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FAMILY LAW RULES (AMENDMENT) 1996 NO. 60
EXPLANATORY STATEMENTSTATUTORY RULES 1996 No. 60
Issued by the Authority of the Judges of the Family Court of Australia
AMENDMENT OF THE FAMILY LAW RULES
Section 123 of the Family Law Act 1975 provides that the Judges of the Family Court of Australia, or a majority of them, may make Rules of Court providing for the practice and procedure to be followed in the Family Court and other court exercising jurisdiction under the Family Law Act.
Section 123(2) of the Family Law Act provides that Sections 48, 48A, 49 and 50 of the Acts Interpretation Act 1901 apply in relation to the Rules of Court as if references in those sections in regulations were references to Rules of Court.
The present Family Law Rules came into operation on 2nd January 1985. They have been regularly reviewed and amended since that date.
FAMILY LAW REFORM ACT RULES
The objectives of these rules are -
- To update the Family Law Rules to accommodate the provisions of the Family Law Reform Act 1995 (the Reform Act).
- To include a new Order 26A as to Parenting Plans.
- To simplify and consolidate orders 10, 34 and 35 as to Summary Applications for Contravention of Access orders, Contempts and Offences and Warrants respectively.
- To consolidate Orders 10,34 and 35 into two Orders namely 34 (Recovery Orders,- Warrants and Procedure after Arrest) and 35 (Contraventions Offences and Contempt). The contents of these three orders is not changed except as a consequence of the Reform Act.
- To make some minor and consequential amendments to order 32 (Appeals).
- To make the necessary consequential amendments occasioned in the main by the new and amended definitions in the Reform Act and the changed section numbers in particular in Part VII of that Act.
NOTES ON RULES
ORDER 1 PRELIMINARY
RULE 4 Definitions
Abuse Now defined as having the meaning given in Section 60D.
Assured service This definition is omitted as the expression is no longer used in order 18 - Service and no longer required.
Chief Executive Officer New definition.
Corporation As defined in the Corporation Laws.
Judicial Registrar - This definition is omitted as not necessary.
Marriage Certificate - This definition is amended for clarification consistency throughout the Rules.
Member of Court Personnel - Now defined as having the meaning given in Section 60D.
Prescribed Child Welfare Authority - Now defined as having the meaning given in Section 60D.
Principal Registry This definition is omitted as there is no Principal Registry.
State Family Court This definition is omitted as no longer necessary.
ORDER 2 - DOCUMENTS AND FORMS
Rule 2 Requirements with respect to documents
2(4A) Sets out requirements for the Parts of Form 12A (Application for Consent Orders).
2(4B) Sets out requirements for the Parts of Form 26A (Application - Parenting Plan).
2(5)(a) Subrule 2(5) permits certain documents in the new simplified form to be hand printed. This paragraph updates the lists of forms which may be hand printed.
2(6) This subrule requires certain forms to be on a single sheet of paper. Form 26B (Consent of Respondent - Parenting Plans) is added to that list.
Rule 3 - Cover Sheets
Many of the new type of forms do not require a cover sheet. Forms 47, 48 and 49 are redrafted in the new form and do not require a cover sheet. Form 49B is abolished by the amendments.
ORDER 4 GENERAL
Rule 7 Right of Appearance
7(1) This subrule simplifies the existing subrule.
7(1A) This subrule requires a corporation to appear by a legal practitioner.
ORDER 5 SEALS, RECORDS AND SEARCHES
Rule 1 Seals
Consequential amendments-.
Rule 2A - Register of Approved Family and Child Counsellors
This rule requires the Chief Executive Officer to keep a register of approved counselling organisations and of family and child counsellors.
Rule 2B - Register of Approved Mediators
This rule requires the Chief Executive Officer to keep a register of approved mediation organisations and of approved mediators.
ORDER 6 SITTINGS AND HOLIDAYS
Rule 1 Sittings and Holidays
This amendment implements a decision of the Judges to omit Easter Tuesday from the days on which the Court does not sit.
Rule 2 - office Hours
Substitutes Chief Executive Officer for Principal Registrar.
ORDER 7 PROCEEDINGS FOR PRINCIPAL RELIEF
Rule 6 Filing of Marriage certificate etc. with application
This rule now accords with modern practice and allows photocopies of decrees to be filed.
ORDER 10 - SUMMARY APPLICATION - CONTRAVENTION OF ACCESS ORDER
This order is omitted. It is now consolidated with the new orders 34 and 35.
ORDER 11 - SUMMARY PROCEEDINGS FOR MAINTENANCE OR CONTRIBUTION
NOTE: The heading has been changed to include contribution towards child bearing expenses.
Rule 1 - Consequential amendment
Rule 5 - Information to be provided
(1)(b) Consequential amendments
(2)(c) Consequential amendments
ORDER 13 ORAL APPLICATIONS IN PENDING PROCEEDINGS
Rules 2 & 3 - Orders without written application
These two rules have been consolidated and consequential amendments made. Registration of a parenting plan or an agreement to revoke a parenting plan has been added.
ORDER 14 - CONSENT ORDERS AND ORDERS UNDER SECTION 87 OF THE ACT
Rule 3 - Completing the application
The application (Form 12A) has been revised to make it more appropriate for orders in children's matters to include consideration of the best interests of the child and to allow certain parts of the form to be omitted depending on the type of orders sought.
ORDER 15 - INTERVENERS AND OTHER PARTIES
Rule 11 - Parent other than Applicant
Consequential amendments due (inter alia) to changed definitions and omission of guardianship custody and access.
Rule 12 - Notice to particular persons in proceedings relating to children
Consequential amendments to include notice to a person who is not a party but has a parenting order.
ORDER 18 SERVICE
Rule 5(1) When and on whom must documents be served?
This amendment extends the application of Order 18 to cover any document that must be served under the Act or the Regulations.
Rule 5(1)(b) Consequential amendments
ORDER 23 DISABILITY
Rule 2(10 Children to whom Section 69ZK(1) of the Act applies
Consequential amendments.
Rule 2(1)(a)
Consequential amendments.
Rule 4 - Applications under Section 68L
4(1) Consequential amendments
4(2) Amended to incorporate current legal aid organisations.
Rule 5 - Interviews and Evidence
5(2) Consequential amendments
5(4) Amended to clarify that the child's representative must consent before a child can be interviewed.
Rule 18 - Proceedings against person under-disability not to continue until next friend appointed
Consequential order following simplified procedures.
ORDER 23A - NOTIFICATION OF CHILD ABUSE
Heading to Order amended to include the requirement of the Reform Act as to notification of family violence orders.
Rule 1 - Filing of Notice under Section 67Z of the Act
1(1) Consequential amendment.
Rule 2 - Service of Notice
2(1) Consequential amendment.
2(2) Consequential amendment.
Rule 3 - Informing Court of Family Violence order
A new rule occasioned by Section 68J as to mode of and requirements in informing the Court of family violence orders. The rule provides for information and a copy of such orders (if available) to be given to the Registrar who is to give each party a copy and present such information and any copy order to the court.
The Registrar may order a party to supply a copy of the order to the Court.
ORDER 23B - SPECIAL MEDICAL PROCEDURES
Rule 2 Who may apply for a medical procedure order?
2(2) Consequential amendment.
Rule 4 - Respondent to Application
Consequential amendment
Rule 7 - Proceedings on Return Day
Consequential amendment
Rule 9 - Reasons for Decision
New rule requires reasons to be given for decisions as soon as practicable after the final hearing.
ORDER 24 - CONCILIATION CONFERENCES AND INFORMATION SESSIONS
Rule 1 - Conciliation Conferences between the parties
Consequential amendment
Rule 3 - Conciliation Conference Particulars - Form 17
3(6) To allow explanatory material to be filed where an application under Section 79A is filed following an order made by consent or after a conciliation conference.
ORDER 25 - COUNSELLING AND FAMILY REPORTS
Rule 1 - Nomination of person to assist reconciliation
This rule enables the Principal Director of Court Counselling or the appropriate officer of the Family Court of W.A. to nominate a person other than a family and child counsellor, or an approved counselling -organisation to assist in considering a reconciliation. It is to be noted this applies only to reconciliation counselling.
Rule 2 - Notice seeking counselling
Consequential amendments
Rule 3 - Advice as to effect of proceedings
3(1) Consequential amendments
3(3) Consequential amendments
3(4) consequential amendments
Rule 5 Report of Family and Child Counsellors
5(1) Consequential amendment and includes reports pursuant to Section 65G (special conditions for making residence order or care welfare and development order by consent in favour of a non parent).
5(1A) Consequential amendment and other criminal offences has been limited to those relevant to the welfare of the child.
5(2)(a) Consequential amendment
ORDER - 25A - MEDIATION
NOTE 1:
The amendments to Rules 4, 5, 6(1), 6(1)(b)(ii), 6(2), 6(3), 7(1), 7(2), 10(1)(a), 10(2), 13, 14, 15(a) and 20 are consequential upon the change from "approved mediator" to "Court mediator".
NOTE 2:
The amendments to Rules 13(b) and 16 are consequential upon the change from "Alternative dispute resolution procedures" to "Primary dispute resolution methods".
Rule 8 - Application for order under Section 19B of the Act
This amendment is to provide for a consent application for mediation to be made at any time up to or during the final hearing.
Rules 14 - If the mediators consider that mediation should not continue.
Change of heading and in first paragraph from "mediation should not proceed" to "mediation should not continue".
ORDER 26 - REGISTRATION OF MAINTENANCE AGREEMENTS, STATE CHILD ORDERS AND DEBTS DUE TO THE COMMONWEALTH
NOTE 1:
Registration of Parenting Plans and agreements to revoke parenting plans are now covered under a new Order 26A. Hence all-agreements are not registered under this Order and the heading is changed accordingly.
Rule 1 - Registration of Agreements under Section 86 of the Act
Consequential amendments and also amendment to simplify the procedure to omit requirement for an affidavit and for a separate notice by the registrar.
NOTE 2:
Custody orders in the current order 26 refer only to Orders made in State Courts. Under the Reform Act these orders are referred to as "State Child Orders".
All other amendments to this Order are consequential upon the matters set out in notes 1 and 2 above.
ORDER 28 - SUBPOENAS:
Rule 7:
Omitted as covered by Section 112AD
ORDER 30A - EXPERT EVIDENCE
Rule 1 - Interpretation
Consequential amendments
Rule 3 - Appointment of Court Expert
Consequential amendments
ORDER 31B - CHILD SUPPORT JURISDICTION
Rule 6(1) - Service
Amended subrule (1) and new subrule (1A) are to clarify the provisions as to service of Child Support applications and appeals.
Rule 22 - Service of Application for Leave to Appeal
Consequential amendment (elimination of "assured service").
ORDER 32 - APPEALS
Rule 3 - Service of Notice of Appeal
Consequential amendment (elimination of "assured service").
Rule 3A - Child Welfare Appeal - Childs Representative
Simplified wording.
Rule 6 - Amendment of Notice of Appeal
Consequential amendment (elimination of "assured service").
Rule 14 - Appeal papers
14(4)(f) Consequential amendment
Rule 16B - Summary of Argrument and List of Authorities
Makes provision for child's representative to comply with this rule.
Rule 19 - Procedure on application for Dismissal
19(2) Consequence amendment (elimination of "assured service").
Rule 20 - Application for Certificate to Appeal to High Court
20(2) Consequential amendment
Rule 23 - Service of Notice of Application
Consequential amendment (elimination of "assured service").
ORDER 32A - APPLICATION FOR LEAVE TO APPEAL TO HIGH COURT
Rule 5 - Service
Consequential amendment (elimination of "assured service").
ORDER 33 - ENFORCEMENT
Rule 2 - Enforcement of Maintenance etc. Orders and Debts due to the Commonwealth
2(1) New paragraphs added to provide for enforcement of amounts due under parenting plans, parenting orders and contribution orders.
Rules 11 - Information before a Magistrate under subsection 112(AH) of the Act
This rule has been transferred to Order 35 rule 8.
ORDER 36A - DELEGATION OF POWERS TO REGISTRARS AND JUDICIAL REGISTRARS
Rule 2 - Delegation of Powers to Registrars
(1)(e) Consequential amendment
(1)(ea) Gives power to make orders for contribution in respect of birth of a child under Section 67D of the Reform Act.
(1)(g) Gives powers to Registrars to make parenting orders in undefended children's proceedings including orders in favour of non parents and child maintenance orders.
(1)(ja) Consequential amendment
(1)(k)(i) Consequential amendment
(2)(rb) Giving powers to Registrars to make orders as to parenting plans.
(2)(x) Consequential amendment
Rule 3 Delegation of Powers to Judicical Registrars
3(b) Delete powers as to guardianship custody and access.
3(ea) There is no equivalent of subsection 64(7) in the Reform Act. That is a power to discharge vary or suspend an order with respect to custody guardianship or welfare of a child. The power is now to set aside a parenting plan.
3(eb) New power to make parenting orders until further order.
3(f) This gives power to issue a warrant for arrest of person alleged to have contravened residence or contact order where there is an application for the person to be dealt with under Section 112AD of the Act and the Court is satisfied that the issue of a warrant is necessary to ensure the attendance of the person before the Court. (Similar to present Section 70AA power and procedure).
3(fa) New powers given to order the -
- Release on recognizance of an alleged offender where proceedings are in another Court.
- Release of an alleged offender when there is no application before any court.
- Release on recognizance or the keeping in custody of an alleged offender when the hearing is adjourned.
3(g) Consequent upon the amendments to sections 66V and 66W powers are given to make
(i) location orders
(ii) Commonwealth information orders
(iii) recovery orders; or
(iv)A To impose a fine or imprisonment for preventing or hindering action under a recovery order; or
(iv)B Make orders to prevent the further preventing or hindering action under a
recovery order.
3(h) Consequential amendment.
3(ha) A new power to grant injunctions including injunctions in relation to children.
3(i) Consequential amendments to delete the current paragraph. Included (but not a substitution) is the power to make an order on an application by a child's representative that a child be made available for examination.
3(j) The present power is omitted due to amendments to the injunctive powers. It is replaced by powers in relation to -
(i) Requiring any person to give evidence.
(ii) To make a parentage testing order.
(iii) To make orders as to parentage testing procedures, submission to procedures,
provision of information and costs.
(iv) Requiring the person who made a report to appear to give evidence.
3(k) Consequential amendment.
3(raa) Replaces the present (ra).
3(ra) A new power to make an order under section 112AD.
3(wa) Consequential amendment.
3(za) Consequential amendment.
3(zb) Gives power to make orders as to persons taken into custody, arrest for failure to appear at hearing and holding in custody after arrest pending hearing.
Rule 7 - Procedure on application for review
7(2) Consequential amendment.
SCHEDULE 1 FORMS
This Schedule provides for changes to Forms, introduction of new Forms and omission of Forms rendered obsolete.
New Forms are set out in Notes to Schedules 4, 5, 6, 7, 8 & 9 at the end of this Explanatory Statement.
There are consequential amendments to Forms 1, 4, 15A, 39, 49A, 52, 53 and 66.
TRANSITIONAL PROVISION
This provision (as part of transitional procedures) preserves use of the procedures for the current subsections 64(9) and 64(10) of the Family Law Act where the proceedings commence before the commencement date of the Reform Act.
ORDER 26A - PARENTING PLANS
DIVISION 1 - GENERAL
Rule 1 - Application of order
This order covers applications to register parenting plans and agreements revoking registered parenting plans. It further provides for applications for the Court to set aside registered parenting plans or to discharge, vary, suspend or revive provisions of a parenting plan.
Rule 2 - Compliance with order a rule 12 not required
It is not necessary to file a marriage or other certificate with the application.
Rule 3 - Application in pending proceedings
An oral application for registration may be made during any hearing.
Rule 4 - Formal requirements with respect to parenting plans
This rule sets out that a plan may be printed or hand printed, that it must be in a single document and that it must not include by reference to material in any other parenting plan.
DIVISION 2 - APPLICATION FOR REGISTRATION OF PARENTING
PLANS AND AGREEMENTS REVOKING REGISTERED PARENTING PLANS
Rule 5 - Application of Division
This division applies to the registration of a parenting plan or. an agreement revoking a registered parenting plan.
Rule 6 - Who may apply for registration?
The parties to the plan or agreement or any of them may apply for registration.
Rule 7 - Form of application - Form 26A
7(1) The application must be made in accordance with Form 26A unless made orally at a hearing.
7(2) Sets out that the application must be verified by affidavit. The required affidavit is included in Form 26A.
NOTE TO RULE 7
Sets out that Sec 63E requires a copy of the plan and a statement or statements by solicitors or a counsellor to accompany the application.
Rule 8 - Respondent to application
A party to a parenting plan who is not an applicant must be a respondent.
Rule 9 - Statements required by paragraphs 63E(2)(b) of the Act
This rule sets out the form these statements must take.
Rule 10 - Information to accompany applications
This rule sets out the minimum information that must be included in the application and that it must be verified by affidavit.
Rule 11 - Consent to application
This rule sets out that a respondent may consent to an application, that a consent must be in accordance with From 26B and that it may be attached to the application.
Rule 12 - Application may be dealt with in chambers
An application for registration may be dealt with in chambers by a Judge, Judicial Registrar, Magistrate or Registrar of a Family Court.
Rule 13 - Court may require service or additional information
A court hearing the application may direct service on a respondent or on any other person and may also require additional information to be supplied.
Rule 14 - Decision in relation to application
A decision is not to be made until 14 days after filing. This gives an opportunity for an application or consent to registration to be withdrawn.
Rule 15 - Notice of Registration
Where a decision is made in chambers the Registrar must advise each party, in writing, of the date and place of registration and the name of the Court (if the decision is to register) or of a decision not to register.
DIVISION 3 - 1 APPLICATION IN RELATION TO REGISTERED PARENTING PLANS
Rule 16 - Application of Division
This division applies to applications for orders to set aside, discharge, vary, suspend or revive a parenting plan or a provision of it.
Rule 17 - Form of application
The application must be in accordance with Form 8 and must be accompanied by an affidavit setting out the facts relied on, the facts on which it is alleged the orders sought would be in the best interests of the child and particulars of any counselling.
Rule 18 - Who may make an application?
An application may be made by a party to the Parenting Plan, a person with parental responsibility or a child welfare authority.
Rule 19 - Respondent to application
A party to the parenting plan who is not an applicant must be made a respondent to the application.
Rule 20 - Service of application
The application must be served on each respondent and on any other person as directed by the court.
ORDERS 10, 34 and 35
These orders are consolidated into two orders and the content is both clarified and updated in accordance with the Reform Act.
ORDER 10 - SUMMARY APPLICATION - CONTRAVENTION OF ACCESS ORDER
Order 10 has been omitted. This Order was originally intended to include a summary method of bringing breaches of access orders before the court as soon as practicable. It provided for a hearing in 14 days after issue. An applicant could make an ex parte application to a Registrar in chambers for an earlier hearing.
All of the matters dealt with in Order 10 are now dealt with in Order 35 in relation to all contraventions and offences and the hearing date for all those applications is again 14 days or earlier an applications ex parte to a Registrar in chambers. The only exception is as to warrants and all warrants are dealt with in Order 34.
ORDER 34
This Order now deals with recovery orders, all warrants and procedures between arrest and hearing date.
ORDER 35
Order 35 then deals with applications in relation to contraventions, offences and contempt and the hearing of those applications.
ORDER 34 - RECOVERY ORDERS, WARRANTS AND PROCEDURE AFTER ARREST
DIVISION 1 - RECOVERY ORDERS
Rule 1 - Interpretation
Defines "recovery order" in accordance with Section 67Q.
Rule 2 - Application for Recovery Orders - Form 8
This rule requires the application for a recovery order to be In accordance with Form 8 . This automatically brings into force the practice and procedure as to Form 8 applications set out in order 8.
Rule 3 - Form of Recovery Order - Form 34
This rule standardises the form of recovery orders.
Rule 4 - Service of application
This rule requires personal service of the application.
Rule 5 - How long does a recovery order remain in force?
An order remains in force for 12 months unless the court orders a shorter period.
DIVISION 2 - WARRANTS
Rule 6 - Form of warrants
This rule provides that all warrants be in one of 3 different forms 51, 52 & 53. A new version of Form 51 is created by the rules.
Rule 7 - Execution of Warrants
This rule provides that a warrant be executed by a Police Officer, the Marshall or the person to whom it is directed.
Rule 8 - How long does a warrant remain in force?
A warrant remains in force for 12 months unless a court orders a shorter period. The only exception is a warrant under subsection 65Q(2) of the Act which by virtue of subsection 65Q(3) remains in force for a maximum of 6 months.
DIVISION 3 PROCEDURE AFTER ARREST
Rule 9 Application of Division
The division applies to all arrests other than under Section 65Q(2) or section 65R(1). In those cases the procedure is set out in the new Subdivision D of Division 6 of Part VII of the Act.
Rule 10 - Person arrested may be held in custody
The rule provides a person arrested may be held in custody or released on a recognizance.
Rule 11 - Persons taken into custody
This rule provides the procedure where a person is arrested and brought before the same court sitting at another place or before another court.
ORDER 35 - CONTRAVENTIONS, OFFENCES AND CONTEMPT
DIVISION 1 - GENERAL
Rule 1 - Interpretation
Defines "applied provisions", "Section 112AA order" and "third party recovery order" in accordance with the terms of the Reform Act.
Rule 2 - Application of order
The Order applies to all contraventions, offences and contempts within the jurisdiction of the Court.
Rule 3 - Who may make an application?
A person aggrieved, a Police officer, the Marshal or an Officer of the Attorney-General's Department may make an application and the Marshal must do so if directed by the Court.
Rule 4 - Service
Provides the service of an application or order under this Order.
DIVISION 2 - APPLICATIONS
Rule 5 - Contraventions of orders under the Act
Other than for an alleged contravention of a residence contact or specific issues order any other application for contravention of an order is to be in accordance with Form 48 and must be supported by an affidavit setting out the facts relied on.
Rule 6 - Contraventions of Residence orders, Contact orders, or Specific Issues Orders - Form 49
Where there is a contravention of an order to which this rule. applies the application must be in accordance with Form 49 and be accompanied by an affidavit setting out the facts relied on.
Rule 7 - Imposition of Sanction for preventing or hindering action under a third party recovery order
This rule provides that a person may apply to invoke Section 67X(3) by an application in accordance with Form 35 accompanied by an affidavit setting out the facts relied on.
Rule 8 - Information laid before a Magistrate under section 112AH of the Act -Form 49A
This rule has been transferred from Order 33 rule 11. The procedure has also been simplified so that a single form (Form 49A) is used for the information (and summons where applicable) instead of the present 2 forms Forms 49A and 4, 9B). It also facilitates in subrule 8(6) the use of a photocopy or faxed copy of the information instead of the sealed copy.
Rule 9 - Contempt in the face of the Court - Form 8
This rule deals with contempt in the face of the Court and is effectively unchanged from the previous Order 34 rule 1.
Rule 10 - Contempt other than in the face of the Court - Form 47
An application as to contempt must be in accordance with Form 47 and be accompanied by an affidavit setting out the facts relied on.
DIVISION 3 - HEARING OF APPLICATION
Rule 11 - Hearing date
On the filing of an application under this order the Registrar must fix a date as near as practicable to 14 days later. An earlier date may be obtained in application to a Registrar.
Rule 12 - Arrest of Respondent for failure to appear at hearing - Form 8
Where a respondent does not appear at the hearing an application may be made for his or her arrest either orally or on Form 8.
Rule 13 - Respondent may be held in custody
A respondent arrested under Rule 12 may be held in custody or released on a recognizance until the hearing.
Rule 14 - Procedure at Hearing
This rule sets out the procedure for any hearing under this order.
SCHEDULE 4 Form 12A - The new prescribed form of APPLICATION FOR CONSENT ORDERS. User friendly suitable for hand printing. The form provides additional information to support proposed children's orders.
SCHEDULE 5 Forms 26A and 26B - The new parenting plans forms with user friendly format plain english and suitable for hand printing.
SCHEDULE 6 Form 34 - The new prescribed form of RECOVERY ORDER.
Form 35 - The new prescribed form of APPLICATION-PREVENT OR HINDER RECOVERY OF CHILD.
SCHEDULE 7 New Forms 47, 48 and 49 in user friendly format plain english and also suitable for hand printing.
SCHEDULE 8 Form 51 WARRANT OF ARREST. Form improved by clearer language. Also consequential amendment.
SCHEDULE 9 Form 69 - Consequential amendments. Also changes because of new Case Management Guidelines.