Commonwealth Numbered Regulations - Explanatory Statements

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FAMILY LAW RULES (AMENDMENT) 1995 NO. 319

STATUTORY RULES 1995 No. 319

Issued by the authority of the Judges of the Family Court of Australia

AMENDMENT OF THE FAMILY LAW RULES

Section 123 of the Family Low 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 courts exercising jurisdiction under the Family law Act.

Section 123(2) of the Family Law Act provides that sections 48, 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 apply in relation to the Rules of Court as if references in those sections to regulations were references to Rules of Court.

The present Family low Rules came into operation on 2 January 1985. They have been regularly reviewed and amended since that date.

DETAILS OF THE PROVISIONS OF THE AMENDMENTS

Item 1.1 - Provides the commencement date.

Item 2.1 - Is a machinery provision.

Item 3.1 - This rule inserts in Order 2 Rule 5 the previous provision that substantial compliance with a prescribed form will suffice.

Item 4.1 - This is to correct an incorrect heading in Order 11 Rule 19.

Item 5.1 - This amendment, imposes a requirement that a welfare report prepared under para.64(1D)(b) of the Act to assist the court where a consent order is proposed granting custody or guardianship of a child to a person who is not a parent of the child. must include details of convictions of that person.

Item 6.1 - This is a new provision being inserted into the rules which imposes conditions on granting parties leave to inspect and/or copy a book, document or thing produced on subpoena.

Item 7.1 - This amendment is as recommended by the Low Reform Commission in its Report on Evidence. The form of oath is now provided in the Evidence Act, 1995.

Item 8.1 - This amendment inserts a new rule (Order 3 Rule 2AC) to prescribe the form of a notice of previous representation prescribed in Subsection 67(1) of the Evidence Act, 1995. The form (Form 38A) is set out in Order 21.2 of the Amendments.

Items 9.1, 10.1 and 11.1 -There is now no address prescribed for the Child Support Registrar under Regulation 8 of the Child Support Regulations. These amendments are designed to overcome that deficiency.

Item 12.1 - This amendment widens the present provisions under order 31B for registration with a court of the whole of. or parts of, a child support agreement. The present provision covers only child support agreements to which Subsec.95(3) of the Child Support (Assessment) Act applies. The amendment extends it to all child support agreements (or provisions thereof) which pursuant to Sec.95 of the Child Support (Assessment) Act can be registered With a court.

Item 13.1 - Order 32 R.12(1) -This new provision is to set out what has to be done by an appeal registrar to settle an appeal index.

Order 32 R.12(2) - Is designed to contain costs by limiting the contents of the appeal books.

Order 32 R.12(3) - Provides for review of the decision of an appeal registrar by a judge.

Item 14.1 - This is a rewrite of the present Order 15 Rule 15 in plainer English.

Item 14.2 - These are new provisions (Order 32 Subrules 15(5) & 15 (6)).

Subrule (5) provides that where a party who is responsible for filing and serving the appeal papers does not do so by 28 days after the date fixed by the appeal registrar under Order 32 Rule 12(1)(h) or (if applicable) a later date fixed by an appeal registrar or a Judge of the Appeal Division, the appeal or cross-appeal of that person is taken to be abandoned.

Item 15.1 - This introduces a new rule (Order 32 Rule 168) based on the current practice direction for appeals.

Item 16.1 (Order 32A Rule 5) - This new provision requires the relevant appeal registrar to give notice to the Deputy Child Support Registrar of the filing of an application for leave to appeal to the Full Court of the Family Court of Australia under Sec. 102 of the Child Support (Assessment) Act or Sec.107 of the Child Support (Registration and Collection) Act.

Item 17.1 - (Order 32A Rule 5A) - Subrule 5A(1) - This is a new provision to enable an application to be made for a stay of a prescribed decree until an application for leave to appeal the decree is determined.

Subrule 5A(2) - This is a provision for the granting of a stay in such circumstances.

Item 18.1 - Proposed Order 32A Rule 6 - This is a rewrite of the existing rule to include a clear requirement for a directions heating.

Items 19.1, 20.1 and 20.2 - These amendments are designed to simplify the provisions of order 32A.

Item 21.1 - Form 16 - This amendment requires the name of the witness to an affidavit to be printed after the signature of the witness at the end of the affidavit so that the witness may be identified, if required.