Family Law Rules 2004

Statutory Rules No. 375, 2003

made under the

Family Law Act 1975

Compilation No. 37

Compilation date: 23 August 2021

Includes amendments up to: F2021L01176

Registered: 1 September 2021

This compilation is in 2 volumes

Volume 1: rules 1.01–27.13

Volume 2: Schedules

Dictionary

Explanatory Guide

Endnotes

Each volume has its own contents

About this compilation

This compilation

This is a compilation of the Family Law Rules 2004 that shows the text of the law as amended and in force on 23 August 2021 (the compilation date).

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

Uncommenced amendments

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

Application, saving and transitional provisions for provisions and amendments

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

Editorial changes

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

Modifications

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

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

Contents

Chapter 1—Introduction

Part 1.1—Preliminary

1.01 Name of Rules

1.02 Commencement

1.03 Rules in Chapter 1 prevail

1.03A Application of Family Court Rules 2021 (WA)

Part 1.2—Main purpose of Rules

1.04 Main purpose of Rules

1.05 Pre‑action procedure

1.06 Promoting the main purpose

1.07 Achieving the main purpose

1.08 Responsibility of parties and lawyers in achieving the main purpose

Part 1.3—Court’s powers in all cases

1.09 Procedural orders in cases of doubt or difficulty

1.10 Court may make orders

1.11 Court may set aside or vary order

1.12 Court may dispense with Rules

1.13 Judicial officer hearing application

1.14 Shortening or extension of time

1.15 Time for compliance

Part 1.4—Other preliminary matters

1.16 Definitions—the dictionary

1.17 Notes, examples etc

1.18 Sittings

1.19 Prohibition on recording

1.20 Publishing lists of cases

1.21 Calculating time

1.22 Methods of attaching the seal of the Court

Chapter 2—Starting a case 

Part 2.1—Applications

2.01 Which application to file

2.02 Documents to be filed with applications

2.02A Documents filed by electronic communication

Part 2.2—Brochures

2.03 Service of brochures

Part 2.3—Notification in certain cases

Division 2.3.1—Cases involving allegation of abuse or family violence in relation to a child

2.04 Definition

2.04A Application of Division 2.3.1

2.04B Amendment of Notice of Child Abuse, Family Violence or Risk

2.04D Prescribed form

2.05 Family violence order

Division 2.3.2—Property settlement or spousal or de facto maintenance cases

2.06 Notification of proceeds of crime order or forfeiture application (Act ss 79B, 90M and 90VA)

2.07 Proceeds of crime

Chapter 3—Divorce

Part 3.1—Application for Divorce

3.01 Fixing of hearing date

3.02 Amendment of an Application for Divorce

3.03 Discontinuance of an Application for Divorce

Part 3.2—Response

3.04 Response

3.05 Objection to jurisdiction

3.06 Response out of time

3.07 Affidavit to reply to information in an Application for Divorce

Part 3.3—Attendance at hearing

3.08 Attendance at hearing

Part 3.4—Hearing in absence of parties

3.09 Seeking a hearing in absence of parties

3.10 Hearing in absence of parties—joint application

3.11 Request not to hear case in parties’ absence

Part 3.5—Events affecting divorce order

3.12 Application for rescission of divorce order

3.13 Death of party

Chapter 4—Application for Final Orders

Part 4.1—Introduction

4.01 Contents of Application for Final Orders

4.02 Filing affidavits

4.03 First court date

Part 4.2—Specific applications

Division 4.2.1—General

4.04 General provisions still apply

4.05 Application by Attorney‑General for transfer of case

Division 4.2.2—Cross‑vesting

4.06 Cross‑vesting matters

4.07 Transfer of case

Division 4.2.3—Medical procedure

4.08 Application for medical procedure

4.09 Evidence supporting application

4.10 Service of application

4.11 Fixing of hearing date

4.12 Procedure on first court date

Division 4.2.4—Spousal or de facto maintenance

4.14 Procedure on first court date

4.15 Evidence to be provided

Division 4.2.5—Child support and child maintenance

4.16 Application of Division 4.2.5

4.17 Commencing proceedings

4.18 Documents to be filed with applications

4.19 Child support agreements

4.20 Time limits for applications under Assessment Act

4.23 Service of application

4.24 Service by Child Support Registrar

4.25 Procedure on first court date

4.26 Evidence to be provided

Division 4.2.6—Nullity and validity of marriage and divorce

4.27 Application of Division 4.2.6

4.28 Fixing hearing date

4.29 Affidavit to be filed with application

Division 4.2.7—Applications relating to passports

4.30 Application relating to passport

4.31 Fixing hearing date

Division 4.2.8—Children born under surrogacy arrangements

4.32 Application of Division 4.2.8

4.33 Evidence supporting application—general

4.34 Evidence from applicant and surrogate mother

4.35 Evidence about child’s identity

4.36 Evidence about relevant law in child’s birth country

4.37 Procedure on first hearing date

Chapter 5—Applications for interim, procedural, ancillary or other incidental orders

Part 5.1—General

5.01 Restrictions in relation to applications

5.01A Filing of applications seeking parenting orders during the Christmas school holiday period

5.02 Evidence in applications to which Chapter 5 applies

5.03 Procedure before filing

5.05 Fixing a date for hearing or case assessment conference

5.06 Attendance by electronic communication

5.07 Attendance of party or witness in prison

Part 5.2—Hearing—interim and procedural applications

5.08 Interim orders—matters to be considered

5.09 Affidavits

5.10 Hearing time of interim or procedural application

5.11 Party’s failure to attend

Part 5.3—Application without notice

5.12 Application without notice

5.13 Necessary procedural orders

Part 5.4—Hearing on papers in absence of parties

5.14 Request for hearing in absence of parties

5.15 Objection to hearing in absence of parties

5.16 Court decision to not proceed in absence of parties

5.17 Procedure in hearing in absence of parties

Part 5.5—Postponement of interim hearing

5.18 Administrative postponement of interim hearing

Part 5.6—Application for certain orders

5.19 Application for suppression or non‑publication order

Chapter 6—Parties

Part 6.1—General

6.01 Parties

6.02 Necessary parties

Part 6.2—Adding and removing a party

6.03 Adding a party

6.04 Removing a party

6.05 Intervention by a person seeking to become a party

6.06 Intervention by a person entitled to intervene

6.07 Notice of constitutional matter

Part 6.3—Case guardian

6.08A Interpretation

6.08 Conducting a case by case guardian

6.09 Who may be a case guardian

6.10 Appointment, replacement or removal of case guardian

6.11 Attorney‑General may nominate case guardian

6.12 Notice of becoming case guardian

6.13 Conduct of case by case guardian

6.14 Costs of case guardian

Part 6.4—Progress of case after death

6.15 Death of party

Part 6.5—Progress of a case after bankruptcy or personal insolvency agreement

6.16 Interpretation

6.17 Notice of bankruptcy or personal insolvency agreement

6.18 Notice under paragraph 6.17(1)(b)

6.19 Notice under paragraph 6.17(1)(c)

6.20 Notice of bankruptcy proceedings

6.21 Notice of application under section 139A of the Bankruptcy Act

6.22 Official name of trustee

Chapter 7—Service

Part 7.1—General

7.01A Application

7.01 Service

7.02 Court’s discretion regarding service

7.03 Service of documents

7.04 Service of filed documents

Part 7.2—Special service

7.05 Special service

7.06 Special service by hand

7.07 Special service by post or electronic communication

7.08 Special service through a lawyer

7.09 Special service on person with a disability

7.10 Special service on a prisoner

7.11 Special service on a corporation

Part 7.3—Ordinary service

7.12 Ordinary service

Part 7.4—Proof of service

7.13 Proof of service

7.14 Proof of special service

7.15 Evidence of identity

Part 7.5—Other matters about service

7.16 Service by electronic communication

7.17 When service is taken to have been carried out

7.18 Service with conditions or dispensing with service

Part 7.6—Service in non‑convention country

7.19 Service in non‑convention country

7.20 Proof of service in non‑convention country

Chapter 8—Right to be heard, address for service and submitting notices

Part 8.1—Right to be heard and representation

8.01 Right to be heard and representation

8.02 Independent children’s lawyer

8.03 Lawyer—conflicting interests

8.04 Lawyer—ceasing to act

Part 8.2—Address for service

8.05 Address for service

8.06 Change of address for service

Part 8.3—Submitting notices

8.07 Submitting notices

Chapter 9—Response and reply

Part 9.1—Response to an Initiating Application (Family Law)

9.01 Response to an Initiating Application (Family Law)

9.02 Filing an affidavit with Response to Initiating Application (Family Law)

9.03 Response objecting to jurisdiction

Part 9.2—Reply to Response to an Initiating Application (Family Law)

9.04 Applicant reply to Response to an Initiating Application (Family Law) (Reply)

9.04A Additional party reply to Response to an Initiating Application (Family Law), (Reply)

Part 9.3—Response to Application in a Case

9.05 Response to Application in a Case

9.06 Affidavit to be filed with Response to an Application in a Case

9.07 Affidavit in reply to Response to an Application in a Case

Part 9.4—Filing and service

9.08 Time for filing and service of response or reply

Chapter 10—Ending a case without a trial

Part 10.1—Offers to settle

Division 10.1.1—General

10.01 How to make an offer

10.02 Open and ‘without prejudice’ offer

10.03 How to withdraw an offer

10.04 How to accept an offer

10.05 Counter‑offer

Division 10.1.2—Offer to settle—property cases

10.06 Compulsory offer to settle

10.07 Withdrawal of offer

Part 10.2—Discontinuing a case

10.10 Definition

10.11 Discontinuing a case

Part 10.3—Summary orders and separate decisions

10.12 Application for summary orders

10.13 Application for separate decision

10.14 What the court may order under this Part

Part 10.4—Consent orders

10.15 How to apply for a consent order

10.15A Consent parenting orders and allegations of abuse or family violence

10.16 Notice to superannuation trustee

10.17 Dealing with a consent order

10.18 Lapsing of respondent’s consent

Chapter 11—Case management

Part 11.1—Court’s powers of case management

11.01 General powers

11.02 Failure to comply with a legislative provision or order

11.03 Relief from orders

11.04 Certificate of vexatious proceedings order

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

11.06 Dismissal for want of prosecution

Part 11.2—Limiting issues

Division 11.2.1—Admissions

11.07 Request to admit

11.08 Notice disputing fact or document

11.09 Withdrawing admission

Division 11.2.2—Amendment

11.10 Amendment by a party or court order

11.11 Time limit for amendment

11.12 Amending a document

11.13 Response to amended document

11.14 Disallowance of amendment

Part 11.3—Venue

Division 11.3.1—Open court and chambers

11.16 Venue for proceedings

Division 11.3.2—Transferring a case

11.17 Transfer to another court or registry

11.18 Factors to be considered for transfer

Division 11.3.3—Transfer of court file

11.20 Transfer between courts

Chapter 12—Court events—Registrar managed

Part 12.1—Application of Chapter 12

12.01 Application of Chapter 12

Part 12.2—Specific court events

12.02 Property case—exchange of documents before first court date

12.03 Case assessment conference

12.04 Initial procedural hearing in a parenting case

12.05 Property case—exchange of documents before conciliation conference

12.06 Financial questionnaire and balance sheet

12.07 Conduct of a conciliation conference

12.08 Procedural hearing in a financial case

12.09 Procedural hearing after the Child Responsive Program

12.10 Procedural hearing where the application includes both a financial case and a parenting case

12.10A Expedition

Part 12.4—Attendance at court events

12.11 Party’s attendance

12.12 Attendance by electronic communication

12.13 Failure to attend court events

Part 12.5—Adjournment and postponement of court events

12.14 Administrative postponement of conferences or procedural hearings

Chapter 13—Disclosure

Part 13.1—Disclosure between parties

Division 13.1.1—General duty of disclosure

13.01 General duty of disclosure

Division 13.1.2—Duty of disclosure—financial cases

13.02 Purpose of Division 13.1.2

13.03 Definition

13.04 Full and frank disclosure

13.05 Financial statement

13.06 Amendment of Financial Statement

Part 13.2—Duty of disclosure—documents

Division 13.2.1—Disclosure of documents—all cases

13.07 Duty of disclosure—documents

13.07A Use of documents

13.08 Inspection of documents

13.09 Production of original documents

13.10 Disclosure by inspection of documents

13.11 Costs for inspection

13.12 Documents that need not be produced

13.13 Objection to production

13.14 Consequence of non‑disclosure

13.15 Undertaking by party

13.16 Time for filing undertaking

Division 13.2.2—Disclosure of documents—certain applications

13.17 Application of Division 13.2.2

13.18 Party may seek order about disclosure

Division 13.2.3—Disclosure of documents—Initiating Applications (Family Law)

13.19 Application of Division 13.2.3

13.20 Disclosure by service of a list of documents

13.21 Disclosure by inspection of documents

13.22 Application for order for disclosure

13.23 Costs of compliance

13.24 Electronic disclosure

Part 13.3—Answers to specific questions

13.25 Application of Part 13.3

13.26 Service of specific questions

13.27 Answering specific questions

13.28 Orders in relation to specific questions

Part 13.4—Information from non‑parties

Division 13.4.1—Employment information

13.29 Purpose of Division 13.4.1

13.30 Employment information

Chapter 14—Property orders

14.01 Orders about property

14.02 Service of application

14.03 Inspection

14.04 Application for Anton Piller order

14.05 Application for Mareva order

14.06 Notice to superannuation trustee

14.07 Notice about intervention under Part VIII or VIIIAB of Act

Chapter 15—Evidence

15.01 Definition

Part 15.1—Children

15.02 Restriction on child’s evidence

15.04 Family reports

Part 15.2—Affidavits

15.05 No general right to file affidavits

15.06 Reliance on affidavits

15.08 Requirements for affidavits

15.09 Making an affidavit

15.10 Affidavit of illiterate or blind person etc

15.13 Striking out objectionable material

15.14 Notice to attend for cross‑examination

15.15 Deponent’s attendance and expenses

Part 15.3—Subpoenas

Division 15.3.1—General

15.16 Interpretation

15.17 Issuing a subpoena

15.18 Subpoena not to issue in certain circumstances

15.20 Amendment of subpoena

15.21 Subpoenas to produce documents

15.22 Service

15.23 Conduct money and witness fees

15.24 When compliance is not required

15.25 Discharge of subpoena obligation

15.26 Objection to subpoena

Division 15.3.2—Production of documents and access by parties

15.27 Application of Division 15.3.2

15.29 Compliance with subpoena

15.30 Right to inspect and copy documents

15.31 Objections relating to production of documents

15.32 Court permission to inspect documents

15.34 Production of document from another court

15.35 Return of documents produced

Division 15.3.3—Non‑compliance with subpoena

15.36 Non‑compliance with subpoena

Part 15.4—Assessors

15.37 Application of Part 15.4

15.38 Appointing an assessor

15.39 Assessor’s report

15.40 Remuneration of assessor

Part 15.5—Expert evidence

Division 15.5.1—General

15.41 Application of Part 15.5

15.42 Purpose of Part 15.5

15.43 Definition

Division 15.5.2—Single expert witness

15.44 Appointment of single expert witness by parties

15.45 Order for single expert witness

15.46 Orders the court may make

15.47 Single expert witness’s fees and expenses

15.48 Single expert witness’s report

15.49 Appointing another expert witness

15.50 Cross‑examination of single expert witness

Division 15.5.3—Permission for expert’s evidence

15.51 Permission for expert’s reports and evidence

15.52 Application for permission for expert witness

Division 15.5.4—Instructions and disclosure of expert’s report

15.53 Application of Division 15.5.4

15.54 Instructions to expert witness

15.55 Mandatory disclosure of expert’s report

15.56 Provision of information about fees

15.57 Application for provision of information

15.58 Failure to disclose report

Division 15.5.5—Expert witness’s duties and rights

15.59 Expert witness’s duty to the court

15.60 Expert witness’s right to seek orders

15.61 Expert witness’s evidence in chief

15.62 Form of expert’s report

15.63 Contents of expert’s report

15.64 Consequences of non‑compliance

Division 15.5.6—Clarification of single expert witness reports

15.64A Purpose

15.64B Conference

15.65 Questions to single expert witness

15.66 Single expert witness’s answers

15.67 Single expert witness’s costs

15.67A Application for directions

Division 15.5.7—Evidence from 2 or more expert witnesses

15.68 Application of Division 15.5.7

15.69 Conference of expert witnesses

15.70 Conduct of trial with expert witnesses

Part 15.6—Other matters about evidence

15.71 Court may call evidence

15.72 Order for examination of witness

15.73 Letters of request

15.74 Hearsay evidence—notice under section 67 of the Evidence Act 1995

15.75 Transcript receivable in evidence

15.76 Notice to produce

15.77 Parenting questionnaire

Chapter 16—Court events—Judge managed

Part 16.1—Preliminary

16.01 Application

16.02 Compliance check

16.03 Vacating dates that are Judge managed

Part 16.2—Proceedings before the Judge—general

16.04 Trial management

16.05 Attendance, submissions and evidence by electronic communication

16.06 Foreign evidence by electronic communication

16.07 Parties’ participation

Part 16.3—Proceedings before the Judge—parenting and financial cases

16.08 Trial management hearing

16.09 Further days before the Judge

16.10 The trial

Chapter 16A—Division 12A of Part VII of the Act

Part 16A.1—Consent for Division 12A of Part VII of the Act to apply to a case

16A.01 Definition

16A.02 Application of Part 16A.1

16A.03 Consent for Division 12A of Part VII of the Act to apply

16A.04 Application for Division 12A of Part VII of the Act to apply for case commenced by application before 1 July 2006

Part 16A.2—Trials of certain cases to which Division 12A of Part VII of the Act applies

16A.05 Definitions

16A.06 Application

16A.10 Parties to be sworn etc

Chapter 17—Orders and undertakings

Part 17.1—Orders

17.01 When an order is made

17.01A When must an order be entered

17.01B Entry of orders

17.02 Varying or setting aside orders

17.02A Varying or setting aside reasons for judgment

17.03 Rate of interest

17.04 Order for payment of money

17.05 Order for payment of fine

Part 17.2—Undertakings

17.06 Undertakings

Chapter 18—Powers of Judicial Registrars, Registrars and Deputy Registrars

Part 18.1—Delegation of powers to Judicial Registrars and Registrars

Division 18.1.1—General

18.01A Definitions

18.01 Exercise of powers and functions

Division 18.1.2—Delegation to Judicial Registrars

18.02 Delegation of powers to Judicial Registrars

18.03 Property value exceeding limit—power to determine case

Division 18.1.3—Delegation of powers to Registrars and Deputy Registrars

18.04 Application of Division 18.1.3

18.05 Registrars

18.06 Deputy Registrars

Part 18.2—Review of decisions

18.07 Application of Part 18.2

18.08 Review of order or decision

18.09 Stay

18.10 Power of court on review

Chapter 19—Party/party costs

Part 19.1—General

19.01 Application of Chapter 19

19.02 Interest on outstanding costs

Part 19.2—Obligations of a lawyer about costs

19.03 Duty to inform about costs

19.04 Notification of costs

Part 19.3—Security for costs

19.05 Application for security for costs

19.06 Order for security for costs

19.07 Finalising security

Part 19.4—Costs orders

19.08 Order for costs

19.09 Costs order for cases in other courts

19.10 Costs orders against lawyers

19.11 Notice of costs order

Part 19.5—Calculation of costs

19.18 Method of calculation of costs

19.19 Maximum amount of party/party costs recoverable

Part 19.6—Claiming and disputing costs

Division 19.6.1—Itemised costs account

19.20 Request for itemised costs account

19.21 Service of lawyer’s itemised costs account

19.22 Lawyer’s itemised costs account

19.23 Disputing itemised costs account

19.24 Assessment of disputed costs

19.25 Amendment of itemised costs account and Notice Disputing Itemised Costs Account

Division 19.6.2—Assessment process

19.26 Fixing date for first court event

19.27 Notification of hearing

19.28 Settlement conference

19.29 Preliminary assessment

19.30 Objection to preliminary assessment amount

19.31 If no objection to preliminary assessment

19.32 Assessment hearing

19.33 Powers of Registrars

19.34 Assessment principles

19.35 Allowance for matters not specified

19.36 Neglect or delay before Registrar

19.37 Costs assessment order—costs account not disputed

19.38 Setting aside a costs assessment order

Part 19.7—Specific costs matters

19.40 Costs in court of summary jurisdiction

19.41 Charge for each page

19.42 Proportion of costs

19.43 Costs for reading

19.44 Postage within Australia

19.45 Waiting and travelling time

19.46 Agent’s fees

19.49 Costs of cases not started together

19.50 Certificate as to counsel

19.51 Lawyer as counsel—party and party costs

19.52 Lawyer as counsel—assessment of fees

Part 19.8—Review of assessment

19.54 Application for review

19.55 Time for filing an application for review

19.56 Hearing of application

Chapter 20—Enforcement of financial orders and obligations

Part 20.1—General

20.01 Enforceable obligations

20.02 When an agreement may be enforced

20.03 When a child support liability may be enforced

20.04 Who may enforce an obligation

20.05 Enforcing an obligation to pay money

20.06 Affidavit to be filed for enforcement order

20.07 General enforcement powers of court

20.08 Enforcement order

20.09 Discharging, suspending or varying enforcement order

Part 20.2—Information for aiding enforcement

Division 20.2.1—Processes for aiding enforcement

20.10 Processes for obtaining financial information

Division 20.2.2—Enforcement hearings

20.11 Enforcement hearing

20.12 Obligations of payer

20.13 Subpoena of witness

20.14 Failure concerning Financial Statement or enforcement hearing

Part 20.3—Enforcement warrants

Division 20.3.1—General

20.15 Definitions

20.16 Request for Enforcement Warrant

20.17 Period during which Enforcement Warrant is in force

20.18 Enforcement officer’s responsibilities

20.19 Directions for enforcement

20.20 Effect of Enforcement Warrant

20.21 Advertising before sale

20.21A Sale of property at reasonable price

20.21B Conditions of sale of property

20.22 Result of sale of property under Enforcement Warrant

20.23 Payee’s responsibilities

20.24 Orders for real property

Division 20.3.2—Claims by person affected by an Enforcement Warrant

20.25 Notice of claim

20.26 Payee to admit or dispute claim

20.27 Admitting claim

20.28 Denial or no response to claim

20.29 Hearing of application

Part 20.4—Third Party Debt Notice

20.30 Application of Part 20.4

20.31 Money deposited in a financial institution

20.32 Request for Third Party Debt Notice

20.33 Service of Third Party Debt Notice

20.34 Effect of Third Party Debt Notice—general

20.35 Employer’s obligations

20.36 Duration of Third Party Debt Notice

20.37 Response to Third Party Debt Notice

20.38 Discharge of Third Party Debt Notice

20.39 Claim by affected person

20.40 Cessation of employment

20.41 Compliance with Third Party Debt Notice

Part 20.5—Sequestration of property

20.42 Application for sequestration of property

20.43 Order for sequestration

20.44 Order relating to sequestration

20.45 Procedural orders for sequestration

Part 20.6—Receivership

20.46 Application for appointment of receiver

20.47 Appointment and powers of receiver

20.48 Security

20.49 Accounts

20.50 Objection to accounts

20.51 Removal of receiver

20.52 Compliance with orders and Rules

Part 20.7—Enforcement of obligations other than an obligation to pay money

20.53 Application for other enforcement orders

20.54 Warrant for possession of real property

20.55 Warrant for delivery

20.56 Warrant for seizure and detention of property

Part 20.8—Other provisions about enforcement

20.57 Service of order

20.58 Certificate for payments under maintenance order

20.59 Enforcement by or against a non‑party

20.60 Powers of enforcement officer

Chapter 21—Enforcement of parenting orders, contravention of orders and contempt

Part 21.1—Applications for enforcement of orders, contravention of orders and contempt of court

21.01 Application of Part 21.1

21.02 How to apply for an order

21.03 Application made or continued by Marshal

21.04 Contempt in the court room

21.05 Fixing of hearing date

21.06 Response to an application

21.07 Failure of respondent to attend

21.08 Procedure at hearing

Part 21.2—Parenting orders—compliance

21.09 Duties of program provider

21.10 Relisting for hearing

Part 21.3—Location and recovery orders

21.11 Application of Part 21.3

21.12 Application for order under Part 21.3

21.13 Fixing of hearing date

21.14 Service of recovery order

21.15 Application for directions for execution of recovery order

Part 21.4—Warrants for arrest

21.16 Application for warrant

21.17 Execution of warrant

21.18 Duration of warrant

21.19 Procedure after arrest

21.20 Application for release or setting aside warrant

Chapter 22—Appeals

Part 22.1—Introduction

22.01 Application of Chapter 22

Part 22.2—Starting an appeal

22.02 Starting an appeal

22.03 Time for appeal

22.04 Parties to an appeal

22.05 Service

22.06 Notice about appeal to other courts

22.07 Cross‑appeal

22.08 Time for cross‑appeal

22.08A Notice of contention

22.09 Amendment of Notice of Appeal

22.10 Documents filed in a current appeal

22.11 Stay

22.12 Application for leave to appeal

22.13 Filing draft index to appeal books

Part 22.3—Appeal to Full Court

22.14 Application of Part 22.3

22.15 Procedural hearing

22.16 Attendance at first procedural hearing

22.17 Orders to be made at procedural hearing

22.18 Preparation of appeal books

22.19 Contents of appeal books

22.20 Form of appeal books

22.21 Failure to file appeal books by due date

22.22 Summary of argument and list of authorities

Part 22.4—Appeal from Federal Circuit Court or a Family Law Magistrate of Western Australia heard by single Judge

22.23 Application of Part 22.4

22.24 Procedural hearing

22.25 Attendance at procedural hearing

22.26 Procedural orders for conduct of appeal

22.27 Documents for appeal hearing if appeal book not required

Part 22.5—Appeal from court of summary jurisdiction other than a Family Law Magistrate of Western Australia

22.28 Application of Part 22.5

22.29 Fixing of hearing date

Part 22.6—Powers of appeal courts and conduct of appeal

22.30 Non‑attendance by party

22.31 Attendance by electronic communication

22.32 Attendance of party in prison

22.34 Subpoenas

Part 22.7—Applications in relation to appeals

Division 22.7.1—How to make an application

22.35 Application of Part 22.7

22.36 Application in relation to appeal

22.37 Hearing date for application

22.38 Decision without an oral hearing

Division 22.7.2—Specific applications relating to appeals

22.39 Further evidence on appeal

22.40 Review of Regional Appeal Registrar’s order

Part 22.8—Concluding an appeal, an application for leave to appeal or an application in relation to an appeal

22.41 Consent orders on appeal

22.42 Discontinuance of appeal or application

22.43 Abandoning an appeal

22.44 Application for reinstatement of appeal

22.45 Dismissal of appeal and applications for non‑compliance or delay

Part 22.9—Case stated

22.46 Application of Part 22.9

22.47 Case stated

22.48 Objection to draft case stated

22.49 Settlement and signing

22.50 Filing of copies of case stated

22.51 Fixing of hearing date

22.52 Summary of argument and list of authorities

Part 22.10—Costs orders

22.53 Order for costs

Chapter 23—Registration of documents

Part 23.1—Registration of agreements, orders and child support debts

23.01 Registration of agreements

23.01A Registration of State child orders under section 70C or 70D of the Act

23.01B Registration of de facto maintenance orders under section 90SI of the Act

23.02 Registration of debt due to the Commonwealth under child support legislation

Part 23.2—Parenting plans

23.03 Requirements for registration of an agreement revoking a registered parenting plan

23.04 Court may require service or additional information

23.05 Application may be dealt with in chambers

Chapter 24—Documents, filing, registry

Part 24.1—Requirements for documents

24.01 General requirements

24.02 Corporation as a party

24.03 Change of name of party

24.04 Forms

Part 24.2—Filing documents

24.05 How a document is filed

24.06 Filing a document by facsimile

24.07 Filing by e‑mail and Internet

24.09 Documents filed during a case

24.10 Rejection of documents

24.11 Filing a notice of payment into court

Part 24.3—Registry records

24.12 Removal of document from registry

24.13 Searching court record and copying documents

24.14 Exhibits

Chapter 25—Applications under the Corporations Act 2001 and the Corporations (Aboriginal and Torres Strait Islander) Act 2006

25.01 Application of Chapter 25

25.02 Application of Corporations Rules

25.03 Modification of Corporations Rules

25.04 Application under Corporations Act 2001 or Corporations (Aboriginal and Torres Strait Islander) Act 2006

25.05 Transfer of cases under Corporations Act 2001 or Corporations (Aboriginal and Torres Strait Islander) Act 2006

25.06 Fixing a date for hearing

Chapter 26—Cases to which the Bankruptcy Act 1966 applies

Part 26.1—Introduction

26.01 Application of Chapter 26

26.02 Expressions used in the Bankruptcy Act

Part 26.2—General

26.04 Bankruptcy Application and Bankruptcy Application in a Case

26.05 Leave to be heard

26.06 Appearance at application or examination

26.07 Opposition to Bankruptcy Application or a Bankruptcy Application in a Case

Part 26.3—Examinations

Division 26.3.1—Interpretation

26.08 Definition for Part 26.3

Division 26.3.2—Examination of relevant person

26.09 Application for summons (Bankruptcy Act s 81)

26.10 Hearing of application

26.11 Requirements of summons

26.12 Service of summons

26.13 Failure to attend examination

26.14 Application for discharge of summons

Division 26.3.3—Examination of examinable person

26.15 Application for summons (Bankruptcy Act s 81)

26.16 Hearing of application

26.17 Requirements of summons

26.18 Service of summons

26.19 Application for discharge of summons

26.20 Conduct money and witnesses expenses

Part 26.4—Annulment of bankruptcy

26.21 Application of Part 26.4

26.22 Requirements of application

26.23 Notice to creditors

26.24 Procedural hearing—report by trustee

26.25 Service of annulment order

Part 26.5—Trustees

26.26 Applications in relation to the appointment of a trustee

26.27 Resignation or release of trustee (Bankruptcy Act ss 180 and 183)

Part 26.6—Warrants

26.28 Arrest of bankrupt (Bankruptcy Act s 78)

26.29 Apprehension of person failing to attend Court (Bankruptcy Act s 264B(1))

Part 26.7—Costs

26.30 Order for costs

26.31 Application of Part 40 of Federal Court Rules 2011

Chapter 26A—Cases to which the Trans‑Tasman Proceedings Act 2010 applies

26A.01 Application of Division 34.4 of the Federal Court Rules 2011

26A.02 Modification of the Federal Court Rules 2011

26A.03 Service of subpoena

Chapter 26B—Arbitration

Part 26B.1—Disclosure relating to arbitration

26B.01 General duty of disclosure

26B.02 Duty of disclosure—documents

26B.03 Use of documents

26B.04 Party may require production of documents

26B.05 Documents that need not be produced

26B.06 Objection to production

26B.07 Disclosure by giving a list of documents

26B.08 Disclosure by inspection of documents

26B.09 Applications for orders relating to disclosure

26B.10 Costs of compliance

26B.11 Electronic disclosure

Part 26B.2—Subpoenas

Division 26B.2.1—General

26B.12 Application of this Part

26B.13 Interpretation

26B.14 Issuing a subpoena

26B.15 Subpoena not to issue in certain circumstances

26B.16 Amendment of subpoena

26B.17 Service

26B.18 Conduct money and witness fees

26B.19 When compliance is not required

26B.20 Duration of subpoena

26B.21 Objection to subpoena

Division 26B.2.2—Production of documents and access by parties

26B.22 Application of Division 26B.2.2

26B.23 Compliance with subpoena

26B.24 Right to inspect and copy documents

26B.25 Objections relating to production of documents

26B.26 Court permission to inspect documents

26B.27 Production of document from a court

26B.28 Return or destruction of documents produced

Division 26B.2.3—Non‑compliance with subpoena

26B.29 Non‑compliance with subpoena

Part 26B.3—Other rules relating to arbitration

26B.30 Referral of question of law by an arbitrator

26B.31 Referral of other matters to the court by the arbitrator

26B.32 Informing the court about awards made in arbitration

26B.33 Registration of awards made in arbitration

26B.34 Response to applications in relation to arbitration

26B.35 Arbitrator to notify court when certain arbitrations end

Chapter 27—Transitional provisions

Part 27.1—Transitional provisions relating to the Family Law Amendment (Costs) Rules 2018

27.01 Application of Schedule 3 (itemised scale of costs)

Part 27.2—Transitional provisions relating to the Family Law Amendment (Insolvency Law Reform) Rules 2017

27.03 Transitional—release of trustee

Part 27.3—Transitional provisions relating to the Family Law Amendment (2018 Measures No. 1) Rules 2018

27.04 Application—submitting notices

27.05 Application—notices of contention

27.06 Application—documents to be used in conjunction with an affidavit

27.07 Application—compliance with subpoena

27.08 Application—undertakings

Part 27.4—Transitional provisions relating to the Family Law Amendment (Notice of Child Abuse, Family Violence or Risk) Rules 2020

27.09 Definitions

27.10 Application—documents to be filed with applications

27.11 Application—amendment of Notice of Child Abuse, Family Violence or Risk

27.12 Application—prescribed form

Part 27.5—Transitional provisions relating to the Family Law Amendment (Powers Delegated to Registrars) Rules 2020

27.13 Application—powers delegated to Registrars

Chapter 1—Introduction

Part 1.1—Preliminary

1.01  Name of Rules

  These Rules are the Family Law Rules 2004.

1.02  Commencement

  These Rules commence on 29 March 2004.

Note: The Family Law Rules 1984 (the old Rules), as in force under the Family Law Act 1975 immediately before the commencement of these Rules (the new Rules), are repealed—see the Family Law Repeal Rules 2004. The new Rules apply to a case that was commenced in accordance with the old Rules and not determined before the repeal of those Rules—see rule 4 of the Family Law Repeal Rules 2004.

1.03  Rules in Chapter 1 prevail

 (1) Chapter 1 sets out the general rules that the court may apply in all cases.

 (2) If a rule in another Chapter conflicts with a rule in Chapter 1 of these Rules, the rule in Chapter 1 applies.

1.03A  Application of Family Court Rules 2021 (WA)

 (1) The Family Court Rules 2021 (WA), as in force at the start of 23 August 2021, apply in relation to the exercise of jurisdiction under the Act by the Family Court of Western Australia and the Magistrates Court of Western Australia.

 (2) For the purpose of the exercise of jurisdiction under the Act by the Family Court of Western Australia or the Magistrates Court of Western Australia, a provision of the Family Court Rules 2021 (WA), as applied by subrule (1) of this rule, prevails over a provision of these Rules to the extent of any inconsistency.

Part 1.2—Main purpose of Rules

1.04  Main purpose of Rules

  The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.

Note: Section 43 of the Act sets out the principles that the court must apply when exercising its jurisdiction under the Act.

1.05  Pre‑action procedure

 (1) Before starting a case, each prospective party to the case must comply with the pre‑action procedures, the text of which is set out in Schedule 1.

 (2) Compliance with subrule (1) is not necessary if:

 (a) for a parenting case—the case involves allegations of child abuse or family violence, or the risk of child abuse or family violence;

 (b) for a property case—the case involves allegations of family violence, or the risk of family violence, or fraud;

 (c) the application is urgent;

 (d) the applicant would be unduly prejudiced;

 (e) there has been a previous application in the same cause of action in the 12 months immediately before the start of the case;

 (f) the case is an application for divorce;

 (g) the case is a child support application or appeal; or

 (h) the case involves a court’s jurisdiction in bankruptcy under section 35 or 35B of the Bankruptcy Act.

Note 1: The court publishes a brochure setting out the pre‑action procedures for financial cases and parenting cases.

Note 2: The court may take into account a party’s failure to comply with a pre‑action procedure when considering whether to order costs (see paragraph 1.10(2)(d)).

Note 3: Subsections 60I(7) to (12) provide for attendance at family dispute resolution before applying for an order under Part VII of the Act in relation to a child.

1.06  Promoting the main purpose

  The court must apply these Rules to promote the main purpose, and actively manage each case by:

 (a) encouraging and helping parties to consider and use a dispute resolution method rather than having the case resolved by trial;

 (b) having regard to unresolved risks or other concerns about the welfare of a child involved;

 (c) identifying the issues in dispute early in the case and separating and disposing of any issues that do not need full investigation and trial;

 (d) at an early stage, identifying and matching types of cases to the most appropriate case management procedure;

 (e) setting realistic timetables, and monitoring and controlling the progress of each case;

 (f) ensuring that parties and their lawyers comply with these Rules, any practice directions and procedural orders;

 (g) considering whether the likely benefits of taking a step justify the cost of that step;

 (h) dealing with as many aspects of the case as possible on the same occasion;

 (i) minimising the need for parties and their lawyers to attend court by, if appropriate, relying on documents; and

 (j) having regard to any barriers to a party’s understanding of anything relevant to the case.

1.07  Achieving the main purpose

  To achieve the main purpose, the court applies these Rules in a way that:

 (a) deals with each case fairly, justly and in a timely manner;

 (b) encourages parties to negotiate a settlement, if appropriate;

 (c) is proportionate to the issues in a case and their complexity, and the likely costs of the case;

 (d) promotes the saving of costs;

 (e) gives an appropriate share of the court’s resources to a case, taking into account the needs of other cases; and

 (f) promotes family relationships after resolution of the dispute, where possible.

1.08  Responsibility of parties and lawyers in achieving the main purpose

 (1) Each party has a responsibility to promote and achieve the main purpose, including:

 (a) ensuring that any orders sought are reasonable in the circumstances of the case and that the court has the power to make those orders;

 (b) complying with the duty of disclosure (see rule 13.01);

 (c) ensuring readiness for court events;

 (d) providing realistic estimates of the length of hearings or trials;

 (e) complying with time limits;

 (f) giving notice, as soon as practicable, of an intention to apply for an adjournment or cancellation of a court event;

 (g) assisting the just, timely and cost‑effective disposal of cases;

 (h) identifying the issues genuinely in dispute in a case;

 (i) being satisfied that there is a reasonable basis for alleging, denying or not admitting a fact;

 (j) limiting evidence, including cross‑examination, to that which is relevant and necessary;

 (k) being aware of, and abiding by, the requirements of any practice direction or guideline published by the court; and

 (l) complying with these Rules and any orders.

 (2) A lawyer for a party has a responsibility to comply, as far as possible, with subrule (1).

Note: The court recognises that a lawyer acts on a party’s instructions and may be unable to establish whether those instructions are correct.

 (3) A lawyer attending a court event for a party must:

 (a) be familiar with the case; and

 (b) be authorised to deal with any issue likely to arise.

Note: The court may take into account a failure to comply with this rule when considering costs (see subrule 19.10(1) and subclause 6.10(1) of Schedule 6).

Part 1.3—Court’s powers in all cases

1.09  Procedural orders in cases of doubt or difficulty

  If the court is satisfied that:

 (a) a legislative provision does not provide a practice or procedure; or

 (b) a difficulty arises, or doubt exists, in relation to a matter of practice or procedure;

it may make such orders as it considers necessary.

1.10  Court may make orders

 (1) Unless a legislative provision states otherwise, the court may make an order, on application or on its own initiative, in relation to any matter mentioned in these Rules.

 (2) When making an order, the court may:

 (a) impose terms and conditions;

 (b) make a consequential order;

 (c) specify the consequence of failure to comply with the order; and

 (d) take into account whether a party has complied with a pre‑action procedure.

1.11  Court may set aside or vary order

  The court may set aside or vary an order made in the exercise of a power under these Rules.

1.12  Court may dispense with Rules

 (1) These Rules apply unless the court, on application or its own initiative, orders otherwise.

 (2) The court may dispense with compliance with any of these Rules at any time, before or after the occasion for compliance arises.

 (3) In considering whether to make an order under this rule, the court may consider:

 (a) the main purpose of these Rules (see rule 1.04);

 (b) the administration of justice;

 (c) whether the application has been promptly made;

 (d) whether non‑compliance was intentional; and

 (e) the effect that granting relief would have on each party and parties to other cases in the court.

1.13  Judicial officer hearing application

  Unless a legislative provision states otherwise, if:

 (a) these Rules provide that an application or appeal is to be heard by a particular judicial officer or particular class of judicial officer; and

 (b) such a person is unavailable;

the application or appeal may be listed before another judicial officer who has jurisdiction to hear the application or appeal.

1.14  Shortening or extension of time

 (1) A party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order.

 (2) A party may make an application under subrule (1) for an order extending a time to be made even though the time fixed by the rule or order has passed.

 (3) A party who makes an application under subrule (1) for an extension of time may be ordered to pay any other party’s costs in relation to the application.

1.15  Time for compliance

  If a rule or order requires a person to take an action but does not specify a time by which the action is to be taken, the person must take the action as soon as practicable.

Part 1.4—Other preliminary matters

1.16  Definitions—the dictionary

 (1) The dictionary at the end of these Rules defines and explains certain words and expressions.

 (2) Within a definition, the defined term is identified by bold italics.

 (3) The dictionary is part of these Rules.

 (4) A definition of a word or expression in the dictionary applies to each use of the word or expression in these Rules, unless the context does not permit.

1.17  Notes, examples etc

 (1) The following are explanatory only and are not part of these Rules:

 (a) chapter summaries;

 (b) examples;

 (c) flow charts;

 (d) notes.

 (2) The explanatory guide at the end of these Rules is not part of these Rules and is not to be used in interpreting these Rules.

Note 1: See section 13 and paragraph 15AB(2)(a) of the Acts Interpretation Act 1901.

Note 2: In interpreting these Rules:

Specific prevails over the general

In these Rules, if there is a conflict between a general rule and a specific rule, the specific rule prevails.

Use of ‘and’ and ‘or’ between paragraphs etc

A series of paragraphs may be joined by the word and or or, which will appear between the last 2 paragraphs only. The series is to be read as if the same word appears between each paragraph in the series—for example:

(1) This is:

(a) a paragraph;

(b) another paragraph; and

(c) yet another paragraph.

and

(2) This is:

(a) a paragraph;

(b) another paragraph; or

(c) yet another paragraph.

If the paragraphs are to be read as a list, the words and or or are not used—for example:

(3) A provision may include the following:

(a) a paragraph;

(b) another paragraph;

(c) yet another paragraph.

1.18  Sittings

  The Family Court of Australia must sit at the times and places the Chief Justice directs.

1.19  Prohibition on recording

 (1) A person must not photograph or record by electronic or mechanical means:

 (a) a hearing or part of a hearing:

 (b) a trial or part of a trial;

 (c) a conference under the Act, these Rules or an order of a court;

 (d) an attendance with a family consultant;

 (e) an attendance with a single expert under these Rules;

 (f) a conference of experts ordered by a court; or

 (g) a person who is in court premises.

Note: Section 121 of the Act restricts publication of information relating to cases.

 (2) Subrule (1) does not apply to a photograph or recording made at the request of:

 (a) a court;

 (b) in relation to an attendance with a family consultant—the family consultant;

 (c) in relation to an attendance with an expert witness—the expert; or

 (d) in relation to a conference of experts—the experts.

 (3) A person commits an offence if the person contravenes subrule (1).

Penalty: 50 penalty units.

1.20  Publishing lists of cases

 (1) A list of cases to be heard in the court prepared by a Registry Manager may be:

 (a) published in the law list in a newspaper; and

 (b) made available to members of the legal profession and their employees.

Note: See subsection 121(2) of the Act.

 (2) The list may contain:

 (a) subject to subrule (3), the family name of a party, but not a given name;

 (b) the file number of a case;

 (c) the name of the judicial officer for a hearing or trial;

 (d) the time and place where a named judicial officer will sit; and

 (e) the general nature of an application.

 (3) For a case in which a court has jurisdiction in bankruptcy under section 35 or 35B of the Bankruptcy Act, the list may contain the given name of a party.

1.21  Calculating time

 (1) Time in a case runs during a period when the filing registry is closed.

 (2) If:

 (a) the period allowed by these Rules or an order for an action to be validly taken is 5 days or less; and

 (b) the period includes a day when the filing registry is closed;

that day is not counted.

 (3) For the calculation of time of one day or more from a particular day, or from the occurrence of a particular event, the particular day, or the day when the event occurs, is not counted.

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

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

1.22  Methods of attaching the seal of the Court

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

 (a) by hand; or

 (b) by electronic means; or

 (c) in any other way.

Chapter 2—Starting a case

Part 2.1—Applications

2.01  Which application to file

  A person starting a case must file an application as set out in Table 2.1.

Table 2.1 Applications

Note 1: A respondent seeking orders in another cause of action may make an application in a Response to Initiating Application (Family Law) (see paragraph 9.01 (3) (c)).

Note 2: For further information about:

(a) a divorce application, see Chapter 3;

(b) starting a case for final orders other than a divorce, see Chapter 4;

(ba) making an application for a parenting order in relation to a child born under a surrogacy arrangement, see Division 4.2.8;

(c) making an Application in a Case, see Chapter 5;

(d) an application for a consent order, see Chapter 10;

(e) an application for contempt, enforcement or contravention, see Chapters 20 and 21; and

(f) an application relating to the failure of a party to comply with a bond, see Chapter 21;

(g) an appeal or an application relating to an appeal, see Chapter 22; and

(h) an application relating to a bankruptcy case, see Chapter 26.

Note 3: An application seeking orders under the Act may not be filed in a court of a Territory unless the applicant or respondent ordinarily resides in the Territory at the time the application is filed (see subsection 39(8) and section 69K of the Act).

2.02  Documents to be filed with applications

 (1) A person must file with an application mentioned in an item of Table 2.2, the document mentioned in the item if the document has not already been filed.

Table 2.2 Documents to be filed with applications

 (4) If a document mentioned in Table 2.2 is not in English, the person filing the document must file:

 (a) a translation of the document, in English; and

 (b) an affidavit, by the person who made the translation, verifying the translation and setting out the person’s qualifications to make the translation.

 (5) An applicant in proceedings mentioned in subsection 100(1) of the Assessment Act or subsection 105(1) of the Registration Act is not required to file in the court a certificate given to the applicant by a family dispute resolution practitioner under subsection 60I(8) of the Family Law Act.

Note 1: A party must not file an affidavit with an Initiating Application (Family Law) unless an application seeking interim, procedural, ancillary or other incidental orders is included in the Initiating Application (Family Law) or permitted to do so by Chapter 4 or an order (see rules 1.12 and 4.02).

Note 2: A document that is filed must be served (see rules 7.03 and 7.04).

Note 3: For information about filing documents, see Chapter 24.

2.02A  Documents filed by electronic communication

  A person who files a document by electronic communication must:

 (a) include in the filed document and each copy served on another person any details the person knows about the location, date and time of the next court event in the matter; and

 (b) if the Registry Manager notifies the person of the details of the next court event—give a copy of the notice as soon as practicable to each person on whom the document is or has been served.

Part 2.2—Brochures

2.03  Service of brochures

  A person who files an Initiating Application (Family Law) or an Application for Divorce must, when serving the application on the respondent, also serve a brochure prepared by the court for section 12F of the Act.

Note: In addition to the requirements of this rule, an applicant who has filed an application for enforcement must serve the relevant brochure on the respondent (see paragraph 20.11(3)(b)).

Part 2.3—Notification in certain cases

Division 2.3.1—Cases involving allegation of abuse or family violence in relation to a child

2.04  Definition

  In this Division:

interested person:

 (a) in a proceeding to which section 67Z of the Act applies—has the meaning given by subsection (4) of that section; and

 (b) in a proceeding to which section 67ZBA of the Act applies—has the meaning given by subsection (4) of that section.

Part VII order has the same meaning as in subsection 60I(1) of the Act.

Registry Manager has the same meaning as in section 67Z of the Act.

2.04A  Application of Division 2.3.1

  This Division applies to a case if an application is made to a court for a Part VII order in relation to a child in the case.

2.04B  Amendment of Notice of Child Abuse, Family Violence or Risk

  If:

 (a) a person who is a party to a proceeding, or an interested person in a proceeding, has filed a Notice of Child Abuse, Family Violence or Risk in the proceeding; and

 (b) after filing the notice, the person becomes aware of new facts or circumstances that would require the person to file a Notice of Child Abuse, Family Violence or Risk for the purposes of subsection 67Z(2) or 67ZBA(2) of the Act in relation to those new facts or circumstances;

the person must file:

 (c) a Notice of Child Abuse, Family Violence or Risk setting out those new facts or circumstances; and

 (d) an affidavit stating the evidence relied on to support each allegation set out in the notice.

Note 1: A true copy of a Notice of Child Abuse, Family Violence or Risk that is filed for the purposes of subsection 67Z(2) or 67ZBA(2) of the Act must be served on the person to whom the allegations relate: see subsections 67Z(2) and 67ZBA(2) of the Act.

Note 2: If a Notice of Child Abuse, Family Violence or Risk alleges that a child has been abused or is at risk of being abused, the Registry Manager must notify a prescribed child welfare authority: see subsection 67Z(3) and paragraph 67ZBA(3)(b) of the Act.

2.04D  Prescribed form

 (1) The prescribed form for a notice mentioned in subsection 67Z(2) or 67ZBA(2) of the Act is the Notice of Child Abuse, Family Violence or Risk.

Note: The Notice of Child Abuse, Family Violence or Risk is set out in Schedule 2.

 (2) A person who files a Notice of Child Abuse, Family Violence or Risk that includes one or more allegations of child abuse, family violence or risk of harm to a child must file an affidavit stating the evidence on which each allegation set out in the notice is based, no later than the time the notice is filed.

Note 1: If a Notice of Child Abuse, Family Violence or Risk filed in a proceeding alleges that a child to whom the proceeding relates has been abused or is at risk of being abused by a person, or that there has been family violence or that there is a risk of family violence by one of the parties to the proceeding, a true copy of the notice must be served on the person to whom the allegations relate: see subsections 67Z(2) and 67ZBA(2) of the Act. The requirements for service of filed documents are set out in rule 7.04.

Note 2: If a Notice of Child Abuse, Family Violence or Risk filed in a proceeding alleges that a child to whom the proceeding relates has been abused or is at risk of being abused, the Registry Manager must notify a prescribed child welfare authority: see subsection 67Z(3) and paragraph 67ZBA(3)(b) of the Act.

 (3) Subrule (2) does not apply to a notice filed with an Application for Consent Orders.

2.05  Family violence order

 (1) A party must file a copy of any family violence order affecting the child or a member of the child’s family:

 (a) when a case starts; or

 (b) as soon as practicable after the order is made.

 (2) If a copy of the family violence order is not available, the party must file a written notice containing:

 (a) an undertaking to file the order within a specified time;

 (b) the date of the order;

 (c) the court that made the order; and

 (d) the details of the order.

 (2A) Subrule (2) does not apply to a party starting a case by filing an Application for Consent Orders.

 (3) If, during the case, a family violence order affecting the child or a member of the child’s family is varied, any party affected by the variation must, as soon as practicable after the order is varied, file a copy of the variation.

Division 2.3.2—Property settlement or spousal or de facto maintenance cases

2.06  Notification of proceeds of crime order or forfeiture application (Act ss 79B, 90M and 90VA)

  If a party to a property settlement or spousal maintenance case, or a de facto property settlement or maintenance proceedings, is required to give the Registry Manager written notice under subsection 79B(3), 90M(3) or 90VA(3) of the Act of a proceeds of crime order or forfeiture application, the party must:

 (a) file the notice as soon as possible after the party is notified by the proceeds of crime authority under paragraph 79B(3)(b), 90M(3)(b) or 90VA(3)(b) of the Act; and

 (b) if the person is required under paragraph 79B(3)(d), 90M(3)(d) or 90VA(3)(d) of the Act to give a document to the Registry Manager—attach the document to the notice.

2.07  Proceeds of crime

 (1) If the proceeds of crime authority applies under section 79C, 90N or 90VB of the Act to stay a property settlement or spousal maintenance case, or a de facto property settlement or maintenance proceedings, the authority must, at the same time, file a sealed copy of the proceeds of crime order or forfeiture application covering the property of the parties to the marriage or either of them, if not already filed.

 (2) An application under section 79D, 90P or 90VC of the Act to lift a stay of a property settlement or spousal maintenance case, or a de facto property settlement or maintenance proceedings, must have filed with it:

 (a) proof that the proceeds of crime order has ceased to be in force or that the forfeiture application has been finally determined; and

 (b) if made by a party, the written consent of the proceeds of crime authority under section 79D, 90P or 90VC of the Act.

Note: A party seeking a stay of a case or an order lifting a stay under this rule must file an Application in a Case (see Chapter 5).

Chapter 3—Divorce

Part 3.1—Application for Divorce

3.01  Fixing of hearing date

 (1) On the filing of an Application for Divorce, the Registry Manager must fix a date for the hearing of the application.

 (2) The date fixed must be:

 (a) for a joint application—at least 28 days after the application is filed; or

 (b) for any other application:

 (i) if the respondent is in Australia—at least 42 days after the application is filed; or

 (ii) if the respondent is outside Australia—at least 56 days after the application is filed.

Note 1: An Application for Divorce (other than a joint application) must be served on the respondent (see rule 7.03).

Note 2: When an Application for Divorce is served, the respondent must also be given a brochure approved by the Chief Executive Officer (see rule 2.03).

3.02  Amendment of an Application for Divorce

  An applicant may amend an Application for Divorce:

 (a) within 14 days before the hearing; or

 (b) within any shorter time permitted by the court or consented to by the respondent.

3.03  Discontinuance of an Application for Divorce

  An applicant may discontinue an Application for Divorce by filing and serving a Notice of Discontinuance at least 7 days before the date fixed for the hearing.

Note: The court may, at the hearing, give permission for an Application for Divorce to be discontinued.

Part 3.2—Response

3.04  Response

 (1) A respondent to an Application for Divorce who seeks to oppose the divorce or contest the jurisdiction of the court must file a Response to an Application for Divorce:

 (a) if the respondent is served in Australia—within 28 days after the day when the Application for Divorce is served on the respondent; or

 (b) if the respondent is served outside Australia—within 42 days after the day when the Application for Divorce is served on the respondent.

 (2) If a respondent files a Response to an Application for Divorce:

 (a) the hearing must proceed in open court; and

 (b) each party must attend or be represented by a lawyer.

Note: A document that is filed must be served (see rules 7.03 and 7.04).

3.05  Objection to jurisdiction

 (1) If, in a Response to an Application for Divorce, a respondent objects to the jurisdiction of the court, the respondent will not be taken to have submitted to the jurisdiction of the court by also seeking an order that the application be dismissed on another ground.

 (2) The objection to the jurisdiction must be determined before any other orders sought in the Response to an Application for Divorce.

3.06  Response out of time

  If a respondent files a Response to an Application for Divorce after the time allowed under subrule 3.04(1):

 (a) the applicant may consent to the late filing; or

 (b) if the applicant does not consent, the court may continue the case as if the response had not been filed.

Note: The respondent may apply to the court for permission to file a Response to an Application for Divorce after the time allowed by rule 3.04 (see rule 1.14).

3.07  Affidavit to reply to information in an Application for Divorce

  A respondent to an Application for Divorce who disputes any of the facts set out in the application, but does not oppose the divorce, may, at least 7 days before the date fixed for the hearing of the application, file and serve an affidavit setting out the facts in dispute.

Part 3.3—Attendance at hearing

3.08  Attendance at hearing

 (1) A party may apply under rule 5.06 to attend the hearing of an Application for Divorce by electronic communication.

 (2) Subject to Part 3.4:

 (a) if the applicant fails to attend the hearing in person or by a lawyer, the application may be dismissed; and

 (b) if the respondent fails to attend the hearing in person or by a lawyer, the applicant may proceed with the hearing as if the application were undefended.

Part 3.4—Hearing in absence of parties

3.09  Seeking a hearing in absence of parties

  If, in an Application for Divorce (other than a case started by a joint Application):

 (a) no Response has been filed;

 (b) at the date fixed for the hearing, there are no children of the marriage within the meaning of subsection 98A(3) of the Act;

 (c) the applicant has requested that the case be heard in the absence of the parties; and

 (d) the respondent has not requested the court not to hear the case in the absence of the parties;

the court may determine the case in the absence of the parties.

3.10  Hearing in absence of parties—joint application

  If, in a joint Application for Divorce, the applicants request that the case be heard in their absence, the court may so determine the case.

Note: The court must not determine the Application in the absence of the parties if there are any children of the marriage who are under 18 and the court is not satisfied that proper arrangements have been made for their care, welfare and development (see subsection 98A(2A) of the Act).

3.11  Request not to hear case in parties’ absence

  A respondent to an Application for Divorce who objects to the case being heard in the absence of the parties must, at least 7 days before the date fixed for the hearing, file and serve a written notice to that effect.

Note 1: If a respondent seeks that a case not be heard in the absence of the parties, the court must not determine the case in the absence of the parties (see subsection 98A(1) of the Act).

Note 2: A notice under this rule must comply with subrule 24.01(1).

Part 3.5—Events affecting divorce order

3.12  Application for rescission of divorce order

  A party may, before a divorce order nisi becomes absolute, apply for the order to be rescinded by filing an Application in a Case.

Note 1: Sections 57 and 58 of the Act set out the circumstances in which the court may rescind a divorce order nisi.

Note 2: A party filing an Application in a Case must file an affidavit (see rule 5.02).

3.13  Death of party

  If a party to an Application for Divorce dies after the divorce order nisi is made but before the order becomes absolute, the surviving party must inform the Registry Manager of the death of the other party by filing:

 (a) the death certificate of the deceased party; or

 (b) an affidavit stating the details of the deceased party’s date and place of death.

Chapter 4—Application for Final Orders

Part 4.1—Introduction

4.01  Contents of Application for Final Orders

 (1) In an Initiating Application (Family Law), the applicant must:

 (a) give full particulars of the orders sought; and

 (b) include all causes of action that can be disposed of conveniently in the same case.

Note: Under paragraph 1.08(1)(a), any orders sought must be reasonable in the circumstances of the case and within the power of the court.

 (2) A party seeking any of the following must not include any other cause of action in the Application:

 (a) an order that a marriage be annulled;

 (b) a declaration as to the validity of a marriage, divorce or annulment;

 (c) an order authorising a medical procedure under Division 4.2.3.

Note: An application for an order mentioned in subrule (2) may only be made in an Initiating Application (Family Law) and must not be made in a  Response to an Initiating Application (Family Law) (see subrule 9.01(4)).

 (3) Despite subrule (2), a party may seek the following orders in the same Application:

 (a) an order that a marriage be annulled;

 (b) a declaration as to the validity of a marriage, divorce or annulment.

Note: For amendment of an application, see Division 11.2.2.

4.02  Filing affidavits

  A party must not file an affidavit with an Initiating Application (Family Law) unless permitted or required to do so by these Rules.

Example: A party only seeking final orders for property settlement or parenting orders must not file an affidavit with an Initiating Application (Family Law).

4.03  First court date

  On the filing of an Initiating Application (Family Law), the Registry Manager must fix a date:

 (a) in a parenting case—for a procedural hearing that is as near as practicable to 28 days after the application was filed;

 (b) in a financial case—for a case assessment conference that is as near as practicable to 28 days after the application was filed;

 (c) if the application includes both a financial case and a parenting case—for a case assessment conference that is as near as practicable to 28 days after the application was filed; or

 (d) if an earlier date is fixed for the hearing of that or another application so far as it concerns an interim, procedural or other ancillary order in the case—for a procedural hearing on the same day.

Note: Under subrule 5.05(4), a Registrar may, in exceptional circumstances, allow an application for an interim, procedural, ancillary or other incidental order to be listed for urgent hearing. Chapter 12 sets out the requirements for case assessment conferences and procedural hearings.

Part 4.2—Specific applications

Division 4.2.1—General

4.04  General provisions still apply

  If a rule in this Part specifies particular requirements for an application, those requirements are in addition to the general requirements for an Initiating Application (Family Law).

4.05  Application by Attorney‑General for transfer of case

  If the Attorney‑General of the Commonwealth, or of a State or Territory, applies for the transfer of a case under Division 4.2.2 (Cross‑vesting) or Chapter 25 (Corporations Act 2001), the Attorney‑General does not, by that application, automatically become a party to the case.

Division 4.2.2—Cross‑vesting

4.06  Cross‑vesting matters

 (1) If a party filing an Initiating Application (Family Law) or a Response to Initiating Application (Family Law) relies on a cross‑vesting law, the party must specify, in the application or response, the particular State or Territory law on which the party relies.

 (2) A party relying on a cross‑vesting law after a case has started must file an Application in a Case seeking procedural orders in relation to the matter.

 (3) A party to whom subrule (1) or (2) applies must also file an affidavit stating:

 (a) that the claim is based on the State or Territory law and the reasons why the Family Court should deal with the claim;

 (b) the rules of evidence and procedure (other than those of the relevant Family Court) on which the party relies; and

 (c) if the case involves a special federal matter—the grounds for claiming the matter involves a special federal matter.

4.07  Transfer of case

  A party to a case to which rule 4.06 applies may apply to have the case transferred to another court by filing an Application in a Case.

Note: An application under this rule must be listed for hearing by a Judge.

Division 4.2.3—Medical procedure

4.08  Application for medical procedure

 (1) Any of the following persons may make a Medical Procedure Application in relation to a child:

 (a) a parent of the child;

 (b) a person who has a parenting order in relation to the child;

 (c) the child;

 (d) the independent children’s lawyer;

 (e) any other person concerned with the care, welfare and development of the child.

 (2) If a person mentioned in paragraph (1)(a) or (b) is not an applicant, the person must be named as a respondent to the application.

Note 1: Section 65C of the Act sets out who may apply for a parenting order.

Note 2: Chapter 2 provides for the form to be used to make an Initiating Application (Family Law) and the documents to be filed with that application.

4.09  Evidence supporting application

 (1) If a Medical Procedure Application is filed, evidence must be given to satisfy the court that the proposed medical procedure is in the best interests of the child.

 (2) The evidence must include evidence from a medical, psychological or other relevant expert witness that establishes the following:

 (a) the exact nature and purpose of the proposed medical procedure;

 (b) the particular condition of the child for which the procedure is required;

 (c) the likely long‑term physical, social and psychological effects on the child:

 (i) if the procedure is carried out; and

 (ii) if the procedure is not carried out;

 (d) the nature and degree of any risk to the child from the procedure;

 (e) if alternative and less invasive treatment is available—the reason the procedure is recommended instead of the alternative treatments;

 (f) that the procedure is necessary for the welfare of the child;

 (g) if the child is capable of making an informed decision about the procedure—whether the child agrees to the procedure;

 (h) if the child is incapable of making an informed decision about the procedure—that the child:

 (i) is currently incapable of making an informed decision; and

 (ii) is unlikely to develop sufficiently to be able to make an informed decision within the time in which the procedure should be carried out, or within the foreseeable future;

 (i) whether the child’s parents or carer agree to the procedure.

 (3) The evidence may be given:

 (a) in the form of an affidavit; or

 (b) with the court’s permission, orally.

4.10  Service of application

  The persons on whom a Medical Procedure Application and any document filed with it must be served include the prescribed child welfare authority.

Note: For service of an Initiating Application (Family Law), see rules 7.03 and 7.04.

4.11  Fixing of hearing date

 (1) On the filing of a Medical Procedure Application, the Registry Manager must fix a date for a hearing before a Judge of a Family Court.

 (2) The date fixed must be:

 (a) as soon as possible after the date of filing; and

 (b) if practicable, within 14 days after the date of filing.

Note: Under subrule 9.08(1), a Response to an Initiating Application (Family Law) must be filed at least 7 days before the date fixed for the hearing of the application.

4.12  Procedure on first court date

  On the first court date for a Medical Procedure Application, the court must:

 (a) make procedural orders for the conduct of the case and adjourn the case to a fixed date of hearing; or

 (b) hear and determine the application.

Division 4.2.4—Spousal or de facto maintenance

4.14  Procedure on first court date

 (1) On the first court date for an Application for spousal or de facto maintenance, the Registrar must, if practicable, conduct a case assessment conference.

 (2) If the case is not resolved at the case assessment conference, the Registrar may make orders for the conduct of the case, including the exchange of affidavits between the parties and the listing of the case for hearing.

4.15  Evidence to be provided

 (1) On the first court date and the hearing date of an Application for spousal or de facto maintenance, each party must bring to the court the following documents:

 (a) a copy of the party’s taxation returns for the 3 most recent financial years;

 (b) the party’s taxation assessments for the 3 most recent financial years;

 (c) the party’s bank records for the period of 3 years ending on the date on which the application was filed;

 (d) if the party receives wages or salary payments—the party’s payslips for the past 12 months;

 (e) if the party owns or controls a business, either as sole trader, partnership or a company—the business activity statements and the financial statements (including profit and loss statements and balance sheets) for the 3 most recent financial years of the business; and

 (f) any other document relevant to determining the income, needs and financial resources of the party.

Note 1: Documents that may need to be produced under paragraph (f) include documents setting out the details mentioned in rule 13.04.

Note 2: For modification of a spousal maintenance order, see section 83 of the Act. For modification of a de facto maintenance order, see section 90SI of the Act.

 (2) Before the hearing date, a party must produce the documents mentioned in subrule (1) for inspection, if the other party to the proceedings makes a written request for their production.

 (3) If a request is made under subrule (2), the documents must be produced within 7 working days of the request being received

Division 4.2.5—Child support and child maintenance

4.16  Application of Division 4.2.5

  This Division applies to:

 (a) an application under the Assessment Act, other than an application for leave to appeal from an order of a court exercising jurisdiction under the Assessment Act;

 (ba) an application under section 111C of the Registration Act;

 (c) an application under Division 7 of Part VII of the Family Law Act; and

 (e) an application under Parts III and IV of the Family Law Regulations.

Note 1: Chapter 2 provides for the form to be used to make an Initiating Application (Family Law) and the documents to be filed with that form.

Note 2: Chapter 22 sets out the procedure for appealing from a decision of a court.

Note 3: The Assessment Act provides that the parties to a child support application should be the liable parent and the eligible carer. The Child Support Registrar does not need to be joined as a party but, after being served with a copy of the application, may intervene in the case.

4.17  Commencing proceedings

  An application under this Part must be made in accordance with an Initiating Application (Family Law).

4.18  Documents to be filed with applications

 (1) A person must file with an application mentioned in an item of Table 4.1, the documents mentioned in the item.

Table 4.1 Documents to file with applications

Note: The documents required to be filed with an application under this rule are in addition to the documents required to be filed under rule 2.02.

 (2) For paragraph (c) of item 1 of Table 4.1, if the applicant does not have a copy of a document lodged by the other party with the Child Support Agency, the applicant may file the summary of the document prepared by the Child Support Agency.

4.19  Child support agreements

  A person who makes an application in relation to a child support agreement must register a copy of the agreement with the court by filing one of the following:

 (a) an affidavit attaching the original agreement;

 (b) an affidavit attaching a copy of the agreement and stating that the copy is a true copy of the original agreement;

 (c) an affidavit stating that the original agreement has been lost and the steps taken to locate the agreement, and attaching a copy of a document received from the Child Support Registrar setting out the terms of the agreement as registered by the Child Support Agency.

4.20  Time limits for applications under Assessment Act

  A person must file an application for a declaration under subsection 106A(2) or 107(1) of the Assessment Act within 56 days after being served with a notice given under section 33 or 34 of that Act.

Note 1: A person may apply for an extension of time to file after the time limit mentioned in this rule by filing an Initiating Application (Family Law) or an Application in a Case and an affidavit (see rules 1.14 and 5.01).

Note 2: For information about when a document is taken to be served, see rule 7.17.

4.23  Service of application

 (1) The persons to be served with an application under this Part are:

 (a) each respondent;

 (b) a parent or eligible carer of the child in relation to whom the application is made;

 (c) the Child Support Registrar.

 (2) Except for an application for an order staying a decision or an urgent order for child maintenance, an application must be served at least 28 days before the hearing date.

 (4) Any documents on which the applicant intends to rely must be served on the persons mentioned in subrule (1) at least 21 days before the hearing date.

4.24  Service by Child Support Registrar

  For rule 4.20, if the Child Support Registrar serves a document on a person under the Assessment Act, the document is taken to have been served on the person on the day specified in rule 7.17.

4.25  Procedure on first court date

 (1) On the first court date of a child maintenance application or a child support application, the Registrar must, if practicable, conduct a case assessment conference.

Note: The Registry Manager fixes the first court date (see rule 4.03).

 (2) If the application is not resolved on the first court date, the Registrar may make orders for the future conduct of the case, including the exchange of affidavits between the parties and the listing of the case for hearing.

4.26  Evidence to be provided

 (1) This rule applies to a child support application under section 111, 116, 123, 129, 136, 139 or 143 of the Assessment Act or section 111C of the Registration Act, or a child maintenance application.

 (2) On the first court date and the hearing date of the application, each party must bring to the court the following documents:

 (a) a copy of the party’s taxation returns for the 3 most recent financial years;

 (b) the party’s taxation assessments for the 3 most recent financial years;

 (c) the party’s bank records for the period of 3 years ending on the date on which the application was filed;

 (d) if the party receives wages or salary payments—the party’s payslips for the past 12 months;

 (e) if the party owns or controls a business, either as sole trader, partnership or a company—the business activity statements and the financial statements (including profit and loss statements and balance sheets) for the 3 most recent financial years of the business; and

 (f) any other document relevant to determining the income, needs and financial resources of the party.

Note 1: Documents that may need to be produced under paragraph (f) include documents setting out the details mentioned in rule 13.04.

Note 2: For variation of a maintenance order, see subsection 66S(3) of the Act.

 (3) Before the hearing date, a party must produce the documents mentioned in subrule (2) for inspection, if the other party to the proceedings makes a written request for their production.

 (4) If a request is made under subrule (3), the documents must be produced within 7 working days of the request being received.

Division 4.2.6—Nullity and validity of marriage and divorce

4.27  Application of Division 4.2.6

  This Division applies to the following applications:

 (a) an application for an order that a marriage is a nullity;

 (b) an application for a declaration as to the validity of a marriage;

 (c) an application for a declaration as to the validity of a divorce or annulment of marriage.

Note: Chapter 2 provides for the form to be used to make an Initiating Application (Family Law) and the documents to be filed with that application.

4.28  Fixing hearing date

 (1) On the filing of an application under this Division, the Registry Manager must fix a date for the hearing of the application.

 (2) The date fixed must be:

 (a) if the respondent is in Australia—at least 42 days after the application is filed; or

 (b) if the respondent is outside Australia—at least 56 days after the application is filed.

4.29  Affidavit to be filed with application

  An applicant must file with the application an affidavit stating:

 (a) the facts relied on;

 (b) for an application for an order that a marriage is a nullity or a declaration as to the validity of a marriage—details of the type of marriage ceremony performed; and

 (c) for an application for a declaration as to the validity of a divorce or annulment of marriage:

 (i) the date of the divorce or order of nullity;

 (ii) the name of the court that granted the divorce or order of nullity; and

 (iii) the grounds on which the divorce or order of nullity was ordered.

Division 4.2.7—Applications relating to passports

4.30  Application relating to passport

  A party seeking only an order that relates to a passport must file an Initiating Application (Family Law) and an affidavit stating the facts relied on.

Note: An application under this rule includes an application under section 67ZD, 68B or 114 of the Act. See also section 7A of the Passports Act 1938.