evidence relating to the identity of the person served. This rule is based on FCCR 2001 rule 25.05.

Rule 2.46: Evidence of service

This rule sets out various ways in which service of an Application for Divorce may be proved. It is based on FCCR 2001 rule 25.06.

Rule 2.47: Evidence of signature and identity of person served

This rule provides that 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. It is based on FCCR 2001 rule 25.07.

Part 2.7: Serving documents overseas

Rule 2.48: Serving documents in New Zealand

This rule provides that service of documents in New Zealand may occur in accordance with the Trans-Tasman Proceedings Act 2010 and Division 1.2.3, that is, in accordance with that Act and Division 34.4 of the FCR 2011 as modified by Division 1.2.3 of the Rules.

Rule 2.49: Serving documents in all other countries

This rule sets out how a document may be served in a country other than Australia or New Zealand. It distinguishes between countries which are party to a convention in force for Australia about legal proceedings in civil and commercial matters, and non-convention countries. Service in a convention country must occur in accordance with the relevant part of the Family Law Regulations. Service in a non-convention country may occur in accordance with the law of that country or through the diplomatic channel if the country permits service of judicial documents in that way. The requirements for a request to serve a document through the diplomatic channel are set out.

This rule is based on FLR 2004 rules 7.01A, 7.19 and 7.20.

Part 2.8: Amending documents

Rule 2.50: Amendment by a party or court order

This rule sets out when a party who has filed an application or response may amend the application or response. After the proceeding is allocated a trial date (in the case of an Initiating Application (Family Law)) or after the first court date (in the case of an Application in a Proceeding), amendment can only occur with the consent of the other parties or by order of the court.

Subrules (2) and (3) set out the requirements where a cause of action or party is to be added or substituted.

This rule is based on FLR 2004 rule 11.10. Amendment by consent at any time is now to be permitted for all types of applications.

Rule 2.51: Time limit for amendment

This rule provides that where a party has been given permission by the court to amend an application, the amendment must be made within 7 days after the making of the order, unless the court otherwise orders. The note is a reminder that the court may order a different time for compliance.

This rule is based on FLR 2004 rule 11.11.

Rule 2.52: Amending a document

This rule sets out how an amendment to a document is to be made. It is based on FLR 2004 rule 11.12.

Rule 2.53: Response to amended document

This rule provides that where a party is served with an amended document that affects a document the party has previously filed, the party may amend the affected document in accordance with rule 2.52 within 14 days after the amended document was served on the party. This rule is based on FLR 2004 rule 11.13.

Rule 2.54: Disallowance of amendment

This rule provides that the court may disallow an amendment including for the reason that it is frivolous, vexatious, or not in accordance with the Rules or an order. This rule is based on FLR 2004 rule 11.14.

CHAPTER 3 – Parties and Representation

Part 3.1: Necessary parties

Rule 3.01: Necessary parties

This rule sets out who must be joined as a party to a proceeding. It is based on FLR 2004 subrule 6.02(1). FCCR 2001 rule 11.01 addresses the same topic.

Rule 3.02: Necessary parties to applications for parenting orders

This rule sets out more particularly who must be joined as a party to a proceeding in which a parenting order is sought, to ensure that all persons contemplated by the Family Law Act are joined. It is based on FLR 2004 subrules 6.02(2)-(3).

Part 3.2: Adding and removing a party

Rule 3.03: Adding a party

This rule provides the procedure for a party to add another person as a party to a proceeding. The person may be named as a party in an application, response or reply, or added subsequently as a party by the amendment of an application or response to add the name of the person. A party may only be added after the first court date with the leave of the court.

This rule harmonises FCCR 2001 rule 11.02 and FLR 2004 rule 6.03.

Rule 3.04: Person may apply to be included

This rule provides the procedure for a person to apply to be included as a party to a proceeding. The person can apply by filing an Application in a Proceeding and, unless the court otherwise orders, an affidavit.

The rule is based on FCCR 2001 rule 11.03. The note, which is based on the note to FLR 2004 rule 6.05, is a cross-reference to Part IX of the Family Law Act.

Rule 3.05: Party may apply to be removed

This rule provides the procedure for a party to apply to be removed as a party to a proceeding. The party can apply to be removed by filing an Application in a Proceeding and an affidavit.

The rule is based on FCCR 2001 rule 11.04. FLR 2004 rule 6.04 addresses the same topic.

Rule 3.06: Court may order notice to be given

This rule provides that the court may at any time order a party or a person applying to be included as a party to notify any person of the proceeding or of the person’s application to be included as a party. It is based on FCCR 2001 rule 11.05.

Rule 3.07: Intervention by a person entitled to intervene

This rule provides a procedure for persons who are entitled as of right under a legislative provision (e.g. Family Law Act sections 91 and 92A, Judiciary Act 1903 section 78A) to become a party in a proceeding. The person files a Notice of Intervention by Person Entitled to Intervene and an affidavit and automatically becomes a party to the case.

The rule is based on FLR 2004 rule 6.06. FCCR 2001 rule 11.06 addresses the same topic.

Part 3.3: Legal representation

Rule 3.08: Right to be heard and representation

This rule provides that a person (other than a corporation or authority) who is entitled to be heard in a proceeding may conduct the proceeding on their own behalf or be represented by a lawyer. A person is not entitled to be represented by a person who is not a lawyer unless the court otherwise orders, except to the extent that section 57 of the FCFCOA Act otherwise provides.

The rule is based on FLR 2004 subrule 8.01(1) and Note 3 to FLR 2004 rule 8.01.

Rule 3.09: Corporation must be represented

This rule requires a corporation to be represented by a lawyer in order to start or carry on a proceeding in the court, unless statute otherwise provides or the leave of the court is obtained.

This rule is based on FCCR 2001 rule 9.04. (Compare FLR 2004 subrule 8.01(2), which permits a corporation or authority to be represented by an officer of the corporation or authority).

Rule 3.10: Lawyer­—ceasing to act

This rule provides the procedure for a lawyer to cease to act for a party.

Subrule (1) provides that the lawyer may serve a Notice of Ceasing to Act on the party, and file a copy of the notice at least 7 days later. This process gives the client 7 days’ notice to enable alternate arrangements to be made. A lawyer may also cease to act for a party at any time with the court’s permission.

Subrule (2) provides that when a lawyer ceases to act, until the client files a Notice of Address for Service, the client’s last known residential address and email address is taken to be their address for service.

Subrules (1) and (2) are based on FLR 2004 rule 8.04. FCCR 2001 rule 9.03 addresses the same topic. The requirement for the party’s email address to form part of the address for service has been added. In addition, the rule has been amended to enable a lawyer to withhold the party’s last known residential address if disclosing the address would compromise the party’s safety.

New Subrule (3) provides that where this occurs in a parenting proceeding, the lawyer must provide the party’s last known residential address to the court by email, with the address not to be disclosed without an order of the court. This ensures the party’s safety is protected and that the court can ascertain where the party resides.

Part 3.4: Independent children’s lawyer

Rule 3.11: Independent children’s lawyer

This rule provides that a party to apply for the appointment or removal of an independent children’s lawyer by filing an Application in a Proceeding (and an affidavit).

Subrule (3) and Note 2 set out the rights and responsibilities of a person appointed as an independent children’s lawyer.

Subrule (4) and Note 3 make clear to other parties that they must conduct the proceeding as if the independent children’s lawyer were a party and that the independent children’s lawyer must be served with all documents.

Subrule (5) provides that unless the court otherwise orders, the appointment of an independent children’s lawyer ceases when the Initiating Application (Family Law) is determined or withdrawn, or if there is an appeal, when the appeal is determined or withdrawn.

The rule is based on FLR 2004 rule 8.02.

Part 3.5: Litigation guardians

Overview

This Part sets out the rules relating to litigation guardians. The term “litigation guardian” (as used in the FCCR 2001) is the equivalent of case guardian (as used in the FLR 2004), next friend, guardian ad litem, or tutor.

The rules in this Part are generally based on the rules in FCCR 2001 Division 11.2. FLR 2004 Part 6.3 contains rules addressing the same topic.

Rule 3.12: Person who needs a litigation guardian

This rule provides that 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. A minor is taken to need a litigation guardian unless the court otherwise orders.

This rule is based on FCCR 2001 rule 11.08.

Rule 3.13: Starting, continuing, defending or inclusion in proceeding

The rule harmonises FCCR 2001 rule 11.09 and FLR 2004 rule 6.13.

Subrule (1) has the effect that a person who needs a litigation guardian may only start, continue, respond to, or seek to be included as a party to a proceeding by his or her litigation guardian.

Subrule (2) sets out the rights and responsibilities of a litigation guardian. Paragraph (2)(b) of the FCCR rule has been modified to make clear that a litigation guardian’s rights are to be exercised for the benefit of the party. The notes serve as cross-references to other provisions of the Rules which are relevant to litigation guardians.

Rule 3.14: Who may be a litigation guardian

This rule sets out the requirements for a person to be a litigation guardian. The person must be an adult with no interest in the case adverse to the interest of the person needing a litigation guardian. The person must also be able to fairly and competently conduct the proceeding for the person needing a litigation guardian.

The rule harmonises FCCR 2001 rule 11.10 and FLR 2004 rule 6.09.

Rule 3.15: Appointment of litigation guardian

This rule sets out the procedure for a person to be appointed as the litigation guardian of a party.

Subrule (1) provides that any person may apply for a person to be appointed, replaced or removed as the litigation guardian of a party. Subrule (2) additionally provides that the court may appoint, remove or substitute a person as a litigation guardian at the request of a party or on its own initiative.

Subrule (3) requires a person to file an affidavit of consent to his or her appointment as a litigation guardian before the appointment becomes effective.

Subrule (4) makes clear that the court may remove a litigation guardian at the litigation guardian’s request, without any application having to be made.

This rule harmonises FLR 2004 subrule 6.10(1) and FCCR 2001 rule 11.11.

Rule 3.16: Manager of the affairs of a party

This rule provides that a person who is the ‘manager of the affairs of a party’ is entitled to be the party’s litigation guardian in any proceeding to which their authority extends. It defines the ‘manager of the affairs of a party’ as 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. The person becomes the party’s litigation guardian upon filing an affidavit of consent in relation to the party.

The Attorney-General may appoint a person to be a manager of the affairs of a party for the purposes of this rule, either generally or for a particular person. Subrule (3) provides that if the court considers that a suitable person is not available for appointment as a litigation guardian for a person who needs a litigation guardian, the court may request that the Attorney-General appoint a person to be the manager of the affairs of the party.

Subrules (1), (2), (4) and (5) are based on FCCR 2001 rule 11.12. Subrule (3) is based on FLR 2004 subrule 6.11(1).

Rule 3.17: Notice of becoming litigation guardian

This rule requires a person appointed as a litigation guardian of a party to the proceeding to give notice of the appointment to each other party and any independent children’s lawyer in the proceeding as soon as practicable after the appointment. It is based on FCCR 2001 rule 11.13. See also FLR 2004 rule 6.12.

Rule 3.18: Costs and expenses of litigation guardian

This rule provides that the court may make orders for a litigation guardian’s costs and expenses to be paid by a party, or out of the income and assets of the person for whom the litigation guardian is appointed. Such costs may include the costs of an application for the appointment of the litigation guardian.

The rule is based on FCCR 2001 rule 11.14. See also FLR 2004 rule 6.14.

Part 3.6: Death or bankruptcy of a party

Division 3.6.1: Death of a party

Rule 3.19: Death of party

This rule applies if a party to a property proceeding or an application for enforcement of a financial obligation dies. Another party, or the legal representative of the deceased party, must ask the court for procedural orders in relation to the future conduct of the proceeding.

It is based on FLR 2004 rule 6.15.

Division 3.6.2: Bankruptcy or insolvency of party

This Division is based on FLR 2004 Part 6.5. It requires the court and other parties to be notified of the bankruptcy of a party to relevant financial or enforcement proceedings, and of any bankruptcy proceedings involving a party to relevant proceedings, so that appropriate procedural orders can be made. It also requires the party’s bankruptcy trustee to be notified of relevant family law proceedings.

Rule 3.20: Definitions for Division 3.6.2

This rule defines ‘bankruptcy proceedings’, ‘relevant party’ and ‘relevant proceeding’ for the purposes of Division 3.6.2. These definitions are based on those in FLR 2004 rule 6.16. Their effect is that the rules in this Division apply to some financial proceedings and to applications for enforcement of an order made in a financial proceeding.

Rule 3.21: Notice of bankruptcy or personal insolvency agreement

This rule requires a relevant party who is also a bankrupt or a debtor subject to a personal insolvency agreement to notify all other parties to the relevant proceeding in writing about the bankruptcy or personal insolvency agreement. The relevant party must also notify the bankruptcy trustee or trustee of the personal insolvency agreement about the relevant family law proceeding, and must notify the court in which the proceeding is pending.

This rule is based on FLR 2004 rule 6.17.

Rule 3.22: Notice under paragraph 3.21(1)(b)

This rule sets out the requirements for a notice given to a bankruptcy trustee or the trustee of a personal insolvency agreement under paragraph 3.21(1)(b). It is based on FLR 2004 rule 6.18.

Rule 3.23: Notice under paragraph 3.21(1)(c)

This rule sets out the requirements for a notice given to the court under paragraph 3.21(1)(c). It is based on FLR 2004 rule 6.19.

Rule 3.24: Notice of bankruptcy proceedings

This rule provides that if a relevant party is a party to bankruptcy proceedings, the party must give notice of those proceedings to the court in which the relevant (family law) proceeding is pending and to other parties to that proceeding. It sets out the requirements for the notice to be given. The rule is based on FLR 2004 rule 6.20.

Rule 3.25: Notice of application under section 139A of the Bankruptcy Act

This rule applies if the bankruptcy trustee of a bankrupt party to a marriage or de facto relationship has applied under section 139A of the Bankruptcy Act 1966 for an order under Division 4A of Part VI of that Act (in relation to the property of an entity controlled by the bankrupt or from which the bankrupt derived a benefit). It provides that if the trustee knows that a relevant (family law) proceeding in relation to the bankrupt party is pending, the trustee must notify the court exercising jurisdiction under the Family Law Act of the application, and, if the application relates to an entity other than the other party to the marriage or de facto relationship, also give notice to the other party to the marriage or de facto relationship.

The rule is based on FLR 2004 rule 6.21.

Rule 3.26: Official name of trustee

This rule provides that if a bankruptcy trustee or a trustee of a personal insolvency agreement is added as a party to a relevant proceeding, the trustee must be added using the prescribed official name of the trustee, within the meaning of subsections 161(2) or 219(2) of the Bankruptcy Act 1966. This rule is based on FLR 2004 rule 6.22.

CHAPTER 4 – Dispute Resolution

Part 4.1: Requirements before applying for orders

This Part brings together existing requirements to engage in alternative dispute resolution before commencing court proceedings, and introduces new obligations to indicate compliance with applicable requirements at the time of filing an application.

Rule 4.01: Compliance with pre-action procedures

This rule requires each party to a prospective proceeding to comply with the pre-action procedures set out in Schedule 1 to the Rules, unless an exception applies.

Subrule (2) sets out some limited exceptions where compliance with the pre-action procedures is not necessary. These include proceedings where the court is satisfied that, in the circumstances, it was not appropriate for a party to comply with the pre-action procedures. Subrule (3) sets out some examples of such circumstances. These include proceedings involving allegations of child abuse or family violence (or a risk of child abuse or family violence) and urgent applications, among others.

Subrules (1) to (3) are based on FLR 2004 rule 1.05. Paragraph (3)(b) has been modified so that proceedings involving allegations of fraud are no longer an exception to the requirement to comply with the pre-action proceedings.

New subrule (4) requires a person who starts a family law proceeding by filing an application for final orders, or a respondent to an application for final orders, to indicate in the Genuine Steps Certificate filed with the application or response that the person has complied with the required pre-action procedures, or otherwise identify the factual basis for why the court should be satisfied that it was not appropriate for the person to comply with the pre-action procedures. New subrule (5) requires a person who is legally represented to comply with subrule (4) through the person’s legal representative.

Rule 4.02: Requirement to file family dispute resolution certificate with application for a parenting order

This rule requires a person who applies for an order under Part VII of the Family Law Act, such as a parenting order, to file with the application a certificate given to the person by a family dispute resolution practitioner under subsection 60I(8) of the Family Law Act.

If no certificate is required because an exception under paragraphs 60I(9)(b)-(f) of the Family Law Act applies, the person must file an affidavit (unless another affidavit filed in the proceeding setting out the factual basis of the exception claimed).

Subrule (1) is based on the requirement currently contained at item 2A of Table 2.2 in FLR 2004 rule 2.02. Subrule (2) provides an exception for certain child support proceedings and is based on FLR 2004 subrule 2.02(5).

Rule 4.03: Requirements before seeking an interlocutory order

This rule requires that before filing an application seeking an interlocutory order, a party must make a reasonable and genuine attempt to settle the issue to which the application relates, unless an exception applies.

Subrules (1) and (2) are based on FLR 2004 rule 5.03.

Subrules (3) and (4) are new and mirror subrules 4.01(4) and (5). They require a person who makes an application for an interlocutory order to indicate in the affidavit filed with the application that a reasonable and genuine attempt to settle the issue has been made, or alternatively indicate the exception which applies.

Rule 4.04: Consequences of failure to comply with rules 4.01 to 4.03

This new rule sets out with the possible consequences of a failure to comply with the requirements of rules 4.01 to 4.03. The potential consequences are not new, but the rule gives them greater prominence.

Subrule (1) provides that if a person makes an application for a final order without complying with the pre-action procedures, and the court considers that no exception applied, the court may stay the application until the applicant complies with the pre-action procedures. This may occur on the court’s own initiative or on the application of the respondent.

Subrules (2) and (3) provide that the court may take into account a party’s failure to comply with rules 4.01, 4.02 or 4.03, and a legal practitioner’s involvement in such a failure to comply, when considering whether to make an order as to costs.

Rule 4.05: Court’s powers to require attendance at dispute resolution event

This rule provides that in exercising its general powers of case management to achieve the overarching purpose of the Rules, the court may order a party to attend a family consultant, family counselling or family dispute resolution, or another dispute resolution event as permitted by the Family Law Act.

This rule is based on items (1)(a)(iii)-(iv) of Table 11.1 in FLR 2004 rule 11.01.

Part 4.2: Offers to settle a proceeding

This Part is based on FLR 2004 Part 10.1 and contains the rules regarding offers to settle proceedings.

Division 4.2.1: General

This Division applies to all offers of settlement.

Rule 4.06: How to make an offer

This rule provides that any offer to settle must be in writing, must not be filed, must be served on the other party, and may relate to all or part of a proceeding or appeal. It is based on FLR 2004 rule 10.01.

Rule 4.07: Open and without prejudice offers

This rule provides that an offer to settle is made without prejudice unless it states that it is an open offer. A without prejudice offer must not be mentioned in any document filed or at a hearing or trial, except for in an application relating to an offer or an application for costs. An open offer may be disclosed to other parties and the court. This rule is based on FLR 2004 rule 10.02.

Rule 4.08: How to withdraw an offer

This rule provides that an offer to settle may be withdrawn by serving a written notice on the other party. An offer may be withdrawn at any time before it is accepted or the court makes an order disposing of the application or appeal to which the offer relates. A subsequent offer made by a party has the effect of withdrawing an earlier offer made by that party.

This rule is based on FLR 2004 rule 10.03.

Rule 4.09: How to accept an offer

This rule provides that a party may accept an offer to settle by giving notice in writing to the party making the offer. An offer may be accepted at any time before it is withdrawn or the court makes an order disposing of the application or appeal. If an offer is accepted, the parties must lodge a draft consent order.

This rule is based on FLR 2004 rule 10.04.

Rule 4.10: Counter-offer

This rule provides that a party may accept an offer to settle even though the party has made a counter-offer to settle. This rule is based on FLR 2004 rule 10.05.

Division 4.2.2: Offers in property proceedings

Rule 4.11: Compulsory offer to settle

This rule provides that in a property proceeding, each party must make a genuine offer to settle to all other parties within 28 days after a conciliation conference or mediation, or if no conciliation conference or mediation has been held or is to be held, within 28 days after the first court date. The court may extend the time for making the compulsory offer.

This rule is based on FLR 2004 rule 10.06.

Rule 4.12: Withdrawal of offer

This rule provides that if a party withdraws an offer made under Division 4.2.2, it must at the same time make another genuine offer to settle. This rule is based on FLR 2004 rule 10.07.

CHAPTER 5 – Interlocutory Orders

This Chapter contains the rules relating to interlocutory orders and applications for interlocutory orders. The term ‘interlocutory order’ is defined in rule 1.05 as an interim order, a procedural order, an ancillary order, or any other incidental order relating to an application or order.

Part 5.1: General

Rule 5.01: Effect of final orders on interlocutory orders

This new rule provides that the making of final orders in a proceeding has the effect that any interlocutory order made in the proceeding pending further order is automatically discharged and ceases to have continuing effect.

Rule 5.02: Restrictions on applications for interlocutory orders

This rule provides that a party may only apply for an interlocutory order in a proceeding if the order relates to a current proceeding, except in certain circumstances.

Subrule (3) provides that this restriction does not apply to an independent children’s lawyer, the Director of Public Prosecutions (when making certain applications), a bankruptcy trustee or a trustee of a personal insolvency agreement.

This rule is based on FLR 2004 subrules 5.01(2)-(4A).

Rule 5.03: Time for applications seeking parenting orders for end-of-year school holiday period

The effect of this rule is that an application for an interim parenting order relating to any part of the December/January school holiday period must be filed by the second Friday of the preceding November.

This rule is based on FLR 2004 rule 5.01A.

Rule 5.04: Supporting affidavit to be filed with application

This rule requires an affidavit to be filed and served with any application for interlocutory orders (whether sought at the outset of a proceeding or during a proceeding), stating the facts relied on in support of the interlocutory orders sought. The requirement does not apply to an application for review of an order of a Judicial Registrar.

This rule is based on FLR 2004 rule 5.02.

Rule 5.05: Responding to an Application in a Proceeding

This rule identifies the form a respondent to an Application in a Proceeding must use to oppose the orders sought in the application or to seek different orders. It further provides that the respondent must file and serve an affidavit with the response, stating the facts relied on in support of the response.

This rule is based on FLR 2004 rules 9.05 and 9.06.

Rule 5.06: When affidavit in reply to a response may be filed

This rule provides that an applicant may reply to a Response to an Application in a Proceeding by filing and serving an affidavit in reply setting out the facts relied on. This may occur where the response seeks orders in a cause of action not referred to in the application, and the applicant opposes the orders sought in the response.

This rule is based on FLR 2004 rule 9.07.

Rule 5.07: Time for filing affidavits

This rule requires each affidavit in support of or in opposition to an interlocutory application to be filed and served at least two business days before the date fixed for the hearing. This rule is based on FLR subrule 9.08(3).

Rule 5.08: Limit on number and length of affidavits

Subrule (1) provides that at the hearing of an application for interlocutory orders, each party may rely on one affidavit by each party (save that the applicant may also rely on any affidavit in reply filed under rule 5.06) and one affidavit by each witness (if the evidence is relevant and cannot be given by a party). This subrule is based on FLR 2004 rule 5.09.

New subrules (2) and (3) limit the length of affidavits filed in support of or in opposition to an application for interlocutory orders, and the number of annexures they may contain. In each case, the court may grant leave to depart from the limits.

Rule 5.09: Duration of hearing of interlocutory application

This rule limits the hearing of an interlocutory application to two hours unless the court otherwise directs and limits cross-examination at such hearings. It is based on FLR 2004 rule 5.10.

Rule 5.10: Administrative postponement of interlocutory hearing

This rule sets out the process for parties to request the postponement of the hearing of an interlocutory application when they agree the hearing should not proceed on the date fixed for hearing. It is based on FLR 2004 rule 5.18.

Part 5.2: Applications without notice

Rule 5.11: Applications without notice

This rule sets out the requirements for applications made without notice to a respondent (ex parte applications). It is based on FLR 2004 rule 5.12. FCCR rule 5.03 addresses the same topic.

Rule 5.12: Necessary procedural orders

This rule provides that an order made on an application without notice must be expressed to operate until a specified time or, if the hearing of the application is adjourned, until the date of the hearing. It is based on FLR 2004 rule 5.13. See also FCCR 2001 rule 5.01.

Part 5.3: Hearing on papers in absence of parties without oral hearing

By default, an interlocutory application will proceed to an oral hearing. However, in certain circumstances, it may be determined on the papers in the absence of the parties without an oral hearing. This Part contains the rules about when that may occur and the procedure to be followed.

Rule 5.13: Decisions in the absence of the parties without an oral hearing

This rule provides that an application for an interlocutory order may be determined in the absence of the parties without an oral hearing if the parties to the application consent to the decision being made in their absence without an oral hearing, and if the court considers it appropriate to make the decision in that way.

This rule is a modified version of FCCR 2001 rule 15.03. The requirement for the court to consider it appropriate to make the decision in the absence of the parties without an oral hearing is now explicit. By contrast, FLR 2004 rules 5.14 and 5.15 provided for a request–objection system.

Section 186 of the FCFCOA Act requires the parties’ consent for proceedings in the FCFCOA (Division 2) to be decided without an oral hearing. This rule applies that requirement in the FCFCOA (Division 1) for a consistent approach.

Rule 5.14: Court decision to require attendance

This rule provides that despite the parties consenting to the hearing of an interlocutory application being held in their absence without an oral hearing, the court may nevertheless decide to require the parties to attend court for an oral hearing. If necessary, the court may adjourn the application and fix a new hearing date.

This rule is based on FLR 2004 rule 5.16.

Rule 5.15: Procedure for hearing in absence of parties without an oral hearing

This rule sets out the documents that must be filed if an application is to be determined in the absence of the parties without an oral hearing. At least two days before the date fixed for the hearing, each party must file and serve a list of documents to be read by the Court and a supporting submission. The submission is to be no more than five pages long.

This rule is based on FLR 2004 rule 5.17.

Part 5.4: Applications in relation to property

Division 5.4.1: Orders for inspection, etc, of property

Rule 5.16: Orders about property

This rule provides that the court may make an order for the inspection, detention, possession, valuation, insurance or preservation of property in certain circumstances. This rule is based on FLR 2004 rule 14.01.

Rule 5.17: Service of application

This rule requires a party applying for an order under rule 5.16 to make a reasonable attempt to find out who has, or claims to have, an interest in the property to which the application relates, and serve the application and any supporting affidavits on such persons (except where an application is made without notice under Part 5.2).

This rule is based on FLR 2004 rule 14.02.

Rule 5.18: Inspection by court

This rule provides a process for a party to an order for an inspection or ‘view’ of a place, process or thing about which a question arises in a proceeding. It is based on FLR 2004 rule 14.03.

Division 5.4.2: Search orders

Rule 5.19: Application for search order

This rule provides the process for a party to seek a search order (previously known as an Anton Piller order). It is based on FLR 2004 rule 14.04.

The matters to be covered in the supporting affidavit to be filed with the application now include the consent of one or more lawyers to act as independent lawyers for the purpose of appointment to supervise the execution of the order under rule 5.21, and the fees proposed to be charged by those lawyers.

Rule 5.20: Requirements for grant of search order

This new rule is based on FCR 2011 rule 7.43 and sets out the matters of which the court must be satisfied when making a search order.

Rule 5.21: Independent lawyers

This new rule is based on FCR 2011 rule 7.46. It requires the court to appoint one or more independent lawyers to supervise the execution of a search order if one is made.

Rule 5.22: Costs

This new rule is based on FCR 2011 rule 7.47. It provides that the court may make any order for costs that it considers appropriate in relation to a search order.

Division 5.4.3: Freezing orders

Rule 5.23: Application for freezing order

This rule provides the process for a party to apply for a freezing order (previously known as a Mareva order). It is based on FLR 2004 rule 14.05. New subrule (2) makes clear that a party may apply for a freezing order without notice to a respondent (under Part 5.2).

Rule 5.24: Ancillary orders

This new rule is based on FCR 2011 rule 7.33. It provides that the court may make an order ancillary to a freezing order or prospective freezing order, for example to obtain information about relevant assets.

Rule 5.25: Order may be against a person not a party to proceeding

This new rule is based on FCR 2011 rule 7.34. It provides that the court may make a freezing order or ancillary order against a person who is not a party to the proceeding.

Rule 5.26: Costs

This new rule is based on FCR 2011 rule 7.38. It provides that the court may make any order for costs that it considers appropriate in relation to a freezing order or ancillary order.

Part 5.5: Applications for suppression or non-publication orders

Rule 5.27: Application for a suppression or non-publication order

This rule provides the process for a party to apply for an order suppressing the publication of a judgment and sets out the matters that must be addressed in the affidavit supporting the application. It is based on FLR 2004 rule 5.19. The note reminds the reader that the court anonymises all judgments in accordance with section 121 of the Family Law Act.

CHAPTER 6 – Disclosure and Subpoenas

This Chapter harmonises and reorganises the rules in relation to discovery and also contains the rules regulating the use of subpoenas.

Due to s 45(1) of the Federal Circuit Court of Australia Act 1999 (Cth), discovery and interrogatories are not currently allowed in the Federal Circuit Court unless the Court declares that it is appropriate in the interests of justice to allow the discovery or the interrogatories. This restriction will cease when the FCFCOA Act commences, as subsection 176(1) of the FCFCOA Act expressly allows discovery and interrogatories in family law and child support proceedings in the FCFCOA (Division 2).

Part 6.1: Duty of disclosure

This Part applies to all family law or child support proceedings in the FCFCOA  except where otherwise stated.

Division 6.1.1: General duty of disclosure

Rule 6.01: General duty of disclosure

This rule sets out the parties’ general duty of disclosure. It is a duty to give full and frank disclosure of all information relevant to proceeding, in a timely manner, to both the court and to each other party. It is a continuous duty which applies from the start of the proceeding until the proceeding is finalised. A note indicates that parties are also expected to comply with the duty of disclosure when complying with the pre-action procedures.

The duty of disclosure also applies to a litigation guardian appointed under Part 3.5. However, it does not apply to a respondent to an application alleging a contravention or contempt.

The importance of the duty of disclosure is emphasised by the requirement for parties to confirm they are aware of the duty and to give an undertaking to the court as to their compliance with it (rule 6.02). It is further reinforced by rule 6.17, which sets out the serious consequences of non-compliance with the duty of disclosure.

This rule is based on FLR 2004 rule 13.01.

Rule 6.02: Undertaking by party

This rule requires each party to file a notice which acknowledges their awareness of the duty of disclosure and includes an undertaking that, to the best of the party’s knowledge and ability, they have complied with and will continue to comply with the duty. The notice must be filed before the first court date unless the court otherwise orders.

Breach of the undertaking may be punishable as a contempt of court, and signing a false undertaking is an offence under subrule (2).

This rule is based on FLR 2004 rules 13.15 and 13.16.

Rule 6.03: Duty of disclosure – documents

This rule provides that the duty of disclosure applies to documents in a party’s possession or control which are relevant to an issue in the proceeding.

The rule is based on FLR 2004 rule 13.07.

Rule 6.04: Use of documents

This rule limits what a person may do with a document which they inspect or copy in a proceeding by reason of a provision of the Rules or a court order. Subrule (1) provides that the person must use the document for the purpose of the proceeding only, and must not disclose the contents of the document, or give a copy of the document, to any other person without the court’s permission. This subrule is based on FLR 2004 rule 13.07A. See also FCCR 2001 rule 14.11.

For the avoidance of doubt, new subrule (2) makes clear that documents can be provided to solicitors and counsel, and that the rule does not affect the right of a party to use a document for other purposes if the party has a common interest in the document with the party who possesses or controls it.

Division 6.1.2: Duty of disclosure in specific types of proceedings

The rules in this Division set out particular requirements of the duty of disclosure in specific types of proceedings, however the general duty continues to apply in all proceedings.

Rule 6.05: Duty of disclosure – parenting proceedings

This new rule makes clear that the duty of disclosure applies to parenting proceedings.

Subrule (2) sets out a non-exhaustive list of documents which may contain information relevant to a parenting proceeding. Not all documents in this list will contain relevant information or must be disclosed in every proceeding.

Rule 6.06: Duty of disclosure – financial proceedings

This rule provides that the duty of disclosure applies to financial proceedings. It sets out particular types of disclosure that parties must make in financial proceedings.

Subrule (2) provides that subrules (3) to (9) do not apply to third parties (persons who are not party to the marriage or de facto relationship) except to the extent that their financial circumstances are relevant to the issues in dispute. This subrule is based on FLR 2004 subrule 13.02(2).

Subrules (3) and (4) require a party to a financial proceeding to make full and frank disclosure of the party’s financial circumstances. These subrules are based on FLR 2004 subrules 13.04(1)-(2). See also FCCR 2001 rule 24.03. The terms ‘legal entity’ and ‘party to a financial proceeding’ are now defined in the rule 1.05.

Subrules (5) and (6) require a party to a financial proceeding (other than an Application for Consent Orders) to file a Financial Statement and a financial questionnaire. An affidavit must accompany the Financial Statement if necessary to fully discharge the duty to make full and frank disclosure. These subrules are based on FLR 2004 rules 13.05 and FCCR 2001 rule 24.02 (Financial Statement), and FLR 2004 subrule 12.06(1) (financial questionnaire). The financial questionnaire is now to be filed at the start of the proceeding, at the same time as the Financial Statement.

Subrule (7) requires a party to amend a Financial Statement or affidavit filed under subrule 6.06(6) if the party’s financial circumstances change significantly. It is based on FLR 2004 rule 13.06 and FCCR 2001 rule 24.06.

Subrule (8) applies to a party who is required to file a Financial Statement, other than a respondent to an application for maintenance only. It sets out a list of financial documents the party must serve on each other party. This subrule is based on FCCR 2001 rule 24.04, however the documents are now to be served prior to the first court date.

Subrule (9) applies to a respondent to an application for maintenance only. It sets out a list of documents the party must bring to court on the first court date. This subrule is based on FCCR 2001 rule 24.05.

New subrule (10) clarifies that this rule does not require a party to be served with a document that has already been provided to the party.

Part 6.2: Disclosure procedures

Division 6.2.1: Introduction

Rule 6.07: Application of Part 6.2

This rule provides that the disclosure procedures in Part 6.2 do not apply to applications for orders that a marriage is a nullity or for a declaration as to the validity of a marriage, divorce or annulment of a marriage. This provision reflects the effect of paragraph 13.19(1)(a) of the FLR 2004.

Division 6.2.2: Processes of disclosure, production and inspection

This Division applies to all family law and child support proceedings. It sets out a process for parties to request and inspect documents to which the duty of disclosure applies. This process is additional to other specific requirements for disclosure of documents under the Rules (for example, under rule 6.06) and any specific orders for the disclosure of documents that the court may make.

In summary, the process is as follows:

1.      after the proceeding has been allocated a first court date, a party may request another party to provide a list of documents which are or have been in their possession or control, to which the duty of disclosure applies (subrule 6.09(1));

2.      the other party must, within 21 days, provide a list of documents to which the duty of disclosure applies (subrule 6.09(2));

3.      the first party may ask to inspect the documents disclosed in the list or be provided with copies of them (rule 6.10);

4.      the first party may also ask to inspect any document referred to in a document filed in the proceeding or in correspondence between the parties (rule 6.11), or to inspect an original document to which the duty of disclosure applies (rule 6.12);

5.      where copies are requested, these are to be provided within 21 days, electronically where practicable (rule 6.13), but if there are too many documents inspection can be arranged under rule 6.14;

6.      where inspection is requested, the other party must notify the first party within 14 days of a time and place to inspect the documents (rule 6.14);

7.      if an objection is taken to disclosure, production or inspection, or there is non-compliance, the court may make an order (rules 6.16 to 6.18).

Rule 6.08: Application of Division 6.2.2

This Division does not limit a party’s right to inspect a document in which they have a common interest with the party who has possession or control of the document. It also does not limit any right of access to a document other than under this Division, or prevent parties from agreeing upon alternative procedures for the disclosure, production or inspection of documents.

This rule is based on FLR 2004 subrule 13.19(2).

Rule 6.09: Disclosure by list of documents

This rule sets out the process for a party to request disclosure from another party by way of a list of documents. The list of documents is to be provided within 21 days of the request. The list should identify documents to which the duty of disclosure applies, any documents no longer in the party’s possession or control to which the duty would otherwise apply, and any documents which are the subject of any claim of privilege.

This rule is based on FLR 2004 subrules 13.20(1), (2) and (5). The process may now be used following the allocation of a first court date for the proceeding.

Rule 6.10: Request for disclosed document

This rule provides that a party may make a written request to inspect or be provided with a copy of a document disclosed under rule 6.08. It is based on FLR 2004 subrule 13.20(3).

Rule 6.11: Request for other identified document

This rule provides that a party may make a written request to inspect or be provided with a copy of any document referred to in a document filed in the proceeding or in correspondence between the parties (and any independent children’s lawyer). It is based on FLR 2004 subrule 13.08(1). See also FCCR 2001 subrule 14.10(1).

Rule 6.12: Request to inspect original document

This rule provides that a party may ask another party in writing to produce for inspection an original document if the document is one that must be produced under the duty of disclosure. This rule is based on FLR 2004 rule 13.09.

Rule 6.13: Provision of copies of documents

This rule sets out the procedure for providing copies of documents. In general, the copies must be provided within 21 days of a request, at the expense of the requesting party and where practicable in an electronic format. If it is inconvenient to provide copies of any documents due to their number or size, the disclosing party must instead produce them for inspection. Copies of some documents need not be provided, as set out in rule 6.15.

This rule is based on FLR 2004 subrules 13.08(2) and 13.20(4). A uniform 21 day timeframe for provision of the copies has been adopted.

Rule 6.14: Production of documents for inspection

This rule sets out the procedure for producing documents for inspection. It applies if a party requests to inspect a document under rules 6.10, 6.11 or 6.12, or if a party requests copies of documents under rules 6.10 or 6.11 but the provision of copies is inconvenient. In general, the disclosing party must, within 14 days of the request, propose a time within 21 days of the request for the inspection to take place. The inspecting party must be given the opportunity to make copies of the inspected documents at their own expense.

The rule is based on FLR 2004 rules 13.10, 13.11 and 13.21. See also FCCR 2001 rules 14.07 and 14.08.

Rule 6.15: Documents that need not be produced

This rule provides that a document need not be produced for inspection or provided to a requesting party if it is the subject of a claim of privilege from production, is no longer in the possession or control of the disclosing party, or if a copy has already been provided to the requesting party.

This rule is based on FLR 2004 rule 13.12 and subrule 13.20(4).

Division 6.2.3: Objecting to production

Rule 6.16: Objection to production

This rule provides that if a party claims privilege from production of a document, or claims that a document is unable to be produced, another party may challenge the claim. The party making the claim must then file an affidavit within 7 days setting out the details of the claim. If the filing of the affidavit did not resolve the challenge, the affidavit would be evidence in support of the claim if any party brought an application for an order about disclosure under Division 6.2.4.

This rule is based on FLR 2004 rule 13.13. Subrule (3), which makes clear that the court may inspect the document for the purpose of determining the validity of the claim, is based on FCCR 2001 subrule 14.05(2).

Division 6.2.4: Orders in relation to disclosure

Rule 6.17: Consequences of non-disclosure

This rule sets out the consequences of a party failing to disclose a document as required by the Rules. These consequences are in addition to the orders the court may make in dealing with an application under rule 6.18.

This rule is based on FLR 2004 rule 13.14. See also FCCR 2001 rule 14.09.

Rule 6.18: Application for order for disclosure, production or inspection

This rule sets out the process for making an application for an order for disclosure, production or inspection of a document, and the matters the court may consider in determining an application.

This rule is based on FLR 2004 rule 13.22. New paragraph (1)(b) enables a party to seek an order that another party provide an affidavit of documents (as opposed to a list of documents under rule 6.09). New subrule (3) makes clear that the court can make an order under this rule on its own initiative.

Rule 6.19: Costs of compliance

This rule sets out the costs order the court may make if a party establishes that the costs of complying with the duty of disclosure would be oppressive. It is based on FLR 2004 rule 13.23.

Rule 6.20: Electronic disclosure

This rule provides that the court may direct the disclosure of documents by electronic communication. It is based on FLR 2004 rule 13.24.

Part 6.3: Specific questions

Rule 6.21: Application of Part 6.3

The rules on specific questions apply only to applications for final orders. This rule is a simplified version of FLR 2004 rule 13.25.

The commencement of the FCFCOA Act will end the current requirement in the Federal Circuit Court for the court to make a declaration under s 45(1) of the Federal Circuit Court Act 1999 before interrogatories are allowed in family law and child support matters. As such, the FLR 2004 rules regarding specific questions have been adopted for both the FCFCOA (Division 1) and the FCFCOA (Division 2).

Rule 6.22: Service of specific questions

This rule sets out the procedure for a party to request another party to answer specific questions. Each party may only use the procedure once and is limited to 20 questions. Leave is not required to serve a request to answer specific questions, however the specific questions must not be vexatious or oppressive.

This rule is based on FLR 2004 rule 13.26.

Rule 6.23: Answering specific questions

This rule requires a party served with a request to answer specific questions to file an affidavit answering each question, or setting out the basis of any objection to answering any question. This rule is based on FLR 2004 rule 13.27.

Rule 6.24: Orders in relation to specific questions

This rule provides that a party may apply for an order in relation to a request to answer specific questions, an objection to answering a specific question or a failure to answer specific questions. It sets out the matters the court may take into account in considering such an application. This rule is based on FLR 2004 rule 13.28. New subrule (2) makes clear that the party seeking the order must satisfy the court that the order is appropriate in the interests of the administration of justice.

Part 6.4: Disclosure from employer

Rule 6.25: Disclosure of employment information in proceedings for financial orders

This rule provides a process for a party to a financial proceeding to obtain information from another party’s employer  about the other party’s earnings. This rule is based on FLR 2004 rules 13.29 and 13.30. The particulars that may be requested have been extended to include particulars of an employee’s accrued or potential leave entitlements and any entitlement of the employee to earn bonuses.

Part 6.5: Subpoenas and notices to produce

This Part harmonises existing rules about subpoenas and notices to produce, with some modifications. It is generally based on the FCCR 2001 rules, although the FLR 2004 rules have been adopted in some instances.

Division 6.5.1: Subpoenas: general

Rule 6.26: Issue of subpoena

This rule sets out the process for the issue of a subpoena. It is based on FCCR 2001 rule 15A.02. See also FLR 2004 rule 15.17.

Rule 6.27: Limits on requests for subpoenas

Subpoenas are issued by the court and failure to comply with them has significant consequences. This new rule sets out in one place the ways in which requests for the issue of subpoenas are restricted, to avoid subpoenas being issued in inappropriate circumstances.

Subrule (1) provides that a self-represented party requires the court’s permission to request the issue of a subpoena. This requirement is based on FLR 2004 paragraph 15.18(a).

Subrule (2) provides that a party or independent children’s lawyer requires the court’s permission to request the issue of certain types of subpoena (including those requiring a person to give evidence and those requiring a person to produce documents at a final hearing). This is based on the current general requirement for permission under FLR 2004 subrule 15.17(2).

Subrule (3) provides that a party may request the issue of up to 5 subpoenas for production at the hearing of an interlocutory application without requiring the court’s permission. This limit is based on FCCR 2001 rule 15A.05. The court retains the discretion to allow more than 5 subpoenas in appropriate cases. Subrule (4) provides that an independent children’s lawyer may request the issue of more than 5 subpoenas for production at an interlocutory hearing without requiring the court’s permission.

Rule 6.28: Documents and things in possession of another court

This rule sets out the process for a party to seek the production of a document or thing in the possession of another court. It is based on FCCR 2001 rule 15A.03. See also FLR 2004 paragraph 15.18(b) and rule 15.34.

Rule 6.29: Time limits

This rule sets out when a subpoena must be made returnable (i.e. the time by which it must be complied with) and when it must be served.

A subpoena for production only must be made returnable no later than 3 days before any court event to which it relates, and must be served at least 10 days before production is required.

A subpoena requiring attendance must be made returnable on a day when the proceeding is listed for a hearing, and must be served at least 7 days before attendance is required.

The rule is based on FCCR 2001 rule 15A.04, however the new 3 day limit in subrule (1) gives parties an opportunity to inspect subpoenaed documents before the court event.

Rule 6.30: Service

This rule sets out how a subpoena must be served. A subpoena requiring the attendance of a person must be served by personal service, while a subpoena for production of documents only may be served by ordinary service or as agreed with the person to whom the subpoena is directed. Subrules (1) and (2) harmonise FCCR 2001 subrule 6.06(1) and FLR 2004 subrule 15.22(1A).

Subrule (3) additionally requires the subpoena to be served by ordinary service on each other party, any interested person and any independent children’s lawyer in the proceeding. This subrule is based on FCCR 2001 subrule 15A.06(2) and FLR 2004 subrule 15.22(2).

Notes identify the relevant rules on personal and ordinary service, and how to serve a subpoena on a corporation.

Rule 6.31: Conduct money and witness fees

Subrules (1)–(2) require conduct money to be paid when a subpoena is served. The minimum amount of conduct money is identified in Part 1 of Schedule 2.

Subrule (3) provides that a subpoenaed person who is served with a subpoena to give evidence, or a subpoena for production and to give evidence, is entitled to be paid a witness fee by the issuing party in accordance with Part 2 of Schedule 2, immediately after attending court in compliance with the subpoena.

This rule harmonises FCCR 2001 rule 15A.07 and FLR 2004 subrule 15.23(1).

Rule 6.32: Undertaking not to require compliance with subpoena

This rule provides that the issuing party for a subpoena may undertake not to require the subpoenaed person to comply with the subpoena. This releases the subpoenaed person from the obligation to comply with the subpoena.

This rule is based on FCCR 2001 rule 15A.08. See also FLR 2004 paragraph 15.25(1)(b).

Rule 6.33: Setting aside subpoena

This rule provides that the court may set aside all or part of a subpoena on application. It is based on FCCR 2001 rule 15A.09. See also FLR 2004 rule 15.26.

Rule 6.34: Order for cost of complying with subpoena

This rule provides that the court may make an order for the payment of any loss or expense incurred in complying with a subpoena. It is based on FCCR 2001 rule 15A.10.

Rule 6.35: Cost of complying with subpoena if not a party

This rule provides a process for a subpoenaed non-party to give notice to the issuing party that substantial loss and expense will be incurred in complying with a subpoena, with a particularised estimate of the loss or expense. Unless the court otherwise directs, such loss or expense will be payable by the issuing party if the court is satisfied that it is incurred in properly complying with the subpoena.

This rule is based on FCCR 2001 rule 15A.11.

Division 6.5.2: Subpoenas: production of documents and access by parties

Rule 6.36: Use of documents produced in compliance with subpoena for production

This rule provides that a person who inspects or copies a document produced in compliance with a subpoena for production must use the documents only for the purpose of the proceedings and must not disclose the contents of the document or give a copy of it to any other person without the court’s permission. Subrule (3) provides some exceptions enabling the provision of documents to solicitors and counsel, and to experts for the purpose of the proceeding.

This rule complements rule 6.04 and is based on FCCR 2001 rule 15A.12.

Rule 6.37: Right to inspection of document

This rule provides that where a subpoena to produce documents is properly served, documents are produced and there has not been any objection to production or to the inspection or copying of a document produced, each party and any independent children’s lawyer may inspect the documents without requiring the court’s permission. Subpoenaed documents may be copied, except for a child welfare record, criminal record, medical record or police record.

The definition of medical record has been amended to explicitly include records of a counsellor.

This rule is based on FCCR 2001 rule 15A.13. See also FLR 2004 rules 15.30 and 15.32.

Rule 6.38: Objection to production or inspection or copying of document

This rule sets out the process for a subpoenaed person to object to producing a document or for a party or interested person to object to the inspection or copying of a subpoenaed document. Written notice of the objection must be given to the court, the subpoenaed person, each party and any independent children’s lawyer, before the day stated in the subpoena.

This rule is based on FCCR 2001 rule 15A.14. See also FLR 2004 rule 15.31.

Rule 6.39: Subpoena for production of documents or things

This rule sets out how documents or things are to be produced pursuant to a subpoena for production. Copies may be produced unless the subpoena specifically requires the production of originals. Electronic copies should be produced in PDF format unless the issuing party indicates that another format is acceptable.

This rule is based on FCCR 2001 rule 15A.15.

Rule 6.40: Return of documents produced

This rule sets out the process for subpoenaed documents to be returned or destroyed. Documents produced electronically need not be returned. Subpoenaed documents may be destroyed 42 days after the final determination of an application or appeal, or earlier with the permission of the person subpoenaed.

This rule is based on FLR 2004 rule 15.35.

Division 6.5.3: Non-compliance with subpoena

Rule 6.41: Failure to comply with subpoena

This rule provides that if a person subpoenaed does not comply with a subpoena, and the court is satisfied the person was served with the subpoena and given conduct money, the court may issue a warrant for the person’s arrest and order the person to pay any costs caused by the non-compliance.

This rule is based on FLR 2004 rule 15.36. See also FCCR 2001 rule 15A.16.

Division 6.5.4: Notices to produce

Rule 6.42: Notice to produce

This rule provides that a party may give written notice requiring another party to produce at a hearing or trial a specified document in the possession or control of the other party. A notice to produce must be served no later than 7 days before a hearing or 28 days before a trial.

The rule is based on FLR 2004 rule 15.76 and FCCR 2001 rule 15A.17 provides to similar effect. Subrule (2) has been modified to clarify that the document must be produced at the hearing or trial in a form in which it can be accessed in court.

CHAPTER 7 – Experts and Assessors

This Chapter sets out the rules in relation to expert evidence, which are generally based on FLR 2004 Part 15.5, with minor modifications. FCCR 2001 Division 15.2 contains some similar rules.

The Chapter also sets out the rules in relation to assessors, which are generally based on FLR 2004 Part 15.4.

Part 7.1: Experts

As with the existing FLR 2004 rules on expert evidence, this Part emphasises court control over the issues on which the court requires expert evidence, the nature of evidence it requires, and the way in which expert evidence is put before the court.

Parties are encouraged to agree upon and appoint a single expert witness. The court may also appoint a single expert witness on its own initiative, either to be agreed upon by the parties or selected by the court. Parties do not require the court’s permission to tender a report or adduce evidence from a single expert witness appointed by the parties or the court.

Parties who seek to tender a report or adduce evidence from their own adversarial experts require the court’s permission to do so. Considerations including fairness, cost and proportionality will influence the orders the court makes in relation to expert evidence.

Expert witnesses have duties, rights and responsibilities as set out in this Part and their overriding duty is to the court.

Division 7.1.1: Introduction

Rule 7.01: Application of Part 7.1

This rule excludes certain types of evidence from the requirements of this Part. For example, the Part does not apply to evidence from an expert (such as a medical practitioner) who is providing, or has provided, treatment to a party or child if the evidence only relates to the results of an examination or a description of any treatment recommended or carried out.

This rule is based on FLR 2004 rule 15.41.

Rule 7.02: Purpose of Part 7.1

This rule sets out the purposes of this Part. It is based on FLR 2004 rule 15.42.

Division 7.1.2: Single expert witness

Rule 7.03: Appointment of single expert witness by parties jointly

This rule provides that if the parties agree that expert evidence may assist to resolve a substantial issue in a proceeding, they may jointly appoint a single expert witness to prepare a report in relation to the issue, and do not need the court’s permission to tender the report of the single expert witness.

This rule is based on FLR 2004 rule 15.44. New subrules (3) and (4) clarify that, except as permitted by the Rules, a party may not communicate unilaterally with a single expert witness and all communications with a single expert witness must be simultaneously provided to all other parties engaging the single expert witness.

Rule 7.04: Order for single expert witness

This rule provides that, on application or the court’s own initiative, the court may order that expert evidence be given by a single expert witness. The rule sets out a non-exclusive list of matters the court may take into account in deciding whether to make an order under this rule.

This rule is based on FLR 2004 rule 15.45.

Rule 7.05: Orders the court may make

This rule lists various orders the court might make to manage the appointment or instruction of a single expert witness or the conduct of a proceeding involving a single expert witness.

This rule is based on FLR 2004 rule 15.46.

Rule 7.06: Single expert witness’s fees and expenses

This rule provides that unless the parties otherwise agree or the court otherwise orders, the parties are equally liable to pay a single expert witness’s reasonable fees and expenses incurred in preparing a report. The single expert witness is not required to do any work in relation to the appointment until the fees and expenses are paid or secured.

This rule is based on FLR 2004 rule 15.47.

Rule 7.07: Single expert witness’s report

A single expert witness must prepare a written report. This rule sets out who the report must be given to and who must file it.

This rule is based on FLR 2004 rule 15.48. A new note indicates that the report may be provided electronically if appropriate.

Rule 7.08: Appointing another expert witness

This rule prohibits a party from tendering a report from a further expert witness on the same issue without the court’s permission. It sets out the circumstances in which the court may allow evidence from a further expert witness.

This rule is based on FLR 2004 rule 15.49.

Rule 7.09: Cross-examination of single expert witness

This rule requires a single expert witness to be given at least 14 days notice in writing if required to attend court for cross-examination at a hearing or trial. It provides that the court may limit the nature and length of cross-examination of a single expert witness.

This rule is based on FLR 2004 rule 15.50. New subrule (3) is based on FCCR 2001 paragraph 15.10(4)(c). It provides that a party who requires a single expert witness to attend court for cross-examination to pay the reasonable fees and expenses of the single expert witness’s attendance, unless the court otherwise orders.

Division 7.1.3: Permission for expert’s evidence

Rule 7.10: Permission for expert’s reports and evidence

This rule provides that a party requires the court’s permission to tender a report or adduce evidence from an expert witness who is not a single expert witness. An independent children’s lawyer may tender a report or adduce evidence from one expert witness without requiring the court’s permission.

This rule is based on FLR 2004 rule 15.51. It does not prevent the use of expert evidence in appropriate cases but enables the court to consider whether the evidence should be allowed having regard to the overarching purpose of the Rules and the purpose of expert evidence. The rule does not prevent a party from obtaining advice from their own expert.

Rule 7.11: Application for permission for expert witness

This rule sets out the process for applying for permission to tender a report or adduce evidence from an expert witness. An Application in a Proceeding should be filed, supported by an affidavit. Subrule (2) sets out various matters which must be addressed in the affidavit. Subrule (3) sets out various considerations the court may take into account when considering an application under this rule.

This rule is based on FLR 2004 rule 15.52.

Division 7.1.4: Instructions and disclosure of expert’s report

Rule 7.12: Application of Division 7.1.4

This rule provides that this Division does not apply to a market appraisal or opinion as to the value of property (e.g. a house, car or furniture) obtained by a party for a procedural hearing or conference.

This rule is based on FLR 2004 rule 15.53.

Rule 7.13: Instructions to expert witness

This rule sets out the mandatory requirements for instructions to an expert witness (whether a single expert witness or an expert witness appointed by only one or some parties). Where a single expert witness is appointed, the parties must give the single expert witness an agreed statement of facts on which to base the report. Subrule (5) sets out the procedure if the parties are unable to agree on a statement of facts.

This rule is based on FLR 2004 rule 15.54. Modifications have been made to make clear that subrules (2) and (3) apply to all expert witnesses while subrules (4) and (5) apply only in relation to single expert witnesses.

Rule 7.14: Mandatory disclosure of expert’s report

This rule requires an expert’s report obtained for a parenting proceeding to be provided to all other parties. Subrule (4) expressly overrides any legal professional privilege attached to the report.

The rule is based on FLR 2004 rule 15.55.

Rule 7.15: Provision of information about fees

This rule requires a party, on request, to completely disclose any fees or benefits received or receivable by an expert witness for services provided or to be provided in connection with the expert witness giving evidence for the party in the proceeding.

This rule is based on FLR 2004 rule 15.56.

Rule 7.16: Application for provision of information

This rule permits a party to apply for an order that another party provide information or a document to an expert witness which is necessary to allow the expert witness to carry out their function properly.

This rule is based on FLR 2004 rule 15.57.

Rule 7.17: Failure to disclose report

This rule provides that if a party fails to give a copy of an expert witness’s report to another party or any independent children’s lawyer, the party must not use the report or call the expert witness to give evidence at a hearing or trial unless the other party or independent children’s lawyer consents, or the court otherwise orders.

This rule is based on FLR 2004 rule 15.58.

Division 7.1.5: Expert witness’s duties and rights

Rule 7.18: Expert witness’s duty to the court

This rule provides that an expert witness has a duty to assist the court with matters that are within the expert witness’s knowledge and capability, and that this duty prevails over the expert’s obligations to the person instructing or paying the expert witness’s fees and expenses. Subrule (3) sets out what the duty requires the expert witness to do. Subrule (4) sets out when the duty arises.

This rule is based on FLR 2004 rule 15.59.

Rule 7.19: Expert witness’s right to seek orders

This rule permits an expert witness to seek procedural orders to assist the expert witness to carry out their function. For example, the expert witness may seek further or clearer instructions or raise a concern that certain questions are outside the scope of their expertise.

This rule is based on FLR 2004 rule 15.60.

Rule 7.20: Expert witness’s evidence in chief

This rule provides that an expert witness’s evidence in chief consists of the expert witness’s report, any changes to the report, and any answers to questions under rule 7.27.

This rule is based on FLR 2004 rule 15.61.

Rule 7.21: Form of expert’s report

This rule provides that an expert witness’s report must be addressed to the court and the party or parties instructing the expert witness. It must attach a summary of the instructions given to the expert witness and the report must be attached to an affidavit of the expert witness verifying the report. Subrule (2) sets out what the affidavit must state.

This rule is based on FLR 2004 rule 15.62.

Rule 7.22: Contents of expert’s report

This rule sets out what an expert witness’s report must include. It is based on FLR 2004 rule 15.63.

Rule 7.23: Consequences of non-compliance

This rule provides that if an expert witness does not comply with the Rules, the court may make orders including an order that the expert witness attend court and an order preventing a party from relying on the expert witness’s report or any answers to questions.

This rule is based on FLR 2004 rule 15.64.

Division 7.1.6: Clarification of single expert witness reports

Rule 7.24: Purpose of Division 7.1.6

Division 7.1.6 provides ways of clarifying the report of a single expert witness. This rule provides that clarification may be obtained at a conference under rule 7.25 or by questions put to the single expert witness under rule 7.26.

This rule is based on FLR 2004 rule 15.64A.

Rule 7.25: Conference

This rule permits the parties, within 21 days of receiving a single expert witness’s report, to agree in writing that one or more of the parties will confer with the single expert witness for the purpose of clarifying the report. The parties must agree on the arrangements for the conference but may agree on any arrangements consistent with this Division. If the parties are unable to reach agreement about the conference, the court may order that a conference be held in accordance with any conditions the court determines.

This rule is based on FLR 2004 rule 15.64B.

Rule 7.26: Questions to single expert witness

This rule permits a party who seeks to clarify a single expert witness’s report to put written questions to the single expert witness within 7 days of a conference held under rule 7.25 or, if no conference is held, within 21 days of receiving the single expert witness’s report. The questions may be put once only, must be only for the purpose of clarifying the report and must not be vexatious or oppressive or require the single expert witness to undertake an unreasonable amount of work. Copies of the questions must be given to all other parties.

This rule is based on FLR 2004 rule 15.65.

Rule 7.27: Single expert witness’s answers

This rule provides that a single expert witness must answer questions received under rule 7.26 within 21 days. The answers must be in writing and for each question must either answer the substance of the question or object to answering the question, stating the reason for the objection or any inability to answer the question. The answers are to be provided to all parties at the same time and are taken to form part of the single expert witness’s report.

This rule is based on FLR 2004 rule 15.66. Subrule (1) has been amended so the single expert witness is not required to answer a question before their fees and expenses for answering the question are paid or secured.

Rule 7.28: Single expert witness’s costs

This rule sets out who is responsible for paying the reasonable fees and expenses of a single expert witness in relation to a conference under rule 7.25 or the answering of questions under rule 7.27.

This rule is based on FLR 2004 rule 15.67.

Rule 7.29: Application for directions

This rule provides that a party may apply for directions in relation to a conference with a single expert witness or the asking or answering of questions under this Division.

This rule is based on FLR 2004 rule 15.67A.

Division 7.17: Evidence from 2 or more expert witnesses

Rule 7.30: Application of Division 7.1.7

This rule is based on FLR 2004 rule 15.68.

Division 7.1.7 applies where two or more parties intend to tender a report or adduce evidence from different expert witnesses about a similar question.

Rule 7.31: Conference of expert witnesses

This rule provides that the parties must arrange for the expert witnesses to confer before the experts’ reports are to be relied upon in evidence, and that the court may make a range of orders in relation to the conference. Subrule (3) sets out what expert witnesses are required to do at the conference.

This rule is based on FLR 2004 rule 15.69.

Rule 7.32: Conduct of trial with expert witnesses

This rule sets out the orders the court may make in relation to the giving of evidence by expert witnesses at trial. It is based on FLR 2004 rule 15.70.

Part 7.2: Assessors

An assessor is an expert who is appointed to assist and advise the court on questions or issues arising in a proceeding in which the assessor is specially qualified (see section 102B of the Family Law Act). Judges are not bound by any opinion or finding of an assessor. The appointment of an assessor may assist the court in some proceedings, for example, where cultural issues arise.

Rule 7.33: Application of Part 7.2

This rule provides that this Part does not apply to divorce applications, nullity applications, or applications for declarations as to the validity of a marriage, divorce or annulment.

This rule is based on FLR 2004 rule 15.37.

Rule 7.34: Appointing an assessor

This rule sets out the procedure for appointing an assessor. A party may apply for an assessor to be appointed or the court may appoint one on its own initiative after giving the parties notice and a reasonable opportunity to be heard in relation to the appointment.

This rule is based on FLR 2004 rule 15.38.

Rule 7.35: Assessor’s report

This rule provides that the court may direct the assessor to prepare a report, which must be given to each party and any independent children’s lawyer. An assessor must not be required to give evidence. The court is not bound by any opinion or finding of the assessor.

This rule is based on FLR 2004 rule 15.39.

Rule 7.36: Remuneration of assessor

This rule sets out the orders the court may make in relation to the remuneration of an assessor.

It is based on FLR 2004 rule 15.40.

CHAPTER 8 – Admissions and evidence

Part 8.1: Admissions

This Part provides a process by which parties can require and make admissions in relation to facts or documents. It is directed at narrowing the issues in dispute and reducing cost and delay. It is based on FLR 2004 division 11.2.1.

Rule 8.01: Request to admit

This rule sets out how a party may ask another party to admit for the purposes of a proceeding that a fact is true or that a document is genuine.

This rule is based on FLR 2004 rule 11.07.

Rule 8.02: Notice disputing fact or document

This rule provides that a party who is served with a Notice to Admit is taken to admit for the purposes of the proceeding that the fact is true or the document is genuine, unless the party serves a Notice Disputing a Fact or Document within 14 days of being served with the Notice to Admit.

This rule is based on FLR 2004 rule 11.08.

Rule 8.03: Withdrawing admission

This rule provides that a party may only withdraw an admission that a fact is true or that a document is genuine with the court’s permission or the consent of all parties. The court may make orders in relation to costs thrown away where an admission is withdrawn.

This rule is based on FLR 2004 rule 11.09.

Part 8.2: Evidence

Division 8.2.1: General rules about evidence

Rule 8.04: How evidence may be given

This new rule provides that evidence may be given by affidavit or, with the court’s permission, orally.

Rule 8.05: Court may call evidence

This rule provides that the court may call any person as a witness on its own initiative. The court may give directions in relation to the examination and cross-examination of the witness, and order a party to pay the witness’s expenses.

This rule harmonises FCCR 2001 rule 15.04 and FLR 2004 rule 15.71.

Rule 8.06: Order for examination of witness

This rule provides the process for a witness to be examined on oath before another Australian court or before a person in Australia authorised to take the evidence of any person on oath.

The rule is based on FLR 2004 rule 15.72.

Rule 8.07: Letters of request

This rule sets out the procedure to be followed where the court makes an order under the Foreign Evidence Act 1994 (Cth) for a letter to be issued to the judicial authorities of a foreign country requesting that the evidence of a person be taken.

This rule is based on FLR 2004 rule 15.73.

Rule 8.08: Transcript receivable in evidence

This rule provides that a transcript of proceedings may be received in evidence as a true record of the proceedings except to the extent it is shown not to be a true record.

This rule is based on FCCR 2001 rule 15.06. See also FLR 2004 rule 15.75.

Division 8.2.2: Evidence in proceedings involving children

Rule 8.09: Parenting questionnaire

This rule requires each party to a parenting proceeding to file a completed Parenting Questionnaire in the approved form.

This rule is based on FLR 2004 rule 15.77, except that the Parenting Questionnaire must now be filed at the start of the proceeding, with the party’s Initiating Application (Family Law) or Response to the Initiating Application (Family Law).

Rule 8.10: Restriction on child’s evidence

Section 100B of the Family Law Act provides that a child must not give evidence unless the court otherwise orders. This rule sets out the process for a party to make an application for an order permitting a child to give evidence. Subrule (1) specifies what the affidavit in support of the application must address. Subrule (2) sets out some of the orders the court may make if a child is permitted to give evidence.

This rule is based on FLR 2004 rule 15.02.

Rule 8.11: Reports from family consultant

This rule sets out the process for a party to apply for an order that a report be obtained from a family consultant. Subrule (2) sets out a non-exhaustive list of matters the court may take into account in deciding whether to order a family consultant’s report. Subrule (5) sets out what the court may do with a family consultant’s report once it has been prepared.

This rule is based on FCCR 2001 rule 23.01A. See also FLR 2004 rule 15.04.

Rule 8.12: Report after family counselling or family dispute resolution

This rule requires a family counsellor or family dispute resolution practitioner to report certain matters to the court at the end of court-ordered family counselling or family dispute resolution.

This rule is based on FCCR 2001 rule 23.01.

Part 8.3: Affidavits

Rule 8.13: No general right to file affidavits

This rule provides that a party requires the leave of the court to file an affidavit unless a provision of the Rules or an order permits the affidavit to be filed without leave.

This rule is based on FLR 2004 rule 15.05.

Rule 8.14: Reliance on affidavits

This rule provides that an affidavit may only be relied upon in evidence for the purpose of the application for which it was filed. It is based on FLR 2004 rule 15.06.

Rule 8.15: Requirements for affidavits

This rule sets out the requirements for an affidavit. It is based on FLR 2004 rule 15.08, with some modifications to achieve harmonisation with FCCR 2001 rules 15.25 and 15.28. New subrule (2) provides that if a party’s affidavit in a parenting proceeding does not disclose the party’s address (for safety reasons), the address must be provided to the court by email on a confidential basis. This approach prioritises the parties’ safety while enabling the court to be informed of where parties and children live.

In a change to practice under the FLR 2004 rule, subrule (3) requires documents to be used in conjunction with an affidavit to be either annexed to the affidavit or filed as an exhibit to the affidavit. This does not mean the document will be accepted as evidence in the proceeding.

Subrule (4) is based on FCCR 2001 subrule 15.28(6).

Rule 8.16: Making an affidavit

This rule sets out the process for making an affidavit, including what it may address and how it must be sworn or affirmed. This rule is based on FLR 2004 rule 15.09. See also FCCR 2001 rules 15.26 and 15.28.

Rule 8.17: Affidavit of illiterate or vision impaired person etc

This rule sets out how an affidavit may be made by a person who is illiterate, vision impaired or physically incapable of signing the affidavit. It is based on FCCR 2001 rule 15.27. See also FLR 2004 rule 15.10.

Rule 8.18: Objectionable material may be struck out

This rule specifies when the court may order material to be struck out of an affidavit. This rule is based on FCCR 2001 rule 15.29. See also FLR 2004 rule 15.13.

The rule has now expressly been made subject to section 69ZT of the Family Law Act, which provides that certain provisions of the Evidence Act 1995 (Cth) do not apply to child-related proceedings except in some circumstances. In a child-related proceeding, section 69ZT must be considered before material is struck out of an affidavit on the basis that it would be inadmissible.

Rule 8.19: Use of affidavit without cross-examination of maker

This rule provides that the court may dispense with the attendance for cross-examination of a person making an affidavit (the deponent), or direct that an affidavit be used without the deponent being cross-examined on it.

This rule is based on FCCR 2001 rule 15.29A.

Rule 8.20: Notice to attend for cross-examination

This rule requires a party to give at least 14 days notice if the deponent of an affidavit is required to attend a trial for cross-examination. Subrule (3) sets out the orders the court may make if the deponent fails to attend court. Subrule (4) provides that the court may order the party who required the attendance to pay costs if the deponent is not cross-examined or their cross-examination is of little evidentiary value.

This rule is based on FLR 2004 rule 15.14.

Rule 8.21: Deponent’s attendance and expenses

This rule provides that the court may make orders in relation to a deponent’s attendance at court for cross-examination and in relation to the payment of the deponent’s expenses of attending court.

This rule is based on FLR 2004 rule 15.15.

CHAPTER 9 – Transferring Proceedings

This Chapter contains the rules relating to the transfer of proceedings between different registries or different courts. The rules have been updated in preparation for the commencement of the FCFCOA Act, and reorganised for ease of use. The factors the court must consider in deciding whether to transfer a proceeding to another court have been harmonised.

Part 9.1: Change of venue

Rule 9.01: Change of venue

This rule provides the procedure for a party to apply to have a proceeding heard in another registry of the same court. It is based on FCCR 2001 rule 8.01, with the following two modifications.

New subrule (2) requires the application to be filed in the ‘filing registry’. This is defined in rule 1.05 as the registry in which the proceeding is started or to which it has been transferred.

Subrule (3) sets out various factors to which the court must have regard in deciding an application under this rule. It remains the case that the court must have regard to all relevant matters (paragraph (3)(e)). However, new paragraph (3)(a) specifically calls for consideration of the adequacy of available facilities, having regard to any disabilities and any safety concerns. This paragraph is based on FLR 2004 paragraph 11.18(1)(g).

Part 9.2: Transfer from Federal Circuit and Family Court (Division 1) to Federal Circuit and Family Court (Division 2)

Rule 9.02: Transfer to Federal Circuit and Family Court (Division 2)

This rule sets out the procedure for the transfer of a family law of child support proceeding from the FCFCOA (Division 1) to the FCFCOA (Division 2)) under section 52 of the FCFCOA Act.

These transfers may occur on the application of a party or on the initiative of the Chief Justice of the FCFCOA (Division 1). Unless the Chief Justice otherwise orders, any application must be made in a response or in an Application in a Proceeding, in either case supported by an affidavit.

In deciding whether to transfer the proceeding, the Chief Justice must consider the factors set out in subrule (3) in addition to the factors listed in FCFCOA Act subsection 52(3).

The list of factors in subrule (3) is an updated, harmonised list based on both FCCR 2001 subrule 8.02(4) and FLR 2004 subrule 11.18(1).

Rule 9.03: Proceeding transferred to Federal Circuit and Family Court (Division 2) – transfer of documents

This rule provides for the transfer to the FCFCOA (Division 2) of all filed documents and court orders, if a proceeding is transferred. A copy of all orders made in the proceeding is to be kept in the FCFCOA (Division 1). This rule is an adapted version of FCCR 2001 rule 8.03.

Part 9.3: Other transfers between courts exercising family law jurisdiction

Rule 9.04: Application of Part 9.3

This Part deals with the transfer of proceedings under subsection 45(2) of the Family Law Act. As such, it does not apply to transfers between the FCFCOA (Division 1) and the FCFCOA (Division 2), which are dealt with in Part 9.2 of these Rules and in the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021.

Rule 9.05: Transfer of proceeding between courts exercising family law jurisdiction

This rule provides the procedure for the transfer of a proceeding under subsection 45(2) of the Family Law Act.

These transfers may occur on the application of a party or on the initiative of the transferring court where permitted by subsection 45(4) of the Family Law Act. Unless the transferring court otherwise orders, any application must be made before the first court date and must be made in a response or in an Application in a Proceeding, in either case supported by an affidavit.

In deciding whether to transfer the proceeding, the transferring court may consider the factors in subrule (5). The list of factors is based on FLR 2004 subrule 11.18(1), reorganised for consistency with the similar lists in subrules 9.02(3), and 9.07(4) in this Chapter.

Subrule (6) has the effect that different considerations will apply to proceedings which raise or rely on a cross-vesting law (see Part 9.5) or to transfers of proceedings under the Corporations Act 2001. This subrule is based on FLR 2004 subrule 11.18(2).

Rule 9.06: Proceeding transferred between courts exercising family law jurisdiction – transfer of file

This rule provides for the transfer to the receiving court of all filed documents and court orders, if a proceeding is transferred. A copy of all orders made in the proceeding is to be kept in the transferring court. This rule is an adapted version of FCCR 2001 rule 8.03.

Part 9.4: Removal of proceedings from court of summary jurisdiction

Rule 9.07: Removal of proceedings from court of summary jurisdiction

This rule provides the procedure for the removal of a proceeding from a court of summary jurisdiction under subsection 46(3A) of the Family Law Act. From the commencement of the FCFCOA Consequential Amendments Act, only the FCFCOA (Division 2), a Family Court of a State or the Supreme Court of a State or Territory will be able to remove a proceeding under that provision.

These removals may occur on the application of a party or on the court’s initiative. Unless the court otherwise orders, any application must be made in an application or a response, in either case supported by an affidavit.

In deciding whether to remove the proceeding from the court of summary jurisdiction, the court may consider the factors in subrule (4). The list of factors is based on FLR 2004 subrule 11.18(1), reorganised for consistency with the similar lists in subrules 9.02(3) and 9.05(5) in this Chapter.

Rule 9.08: Proceeding removed from court of summary jurisdiction – transfer of file

This rule provides for the transfer to the receiving court of all filed documents and court orders, if a proceeding is transferred. A copy of all orders made in the proceeding is to be kept in the court of summary jurisdiction. This rule is an adapted version of FCCR 2001 rule 8.03.

Part 9.5: Transfers to or from a State court – cross-vesting

Rule 9.09: Application of Part 9.5

This Part applies only to proceedings in the FCFCOA (Division 1) because the FCFCOA (Division 2) is not a court to which proceedings can be transferred under the cross-vesting legislation.

Rule 9.10: Cross-vesting matters

This rule sets out the procedure a party seeking to rely on a cross-vesting law must follow, when starting a proceeding and after a proceeding has started. The rule is based on FLR 2004 rule 4.06, updated for compatibility with the FCFCOA Act.

Rule 9.11: Transfer of proceeding

This rule provides that a party may apply to have a cross-vesting matter transferred to another court by filing an Application with a Proceeding (with a supporting affidavit – see rule 5.04). This rule is based on FLR 2004 rule 4.07.

CHAPTER 10 – Finalising a Proceeding

Part 10.1: Discontinuing a proceeding

Rule 10.01: Application of Part 10.1

This Part applies to an application or a response, part of an application or a response, an order sought in an application or response, and an application for a consent order where there is no current proceeding.

This rule is based on FLR 2004 rule 10.10. The expression ‘application or response’ derives from FCCR 2001 rule 13.01.

Rule 10.02: Discontinuance

This rule permits a party to discontinue an application or response by filing a notice of discontinuance in accordance with the approved form.

Subrule (2) requires the leave of the court to be obtained to file a notice of discontinuance less than 14 days before the day fixed for the final hearing of the application.

Subrule (3) provides that leave is always required for a party to file a notice of discontinuance if the proceeding relates to the property of a party and one of the parties dies before the proceeding is decided.

Subrules (1)-(4) are based on FCCR 2001 rule 13.01. See also FLR 2004 rule 10.11(1) and (2)(a).

Subrule (5) states that discontinuance of an application or response by one party does not discontinue any other party’s application or response. It is based on FLR 2004 rule 10.11(3).

Rule 10.03: Costs

This rule provides that if a party discontinues an application or response, another party in the proceeding may apply for costs and that such an application must be made within 28 days of service of the notice of discontinuance, unless the court directs otherwise.

Subrule (3) provides that the court may stay a further proceeding brought against the party to whom costs are payable, on the same or substantially the same matter, until the costs are paid.

This rule harmonises FCCR 2001 rule 13.02 and FLR 2004 subrules 10.11(4)-(5).

Part 10.2: Consent orders

Rule 10.04: Application for order by consent

This rule sets out how to apply for a consent order.

Parties can apply for a consent order by lodging a draft consent order with the court or tendering a draft consent order during a court event. They may also apply for a consent order orally during a hearing or trial. Subrule (2) requires a draft consent order to say that it is by consent and to be signed by each party. Subrules (1) and (2) harmonise FCCR 2001 subrules 13.04(1)-(2) and FLR 2004 paragraph 10.15(1)(a) and subrule 10.15(2).

Subrule (3) requires a litigation guardian who seeks a consent order on behalf of a party, other than an order related to practice or procedure, to file an affidavit setting out the facts to satisfy the court that the order is in the party’s best interests. This subrule is based on FLR 2004 paragraph 6.13(1)(d).

Subrule (4) provides the process for applying for a consent order about a matter when there is no current proceeding about the matter before the court. An Application for Consent Orders should be filed and a draft consent order either lodged with the court or tendered during a court event. This subrule is based on FLR 2004 subrule 10.15(1A). A note to this subrule indicate that an Application for Consent Orders should be filed in the FCFCOA (Division 2). A further note highlights the requirement, where an order is sought in relation to a superannuation interest, to file proof of the value of the superannuation interest.

Subrule (5) sets out the types of applications which must be made by filing an Initiating Application (Family Law) rather than an Application for Consent Orders. This subrule is based on FLR 2004 subrules 10.15(3) and (4).

Subrule (6) provides that this rule does not apply to an application for a parenting order in relation to a child born under a surrogacy arrangement. This subrule is based on FLR 2004 rule 10.15(2A).

Rule 10.05: Consent parenting orders and allegations of child abuse, family violence or other risks of harm to children

This rule requires parties to an application for a parenting order by consent to comply with Division 2.2.1 and notify the court of any allegations of child abuse, family violence or any risk of harm to a child.

Additionally, each party must advise the court whether the party considers (apart from any allegation made in the proceeding) that a child has been, or is at risk of being, subjected or exposed to abuse, neglect or family violence and whether the party considers that they or another party have been, or are at risk of being, subjected to family violence.

If a party raises an allegation or concern, the party must explain to the court how the proposed parenting order attempts to deal with it.

This rule harmonises FCCR 2001 rule 13.04A and FLR 2004 rule 10.15A.

Rule 10.06: Notice to superannuation trustee

This rule requires a party to a property proceeding who intends to apply for a consent order which is expressed to bind the trustee of an eligible superannuation fund to notify the trustee of certain matters at least 28 days before lodging the draft consent order or filing the Application for Consent Orders. If the trustee does not object to the order within 28 days, or consents in writing to the order being made, the party may file the application or lodge the draft consent order.

This rule is based on FLR 2004 rule 10.16.

Rule 10.07: Dealing with an application for a consent order

This rule provides that the court may make an order in accordance with an application for a consent order, or dismiss the application. The court may also require a party to file additional information before the application is determined. Subrules (1) and (2) harmonise FLR 2004 rule 10.17 and FCCR 2001 rule 13.05.

Subrule (3) provides that a Judicial Registrar may determine an application for a consent order if the Registrar has the power to make the order sought, unless the Registrar considers the application should be brought before a Judge. This subrule is based on FCCR 2001 subrule 13.04(4).

Subrule (4) states that an order made by consent has the same force and validity as an order made after a hearing by a Judge. This subrule is based on FCR 2011 subrule 39.11(3).

Rule 10.08: Lapsing of respondent’s consent

This rule provides that a respondent’s consent to an application that an order be made in the same terms as a draft consent order lapses after 90 days if the application has not been filed. This rule is based on FLR 2004 rule 10.18.

Part 10.3: Summary orders and separate decisions

Rule 10.09: Application for summary orders

This rule provides that a party may apply for summary orders after a response has been filed if the party claims that: the court has no jurisdiction; the other party has no legal capacity to apply for the orders sought; the application or response is frivolous, vexatious or an abuse of process; or there is no reasonable likelihood of success.

This rule harmonises FLR 2004 rule 10.12 and FCCR 2001 rules 13.09 and 13.10.

Rule 10.10: Application for separate decision

This rule permits a party to apply for a decision on any issue if the decision may dispose of all or part of the proceeding, make a trial unnecessary or substantially shorter, or save substantial costs.

This rule harmonises FLR 2004 rule 10.13 and FCCR 2001 rules 13.09 and 17.01 to 17.05.

Rule 10.11: Orders that may be made under this Part

This rule sets out the orders the court may make in relation to an application under this Part.

The court may stay execution on, or other enforcement of, any orders it makes against a party pending determination of a claim brought by that party against the party who obtains the order.

This rule harmonises FLR 2004 rule 10.14 and FCCR 2001 rules 13.07 and 13.08.

Part 10.4: Judgment

Rule 10.12: Court may make any judgment or order

This rule provides that the court may, at any stage in a proceeding on the application of a party, give any judgment or make any order. This rule is based on FCCR 2001 rule 16.01. The words ‘even if the claim was not made in an originating process’ have been removed from the end of the existing rule.

Rule 10.13: Varying or setting aside orders

This rule sets out the circumstances in which the court may vary or set aside an order. It does not affect the power of the court to vary or terminate the operation of an order by further order. This rule is based on FLR 2004 rule 17.02 and FCCR 2001 rule 16.05.

Rule 10.14: Varying or setting aside reasons for judgment

This rule sets out when the court may vary or set aside reasons for judgment. This may occur in circumstances where the reasons were issued by mistake, contain a clerical mistake or contain an error arising from any accidental slip or omission. It is based on FLR 2004 rule 17.02A.

Rule 10.15: Order for payment of money

This rule provides that if a person is ordered to pay money and the person is not present or represented by a lawyer in court when the order is made or the order is made in chambers, the person must be served with the order to ensure they are aware of the obligation. This requirement does not apply where the order is made by consent.

This rule is based on FLR 2004 rule 17.04, but with the use of the defined term ‘enforcement officer’ to make it suitable for both the FCFCOA (Division 1) and the FCFCOA (Division 2).

Rule 10.16: Fines

This rule sets out when and where a fine or forfeited bond is to be paid. The amount must be paid immediately unless another time for payment is specified by order. This rule harmonises FLR 2004 rule 17.05 and FCCR 2001 rule 16.04.

Rule 10.17: Rate of interest

This rule sets out how to calculate the interest rate to be applied on an amount outstanding under an order or agreement. This rule is based on FLR 2004 rule 17.03 and FCCR 2001 rule 22.01. The interest rate will continue to be calculated every six months by reference to the Reserve Bank of Australia cash rate plus 6%.

Rule 10.18: Undertakings

This rule sets out the effect of an undertaking to the court, and the general requirements for written undertakings and oral undertakings. It also sets out the effect of an undertaking as to damages. This rule harmonises FCCR 2001 rule 16.06 and FLR 2004 rule 17.06.

Rule 10.19: When an order is made

This rule sets out when an order is made and when it takes effect.

It provides that a party is entitled to receive a sealed copy of an order (other than a procedural order) and a copy of any published reasons for judgment.

This rule harmonises FLR 2004 rule 17.01 and FCCR 2001 rule 16.02.

Rule 10.20: When must an order be entered

This rule sets out when an order must be entered into the records of the court. Orders which must be entered include orders which will take immediate effect, orders which are to be served or enforced, and orders which require the taking of some step. Subrule (2) identifies orders that need not be entered.

This rule is based on FCCR 2001 rule 16.07 and FLR 2004 rule 17.01A.

Rule 10.21: Entry of orders

This rule sets out the ways in which orders may be entered. Subrules (2) and (3) provide that an order may be signed electronically and may be entered in the registry, in court or in chambers.

This rule harmonises FCCR 2001 rule 16.08 and FLR 2004 rule 17.01B.

Part 10.5: Summary disposal

Rule 10.22: Dismissal for want of prosecution

This rule sets out the procedure for dismissing a procedure for want of prosecution. It generally harmonises FCCR 2001 rule 13.12 and FLR 2004 rule 11.06. Like the existing rules, the rule is directed at delays attributable to the inaction of a party rather than delays caused by the court system.

The court may dismiss a proceeding under this rule, on its own initiative, if a party has not taken a step in a proceeding for 6 months (provided the court has given the parties notice). The 6 month period in FCCR 2001 subrule 13.12(1) has been adopted rather than the 12 month period in FLR 2004 subrule 11.06(1). Subrule (2) sets out circumstances in which the court must not make an order under this rule.

If an application is dismissed under this rule and a party who is ordered to pay the costs of another party starts another application on the same or substantially the same grounds before paying those costs, the other party can apply for the new proceeding to be stayed until the costs of the dismissed proceeding are paid (subrule (5)).

Rule 10.23: Certificate of vexatious proceedings order

This rule sets out the procedure for a person to request the issue of a certificate under section 102QC of the Family Law Act in relation to a vexatious proceedings order made by the court.

This rule specifies what must be included in a request, where the request must be lodged and what matters will be stated in the certificate.

The rule harmonises FCCR 2001 rule 13.11 and FLR 2004 rule 11.04.

Rule 10.24: Application for leave to institute proceedings

This rule sets out the process for a person to apply, under section 102QE(2) of the Family Law Act, for leave to institute a proceeding that is subject to a vexatious proceedings order.

The application for leave is initially made without notice to any other party. The court may then require the application and any further evidence to be served on another party or parties before the application is heard.

This rule harmonises FCCR 2001 rule 13.11A and FLR 2004 rule 11.05(2)-(3).

Part 10.6: Default

Rule 10.25: Application of Part 10.6

Nothing in Part 10.6 is intended to limit the court’s powers in relation to contempt or sanctions for failure to comply with an order. This rule is based on FCCR 2001 rule 13.03D.

Rule 10.26: When a party is in default

This rule sets out the circumstances in a proceeding in which an applicant or a respondent is in default for the purposes of rule 10.27. The circumstances include, for example, failing to comply with a court order in the proceeding, failing to file and serve a document required under the Rules of Court, or failing to do any act required to be done by the Rules of Court. This rule is based on FCCR 2001 rule 13.03A.

Rule 10.27: Orders on default

This rule sets out the steps the court may take if an applicant or a respondent is in default. These include making orders for the proceeding to be stayed or dismissed (in whole or in part), giving judgment or making orders against a defaulting respondent, making orders requiring a defaulting party to take a step within a particular timeframe, and making self-executing orders which take effect upon the failure to take a step within a required period. Subrule (3) provides that the rule does not restrict the orders the court may make or the directions the court may give.

This rule is based on FCCR 2001 rule 13.03B, modified for use in family law and child support proceedings.

CHAPTER 11 – Enforcement of court orders and judgments

This Chapter is primarily based on FLR 2004 Chapters 20 and 21. FCCR 2001 Part 25B (and Part 19 in relation to contempt) address the same topics, for the most part in similar terms.

Part 11.1: Enforcement of financial orders and obligations

Division 11.1.1: General

Rule 11.01: Enforceable obligations

This rule sets out the types of obligations and orders that may be enforced under Part 11.01. They include an obligation to pay money, an obligation to sign a document under section 106A of the Family Law Act, an order entitling a person to the possession of real property and an order entitling a person to the transfer or delivery of personal property.

Subrules (2) and (3) give examples of what are or are not obligations to pay money for the purposes of the rule.

This rule is based on FLR 2004 rule 20.01 and FCCR 2001 rule 25B.07.

Rule 11.02: When an agreement may be enforced

This rule requires that if a person seeks to enforce an agreement under section 87, Part VIIIA or Part VIIIAB of the Family Law Act, the person must first obtain an order to the effect that the agreement is valid and enforceable (under paragraphs 87(11)(c), 90KA(c) or 90UN(c) respectively). The rule is based on FLR 2004 rule 20.02 and FCCR 2001 rule 25B.08.

Rule 11.03: When a child support liability may be enforced

This rule requires a person who seeks to enforce payment of a child support liability that does not arise by way of an order to first obtain an order for payment of the amount by filing an Application—Enforcement form and supporting affidavit.

Paragraph (2)(b) and subrule (3) specify additional documents that must be filed if the payee is the Child Support Agency or is seeking to recover a child support liability under section 113A of the Registration Act.

This rule is based on FLR 2004 rule 20.03 and FCCR 2001 rule 25B.09.

Rule 11.04: Who may enforce an obligation

This rule identifies who may enforce an obligation under this Part. This rule is based on FLR 2004 rule 20.04 and FCCR 2001 rule 25B.10.

Rule 11.05: Enforcing an obligation to pay money

This rule provides that an obligation to pay money may be enforced by one or more of four methods, namely, an Enforcement Warrant, a Third Party Debt Notice, sequestration of property or receivership. This rule is based on FLR 2004 rule 20.05 and FCCR 2001 rule 25B.11.

Rule 11.06: Affidavit to be filed for enforcement order

This rule sets out the requirements for an affidavit filed in support of an application for an enforcement order. This rule is based on FLR 2004 rule 20.06 and FCCR 2001 rule 25B.12. The requirement in subparagraph (c)(ii) for the payee’s address to be stated in the affidavit has been modified so that the payee’s address may be withheld if its disclosure would compromise the payee’s safety.

Rule 11.07: General enforcement powers of court

This rule sets out the court’s general powers in relation to an application for enforcement. This rule harmonises FLR 2004 rule 20.07 and FCCR 2001 rule 25B.13.

Rule 11.08: Enforcement order

This rule identifies the details that must be set out in an enforcement order. This rule is based on FLR 2004 rule 20.08 and FCCR 2001 rule 25B.14.

Rule 11.09: Discharging, suspending or varying enforcement order

This rule states that a party to an enforcement order may apply to the court to discharge, suspend or vary the order at any time. Subrule (2) clarifies that an application under this rule does not stay the operation of the enforcement order.

The rule is based on FLR 2004 rule 20.09 and FCCR 2001 rule 25B.15.

Division 11.1.2: Information for aiding enforcement

Rule 11.10: Processes for obtaining financial information

This rule provides a process by which a payee can obtain financial information about a payer before applying for an enforcement order. A payee may require the payer to complete and serve a Financial Statement, or may apply without notice to the payer for an order requiring the payer to complete and file a Financial Statement or to disclose information or produce documents relevant to the payer’s financial affairs. The application may be heard by a Judicial Registrar in chambers, in the absence of the parties, on the documents filed. The rule is based on FLR 2004 rule 20.10 and FCCR 2001 rule 25B.16.

Rule 11.11: Enforcement hearing

This rule provides that a payee may require a payer to attend an enforcement hearing by filing an Application—Enforcement and supporting affidavit and serving them with a court approved brochure. The payee may specify a list of documents the payer is required to bring to court. A note identifies that the purpose of the enforcement hearing is to obtain information to help the enforcement of an order or other obligation and to assist the court to determine a dispute or issue an enforcement order. This rule harmonises FLR 2004 rule 20.11 and FCCR 2001 rule 25B.17. Subrule (3) has been adapted so that the documents must be served by personal service.

Rule 11.12: Obligations of payer

This rule requires a payer who is served with the documents required by rule 11.11 to attend the enforcement hearing, produce any required documents and (at least 7 days in advance) serve a Financial Statement setting out the payer’s financial circumstances. This rule is based on FLR 2004 rule 20.12 and FCCR 2001 rule 25B.18.

Rule 11.13: Subpoena of witness

This rule provides that a party may request the court to issue a subpoena to a witness for an enforcement hearing. This rule is based on FLR 2004 rule 20.13 and FCCR 2001 rule 25B.19.

Rule 11.14: Failure concerning Financial Statement or enforcement hearing

This rule sets out the offences for failure to comply with this Division. They are offences of strict liability which may result in a penalty of up to 50 penalty units.

Subrule (2) states that if a person is prosecuted under Family Law Act section 112AP (contempt) for an act or omission, an application under this rule must not be made in respect of that act or omission.

This rule is based on FLR 2004 rule 20.14 and FCCR 2001 rule 25B.20.

Division 11.1.3: Enforcement warrants

This Division sets out the process for obtaining an Enforcement Warrant, the execution of the warrant, including the rights and responsibilities of enforcement officers, and the effect of the warrant. It includes the requirements for the valid advertisement of a sale of property seized pursuant to an enforcement warrant.

Rule 11.15: Request for Enforcement Warrant

This rule sets out how to apply for an Enforcement Warrant. A payee may ask the court to issue an Enforcement Warrant without notice to the payer by filing an affidavit and a draft of the Enforcement Warrant sought. Subrule (2) sets out the requirements for the affidavit. This rule is based on FLR 2004 rule 20.16 and FCCR 2001 rule 25B.22.

Rule 11.16: Payee’s responsibilities if Enforcement Warrant is issued

This rule sets out what the payee must give the enforcement officer if the Enforcement Warrant is issued. This rule is based on FLR 2004 rule 20.16 and FCCR 2001 rule 25B.22.

Rule 11.17: Period during which Enforcement Warrant is in force

This rule provides that an Enforcement Warrant remains in force for 12 months from the date when it was issued. This rule is based on FLR 2004 rule 20.17 and FCCR 2001 rule 25B.23.

Rule 11.18: Enforcement officer’s responsibilities

This rule sets out the powers and responsibilities of an enforcement officer in relation to an Enforcement Warrant. ‘Enforcement officer’ is defined in rule 1.05. This rule is based on FLR 2004 rule 20.18 and FCCR 2001 rule 25B.24.

Rule 11.19: Directions for enforcement

This rule allows an enforcement officer to seek procedural orders to assist in carrying out the officer’s functions. A request must be in writing and comply with the requirements set out in subrule (2). A copy must be given to all parties.

The court may determine the request without an oral hearing if the court considers it appropriate and the parties to the application consent.

This rule is based on FLR 2004 rule 20.19 and FCCR 2001 rule 25B.25. Subrule (4) has been amended to reflect the general rule for hearings in the absence of the parties.

Rule 11.20: Effect of Enforcement Warrant

This rule provides that property seized under an Enforcement Warrant remains the subject of the Enforcement Warrant until it is released by full payment of the total amount owing, or by sale, order or consent of the payee. This rule is based on FLR 2004 rule 20.20 and FCCR 2001 rule 25B.26.

Rule 11.21: Notice of sale

This rule requires an enforcement officer to publish a notice of sale before selling property seized under an Enforcement Warrant. This rule does not apply if the property seized is perishable. The rule sets out the information the notice of sale must include, including specific information for a sale of real property.

This rule is based on FLR 2004 rule 20.21 and FCCR 2001 rule 25B.27.

Rule 11.22: Sale of property at reasonable price

This rule requires an enforcement officer to fix a reasonable price for property seized under an Enforcement Warrant, having regard to all circumstances relevant to the sale of the property. Subrule (2) sets out a non-exhaustive list of circumstances relevant to the sale price of real property for the purpose of subrule (1). This rule is based on FLR 2004 rule 20.21A and FCCR 2001 rule 25B.28.

Rule 11.23: Conditions of sale of property

This rule sets out the matters an enforcement officer must specify as conditions of the sale of property seized under an Enforcement Warrant. This rule is based on FLR 2004 rule 20.21B and FCCR 2001 rule 25B.29.

Rule 11.24: Result of sale of property under Enforcement Warrant

This rule requires an enforcement officer to notify the court, within 7 days after the day of settlement of a sale of property under an Enforcement Warrant, of the result of the sale and the reasonable fees and expenses of the enforcement. The enforcement officer must pay out of the money received: any amount owing to the enforcement officer for the fees and expenses of the enforcement, the balance owing to the payee under the Enforcement Warrant and the remaining amount (if any) to the payer.

The rule is based on FLR 2004 rule 20.22 and FCCR 2001 rule 25B.30.

Rule 11.25: Payee’s responsibilities

This rule sets out what a payee must do before an enforcement officer sells real property under an Enforcement Warrant. The payee must notify the payer and any mortgagee or other person who has an encumbrance registered on the title to the property that the Warrant has been registered on the title and that the enforcement officer intends to sell the property if satisfactory arrangements are not made by a specified date. The payee must also provide the enforcement officer with certain information about the property. This rule is based on FLR 2004 rule 20.23 and FCCR 2001 rule 25B.31.

Rule 11.26: Orders for real property

This rule sets out the procedural orders that a payee, payer or enforcement officer may apply for in relation to real property which is the subject of an Enforcement Warrant (requested or issued) or an enforcement order for seizure or sale (applied for or made). The court may hear the application under this rule in chambers, in the absence of the parties, on the documents filed. This rule is based on FLR 2004 rule 20.24 and FCCR 2001 rule 25B.32.

Rule 11.27: Notice of claim by person affected by an Enforcement Warrant

This rule provides that a person affected by an Enforcement Warrant may serve on the enforcement officer a notice of claim in relation to the property the enforcement officer has seized or intends to seize. The enforcement officer must serve a copy of the notice of claim on the payee. This rule is based on FLR 2004 rule 20.25 and FCCR 2001 rule 25B.33.

Rule 11.28: Payee to admit or dispute claim

This rule provides that a payee served with a notice of claim must notify the enforcement officer within 7 days whether the payee admits or disputes the claim. This rule is based on FLR 2004 rule 20.26 and FCCR 2001 rule 25B.34.

Rule 11.29: Admitting claim

This rule provides that, if a payee admits an affected person’s claim, the enforcement officer must return the property to its lawful owner in a way that is consistent with the affected person’s claim. This rule is based on FLR 2004 rule 20.27 and FCCR 2001 rule 25B.35.

Rule 11.30: Denial or no response to claim

This rule sets out what happens if a payee disputes, or fails to respond to, an affected person’s notice of claim. An application may be made by a party to the Enforcement Warrant, the affected person or the enforcement officer for an order to determine the claim. This rule is based on FLR 2004 rule 20.28 and FCCR 2001 rule 25B.36.

Rule 11.31: Hearing of application

This rule states the court’s powers on the hearing of an application under rule 11.30. This rule is based on FLR 2004 rule 20.29 and FCCR 2001 rule 25B.37.

Division 11.1.4: Third Party Debt Notice

This Division sets out the procedure for enforcing a debt by the issue of a Third Party Debt Notice.

Rule 11.32: Application of Division 11.1.4

This rule sets out the funds which can be the subject of a Third Party Debt Notice. This rule is based on FLR 2004 rule 20.30 and FCCR 2001 rule 25B.38.

Rule 11.33: Money deposited in a financial institution

This rule identifies when money deposited in an account with a financial institution is a debt due to the payer such that it can be the subject of a Third Party Debt Notice. This rule is based on FLR 2004 rule 20.31 and FCCR 2001 rule 25B.39.

Rule 11.34: Request for Third Party Debt Notice

This rule sets out how a payee may request the issue of a Third Party Debt Notice to enforce a financial obligation. The payee may, without notice to the payer or third party debtor, file 3 copies of the Third Party Debt Notice and an affidavit that meets the requirements of subrule (2). The rule is based on FLR 2004 rule 20.32 and FCCR 2001 rule 25B.40.

Rule 11.35: Service of Third Party Debt Notice

This rule requires a payee to serve a Third Party Debt Notice issued under rule 11.34 and a court approved brochure on both the payer and the third party debtor. It is based on FLR 2004 rule 20.33 and FCCR 2001 rule 25B.41.

Rule 11.36: Effect of Third Party Debt Notice – general

This rule provides that if a Third Party Debt Notice is served on a third party debtor, a debt due or accruing to the payer from the third party debtor is attached and bound (to the extent specified in the Notice) in the hands of the third party debtor. This rule is based on FLR 2004 rule 20.34 and FCCR 2001 rule 25B.42.

Rule 11.37: Employer’s obligations

This rule states what a third party debtor who is the payer’s employer must do under a Third Party Debt Notice directed to earnings. This rule is based on FLR 2004 rule 20.35 and FCCR 2001 rule 25B.43.

Rule 11.38: Duration of Third Party Debt Notice

This rule provides that a Third Party Debt Notice continues in force until the total amount mentioned in the Notice is paid or the Notice is set aside. This rule is based on FLR 2004 rule 20.36 and FCCR 2001 rule 25B.44.

Rule 11.39: Response to Third Party Debt Notice

This rule provides that a third party debtor who has been served with a Third Party Debt Notice (or an order discharging, varying or suspending the Notice) may apply to dispute liability to make payments under the Notice, or to seek procedural orders in relation to the Notice. The rule also sets out the orders the court may make in determining an application under this rule. This rule is based on FLR 2004 rule 20.37 and FCCR 2001 rule 25B.45.

Rule 11.40: Discharge of Third Party Debt Notice

This rule states that if a third party debtor pays an amount mentioned in a Third Party Debt Notice to the payee, the debt is discharged to the extent of the payment. This rule is based on FLR 2004 rule 20.38 and FCCR 2001 rule 25B.46.

Rule 11.41: Claim by affected person

This rule permits a person, other than the payee, who claims to be entitled to the debt (or a charge or lien on or other interest in the debt) mentioned in a Third Party Debt Notice, to apply for an order determining the claim by filing an Application in a Proceeding and a supporting affidavit. The rule is based on FLR 2004 rule 20.39 and FCCR 2001 rule 25B.47.

Rule 11.42: Cessation of employment

This rule sets out what is to happen if a payer ceases to be employed by an employer who is required by a Third Party Debt Notice to redirect part of the payer’s earnings to the payee. The rule is based on FLR 2004 rule 20.40 and FCCR 2001 rule 25B.48.

Rule 11.43: Compliance with Third Party Debt Notice

This rule sets out certain offences in relation to Third Party Debt Notices. These are offences of strict liability with a penalty of up to 50 penalty units.

Subrule (2) provides that a penalty imposed under this rule does not affect an obligation that the third party debtor may have in relation to the payer or another right or remedy the payer may have against the third party debtor.

Subrule (3) states that if a person is prosecuted under Family Law Act section 112AP (contempt) for an act or omission, an application under this rule must not be made in respect of that act or omission.

This rule is based on FLR 2004 rule 20.41 and FCCR 2001 rule 25B.49.

Division 11.1.5: Sequestration of property

Rule 11.44: Application for sequestration of property

This rule provides that a payee may apply to the court for an enforcement order appointing a sequestrator of the property of a payer by filing an Application—Enforcement and a supporting affidavit meeting the requirements of subrule (2).

Subrules (3) and (4) provide that the court may hear an urgent application under this rule without notice and may hear an application under this rule in chambers, in the absence of the parties, on the documents filed.

This rule is based on FLR 2004 rule 20.42 and FCCR 2001 rule 25B.50.

Rule 11.45: Order for sequestration

This rule sets out the matters of which the court must be satisfied before it makes an order for sequestration and the actions the court may take on appointing a sequestrator.  The rule is based on FLR 2004 rule 20.43 and FCCR 2001 rule 25B.51.

Rule 11.46: Order relating to sequestration

This rule sets out the orders the court may make, on application, in relation to a sequestration order. The rule is based on FLR 2004 rule 20.44 and FCCR 2001 rule 25B.52.

Rule 11.47: Procedural orders for sequestration

This rule sets out the process by which a sequestrator may seek procedural orders about the sequestrator’s functions. This rule is based on FLR 2004 rule 20.45 and FCCR 2001 rule 25B.53.

Division 11.1.6: Receivership

Rule 11.48: Application for appointment of receiver

This rule provides that a payee may apply for the appointment of a receiver of the payer’s income or property by filing an Application-Enforcement and a supporting affidavit.

The court may hear an application under this rule in chambers, in the absence of the parties, on the documents filed.

The rule is based on FLR 2004 rule 20.46 and FCCR 2001 rule 25B.54.

Rule 11.49: Appointment and powers of receiver

This rule sets out the matters to which the court must have regard in considering an application for the appointment of a receiver, and the orders the court must make when appointing a receiver. The rule is based on FLR 2004 rule 20.47 and FCCR 2001 rule 25B.55.

Rule 11.50: Security

This rule provides that the appointment of a receiver starts when the order appointing the receiver is made and the receiver files any security ordered that is acceptable to the court for the performance of the receiver’s duties. The rule is based on FLR 2004 rule 20.48 and FCCR 2001 rule 25B.56.

Rule 11.51: Accounts

This rule sets out how a party to whom a receiver must submit accounts may inspect the documents and things on which the accounts are based. This rule is based on FLR 2004 rule 20.49 and FCCR 2001 rule 25B.57.

Rule 11.52: Objection to accounts

This rule sets out how a party may object to the accounts submitted by a receiver. This rule is based on FLR 2004 rule 20.50 and FCCR 2001 rule 25B.58.

Rule 11.53: Removal of receiver

This rule provides that the court may set aside the appointment of a receiver at any time and make orders about the receivership and the receiver’s remuneration. The rule is based on FLR 2004 rule 20.51 and FCCR 2001 rule 25B.59.

Rule 11.54: Compliance with orders and Rules

This rule sets out the orders the court may make if a receiver contravenes an order or the Rules. This rule is based on FLR 2004 rule 20.52 and FCCR 2001 rule 25B.60.

Division 11.1.7: Enforcement of obligations other than an obligation to pay money

This Division provides the processes for enforcing obligations other than those enforceable under the rest of this Part or Part 11.2. These include orders requiring the execution of documents, warrant for possession of real property, and warrants for the delivery of personal property or for the seizure and detention of property.

Rule 11.55: Application for other enforcement orders

This rule sets out the process by which a payee may apply for an order requiring a person to sign documents under Family Law Act section 106A (executing a deed or instrument), an order enforcing possession of real property or an order for the transfer or delivery of property. The rule is based on FLR 2004 rule 20.53 and FCCR 2001 rule 25B.61.

Rule 11.56: Warrant for possession of real property

This rule sets out the circumstances in which a warrant for the possession of real property may be issued and what the warrant may authorise. The rule is based on FLR 2004 rule 20.54 and FCCR 2001 rule 25B.62.

Rule 11.57: Warrant for delivery

This rule provides that a person entitled under an order for the delivery of personal property may apply for the issue of a warrant authorising enforcement of the order by an enforcement officer. This rule is based on FLR 2004 rule 20.55 and FCCR 2001 rule 25B.63.

Rule 11.58: Warrant for seizure and detention of property

This rule sets out the circumstances in which a person may apply for the issue of a warrant authorising an enforcement officer to seize and detain real and personal property in which the respondent has a legal or beneficial interest. The rule is based on FLR 2004 rule 20.56 and FCCR 2001 rule 25B.64.

Division 11.1.8: Other provisions about enforcement

Rule 11.59: Service of order

This rule states that an order may only be enforced against a person if it has been served on the person or the court is otherwise satisfied that the person has received notice of the terms of the order. The rule is based on FLR 2004 rule 20.57 and FCCR 2001 rule 25B.65.

Rule 11.60: Certificate for payments under maintenance order

Where an order specifies that maintenance must be paid to a Registrar or an authority, this rule requires the Registrar or authority to give, on request, the court or a party to the order a certificate stating the amounts that have been paid and the amount that remains unpaid. The rule is based on FLR 2004 rule 20.58 and FCCR 2001 rule 25B.66.

Rule 11.61: Enforcement by or against a non-party

An order made in favour of or against a person who is not a party to a proceeding may be enforced as if the person were a party to the proceeding. This rule is based on FLR 2004 rule 20.59 and FCCR 2001 rule 25B.67.

Rule 11.62: Powers of enforcement officer

This rule sets out the powers of an enforcement officer when enforcing a warrant. This rule is based on FLR 2004 rule 20.60 and FCCR 2001 rule 25B.68.

Part 11.2: Enforcement of parenting orders, contravention of orders and contempt

Division 11.2.1: Applications for enforcement of orders and on contravention of orders

Rule 11.63: Application of Division 11.2.1

This rule sets out the applications to which this Division applies. These are:

·         applications for an order enforcing a parenting order (where what is sought is enforcement of the parenting order rather than the sanctioning of the respondent);

·         applications for an order under section 67X of the Family Law Act (alleging that a person has intentionally prevented or hindered the taking of action under a recovery order);

·         applications for an order under Division 13A of Part VII of the Family Law Act (alleging contravention of an order, injunction, undertaking etc affecting a child); and

·         applications for an order under Part XIIIA of the Family Law Act (alleging contravention of an order, injunction, undertaking etc other than one affecting a child).

This rule harmonises FLR 2004 rule 21.01 and FCCR 2001 rule 25B.01. Contempt applications are now dealt with separately in Division 11.2.2.

Rule 11.64: How to apply for an order

Subrule (1) sets out what form is to be used for each type of application under this Division.

Subrules (2) and (3) require an affidavit to be filed with the application, which meets certain specified requirements.

This rule is based on FLR 2004 rule 21.02. See also FCCR 2001 rule 25B.02.

Rule 11.65: Application made or continued by Marshal

This rule provides that the court may direct the Marshal or another officer of the court to make or continue an application under this Part. It is based on FLR 2004 rule 21.03.

Rule 11.66: Fixing of hearing date

An application under subrule 11.64(1) will be listed for hearing as near as practicable to 14 days after the date of filing. This rule is based on FLR 2004 rule 21.05.

Rule 11.67: Response to an application

This rule provides that a respondent to a contravention application may file an affidavit but is not required to do so. This rule is based on FLR 2004 rule 21.06.

Rule 11.68: Failure of respondent to attend

This rule provides that, if a respondent fails to attend the hearing in person or by a lawyer, the court may determine the proceeding, issue a warrant for the respondent’s arrest (in a contravention application) or adjourn the application. This rule is based on FLR 2004 rule 21.07 and FCCR 2001 rule 25B.03.

Rule 11.69: Procedure at hearing

This rule sets out the steps the court must take at the hearing of a contravention application. This rule harmonises FLR 2004 rule 21.08 and FCCR 2001 rule 25B.04. Contempt applications are now dealt with separately in Division 11.2.2.

Division 11.2.2: Contempt

This Division sets out the rules in relation to contempt applications. It is based on FCCR 2001 rules 19.01 and 19.02, with some modifications.

Rule 11.70: Contempt in the face or hearing of the court

This rule sets out the process to be followed where the court charges a person with contempt in the court room. It is based on FCCR 2001 rule 19.01. This rule is more detailed than FLR 2004 rule 21.04 and specifically provides that the court may direct that a person be kept in custody or released until the charge is determined and that the court may direct that a person give security for their attendance before the court to answer the charge. The note to the rule gives examples of actions which may be contempt.

Rule 11.71: Contempt applications

This rule sets out the process for the making of an application alleging that a person has committed a contempt of court (whether in court or out of court). Subrule (2) sets out the requirements for an application (an Application—Contempt and supporting affidavit).

Subrule (3) sets out who may make a contempt application. In addition to the parties to a proceeding, a contempt application may be brought by Federal or State or Territory police, and by the court on its own initiative (through the Marshal or another officer). Subrule (4) provides that the court may direct the Marshal or another officer of the court to make an application.

Subrule (5) provides that the court may issue a warrant for the arrest and detention of the person if the court considers that the person is likely to leave the jurisdiction of the court.

Subrules (6) to (8) set out the process to be followed at a contempt hearing.

This rule is based on FCCR 2001 rule 19.02, modified to allow a contempt application to be brought whether the alleged contempt occurred in court or out of court (as is currently permitted by item 4 of Table 21.1 in FLR 2004 rule 21.02). Notes have been added based on notes to FLR 2004 rule 21.01 and 21.02(2).

Division 11.2.3: Parenting orders: compliance

Rule 11.72: Duties of program provider

This rule specifies how the provider of a post-separation parenting program is to inform the court under section 70NED of the Family Law Act where the provider considers that a person is unsuitable to attend the program or to continue attending the program, or fails to attend a program in whole or in in part. This rule is based on FLR 2004 rule 21.09. References in the current rule to repealed provisions of the Family Law Act have been removed and a note has been added to summarise the effect of section 70NED of the Family Law Act.

Rule 11.73: Relisting for hearing

On receiving a notice under subrule 11.72(1), the court may list the proceeding for the making of orders under section 70NEG of the Family Law Act (in relation to attendance at a post-separation parenting program). This rule is based on FLR 2004 rule 21.10.

Division 11.2.4: Location and recovery orders

This Division sets out the procedure for applications for location and recovery orders and the process to be followed once a recovery order is made. It is based on FLR 2004 Part 21.3. See also FCCR 2001 Division 25B.3.

Rule 11.74: Application of Division 11.2.4

This rule provides that Division 11.2.4 applies to location orders, Commonwealth information orders and recovery orders (see sections 67J to 67W of the Family Law Act). This rule is based on FLR 2004 rule 21.11 and FCCR 2001 rule 25B.69.

Rule 11.75: Application for order under Division 11.2.4

This rule provides that a person may apply for an order to which Division 11.2.4 applies if there is a current proceeding before the Court by filing an Application in a Proceeding with a supporting affidavit, or in any other case by filing an Initiating Application (Family Law). This rule is based on FLR 2004 rule 21.12 and FCCR 2001 rule 25B.70.

Rule 11.76: Fixing of hearing date

Once an application under this Division is filed, the court will fix a date for a hearing that is within 14 days after the application was filed, if practicable. This rule is based on FLR 2004 rule 21.13.

Rule 11.77: Service of recovery order

This rule requires a person who is enforcing a recovery order to serve the recovery order on the person from whom the child is being recovered.

The rule is based on FLR 2004 rule 21.14 and FCCR 2001 rule 25B.71.

Rule 11.78: Application for directions for execution of recovery order

This rule sets out the procedure for seeking procedural orders in relation to a recovery order. The rule is based on FLR 2004 rule 21.15 and FCCR 2001 rule 25B.72.

Division 11.2.5: Warrants for arrest

Rule 11.79: Application for warrant

This rule permits a party to apply without notice for a warrant to be issued for the arrest of a respondent in certain circumstances. Subrule (2) requires an issued warrant to have attached to it a copy of the relevant application, subpoena or order which requires the respondent to attend court.

The rule is based on FLR 2004 rule 21.16. FCCR 2001 rule 25B.73 provides to similar effect, however this rule follows the FLR 2004 rule by permitting an application for a warrant to be made where a respondent fails to attend court for the hearing of a contravention application.

Rule 11.80: Execution of warrant

This rule sets out how a warrant is to be executed. It is based on FLR 2004 rule 21.17 and FCCR 2001 rule 25B.74.

Rule 11.81: Duration of warrant

A warrant (except for a warrant under subsection 65Q(2) of the Family Law Act) ceases to be in force 12 months after the date when it is issued. This rule is based on FLR 2004 rule 21.18 and FCCR 2001 rule 25B.75.

Rule 11.82: Procedure after arrest

This rule sets out the procedure to be followed when a person is arrested under a warrant.

When issuing a warrant for a person’s arrest, the court may order that the person be held in custody until the hearing of the proceeding or be released from custody on compliance with a condition.

Subrule (3) sets out what a court may do when a person arrested under a warrant is brought before the court. Subrule (4) requires that the person arrested be released from custody at the end of the holding period (as defined in subrule (6)) unless otherwise ordered.

Subrule (5) provides that this rule does not apply to a person who is arrested under a warrant issued under subsection 65Q(2) of the Family Law Act, or a person who is arrested without a warrant, under a recovery order or under sections 68C and 114AA of the Family Law Act. The procedure following such arrests is set out in the Family Law Act.

Subrules (1)-(5) are based on FLR 2004 rule 21.19. Subrule (6) (defining a holding period) is based on FCCR 2001 rule 25B.76(6).

Rule 11.83: Application for release or setting aside warrant

This rule permits an arrested person to apply for the warrant to be set aside or to be released from custody. This rule is based on FLR 2004 rule 21.20 and FCCR 2001 rule 25B.77.

CHAPTER 12 – Costs

Part 12.1: Introduction

Rule 12.01: Application of Chapter 12

This Chapter applies to the costs paid or payable by one party to another for work done for a proceeding, or in complying with pre-action procedures. It also requires lawyers to give certain information about costs to their clients, and provides for a level of court management of the costs incurred by the parties in relation to a family law or child support proceeding.

The Chapter does not apply to costs in a proceeding in which a Family Court is exercising jurisdiction under sections 35, 35A or 35B of the Bankruptcy Act.

This rule is based on FLR 2004 rule 19.01, with the addition of paragraph (1)(c). Compare FCCR 2001 rule 21.09.

Part 12.2: Security for costs

Rule 12.02: Application for security for costs

This rule provides that a respondent may apply for an order that the applicant give security for the respondent’s costs, and sets out what matters the court may take into consideration when deciding the application for security. This rule is based on FLR 2004 rule 19.05. FCCR 2001 rule 21.01 addresses the same topic.

Rule 12.03: Order for security for costs

This rule provides that the court, when making an order for security for costs, may also order that a party’s application or response be stayed if the party does not give security in accordance with the order. This rule is based on FLR 2004 rule 19.06.

Rule 12.04: Finalising security

This rule sets out how security for costs may be applied or discharged. It is based on FLR 2004 rule 19.07.

Part 12.3: Costs disclosure obligations

This Part requires lawyers to give their clients certain information about costs in family law and child support proceedings. As the note to the Part indicates, it supplements and does not derogate from the costs disclosure obligations legal practitioners have under State and/or Territory legislation.

Rule 12.05: Duty to inform about costs

This rule requires each party’s lawyer to inform the party about the party’s actual costs to date and estimated future costs of the proceeding, whenever an offer to settle is made during a property proceeding. It is based on FLR 2004 rule 19.03.

Rule 12.06: Costs notices

This rule requires a party’s lawyer to give the party written notice of the party’s actual costs, estimated future costs and any expenses paid or payable to an expert witness, prior to each court event.

Subrule (3) requires the lawyer to file and serve a copy of this notice on each other party. An unrepresented party must file and serve on each other party a written statement of their actual costs and estimated future costs.

New subrule (4) and subrule (5) provide that different requirements apply to an independent children’s lawyer or to a party receiving legal aid.

Subrule (6) requires a costs notice in a financial proceeding to specify the source of the funds for the costs paid or to be paid, unless the court otherwise orders. Additionally, a party must disclose to their lawyer the source of funds from which the party makes any payment to a lawyer for costs or future costs.

If a costs notice is not served prior to a court event as required by subrules (3) to (5), new subrule (7) requires that the relevant notice be filed and served within three days of the court event or within such other period as the court may direct.

New subrule (8) states that the court can make a notation on a case management order of the terms of a costs notice and any comments the court has about costs.

Subrules (1), (2), (3) and (5) and paragraph (6)(a) are based on FLR 2004 subrules 19.04(1)-(5), however the rule now applies to all court events (as defined in rule 1.05). This has the effect that a party’s lawyer will now be required to file and serve a copy of a costs notice before each court event (except where the party is receiving legal aid or the lawyer is an independent children’s lawyer, in which case the notice is only required before the first day of trial).

Subrule (9) is based on FLR 2004 subrule 19.04(7).

Rule 12.07: Costs notices and case management

This new rule gives the court power to have regard to any costs notices filed and served by the parties when making any case management decision concerning a claim relating to the property of one of the parties.

Part 12.4: Management of legal costs

Division 12.4.1: Costs principles

Rule 12.08: Legal costs to be fair, reasonable and proportionate

This new rule sets out important principles relating to legal costs in family law and child support proceedings: legal costs should be fairly, reasonably and proportionately incurred, and should be fair, reasonable and proportionate in amount, in the circumstances of the proceeding.

Subrule (2) sets out some matters to which the court may have regard in considering whether a party’s legal costs have been fairly, reasonably and proportionately incurred.

Subrule (3) sets out some matters to which the court may have regard in considering whether a party’s legal costs are fair, reasonable and proportionate in amount.

Subrule (4) requires the court to have regard to any applicable State or Territory law concerning the regulation of legal practitioners, when considering whether a party’s legal costs have been fairly, reasonably and proportionately incurred or are fair, reasonable and proportionate in amount.

Subrule (5) provides that a cancellation fee charged by a barrister or a solicitor advocate will not be considered reasonable in the context of an application for costs as between party and party. This does not limit the capacity of parties and their counsel to negotiate a cancellation fee as part of their fee arrangements, but it will restrict the capacity of a party to recover such a fee from another party.

Division 12.4.2: Maximum costs orders

This new Division provides for the making of maximum costs orders, on application or the court’s own initiative. Maximum costs orders limit the costs that may be recovered as between party and party for the proceeding. They will only be made in certain circumstances, and once made, may be varied. This Division expands on the existing provision in FCCR 2001 rule 21.03 in relation to maximum costs orders.

Rule 12.09: Application of Division 12.4.2

This rule provides that this Division applies to all proceedings under the Family Law Act except for divorce and nullity of marriage proceedings, some parenting proceedings (and related enforcement proceedings) and arbitrations.

Rule 12.10: Maximum costs orders – general

This rule sets out the circumstances in which a maximum costs order can be made.

Subrule (2) provides that a maximum costs order may be made at any court event, on the court’s own initiative or on the application of a party.

Subrule (3) provides that a maximum costs order may be made in respect of the proceeding as a whole or in respect of any issues which are ordered to be tried separately.

Subrule (4) sets out the criteria which must be satisfied before the court’s discretion to make a maximum costs order is enlivened. Subrule (5) sets out matters which the court must consider in exercising its discretion.

Subrule (6) states that the amount specified in a maximum costs order must not include certain specified amounts. Subrule (7) provides that the court may vary an amount specified in a maximum costs order if, in the court’s opinion, there are special reasons and it is in the interests of justice to do so.

Rule 12.11: Application for a maximum costs order

This rule sets out how a party may apply for a maximum costs order. An Application in a Proceeding must be filed with a supporting affidavit meeting the requirements of subrule (2).

The court may give directions in relation to the application, including directions that one or more parties file a schedule of costs and/or written submissions on any issue arising from the application.

Rule 12.12: Application to vary a maximum costs order

This rule sets out how a party may apply to vary a maximum costs order.

Part 12.5: Orders for costs

Rule 12.13: Order for costs

This rule provides that the court may make an order for costs on its own initiative or on the application of a party.

Subrule (3) provides that an application for costs may be made at any stage during a proceeding or within 28 days after the final order is made.

Subrule (4) provides that a party applying for costs on an indemnity basis must advise the court of the existence and terms of any costs agreement(s).

Subrule (5) provides that the court may set a time for the payment of costs which may be before the proceeding is concluded.

This rule harmonises FLR 2004 rule 19.08 and FCCR 2001 rule 21.02. New Note 1 cross-references section 117 of the Family Law Act to assist parties and practitioners to understand the context of the court’s power to make a costs order in family law proceedings.

Rule 12.14: Costs order for proceedings in other courts

This rule provides for the making of costs orders in relation to proceedings before another court, where a proceeding has been transferred from another court or is an appeal from a decision of another court.

This rule harmonises FLR 2004 rule 19.09 and FCCR 2001 rule 21.05.

Rule 12.15: Costs order against lawyer

This rule sets out when the court may make an order for costs against a lawyer and the matters that such an order may include. The rule harmonises FLR 2004 rule 19.10 and FCCR 2001 rule 21.07.

Rule 12.16: Notice of costs order

This rule requires the court to give a lawyer or other person who is not a party a reasonable opportunity to be heard before making an order for costs against that person. This rule harmonises FLR 2004 rule 19.11 and FCCR 2001 rule 21.07(5).

Part 12.6: Calculation of costs

Rule 12.17: Method of calculation of costs

This rule sets out the types of costs orders the court may make and how costs are to be assessed if a method for calculation is not specified in the Family Law Act, the Rules or a court order. Subrule (3) sets out the matters the court may consider when making an order under this rule.

This rule is based on FLR 2004 rule 19.18. See also FCCR 2001 rules 21.02(2), 21.10 and 20.11. The FLR 2004 rule has been updated for consistency with the costs principles set out in Division 12.4.1.

Rule 12.18: Maximum amount of party and party costs recoverable

This rule sets out the maximum amount of party and party costs a person may recover if the court has not made a maximum costs order and the person is entitled to costs. This rule is based on FLR 2004 rule 19.19.

Rule 12.19: Interest on outstanding costs

This rule states that interest is payable on outstanding costs at the rate mentioned in rule 10.17. It is based on FLR 2004 rule 19.02 and FCCR 2001 rule 21.08(a).

Part 12.7: Specific costs matters

Rule 12.20: Costs in court of summary jurisdiction

This rule states that a party cannot recover costs from another party, for work done by a lawyer in a court of summary jurisdiction, that are more than 80% of the scale amount that may be charged for the work. This rule is based on FLR 2004 rule 19.40.

Rule 12.21: Charge for each page

This rule provides that a lawyer may only charge the scale amount for a document if the document complies with the requirements of rule 2.13. When calculating the number of words in a document for the purposes of the costs scale, words that are part of forms are to be excluded. This rule is based on FLR 2004 rule 19.41.

Rule 12.22: Proportion of costs

This rule states that if an amount is to be charged that is based on time or number of words, the amount must be proportionate to the time or number of words actually written. For example, for a 15 minute attendance the appropriate charge would be a quarter of the hourly rate. The rule is based on FLR 2004 rule 19.42.

Rule 12.23: Costs for reading

This rule states that if it is reasonable for a lawyer to read more than 50 pages for a proceeding, the amount to be charged for reading documents under the scale is at the discretion of the Judicial Registrar. The rule is based on FLR 2004 rule 19.43.

Rule 12.24: Postage within Australia

This rule states that the scale amount for producing a document (including a letter) includes an allowance for preparing a file copy of the document and posting the document within Australia. This rule is based on FLR 2004 rule 19.44.

Rule 12.25: Waiting and travelling time

This rule sets out when a lawyer may charge for time spent travelling to or from court or waiting for a court event to start or resume. Its effect is that travelling time may not be charged where the lawyer has travelled more than 100 kilometres from the lawyer’s place of business.

Subrule (4) states that the total amount that may be charged under this rule for all proceedings must not be more than the amount that may be charged for one proceeding. This has the effect that travelling time must be apportioned between proceedings where a lawyer travels to court for multiple proceedings.

This rule is based on FLR 2004 rule 19.45.

Rule 12.26: Agent’s fees

This rule states that the costs claimed by a lawyer for work done by another lawyer as agent must be no more than the lawyer would have been entitled to charge under the scale if the lawyer had personally done the work. The rule is based on FLR 2004 rule 19.46.

Rule 12.27: Costs of proceedings not started together

This rule states that, if a lawyer starts a proceeding that could reasonably have been started at the same time as another proceeding in the same court between the same parties, the lawyer may only charge the amount that could have been charged if the lawyer had started all the proceedings together. The rule is based on FLR 2004 rule 19.49.

Rule 12.28: Certificate as to counsel

This rule provides that a judicial officer may certify that it was reasonable to engage a lawyer (including Queen’s Counsel and Senior Counsel) to attend as counsel for a party. The rule is based on FLR 2004 rule 19.50. See also FCCR 2001 rule 21.15.

Rule 12.29: Lawyer as counsel—party and party costs

This rule applies to party and party costs for counsel’s fees. Counsel’s fees will be a necessary expense for a proceeding heard by a Full Court of the FCFCOA (Division 1) or, in any other proceeding, if it was reasonable to engage counsel to attend. Counsel must be present for a considerable part of the hearing or trial and give substantial assistance in the conduct of the proceeding. The amount payable as between party and party for counsel’s fees must not exceed the amount otherwise payable under the Rules for counsel’s attendance. This rule is based on FLR 2004 rule 19.51.

Rule 12.30: Lawyer as counsel—assessment of fees

This rule applies to party and party costs for counsel’s fees. It sets out what types of fees the Judicial Registrar may allow in various situations including where multiple counsel are engaged, where a trial takes multiple days and where proceedings are unusually complex or involve large amounts of material. This rule is based on FLR 2004 rule 19.52.

Rule 12.31: Expenses for attendance by witness

This rule states that an amount paid, or to be paid, for attendance by a witness at a hearing is a disbursement properly incurred for a proceeding if the attendance is reasonably required and the amount is reasonable or is authorised or approved by the court. This rule is based on FCCR 2001 rule 21.12.

Rule 12.32: Expenses for preparation of report by expert

This rule states that 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 the report is reasonably required and the amount is reasonable or is authorised or approved by the court. This rule is based on FCCR 2001 rule 21.13.

Part 12.8: Claiming and disputing costs

Division 12.8.1: Itemised costs account

Rule 12.33: Request for itemised costs account

This rule sets out the first step a person should take if they have received an account and want to dispute it or any part of it – requesting an itemised costs account within 28 days after receiving the account. This rule is based on FLR 2004 rule 19.20.

Rule 12.34: Service of lawyer’s itemised costs account

This rule requires a person who is entitled to party and party costs to serve an itemised costs account on the person liable to pay the costs within 4 months after the end of the proceeding. together with a costs brochure. This rule is based on FLR 2004 rule 19.21, however subrule (2) now refers to a costs brochure rather than a costs notice. A note gives more information about the costs brochure.

Rule 12.35: Lawyer’s itemised costs account

This rule sets out the requirements for a lawyer’s itemised costs account. This rule is based on FLR 2004 rule 19.22.

Rule 12.36: Disputing itemised costs account

This rule provides that a person may dispute a lawyer’s itemised costs account by serving a Notice Disputing Itemised Costs Account within 28 days after the account was served. This rule is based on FLR 2004 rule 19.23.

Rule 12.37: Assessment of disputed costs

This rule requires parties to a costs dispute to make a reasonable and genuine attempt to resolve the dispute. If they are unable to do so, either party may ask the court to determine the dispute, by filing the itemised costs account and the Notice Disputing Itemised Costs Account. The court may take into account a failure to make a reasonable and genuine attempt to resolve the dispute when considering any order for costs. This rule is based on FLR 2004 rule 19.24.

Rule 12.38: Amendment of itemised costs account and Notice Disputing Itemised Costs Account

This rule provides that a party may amend an itemised costs account by filing an amended version at least 14 days before the assessment hearing, after that time with the consent of the other party, or as ordered by the court. This rule is based on FLR 2004 rule 19.25.

Division 12.8.2: Assessment process

Rule 12.39: Fixing first court date

When an itemised costs account and a Notice Disputing Itemised Costs Account are filed under subrule 12.37(3), the court will fix a date (which will be at least 21 days later) for a settlement conference, preliminary assessment or an assessment hearing. This rule is based on FLR 2004 rule 19.26.

Rule 12.40: Notification of hearing

This rule requires the party who filed the Notice Disputing Itemised Costs Account to give the other party at least 14 days notice of the court event and the date fixed for the court event. This rule is based on FLR 2004 rule 19.27.

Rule 12.41: Settlement conference

This rule sets out what happens at a settlement conference for an itemised costs account. The parties must attend. The Judicial Registrar must give the parties an opportunity to agree about the amount for which a costs assessment order should be made, or identify the issues in dispute, and must then make procedural orders for the future conduct of the assessment process. This rule is based on FLR 2004 rule 19.28.

Rule 12.42: Preliminary assessment

This rule sets out what happens at a preliminary assessment of an itemised costs account. The parties do not attend. The Judicial Registrar calculates the preliminary assessment amount (the amount for which the costs assessment order would be likely to be made, if costs were to be assessed) and gives the parties written notice of the preliminary assessment amount. This rule is based on FLR 2004 rule 19.29.

Rule 12.43: Objection to preliminary assessment amount

This rule sets out the procedure for a party to object to a preliminary assessment amount. A written notice of the objection must be lodged and 5% of the total amount claimed in the itemised costs account must be paid into court as security. A date will then be fixed for an assessment hearing. This rule is based on FLR 2004 rule 19.30.

Rule 12.44: No objection to preliminary assessment

This rule provides that if neither party objects to the preliminary assessment amount, or security for costs of an assessment is not paid, the Judicial Registrar may make a costs assessment order for the amount of the preliminary assessment amount.

This rule is based on FLR 2004 rule 19.31. In subrule (1), the word ‘and’ has been corrected to ‘or’.

Rule 12.45: Assessment hearing

This rule sets out what happens at an assessment hearing for a disputed itemised costs account. The parties must attend and may only raise items which are included in the Notice Disputing Itemised Costs Account. The Judicial Registrar will determine the disputed items and related matters such as the amount payable for the costs of the assessment. A costs assessment order made under this rule has the force and effect of an order of the court.

This rule is based on FLR 2004 rule 19.32.

Rule 12.46: Powers of Judicial Registrars

This rule sets out a Judicial Registrar’s powers at an assessment hearing for a disputed itemised costs account. This rule is based on FLR 2004 rule 19.33 but ‘fairly’ and ‘fair’ have been added to paragraph (1)(j) for consistency with the principles in Division 12.4.1.

Rule 12.47: Assessment principles

This rule sets out the principles that must guide the exercise of a Judicial Registrar’s powers in assessing costs. This rule is based on FLR 2004 rule 19.34 but paragraph (1)(a) has been updated to ‘are not fair and reasonable; and/or’ for consistency with the principles in Division 12.4.1.

Rule 12.48: Allowance for matters not specified

This rule provides that a Judicial Registrar may allow a reasonable sum for work that is not specifically provided for in the scale of costs. Subrule (2) sets out the matters which the Judicial Registrar may consider when considering whether to allow an amount for costs or an expense. This rule is based on FLR 2004 rule 19.35.

Rule 12.49: Neglect or delay before Judicial Registrar

This rule provides that a Judicial Registrar may order a party to pay costs or may disallow all or part of the costs in an itemised costs account if the party or the party’s lawyer fails to comply with the Rules or an order, or puts another party to unnecessary or improper expense or inconvenience during a costs dispute. This rule is based on FLR 2004 rule 19.36.

Rule 12.50: Costs assessment order—costs account not disputed

This rule what happens when a person entitled to costs serves an itemised costs account and does not receive a Notice Disputing Itemised Costs Account. A Judicial Registrar may make a costs assessment order if a copy of the itemised costs account is filed with an affidavit meeting the requirements of paragraph (2)(b). This rule is based on FLR 2004 rule 19.37.

Rule 12.51: Setting aside a costs assessment order

This rule provides that a party who is liable to pay costs and receives a costs assessment order may apply within 14 days after receiving it to have it set aside. If the costs assessment order is set aside, an assessment hearing will be listed. This rule is based on FLR 2004 rule 19.38.

Part 12.9: Review of assessment

Rule 12.52: Application for review

This rule provides that a party may apply to the court to review the decision of a Judicial Registrar at an assessment hearing by filing an Application for Review and an affidavit meeting the requirements of subrule (2). This rule is based on FLR 2004 rule 19.54.

Rule 12.53: Time for filing an application for review

An application for review of a Judicial Registrar’s decision at an assessment hearing must be filed within 14 days after the applicant receives the Judicial Registrar’s reasons. This rule is based on FLR 2004 rule 19.55.

Rule 12.54: Hearing of application

This rule sets out what happens at the hearing of the application for review by a Judge, and the orders the court may make. This rule is based on FLR 2004 rule 19.56.

CHAPTER 13 – Appeals

Part 13.1: Introduction

Rule 13.01: Application of Chapter 13

This rule sets out the appeals to which this Chapter applies. It is an updated version of FLR 2004 rule 22.01 reflecting the appellate jurisdiction of the FCFCOA (Division 1) under the FCFCOA Act.

Subrule (2) provides that the Chapter does not apply to appeals to the FCFCOA (Division 2) under the Assessment Act, the Registration Act or section 44AAA of the Administrative Appeals Tribunal Act 1975 (Cth). It also does not apply to applications for a review of an order of a Judicial Registrar (other than an Appeal Judicial Registrar) – these are dealt with in Chapter 14.

Part 13.2: Starting an appeal

Rule 13.02: Starting an appeal

This rule provides that a person may start an appeal by filing a Notice of Appeal in the National Appeal Registry (or, if the appeal is from a court of summary jurisdiction other than a Family Law Magistrate of Western Australia, in the registry of a Family Court that is closest to the court of summary jurisdiction). If leave to appeal is required, leave must be sought in the Notice of Appeal. This rule is based on FLR 2004 rule 22.02.

Rule 13.03: Time for appeal

Subrule (1) provides that a Notice of Appeal must be filed within 28 days after the date of the order appealed from. This subrule is based on FLR 2004 rule 22.03.

New subrule (2) provides that a Notice of Appeal in respect of an appeal from a judgment or decision of a Judge or Magistrate refusing to disqualify himself or herself from further hearing a matter (FCFCOA Act paragraph 26(1)(h)) must be filed within 28 days after the judgment or decision was made (if it was made at an interlocutory stage) or within 28 days after final orders are made (if it was made at trial).

Rule 13.04: Parties to an appeal

This rule sets out who should be joined as a party in an appeal or application for leave to appeal. It provides that each person who is directly affected by the orders sought in the Notice of Appeal, or who is likely to be interested in maintaining the order under appeal, must be made a respondent. An independent children’s lawyer remains appointed if there is an appeal (see paragraph 3.11(5)(b)). This rule is based on FLR 2004 rule 22.04. The note has been amended to refer to the FCFCOA Act.

Rule 13.05: Service

This rule requires a Notice of Appeal to be served on each party to the appeal (and any independent children’s lawyer – see rule 3.11(4)) within 14 days after it is filed. [Ordinary service is required.] It is based on FLR 2004 rule 22.05.

Rule 13.06: Notice about appeal to other courts

This rule requires the appellant to give a copy of the Notice of Appeal to the court which made the order appealed from (unless that court is the FCFCOA or a Family Court of a State) within 14 days after filing the Notice of Appeal. Subrule (2) makes equivalent provision for a Notice of Appeal in which leave to appeal is sought.

This rule is based on FLR 2004 rule 22.06.

Rule 13.07: Cross-appeal

Subrule (1) sets out the circumstances in which a respondent to an appeal or an independent children’s lawyer should cross-appeal. A cross-appeal is started by filing a Notice of Appeal endorsed as a cross-appeal. This subrule is based on FLR 2004 rule 22.07.

Subrule (2) provides that the Notice of Appeal for a cross-appeal must be filed within the later of 14 days after the Notice of Appeal for the appeal is served on the cross-appellant, or 28 days after the date the order appealed from was made. This subrule is based on FLR 2004 rule 22.08.

Rule 13.08: Notice of Contention

This rule sets out the circumstances in which a respondent to an appeal or an independent children’s lawyer should file a Notice of Contention. Subrule (2) requires a Notice of Contention to be filed within 28 days after the Notice of Appeal was served on the respondent or the independent children’s lawyer.

This rule is based on FLR 2004 rule 22.08A. References to an independent children’s lawyer have been added.

Rule 13.09: Submitting notice

This rule states that a respondent who does not want to contest the relief sought in a Notice of Appeal may file a submitting notice under rule 2.21. This rule is based on FLR 2004 subrule 8.07(5).  A submitting notice may now be filed up to 14 days after the procedural hearing.

Rule 13.10: Amendment of Notice of Appeal

This rule provides that the grounds of appeal and orders sought in a Notice of Appeal may be amended without permission at any time up to and including the date fixed for filing of the summary of argument by the appellant.

Subrule (2) provides that, if the Notice of Appeal is amended, the grounds of appeal and the orders sought in a Notice of Appeal endorsed as a cross-appeal may be amended without permission at any time within 7 days after service of the amended Notice of Appeal.

This rule is based on FLR 2004 rule 22.09.

Rule 13.12: Stay

This rule provides that the filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision (for example, by section 55(3) of the Family Law Act).

The rule also provides that a party may apply for a stay. The application will be listed before the Judge or Magistrate who made the order under appeal, unless that judicial officer is unavailable. This rule is based on FLR 2004 rule 22.11.

Rule 13.13: Procedural orders in relation to an application for leave to appeal

This rule sets out examples of procedural orders the court may make in relation to an application for leave to appeal. It is based on FLR 2004 rule 22.12. The note now refers to the provision of the FCFCOA Act which permits the determination of an application without an oral hearing.

Rule 13.14: Filing draft index to appeal book

This rule requires an appellant to file a draft index to the appeal book within 28 days after either the filing of the Notice of Appeal or the issuing of the reasons for judgment that relate to the order under appeal. This rule is based on FLR 2004 rule 22.13.

Part 13.3: Appeals to Full Court

Rule 13.15: Application of Part 13.3

This rule provides that this Part applies to appeals to be heard by a Full Court of the FCFCOA (Division 1). For appeals that are to be heard by a single Judge, refer to Part 13.4.

This rule is based on FLR 2004 rule 22.14 and has been updated for compatibility with the FCFCOA Act.

Rule 13.16: Procedural hearing

This rule provides that as soon as reasonably practical after the draft index to the appeal book is filed (under rule 13.14), the Appeal Judicial Registrar is to fix a date for a procedural hearing for the appeal and notify the parties of that date.

This rule is based on FLR 2004 rule 22.15. It has been updated for the commencement of FCFCOA Act and the introduction of the National Appeal Registry.

Rule 13.17: Attendance at first procedural hearing

This rule requires the appellant or the appellant’s lawyer to attend the first procedural hearing for the appellant’s appeal. A respondent, a respondent’s lawyer or an independent children’s lawyer may also attend the procedural hearing. The rule is based on FLR 2004 rule 22.16. A party may request permission to attend by electronic communication (see rule 13.32) or to be excused from attending (see rule 1.34).

Rule 13.18: Orders to be made at procedural hearing

This rule sets out the orders that may be made at the procedural hearing for an appeal to a Full Court. The Appeal Judicial Registrar or Judicial Registrar conducting the procedural hearing may adjourn the hearing to a Judge at any time, if the Appeal Judicial Registrar or Judicial Registrar considers it appropriate.

This rule is based on FLR 2004 rule 22.17. Paragraph (2)(b) has been amended as transcript is now to be separate from the appeal book.

Rule 13.19: Preparation of appeal book and obtaining transcript

This rule provides that the appellant (or if so ordered, the cross-appellant) is responsible for preparing and filing the appeal book and obtaining any relevant transcript. A Judge or Appeal Judicial Registrar may order either a respondent or the Appeal Judicial Registrar to prepare and file the appeal book if satisfied that preparing it would impose exceptional hardship on the appellant.

This rule is based on FLR 2004 rule 22.18. The main change from the existing rule is the addition of new subrule (4) in relation to transcript, which is now to be separate from the appeal book.

Rule 13.20: Contents of appeal book

This rule sets out what material the appeal book must contain and omit, unless the court otherwise orders. It is based on FLR 2004 rule 22.19. Paragraph (1)(a) now incorporates material from the Family Court’s Practice Direction No 1 of 2017: Conduct of Appeals. New subrule (3), which is also derived from that Practice Direction, requires the parties to file a schedule identifying any material in the appeal book which was not relied upon at trial or was struck out.

Rule 13.21: Form of appeal book

This rule sets out the required form of the appeal book including the order in which the documents in the appeal book must be arranged.

This rule is based on FLR 2004 rule 22.20. Transcript extracts are no longer to be included in the appeal book but instead are to be provided separately (see paragraph 13.18(2)(e) and subrules 13.19(4) and 13.22(2)).

The appeal book should be filed in electronic format (for example, as a text searchable PDF), unless this is not reasonably practicable. A new note has been added to this effect.

Rule 13.22: Failure to file appeal book or transcript by due date

This rule provides that if the appellant fails to file the appeal book or transcript by the date ordered, the appeal is taken to be abandoned. This rule is based on FLR 2004 rule 22.21. New subrule (2) deals with the failure to file transcript on time, given transcript is no longer to be part of the appeal book.

Rule 13.23: Summary of argument and list of authorities

This rule requires each party to file and serve a summary of argument and a list of authorities prior to the sittings in which the appeal is listed. The rule also sets out the requirements for the summary of argument and list of authorities, including what is required to be included in the summary of argument when a party intends to challenge any findings of fact.

This rule is based on FLR 2004 rule 22.22 and parts of the Family Court’s Practice Direction No 1 of 2017: Conduct of Appeals. Following the Practice Direction, a summary of argument must not exceed 15 pages unless leave has been given (compare the 10 page limit currently in FLR 2004 paragraph 22.22(2)(c)).

Part 13.4: Appeal from Federal Circuit and Family Court (Division 2) or a Family Law Magistrate of Western Australia heard by single Judge

Rule 13.24: Application of Part 13.4

This rule sets out to which this Part applies. It is based on FLR 2004 rule 22.23, updated for the commencement of the FCFCOA Act.

Rule 13.25: Procedural hearing

This rule provides that the appeal may be listed for a procedural hearing (before the Judge who is to hear the appeal, another Judge, or an Appeal Judicial Registrar) and procedural orders in relation to the appeal may be made in chambers, in the absence of the parties, on the documents filed. This rule is based on FLR 2004 rule 22.24.

Rule 13.26: Attendance at procedural hearing

This rule requires the appellant or the appellant’s lawyer to attend the first procedural hearing for the appellant’s appeal. A respondent, a respondent’s lawyer or an independent children’s lawyer may also attend the procedural hearing. This rule is based on FLR 2004 rule 22.25. A party may request permission to attend by electronic communication (see rule 13.32) or to be excused from attending (see rule 1.34).

Rule 13.27: Procedural orders for conduct of appeal

This rule sets out some examples of the orders that may be made at the procedural hearing for an appeal to which this Part applies. Subrule (2) requires a summary of argument to comply with the requirements in subrule 13.23(2) (including the new requirement that the summary of argument not exceed 15 pages unless leave is granted).

This rule is based on FLR 2004 rule 22.26, and has been updated for the commencement of the FCFCOA Act and the introduction of the National Appeal Registry.

Rule 13.28: Documents for appeal hearing if appeal book not required

This rule sets out what documents must be before the Judge on the hearing of the appeal and provides that the documents must not mention any offer to settle unless the terms of the offer are relevant to the appeal. This rule is based on FLR 2004 rule 22.27, updated for the commencement of the FCFCOA Act.

Part 13.5: Appeal from court of summary jurisdiction other than a Family Law Magistrate of Western Australia

Rule 13.29: Application of Part 13.5

This rule sets out the appeals to which this Part applies. This rule is based on FLR 2004 rule 22.28.

Rule 13.30: Fixing of hearing date

This rule requires the Registry Manager to fix a date for the hearing of the appeal that is as near as practicable to 56 days after the Notice of Appeal was filed. This rule is based on FLR 2004 rule 22.29.

Part 13.6: Powers of appeal courts and conduct of appeal

Rule 13.31: Non-attendance by party

This rule provides that if an appellant does not attend, in person or by lawyer, when an appeal is called on for the hearing of the appeal, the court may dismiss the appeal and that if the respondent does not attend, in person or by lawyer, the court may proceed with the appeal. This rule is based on FLR 2004 rule 22.30.

Rule 13.32: Attendance by electronic communication

This rule sets out the procedure for a party to request permission to attend the hearing of an appeal, an application for leave to appeal, an application in relation to an appeal or a procedural hearing by electronic communication. A written request meeting the requirements of subrule (2) is necessary. The request may be determined in chambers in the absence of the parties and subrule (4) sets out matters the court may take into account when considering the request. This rule is based on FLR 2004 rule 22.31, updated for the commencement of the FCFCOA Act.

Rule 13.33: Attendance by party in prison

This rule requires a party who is in prison to attend the hearing of an appeal, an application for leave to appeal, an application in relation to an appeal or a procedural hearing by electronic communication where practicable. The party may seek permission to attend in person and the rule sets out how to make such a request. This rule is based on FLR 2004 rule 22.32.

 Rule 13.34: Subpoenas

This rule states that a subpoena may be issued in an appeal only if leave to issue the subpoena has been given by either a Full Court or, for an appeal heard by a single Judge, that Judge. Subrule (2) provides that a document produced in compliance with a subpoena under this rule may only be inspected with the leave of either the Full Court or the Judge who gave the leave to issue it. This rule is based on FLR 2004 rule 22.34.

Part 13.7: Applications in relation to appeals

Division 13.7.1: How to make an application

Rule 13.35: Application of Part 13.7

This Part sets out the process for all applications (other than applications for leave to appeal) that may be made before or during the course of any Chapter 13 appeal. This rule is based on FLR 2004 rule 22.35.

Rule 13.36: Application in relation to appeal

This rule provides that a party may make an application in relation to an appeal by filing an Application in an Appeal with a supporting affidavit. It is based on FLR 2004 rule 22.36. The court has the discretion to allow an oral application (see rule 1.05).

Rule 13.37: Hearing date for application

When an Application in an Appeal is filed, depending on the nature of application and the nature of the appeal the Appeal Judicial Registrar will either fix a date for the hearing of the application or refer the application for determination by a Judge in chambers (provided the applicant has requested this and the respondent has not objected). This rule is based on FLR 2004 rule 22.37.

Rule 13.38: Decision in the absence of parties without an oral hearing

This rule applies Part 5.3 to an application in relation to an appeal. It also sets out what the Judge may order when determining the application in chambers. This rule is based on FLR 2004 rule 22.38.

Division 13.7.2: Specific applications relating to appeals

Rule 13.39: Further evidence on appeal

This rule sets out the procedure for an application for an order that the court receive further evidence on the hearing of the appeal (other than an appeal that is a hearing de novo). This rule is based on FLR 2004 rule 22.39. Subrule (2) has been modified to incorporate the requirements for the affidavit which are currently set out in the Family Court’s Practice Direction No 1 of 2017: Conduct of Appeals.

Rule 13.40: Review of Appeal Judicial Registrar’s order

This rule provides that a party may apply for a review of an Appeal Judicial Registrar’s order relating to the conduct of an appeal or the rejection of a document by an Appeal Judicial Registrar, by filing an Application in an Appeal in the National Appeal Registry within 21 days.

This rule is based on FLR 2004 rule 22.40. It has been updated for the commencement of the FCFCOA Act and the introduction of the National Appeal Registry. The time in which an application may be brought has been extended from 14 to 21 days and now aligns with the 21 day timeframe for review applications brought under rule 14.05.

Part 13.8: Concluding an appeal, an application for leave to appeal or any other application in relation to an appeal

Rule 13.41: Consent orders on appeal

This rule sets out how parties to an appeal can seek consent orders if they agree about the orders the court will be asked to make. Subrule (3) provides that where the parties disagree only about the order for costs, a date may be fixed for the hearing of argument as to costs without requiring an appeal book to be prepared or a procedural hearing to be held.

This rule is based on FLR 2004 rule 22.41.