Federal Magistrates Court Amendment Rules 2011 (No. 1)1
Select Legislative Instrument 2011 No. 133
We, Federal Magistrates, make the following Rules of Court under the Federal Magistrates Act 1999.
Dated 4 July 2011
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Federal Magistrates
Richard Foster
Acting Chief Executive Officer
Contents
1 Name of Rules 3
2 Commencement 3
3 Amendment of Federal Magistrates Court Rules 2001 3
Schedule 1 Amendment commencing on 11 July 2011 4
Schedule 2 Amendments commencing immediately after commencement of Schedule 1 5
Schedule 3 Amendments commencing on commencement of Part 2 of Civil Dispute Resolution Act 2011 65
1 Name of Rules
These Rules are the Federal Magistrates Court Amendment Rules 2011 (No. 1).
2 Commencement
These Rules commence as follows:
(a) on 11 July 2011 — rules 1 to 3 and Schedule 1;
(b) immediately after the commencement of Schedule 1 — Schedule 2;
(c) on the commencement of Parts 2 to 5 of the Civil Dispute Resolution Act 2011 — Schedule 3.
3 Amendment of Federal Magistrates Court Rules 2001
Schedules 1 to 3 amend the Federal Magistrates Court Rules 2001.
Schedule 1 Amendment commencing on 11 July 2011
(rule 3)
[1] Rules 25B.06 to 25B.14
renumber
Current number
New number
rule 25B.06
rule 25B.69
rule 25B.07
rule 25B.70
rule 25B.08
rule 25B.71
rule 25B.09
rule 25B.72
rule 25B.10
rule 25B.73
rule 25B.11
rule 25B.74
rule 25B.12
rule 25B.75
rule 25B.13
rule 25B.76
rule 25B.14
rule 25B.77
Schedule 2 Amendments commencing immediately after commencement of Schedule 1
(rule 3)
[1] Rule 1.05, general outline, dot point 4
substitute
· Chapter 5 applies to proceedings under the Australian Human Rights Commission Act 1986
[2] Subparagraph 2.01 (f) (i)
substitute
(i) printed in a font of not less than 12 points; or
[3] Subparagraph 2.01 (f) (ii)
omit
registrar.
insert
registrar; and
[4] After paragraph 2.01 (f)
insert
(g) have a space of not less than 8 mm between the lines of printing.
[5] Subrule 2.03 (2)
omit
a fax of
[6] Paragraph 2.05 (1) (c)
omit
required
insert
permitted
[7] Subrule 2.05 (3), note
omit
received by the Court.
insert
filed.
[8] Rule 2.06
substitute
2.06 Registrar may refuse to accept document
A Registrar may refuse to accept a document for filing if:
(a) the document appears on its face to be an abuse of process, or frivolous, scandalous or vexatious; or
(b) the document is filed in connection with a pending proceeding and the registry is not the appropriate registry; or
(c) the rules relating to the electronic filing of documents have not been complied with.
[9] Subrules 2.07A (1) and (2)
substitute
(1) An authorised Registrar:
(a) may approve the formats for electronic versions of documents that will be accepted by a Registry; and
(b) may approve at least one email address for any Registry for the purpose of receiving documents by electronic communication.
(2) A document sent to a Registry for filing by electronic communication must:
(a) be sent using the Commonwealth Courts Portal at http://www.comcourts.gov.au; and
(b) be in an electronic format approved for the Registry; and
(c) be in a form that complies with rule 2.04; and
(d) be able to be printed with the content, and in the form, created.
[10] Subrule 2.07B (1)
omit everything before paragraph (a), insert
(1) If a document sent by a person by electronic communication is required to be signed or stamped, and is accepted at a Registry, a Registrar must:
[11] Paragraph 2.07B (1) (d)
substitute
(d) if the sender requests that the document be held for collection — hold it for collection for 7 days; and
(e) if the sender does not request that the document be held for collection or, having made a request, does not collect the document within 7 days — return the document by sending it:
(i) by electronic communication to the email address stated on the cover sheet; or
(ii) if no email address is stated, to the postal address stated on the cover sheet.
[12] Subrules 2.07B (2) to (4)
substitute
(2) A notice mentioned in paragraph (1) (a) or (b) is part of the document for the purpose of these Rules.
(3) The person who sent the document must, as directed by the Court:
(a) if the document is an image of an affidavit — produce the original of the affidavit; or
(b) in any other case — produce a paper copy of the document.
(4) If the Court directs that an original affidavit or a paper copy of a document be produced, the person who sent the document must:
(a) for an original affidavit — attach a statement to the affidavit stating the following:
(i) that it is the original of the affidavit sent by electronic communication;
(ii) the date that the affidavit was sent by electronic communication; or
(b) in any other case — endorse the first page with a statement that the paper copy is a true copy of the document sent by electronic communication, and the date that the document was sent by electronic communication.
[13] Subrules 2.08 (1) and (2)
substitute
(1) The following persons may search the court record relating to a family law or child support case, and inspect and copy a document forming part of the court record:
(a) the Attorney-General;
(b) a party, a lawyer for a party, or an independent children’s lawyer, in the case;
(c) with the permission of the Court, a person with a proper interest:
(i) in the case; or
(ii) in information obtainable from the court record in the case;
(d) with the permission of the Court, a person researching the court record relating to the case.
(2) For subrule (1), the parts of the court record that may be searched, inspected and copied are:
(a) court documents; and
(b) with the permission of the Court, any other part of the court record.
(2A) A permission:
(a) for paragraphs (1) (c) and (d) and (2) (b) — may include conditions, including a requirement for consent from a person, or a person in a class of persons, mentioned in the court record; and
(b) for paragraph (1) (d) — must specify the research to which it applies.
[14] Subrule 2.08 (3)
omit
subparagraph (2) (a) (ii),
insert
this rule,
[15] Paragraph 2.08 (3) (d)
omit
the record.
insert
the court record.
[16] Subrule 2.08 (5), definition of court document
after
correspondence
insert
or a transcript
[17] Paragraph 4.05 (2) (c)
omit
45.12.
insert
45.12; or
[18] After paragraph 4.05 (2) (c)
insert
(d) in an application filed in accordance with rule 46.3.
[19] Rule 10.04, notes 1 to 4
substitute
Note 1 For proceedings (other than family law proceedings), parties may be advised to use dispute resolution processes. For the duty of the Court to advise people to use dispute resolution processes, see section 23 of the Act. For the duty of lawyers to advise parties to use dispute resolution processes, see section 24 of the Act. For the duty of designated officers of the Court to advise parties to use dispute resolution processes, see section 25 of the Act. For the duties imposed on the Court and lawyers to provide information about non‑court‑based family services and Court’s processes and services in family law proceedings, see Part IIIA of the Family Law Act.
Note 2 For proceedings (other than family law proceedings), see sections 26, 34 and 35 of the Act, which contain provisions dealing with the Court’s power to refer a matter for conciliation, mediation or arbitration.
Note 3 For family law proceedings, see in particular Parts II, III, IIIA and IIIB of the Family Law Act, which contain provisions dealing with family counselling, family dispute resolution and other processes that apply to the Court in relation to proceedings under that Act.
Note 4 For family counselling and family dispute resolution in family law and child support proceedings, see Part 23.
Note 5 For mediation and arbitration in general federal law proceedings, see Part 27.
[20] Subrules 10.05 (1) and (2)
substitute
(1) This rule applies if the Court refers a proceeding, or a part of a proceeding or a matter arising out of a proceeding, for conciliation under section 26 of the Act.
Note 1 Section 26 applies to proceedings other than proceedings under the Family Law Act. For dispute resolution in family law proceedings, see the Family Law Act.
Note 2 The Court may refer a proceeding for conciliation under section 26 of the Act with or without the consent of the parties to the proceedings.
(2) A conciliation conference must be held with:
(a) a Federal Magistrate; or
(b) a Registrar; or
(c) another person appointed by the Court for the purpose.
[21] Rule 11.12
substitute
11.12 Manager of the affairs of a party
(1) In this rule:
manager of the affairs of a party includes a person who is authorised by or under a Commonwealth, State or Territory law to conduct legal proceedings in the name of, or for, a person who needs a litigation guardian.
(2) A person who is a manager of the affairs of a party is entitled to be the litigation guardian in any proceeding to which the authority extends.
(3) The Attorney-General may appoint in writing a person to be a manager of the affairs of a party for this rule, either generally or for a particular person.
(4) A manager of the affairs of a party becomes the litigation guardian of a person who needs a litigation guardian in a proceeding if the manager of the affairs of the party files an affidavit of consent in relation to the person.
[22] After rule 13.04
insert
13.04A Consent parenting orders and allegations of abuse, family violence or other risk factors
(1) This rule applies if an application is made to the Court for a parenting order by consent in relation to a family law proceeding.
(2) The parties must advise the Court whether or not any of the following allegations have been made in the proceeding:
(a) allegations of child abuse or neglect, or a risk of child abuse or neglect;
(b) allegations of family violence, or a risk of family violence;
(c) allegations of mental ill-health that is alleged to adversely impact on parenting capacity;
(d) allegations of drug or alcohol abuse;
(e) allegations of serious parental incapacity;
(f) any other allegation involving a risk to the child.
(3) If an allegation mentioned in subrule (2) has been made, the parties must explain to the Court how the parenting order attempts to deal with the allegation.
(4) If the application for the parenting order will be considered in chambers, the parties must attach to the draft parenting order the approved form signed by each party or their legal representative.
[23] After rule 13.11
insert
13.12 Dormant proceedings
(1) If a party has not taken a step in a proceeding for 6 months, the Court may, on its own initiative, order that the proceeding, or a part of the proceeding, be dismissed.
(2) The Court must not make an order under subrule (1) if:
(a) there is a future listing for the proceeding or a part of the proceeding; or
(b) an application in a case relating to the proceeding has not been determined; or
(c) a party to the proceeding satisfies the Court that the proceeding, or part of the proceeding, should not be dismissed; or
(d) the Court has not given the parties to the proceeding notice under subrule (3).
(3) The Court must, at least 14 days before making the order, give each party to the proceeding written notice of the date and time when it will consider whether to make the order.
(4) Notice under subrule (3) must be sent by post in an envelope marked with the Court’s return address:
(a) to each party’s address for service; and
(b) if a party has no address for service — to the party’s last‑known address.
[24] Rule 15A.15
substitute
15A.15 Subpoena for production of documents or things
(1) If a person is served with a subpoena for production:
(a) the person, or the person’s agent, must produce the documents or things described in the subpoena at the registry stated in the subpoena; and
(b) the Registrar must issue a receipt to the person producing the document or thing.
(2) Unless the subpoena specifically requires the production of the original documents or things, the person, or the person’s agent, may produce a copy of the document or things.
(3) The copy of the document or things may be:
(a) a photocopy; or
(b) in PDF on a CD-ROM; or
(c) in any other electronic form that the issuing party has indicated is acceptable.
[25] After subrule 16.08 (1)
insert
(1A) For paragraph (1) (b), an order may be signed by electronic means.
[26] Rule 20.00A
omit the first sentence, insert
(1) For subsection 103 (1) of the Act, a power of the Court mentioned in an item of the following table is delegated to a Registrar who is approved, or is in a class of Registrars who are approved, by the Chief Federal Magistrate for the exercise of the power.
[27] Rule 20.00A, table, after item 2
insert
Fair Work Act 2009
2A
paragraph 545 (2) (b)
To order a person to pay compensation
2B
subsection 548 (4)
To amend the papers commencing the proceeding
2C
subsections 548 (5) and (6)
To grant leave for a party to a small claims proceeding to be represented by a lawyer
2D
section 570
To order a party to pay costs incurred by another party
[28] Rule 20.00A, table, after item 30
insert
Federal Magistrates Court Rules 2001
31
Division 25B.2 (except paragraph 25B.13 (c) in so far as that paragraph incorporates paragraphs 25B.11 (c) and (d), rules 25B.33 to 25B.37, 25B.45 and 25B.47 and Subdivisions 25B.2.5 to 25B.2.7)
To enforce financial orders and obligations
32
rule 29.07
To make an order, issue a writ or take another step to enforce a judgement or order
33
rule 45.13
To grant leave for a party to a small claims application to be represented by a lawyer
34
rule 46.4
To grant leave for a party to a small claims proceeding to be represented by a lawyer
National Consumer Credit Protection Act 2009
35
section 178
To order a person to pay compensation
36
subsection 199 (6)
To amend the papers commencing the proceedings
37
subsections 199 (7) and (8)
To grant leave for a party to a small claims proceeding to be represented by a lawyer
38
section 200
To order a party to pay costs incurred by another party
National Credit Code
39
section 37
To order a credit provider to provide a statement
40
subsection 38 (7)
To determine a disputed liability and make consequential orders
41
subsection 74 (2)
To make orders changing, or refusing to change, the terms of a credit contract
42
subsection 74 (3)
To stay enforcement proceedings or make other orders relating to a debtor’s application to change the terms of a credit contract
43
subsection 75 (1)
To vary or revoke an order under subsection 74 (2)
44
subsection 75 (2)
To vary or revoke a stay or order under subsection 74 (3)
45
section 76
To reopen an unjust transaction that gave rise to an unjust contract, mortgage or guarantee
46
section 78
To annul or reduce an unconscionable change to a rate, fee or charge
47
subsection 96 (2)
To order or refuse to order a postponement
48
subsection 96 (3)
To stay enforcement proceedings until an application for postponement has been heard
49
subsection 101 (1)
To order a person to deliver mortgaged goods to a credit provider
50
subsection 101 (2)
To make orders varying the place at which, or time or period within which, mortgaged goods must be delivered to a credit provider
51
subsection 106 (1)
To order a credit provider to credit a mortgagor
52
subsection 106 (2)
To order a credit provider to compenstate a mortgagor or mortgagee
53
subsection 107 (3)
To determine the amount of enforcement expenses that may be recovered by a credit provider
54
section 108
To order a credit provider to return possession of goods to a mortgagor
55
section 118
To order a credit provider to pay compensation to a debtor or guarantor
[29] Rule 20.00A, note
substitute
(2) The powers of the Court mentioned in items 2A and 2D of the table may only be exercised by an approved Registrar when dealing with a claim mentioned in section 548 of the Fair Work Act 2009.
(3) The powers of the Court mentioned in items 35 and 38 to 53 of the table may only be exercised by an approved Registrar when dealing with an application for an order mentioned in subsection 199 (2) of the National Consumer Credit Protection Act 2009.
Note If a power of the Court is delegated to the Registrar under this rule:
(a) the Registrar has, in exercising the power, the same protection and immunity as a Federal Magistrate has in exercising that power; and
(b) a party, legal practitioner or witness appearing before a Registrar on the hearing of any application or matter, or on the conducting of any conference or enquiry, has the same protection and immunity as if appearing in a proceeding in the Court.
[30] Subrule 20.01 (1)
substitute
(1) For subsection 104 (2) of the Act, application for review of the exercise of a power by a Registrar must be made within:
(a) for the exercise of a power of the Court under the Family Law Act or Family Law Regulations mentioned in items 3 to 30 of the table in rule 20.00A — 28 days; and
(b) otherwise — 7 days.
[31] Division 25B.2
substitute
Division 25B.2 Enforcement of financial orders and obligations
Subdivision 25B.2.1 General
25B.05 Application
This Division applies to family law and child support proceedings.
Note This Division is a modified form of Chapter 20 of the Family Law Rules 2004.
25B.06 Interpretation
(1) In this Division:
enforcement officer, for the purpose of enforcing an order, includes:
(a) the Sheriff or a delegate of the Sheriff; and
(b) an officer of the Court or a person appointed by the Court.
financial statement has the same meaning as in rule 24.02.
(2) Subject to a contrary intention, a word or expression used in this Division that is also used in the Family Law Rules has the same meaning in this Division as it has in those Rules.
Note The following words or expressions used in this Division are defined in the Dictionary at the end of the Family Law Rules:
· child support liability
· enforcement order
· Family Court
· payee
· payer
· sealed copy
· Third Party Debt Notice
· third party debtor.
25B.07 Enforceable obligations
(1) The following obligations may be enforced under this Division:
(a) an obligation to pay money;
(b) an obligation to sign a document under section 106A of the Family Law Act (see Subdivision 25B.2.7);
(c) an order entitling a person to the possession of real property (see Subdivision 25B.2.7);
(d) an order entitling a person to the transfer or delivery of personal property (see Subdivision 25B.2.7).
(2) For paragraph (1) (a), an obligation to pay money includes:
(a) a provision requiring a payer to pay money under:
(i) an order made under the Family Law Act, the Assessment Act or the Registration Act; or
(ii) a registered parenting plan; or
(iii) an award made in arbitration and registered under section 13H of the Family Law Act; or
(iv) a maintenance agreement registered under subsection 86 (1) of the Family Law Act; or
(v) a maintenance agreement approved under section 87 of the Family Law Act; or
(vi) a financial agreement or termination agreement under Part VIIIA of the Family Law Act; or
(vii) a financial agreement under Part VIIIAB of the Family Law Act or a termination agreement under Part VIIIAB of the Family Law Act; or
(viii) an agreement varying or revoking an original agreement dealing with the maintenance of a child under section 66SA of the Family Law Act; or
(ix) an overseas maintenance order or agreement that, under the Family Law Regulations, is enforceable in Australia; and
(b) a liability to pay arrears accrued under an order or agreement; and
(c) a debt due to the Commonwealth under section 30 or 67 of the Registration Act; and
(d) a child support liability; and
(e) a fine or the forfeiture of a bond; and
(f) costs, including the costs of enforcement.
(3) For paragraph (1) (a), an obligation to pay money does not include an obligation arising out of costs for work done for a fresh application payable by a person to the person’s lawyer.
Note For enforcement of lawyer-client costs for a fresh application, see the State or Territory legislation governing the legal profession in the State or Territory where the lawyer practices.
(4) This Division applies to an agreement mentioned in paragraph (2) (a) as if it were an order of the Court in which it is registered or taken to be registered.
25B.08 When an agreement may be enforced
A person seeking to enforce an agreement must first obtain an order:
(a) for an agreement approved under section 87 of the Family Law Act — under paragraph 87 (11) (c) of the Family Law Act; or
(b) for a financial agreement — under paragraph 90KA (c) of the Family Law Act.
Note A party seeking to enforce an order made in another court or registry, must first register a copy of the order (see subsection 105 (2) of the Family Law Act). A payee must obtain the Court’s permission to enforce an order against a deceased payer’s estate (see subsection 105 (3) of the Family Law Act).
25B.09 When a child support liability may be enforced
(1) This rule applies to a person seeking to enforce payment of a child support liability that is not an order and is not taken to be an order.
(2) Before an enforcement order is made, the person must first obtain an order for payment of the amount owed by filing:
(a) an application in a case and an affidavit setting out the facts relied on in support of the application; and
(b) if the payee is the Child Support Agency or is seeking to recover a liability under section 113A of the Registration Act — a certificate under section 116 of the Registration Act.
(3) A payee who seeks to recover a child support liability in his or her own name under section 113A of the Registration Act must attach to the affidavit filed with the application a copy of the copy notice, given to the Child Support Agency, of his or her intention to institute proceedings to recover the debt due.
Note 1 After the Court has ordered payment of the amount owed, it may immediately make an enforcement order (see rule 25B.11).
Note 2 A payee who is enforcing a child support liability must notify the Registrar in writing of his or her intention to institute proceedings to recover the debt due (see subsection 113A (1) of the Registration Act).
25B.10 Who may enforce an obligation
The following persons may enforce an obligation:
(a) if the obligation arises under an order (except an order mentioned in paragraph (c)) — a party;
(b) if the obligation arises under an order to pay money for the benefit of a party or child:
(i) the party or child; or
(ii) a person entitled, under the Family Law Act or Family Law Regulations, to enforce the obligation for the party or child;
(c) if the obligation is a fine or an order that a bond be forfeited — the Sheriff of the Court, a Deputy Sheriff of the Court or an officer of the Court;
(d) if the obligation is a child support liability — a person entitled to do so under the Registration Act.
Note The payee of a liability may enforce an obligation — see section 113 of the Registration Act.
25B.11 Enforcing an obligation to pay money
An obligation to pay money may be enforced by one or more of the following enforcement orders:
(a) an order for seizure and sale of real or personal property, including under an Enforcement Warrant (see Subdivision 25B.2.3);
(b) an order for the attachment of earnings and debts, including under a Third Party Debt Notice (see Subdivision 25B.2.4);
(c) an order for sequestration of property (see Subdivision 25B.2.5);
(d) an order appointing a receiver (or a receiver and manager) (see Subdivision 25B.2.6).
Note The Court may imprison a person for failure to comply with an order (see section 112AD of the Family Law Act). Division 25B.1 sets out the relevant procedure.
25B.12 Affidavit to be filed for enforcement order
If these Rules require a person seeking an enforcement order to file an affidavit, the affidavit must:
(a) if it is not required to be filed with an application — state the orders sought; and
(b) have attached to it a copy of the order or agreement to be enforced; and
(c) set out the facts relied on, including the following:
(i) the name and address of the payee;
(ii) the name and address of the payer;
(iii) that the payee is entitled to proceed to enforce the obligation;
(iv) that the payer is aware of the obligation and is liable to satisfy it;
(v) that any condition has been fulfilled;
(vi) details of any dispute about the amount of money owed;
(vii) the total amount of money currently owed and
any details showing how the amount is calculated, including:
(A) interest, if any; and
(B) the date and amount of any payments already made;
(viii) what other legal action has been taken in an effort to enforce the obligation;
(ix) details of any other current applications to enforce the obligation;
(x) the amount claimed for costs, including costs of any proposed enforcement; and
(d) be sworn no more than 2 days before it is filed.
Examples for paragraph (a)
1 An Enforcement Warrant.
2 A Third Party Debt Notice.
3 An order for filing and service of financial statement.
4 An order for production of documents.
25B.13 General enforcement powers of Court
The Court may make any of the following orders:
(a) an order declaring the total amount owing under an obligation;
(b) an order that the total amount owing must be paid in full or by instalments and when the amount must be paid;
(c) an order for enforcement (see rule 25B.11);
(d) an order in aid of the enforcement of an obligation;
(e) an order to prevent the dissipation or wasting of property;
(f) an order for costs;
(g) an order staying the enforcement of an obligation (including an enforcement order);
(h) an order requiring the payer to attend an enforcement hearing;
(i) an order requiring a party to give further information or evidence;
(j) an order that a payer must file a financial statement;
(k) an order that a payer must produce documents for inspection by the Court;
(l) an order dismissing an application;
(m) an order varying, suspending or discharging an enforcement order.
Note For the collection of child support, the Court has general powers set out in section 111B of the Registration Act.
25B.14 Enforcement order
(1) An enforcement order must state:
(a) the kind of enforcement order it is (see rule 25B.11); and
(b) the full name and address for service of the payee; and
(c) the full name and address of the payer; and
(d) the total amount to be paid.
Note A document filed in or issued by the Court must meet the requirements set out in Division 2.1.
(2) For paragraph (1) (e), a statement about the total amount to be paid must include:
(a) the amount owing under the obligation to pay money; and
(b) the amount of interest owing, if any; and
(c) any costs of enforcing the order.
25B.15 Discharging, suspending or varying enforcement order
(1) A party to an enforcement order may apply to the Court at any time to discharge, suspend or vary the order.
Note An application under this subrule must be in an application in a case (see rule 4.08).
(2) An application under subrule (1) does not stay the operation of the enforcement order.
Subdivision 25B.2.2 Information for aiding enforcement
Note The duty of disclosure set out in rule 24.03 applies to a party to an enforcement application.
25B.16 Processes for obtaining financial information
(1) Before applying for an enforcement order, a payee may:
(a) give a payer a written notice requiring the payer to complete and serve a financial statement in accordance with the approved form within 14 days after receiving the notice; or
(b) by filing an application in a case and an affidavit that complies with rule 25B.12, apply for an order, without notice to the respondent:
(i) requiring the payer to complete and file a financial statement in accordance with the approved form; or
(ii) requiring the payer to disclose information or produce to the payee copies of documents relevant to the payer’s financial affairs.
(2) A Registrar may hear an application under subrule (1), in chambers, in the absence of the parties, on the documents filed.
25B.17 Enforcement hearing
(1) A payee may, by filing an application in a case and an affidavit that complies with rule 25B.12, require:
(a) the payer; or
(b) if the payer is a corporation — an officer of the corporation;
to attend an enforcement hearing.
(2) The payee may require the payer to produce documents at the enforcement hearing that are in the payer’s possession or control and relevant to the enforcement application by serving with the application mentioned in subrule (1):
(a) a list of the documents required; and
(b) a written notice requiring that the documents be produced.
(3) A payee must serve on a payer at least 14 days before an enforcement hearing:
(a) the documents mentioned in subrules (1) and (2); and
(b) a brochure approved by the Chief Federal Magistrate, giving information about enforcement hearings and the consequences of failing to comply with an obligation.
Note 1 An enforcement hearing does not have to be held before the Court makes an enforcement order. The purpose of an enforcement hearing is to obtain information to help the enforcement of an order or other obligation and, if applicable, to help the Court to determine a dispute or issue an enforcement order.
Note 2 Rule 25B.13 sets out the orders that the Court may make at an enforcement hearing.
25B.18 Obligations of payer
(1) A payer served with the documents mentioned in rule 25B.17 must:
(a) attend the enforcement hearing:
(i) to answer questions; and
(ii) to produce any documents required; and
(b) at least 7 days before the enforcement hearing, serve on the payee a financial statement in accordance with the approved form setting out the payer’s financial circumstances.
(2) Before the day of the enforcement hearing, the payer may produce any documents required to the payee at a mutually convenient time and place.
25B.19 Subpoena of witness
A party may request the Court to issue a subpoena to a witness for an enforcement hearing.
Note Part 15A sets out the requirements for issuing subpoenas.
25B.20 Failure concerning financial statement or enforcement hearing
(1) A person commits an offence if the person does not:
(a) comply with a notice under paragraph 25B.16 (1) (a) requiring the person to complete and serve a financial statement; or
(b) comply with an order that the person complete and file a financial statement or produce copies of documents to the payee (see paragraph 25B.16 (1) (b)); or
(c) if the person is served with an application for an enforcement hearing:
(i) comply with subparagraph 25B.18 (1) (a) (ii) and paragraph 25B.18 (1) (b); and
(ii) attend the enforcement hearing in accordance with the application or an order; or
(d) on attending an enforcement hearing in accordance with an application for an enforcement hearing or order, answer a question put to the person to the Court’s satisfaction.
Penalty: 50 penalty units.
(2) An offence against subrule (1) is an offence of strict liability.
Note The Court may issue a warrant for the arrest of a payer if it is satisfied that the payer has received an application for an enforcement hearing and did not attend the enforcement hearing (see rule 25B.10).
(3) If a person is prosecuted under section 112AP of the Family Law Act for an act or omission mentioned in subrule (1), an application must not be made under subrule (1) in respect of that act or omission.
Subdivision 25B.2.3 Enforcement warrants
25B.21 Definitions
In this Subdivision:
affected person means a person claiming to be affected by the seizure of property by an enforcement officer under an Enforcement Warrant.
25B.22 Request for Enforcement Warrant
(1) A payee may, without notice to the payer, ask the Court to issue an Enforcement Warrant by filing:
(a) an affidavit; and
(b) the Enforcement Warrant sought and a copy of it for service.
(2) The affidavit must:
(a) comply with rule 25B.12; and
(b) include the following details of the property owned by the payer:
(i) for any real property:
(A) evidence that the payer is the registered owner; and
(B) details of registered encumbrances and of any other person with an interest in the property;
(ii) for any personal property:
(A) the location of the property; and
(B) whether there is any other person who may have an interest in the property, including as a part owner or under a hire purchase agreement, lease or lien.
Note A person seeking to enforce the payment of a child support liability must first apply for an order for the amount owed (see rule 25B.09).
(3) If an Enforcement Warrant is issued, the payee must give the enforcement officer:
(a) the Warrant; and
(b) either or both of the following:
(i) a written undertaking to pay all reasonable fees and expenses associated with the enforcement if they are greater than the amount recovered on the enforcement;
(ii) the amount (if any) required by the enforcement officer to be paid on account for the reasonable fees and expenses of the enforcement.
Note Although the payee is liable to pay the enforcement officer any reasonable fees and expenses relating to the enforcement, the payee is entitled to recover those fees and expenses under the Enforcement Warrant (see subrules 25B.31 (2) and (3)).
25B.23 Period during which Enforcement Warrant is in force
An Enforcement Warrant remains in force for 12 months from the date when it was issued.
25B.24 Enforcement officer’s responsibilities
(1) An enforcement officer must:
(a) seize or sell property of the respondent in the sequence that the enforcement officer considers is best for:
(i) promptly enforcing the Warrant; and
(ii) avoiding undue expense or delay; and
(iii) minimising hardship to the payer and any other person affected;
(b) on enforcing the Warrant:
(i) serve a copy of the Warrant on the payer; or
(ii) leave the Warrant at the place where it was enforced; and
(c) give the payer an inventory of any property seized under the Warrant; and
(d) advertise the property in accordance with rule 25B.27; and
(e) sell the seized property:
(i) quickly, having regard to the parties’ interests and the desirability of a beneficial sale of the property; and
(ii) at the place where it seems best for a beneficial sale of the property; and
(iii) by auction, tender or private sale.
Note For the powers an enforcement officer has in relation to the enforcement of a warrant, see rule 25B.68.
(2) The enforcement officer may do any of the following:
(a) postpone the sale of the property;
(b) refuse to proceed with the sale of the property;
(c) seek further information or documents from a payee;
(d) defer enforcement until a fee or expense is paid or an undertaking to pay the fee or expense is given;
(e) require the payee to indemnify the enforcement officer against any claims arising from the enforcement;
(f) sign any documents relating to the transfer of ownership of the property, and any other documents necessary to give title of the property to the purchaser of the property;
(g) recover reasonable fees and expenses associated with the enforcement.
(3) For paragraph (2) (g), fees and expenses recovered by an enforcement officer for enforcing a Warrant are taken to be reasonable if the fees and expenses are in accordance with a legislative provision of the Commonwealth, or the State or Territory in which the warrant was enforced.
25B.25 Directions for enforcement
(1) An enforcement officer may seek, by written request to the Court, procedural orders to assist in carrying out the enforcement officer’s functions.
(2) A request under subrule (1) must:
(a) comply with Division 2.1; and
(b) set out the procedural orders sought and the reason for the orders; and
(c) have attached to it a copy of the order appointing the enforcement officer.
(3) The enforcement officer must give a copy of the request to all parties.
(4) The Court may determine the request in chambers unless:
(a) within 7 days after the request is served on a party, the party makes a written objection to the request being determined in chambers; or
(b) the Court decides that an oral hearing is necessary.
25B.26 Effect of Enforcement Warrant
(1) Property seized under an Enforcement Warrant remains the subject of the Enforcement Warrant until it is released by:
(a) full payment of the total amount owing under the Enforcement Warrant; or
(b) sale; or
(c) order; or
(d) consent of the payee.
(2) If the payer pays the payee the total amount owed under the Enforcement Warrant:
(a) the payee must immediately give the enforcement officer written notice of the payment; and
(b) the enforcement officer must release any seized property to the payer.
(3) In this rule:
total amount owed includes the enforcement officer’s fees and expenses incurred in enforcing the Warrant.
25B.27 Advertising before sale
(1) Before selling property seized under an Enforcement Warrant, an enforcement officer must advertise a notice of the sale:
(a) at least once before the sale; and
(b) stating:
(i) the time and place of the sale; and
(ii) the details of the property to be sold; and
(c) in a newspaper circulating in the town or district in which the sale is to take place.
(2) Subrule (1) does not apply if the property seized is perishable.
(3) For a sale of real property, the notice of sale must include the following details:
(a) a concise description of the real property, including its location, that would enable an interested person to identify it;
(b) a general statement about any improvements of the real property;
(c) a statement of the payer’s last known address;
(d) a statement of the payer’s interest, and any entries in the land titles register, that affect or may affect the real property as at the date of the advertisement;
(e) a statement about where a copy of the contract for sale of the property can be obtained.
(4) A copy of the advertisement must be served on the payer at least 14 days before the intended date of sale.
25B.28 Sale of property at reasonable price
(1) An enforcement officer must, in good faith and with reasonable care having regard to all circumstances relevant to the sale of property seized under an Enforcement Warrant, fix a reasonable price for the property.
(2) For subrule (1), circumstances relevant to the sale price of real property seized under an Enforcement Warrant include:
(a) the current value of the property, as provided to
the enforcement officer under subparagraph 25B.31 (1) (b) (vi); and
(b) the amount of the highest bid received for the property at any auction of the property.
Note The enforcement officer or payee may apply, after giving notice to the payer, for an order entitling the enforcement officer to sell the property for the best price obtainable (see rule 25B.32).
25B.29 Conditions of sale of property
(1) This rule applies to the sale by an enforcement officer of property seized under an Enforcement Warrant.
(2) The enforcement officer must specify as a condition of the sale of the property that the buyer:
(a) must pay:
(i) a deposit of at least 10% of the price fixed for the property when the buyer’s offer for the property is accepted by the enforcement officer; and
(ii) the balance of that price within the period determined by the enforcement officer; or
(b) must pay the whole of the price fixed for the property when the enforcement officer accepts the buyer’s offer for the property.
(3) The period mentioned in subparagraph (2) (a) (ii) must:
(a) be determined before the property is offered for sale; and
(b) be a period of no longer than 42 days.
25B.30 Result of sale of property under Enforcement Warrant
(1) An enforcement officer must, within 7 days after the day of settlement of a sale of property, file a notice in the Court stating the details of the result of the sale and the reasonable fees and expenses of the enforcement.
(2) The enforcement officer must pay out of the money received from the enforcement:
(a) any amount still owing to the enforcement officer for the reasonable fees and expenses of the enforcement; and
(b) the balance of any amount owed to the payee under the Enforcement Warrant; and
(c) the remaining amount, if any, to the payer.
Note This rule applies unless the Court orders otherwise (see rule 1.06).
25B.31 Payee’s responsibilities
(1) At least 28 days before an enforcement officer sells real property under an Enforcement Warrant, the payee must:
(a) send to the payer, at the payer’s last known address, and to any mortgagee or other person who has an encumbrance registered on the title to the property that has priority over the Enforcement Warrant, written notice stating:
(i) that the Warrant has been registered on the title to the property; and
(ii) that the enforcement officer intends to sell the property to satisfy the obligation if:
(A) the total amount owing is not paid; or
(B) arrangements considered satisfactory to the payee have not been made by a date specified in the notice; and
(iii) the enforcement officer’s name and address; and
(b) provide the enforcement officer with evidence of the following:
(i) proof of compliance with paragraph (a);
(ii) that the Warrant has been registered on the land titles register;
(iii) details of the real property proposed to be sold including the address and description of the land title of the property;
(iv) details of all encumbrances registered against the real property on the date of registration of the Enforcement Warrant;
(v) the costs incurred to register the Enforcement Warrant;
(vi) the current value of the real property, as stated in a real estate agent’s market appraisal.
(2) The payee is liable to pay to the enforcement officer the reasonable fees and expenses of the enforcement.
(3) The costs mentioned in subparagraph (1) (b) (v) and the fees and expenses mentioned in subrule (2) may:
(a) be added to, and form part of, the costs of the Enforcement Warrant; and
(b) be recovered under the Warrant.
Note A person affected by an Enforcement Warrant may serve a notice of claim on the enforcement officer (see rule 25B.33).
25B.32 Orders for real property
(1) This rule applies to real property in relation to which:
(a) an Enforcement Warrant has been requested or issued; or
(b) an enforcement order for seizure and sale has been applied for or made.
(2) A payee, payer or enforcement officer may apply for any of the following orders:
(a) that the real property be transferred or assigned to a trustee;
(b) that a party sign all documents necessary for the transfer or assignment;
(c) in aid of or relating to the sale of the real property, including any of the following orders:
(i) about the possession or occupancy of the real property until its sale;
(ii) specifying the kind of sale, whether by contract conditional on approval of the Court, private sale, tender or auction;
(iii) setting a minimum price;
(iv) requiring payment of the purchase price to a trustee;
(v) settling the particulars and conditions of sale;
(vi) for obtaining evidence of value;
(vii) specifying the remuneration to be allowed to an auctioneer, estate agent, trustee or other person;
(d) about the disposition of the proceeds of the sale of the real property;
(e) in relation to the reasonable fees and expenses of the enforcement.
Note An application under subrule (2) must be in an application in a case (see rule 4.08).
(3) The Court may hear an application under subrule (2) in chambers, in the absence of the parties, on the documents filed.
25B.33 Notice of claim
(1) If an enforcement officer seizes, or intends to seize, property under an Enforcement Warrant, an affected person may serve a notice of claim on the enforcement officer.
(2) A notice of claim must:
(a) be in writing; and
(b) state the name and address of the affected person; and
(c) identify each item of property that is the subject of the claim; and
(d) state the grounds of the claim.
(3) The enforcement officer must serve a copy of the notice of claim on the payee.
(4) The Enforcement Warrant must not be executed until at least 7 days after the notice of claim was served on the payee.
25B.34 Payee to admit or dispute claim
A payee who is served with a notice of claim under subrule 25B.33 (3) must give the enforcement officer written notice about whether the payee admits or disputes the claim, within 7 days after the notice of claim was served.
25B.35 Admitting claim
If a payee admits an affected person’s claim, the enforcement officer must return the property to its lawful owner in a way that is consistent with the affected person’s claim.
25B.36 Denial or no response to claim
(1) This rule applies if:
(a) an enforcement officer has served an affected person’s notice of claim on a payee; and
(b) within 7 days after the notice was served, the payee:
(i) disputes or does not admit the claim; or
(ii) fails to respond to the claim in accordance with rule 25B.34.
(2) The following people may apply for an order to determine the claim:
(a) each party to the Enforcement Warrant;
(b) the affected person;
(c) the enforcement officer.
Note An application under subrule (2) must be in an application in a case (see rule 4.08).
(3) The Registrar must fix a date for hearing an application under this rule that is as close as practicable to 14 days after the date of filing.
(4) The application must be served on the following people at least 7 days before the hearing of the application:
(a) each party to the Enforcement Warrant;
(b) the affected person;
(c) the enforcement officer.
25B.37 Hearing of application
On the hearing of an application under rule 25B.36, the Court may:
(a) allow the claim; and
(b) order that the affected person and anyone claiming under the affected person be barred from prosecuting the claim against the enforcement officer or payee.
Note Rules 25B.13 and 25B.32 set out the orders the Court may make on the hearing of the application.
Subdivision 25B.2.4 Third Party Debt Notice
25B.38 Application of Subdivision 25B.2.4
This Subdivision applies to:
(a) money deposited in a financial institution that is payable to a payer on call or on notice; and
(b) money payable to a payer by a third party on the date when the enforcement order is served on the third party; and
(c) earnings payable to a payer.
25B.39 Money deposited in a financial institution
(1) Money deposited in an account in a financial institution that is payable on call is a debt due to the payer even if a condition relating to the account is unsatisfied.
(2) Money deposited in an account in a financial institution that is payable on notice is a debt due to the payer at the end of the notice period required, starting on the date of service of the Third Party Debt Notice on the third party debtor.
Note Some legislative provisions provide that payments under the legislation are exempt from payment: for example, some pensions.
25B.40 Request for Third Party Debt Notice
(1) A payee may, without notice to the payer or third party, ask the Court to issue a Third Party Debt Notice requiring the payment to the payee of any money to which this Subdivision applies by filing:
(a) 3 copies of the Third Party Debt Notice; and
(b) an affidavit.
(2) The affidavit must:
(a) comply with rule 25B.12; and
(b) include the following information:
(i) the name and address of the third party;
(ii) details of the debt to be attached to satisfy the obligation, including its nature and amount;
(iii) the information relied on to show that the debt is payable by the third party to the payer;
(iv) if it is sought to attach the payer’s earnings:
(A) details of the payer’s earnings; and
(B) details of the payer’s living arrangements, including dependants; and
(C) the protected earnings rate; and
(D) the amount sought to be deducted from the earnings each payday; and
(E) any information that should be included in the Third Party Debt Notice to enable the employer to identify the payer.
Note A person seeking to enforce the payment of a child support liability must first apply for an order for the amount owed (see rule 25B.09).
25B.41 Service of Third Party Debt Notice
A payee must serve on a payer and third party debtor:
(a) a copy of the Third Party Debt Notice issued under rule 25B.40; and
(b) a brochure approved by the Chief Federal Magistrate setting out the effect of the Third Party Debt Notice and the third party debtor’s obligations.
25B.42 Effect of Third Party Debt Notice — general
(1) If a Third Party Debt Notice is served on a third party debtor, a debt due or accruing to the payer from the third party debtor is attached and bound in the hands of the third party debtor to the extent specified in the Notice.
(2) A Third Party Debt Notice to bind earnings or a regular payment comes into force at the end of 7 days after the order is served on the third party debtor.
25B.43 Employer’s obligations
(1) Under a Third Party Debt Notice directed to earnings, the payer’s employer:
(a) must:
(i) deduct from the payer’s earnings the amount specified in the notice; and
(ii) pay it to the person specified in the notice; and
(iii) give to the payer a notice specifying the deductions; and
(b) may:
(i) deduct from the payer’s earnings an administrative charge of $5 per deduction; and
(ii) keep the charge as a contribution towards the administrative cost of making payments under the notice.
(2) The employer must ensure that an amount deducted under subrule (1) does not reduce the payer’s earnings to less than the protected earnings rate.
(3) A deduction paid or kept by an employer under subrule (1)
is a valid discharge, to the extent of the deduction, of the employer’s liability to pay earnings.
25B.44 Duration of Third Party Debt Notice
A Third Party Debt Notice continues in force until:
(a) the total amount mentioned in the Notice is paid; or
(b) the Notice is set aside.
25B.45 Response to Third Party Debt Notice
(1) A third party debtor who has been served with a Third Party Debt Notice or an order discharging, varying or suspending the Notice, may apply:
(a) to dispute liability to make payments under the Notice; or
(b) for procedural orders.
Note An application under subrule (1) must be in an application in a case and filed with an affidavit (see rules 4.05 and 4.08).
(2) The Court may hear an application under subrule (1) in chambers, in the absence of the parties, on the documents filed.
(3) The Court may:
(a) order that any money that has been paid to the payee in error:
(i) be paid into and held in Court; or
(ii) be returned to the third party debtor; or
(iii) be sent to the payer; and
(b) if the third party debtor has not paid the amount specified in the Notice or order mentioned in subrule (1) — order the third party debtor to pay all or part of what was required under the Notice or order.
Note Rule 25B.13 sets out the orders that the Court may make on an application under this Subdivision.
25B.46 Discharge of Third Party Debt Notice
If a third party debtor pays an amount mentioned in a Third Party Debt Notice to the payee, the debt is discharged to the extent of the payment.
25B.47 Claim by affected person
A person other than the payee claiming to be entitled to the debt mentioned in a Third Party Debt Notice, or to any charge or lien on, or other interest in, the debt may apply for an order determining the claim.
Note An application under this rule must be in an application in a case and filed with an affidavit stating the facts and circumstances relied on (see rules 4.05 and 4.08).
25B.48 Cessation of employment
(1) This rule applies if:
(a) a Third Party Debt Notice is in force; and
(b) the payer’s employer is required by the Notice to redirect part of the payer’s earnings to the payee.
(2) If the payer ceases to be employed by the employer, the payer must, within 21 days after the payer ceases to be so employed, give the Court written notice stating:
(a) the payer has ceased employment with the employer; and
(b) the date on which the employment ceased; and
(c) if the payer has a new employer:
(i) the name and address of the new employer; and
(ii) the place of the payer’s employment by the new employer; and
(iii) the amount of the payer’s earnings from employment by the new employer.
(3) If the payer ceases to be employed by the employer, the employer must, within 21 days after the payer ceases to be so employed, give the Court written notice of the date on which the payer’s employment ceased.
(4) If the Registrar does not receive a written objection from the payee or the payer within 21 days after a notice under subrule (2) or (3) is given, a new Third Party Debt Notice naming the new employer as the third party debtor will be issued.
25B.49 Compliance with Third Party Debt Notice
(1) A third party debtor commits an offence if the third party debtor:
(a) does not comply with a Third Party Debt Notice or an order varying, suspending or discharging a Notice; or
(b) unfairly treats a payer in respect of employment because of a Notice or an order made under this Division.
Penalty: 50 penalty units.
(2) An offence against subrule (1) is an offence of strict liability.
(3) A penalty imposed under subrule (1) does not affect:
(a) an obligation that the third party debtor may have in relation to the payer; or
(b) a right or remedy that the payer may have against the third party debtor under another legislative provision.
(4) If the Court makes an order against a third party debtor under section 112AP of the Family Law Act in respect of an act or omission mentioned in subrule (1), the third party debtor must not be charged with an offence against subrule (1) in respect of that act or omission.
Subdivision 25B.2.5 Sequestration of property
25B.50 Application for sequestration of property
(1) A payee may apply to the Court for an enforcement order appointing a sequestrator of the property of a payer by filing an application in a case, setting out the details of the property to be sequestered, and an affidavit.
(2) The affidavit must:
(a) comply with rule 25B.12;
(b) include the full name and address of the proposed sequestrator;
(c) include details of the sequestrator’s fees; and
(d) have attached to it a consent to the appointment of the sequestrator, signed by the proposed sequestrator.
(3) The Court may:
(a) hear an urgent application under subrule (1) without notice; and
(b) make an order that is expressed to operate only until a date fixed by the order.
(4) The Court may hear an application under this rule in chambers, in the absence of the parties, on the documents filed.
25B.51 Order for sequestration
(1) In considering an application for sequestration, the Court must be satisfied that:
(a) if the obligation to be enforced arises under an order — the payer has been served with the order to be enforced; and
(b) the payer has refused or failed to comply with the obligation; and
(c) an order for sequestration is the most appropriate method of enforcing the obligation.
(2) On appointing a sequestrator, the Court may:
(a) authorise and direct the sequestrator:
(i) to enter and take possession of the payer’s property or part of the property; and
(ii) to collect and receive the income of the property, including rent, profits and takings of a business; and
(iii) to keep the property and income under sequestration until the payer complies with the obligation or until further order; and
(b) fix the remuneration of the sequestrator.
Note For rules relating to the enforcement of obligations other than an obligation to pay money, see Subdivision 25B.2.7.
25B.52 Order relating to sequestration
(1) This rule applies if any of the following people apply to the Court for an order relating to a sequestration order:
(a) a party to the sequestration order;
(b) a creditor of the payer;
(c) the Sheriff of the Court or a Deputy Sheriff of the Court;
(d) a person whose interests are affected by an act or omission of, or decision made by, the sequestrator.
(2) The Court may order:
(a) the sequestrator, or any other person associated with the sequestration, to attend to be orally examined; or
(b) the sequestrator to do or not do something; or
(c) the sequestrator to be removed from office.
Note An application under subrule (1) must be in an application in a case and filed with an affidavit (see rules 4.05 and 4.08).
25B.53 Procedural orders for sequestration
(1) A sequestrator may seek, by written request to the Court, procedural orders about the sequestrator’s functions.
(2) A request under subrule (1) must:
(a) comply with Division 2.1; and
(b) set out the procedural orders sought and the reason for the orders; and
(c) have attached to it a copy of the order appointing the sequestrator.
(3) The sequestrator must give a copy of the request to all parties.
(4) The Court may determine the request in chambers unless:
(a) within 7 days of the request being served on a party, the party makes a written objection to the request being determined in chambers; or
(b) the Court decides that an oral hearing is necessary.
Subdivision 25B.2.6 Receivership
25B.54 Application for appointment of receiver
(1) A payee may apply for an enforcement order appointing a receiver of the payer’s income or property by filing an application in a case and an affidavit.
(2) The affidavit must:
(a) comply with rule 25B.12; and
(b) include the full name and address of the proposed receiver; and
(c) include details of the receiver’s fees; and
(d) have attached to it the consent to the appointment of receiver, signed by the proposed receiver.
(3) The Court may hear an application under subrule (1) in chambers, in the absence of the parties, on the documents filed.
Note For the hearing of an application in the absence of the parties, see Division 25.4.
25B.55 Appointment and powers of receiver
(1) In considering an application under subrule 25B.54 (1), the Court must have regard to:
(a) the amount of the debt; and
(b) the amount likely to be obtained by the receiver; and
(c) the probable costs of appointing and paying a receiver.
(2) When appointing a receiver, the Court must make orders about:
(a) the receiver’s remuneration, if any; and
(b) the security to be given by the receiver; and
(c) the powers of the receiver; and
(d) the parties to whom, and the intervals or dates at which, the receiver is to submit accounts.
(3) The Court may authorise a receiver to do (in the receiver’s name or otherwise) anything the payer may do.
(4) The receiver’s powers operate to the exclusion of a payer’s powers during the receivership.
(5) The Court may, on application by an interested person, make procedural orders about the powers of the receiver.
Note For rules relating to the enforcement of obligations other than an obligation to pay money, see Subdivision 25B.2.7.
25B.56 Security
A receiver’s appointment by the Court starts when:
(a) the order appointing the receiver is made; and
(b) the receiver files any security ordered that is acceptable to the Court for the performance of the receiver’s duties.
25B.57 Accounts
A party to whom a receiver must submit accounts may, on giving reasonable written notice to the receiver, inspect, either personally or by an agent, the documents and things on which the accounts are based.
25B.58 Objection to accounts
(1) A party who objects to the accounts submitted by a receiver may serve written notice on the receiver:
(a) specifying the items to which objection is taken; and
(b) requiring the receiver to file the receiver’s accounts with the Court within a specified period that is at least 14 days after the notice is served.
(2) The Court may examine the items to which objection is taken.
(3) The Court:
(a) must, by order, declare the result of an examination under subrule (2); and
(b) may make an order for the costs and expenses of a party or the receiver.
25B.59 Removal of receiver
The Court may:
(a) set aside the appointment of a receiver at any time; and
(b) make orders about the receivership and the receiver’s remuneration.
25B.60 Compliance with orders and Rules
If a receiver contravenes an order or these Rules, the Court may:
(a) set aside the receiver’s appointment; and
(b) appoint another receiver; and
(c) order the receiver to pay the costs of an application under this rule; and
(d) deprive the receiver of remuneration and order the repayment of remuneration already paid to the receiver.
Note This rule does not limit the Court’s powers relating to contempt or the enforcement of orders.
Subdivision 25B.2.7 Enforcement of obligations other than an obligation to pay money
25B.61 Application for other enforcement orders
A person may apply, without notice to the respondent, for any of the following orders by filing an application in a case and an affidavit:
(a) an order requiring a person to sign documents under section 106A of the Family Law Act;
(b) an order to enforce possession of real property;
(c) an order for the transfer or delivery of property.
Note Part 4 sets out the process for making an application in a case, that is, by filing an application in a case and an affidavit. Part 25B sets out the procedure for making an application in relation to the contravention of an order when a penalty is sought to be imposed.
25B.62 Warrant for possession of real property
(1) An order for the possession of real property may be enforced by a warrant for possession only if the respondent has had at least 7 days notice of the order to be enforced before the warrant is issued.
(2) The Court may issue a warrant for possession authorising an enforcement officer to enter the real property described in the warrant and give possession of the real property to the person entitled to possession.
(3) If a person other than the respondent occupies land under a lease or written tenancy agreement, a warrant for possession may be issued only if the Court gives permission.
25B.63 Warrant for delivery
A person entitled under an order for the delivery of personal property specified in the order may apply for that order to be enforced by a warrant authorising an enforcement officer to seize the property and deliver it to the person who is entitled to it under the order.
25B.64 Warrant for seizure and detention of property
(1) If an order specifies a time for compliance and that time has passed without compliance, a person entitled to enforce the order may seek a warrant authorising an enforcement officer to seize and detain all real and personal property (other than prescribed property) in which the respondent has a legal or beneficial interest.
(2) If the respondent complies with the order or is released from compliance, the Court may order that the property be returned to the respondent, after the costs of enforcement have been deducted.
Subdivision 25B.2.8 Other provisions about enforcement
25B.65 Service of order
An order may be enforced against a person only if:
(a) a sealed copy of the order is served on the person; or
(b) the Court is otherwise satisfied that the person has received notice of the terms of the order.
25B.66 Certificate for payments under maintenance order
(1) This rule applies if an order specifies that maintenance must be paid to a Registrar of a court or an authority.
(2) The Registrar or authority must, at the request of the Court or a party to the order, give the Court or party a certificate stating the amounts that, according to the records of the Court or authority, have been paid and remain unpaid.
(3) A certificate given in accordance with subrule (2) may be received by the Court in evidence.
25B.67 Enforcement by or against a non‑party
(1) If an order is made in favour of a person who is not a party to a case, the person may enforce the order as if the person were a party.
(2) If an order is made against a person who is not a party to a case, the order may be enforced against the person as if the person were a party.
25B.68 Powers of enforcement officer
An enforcement officer may, when enforcing a warrant (with such assistance as the enforcement officer requires and, if necessary, by force) do any of the following:
(a) enter and search any real property:
(i) that is the subject of the warrant; or
(ii) for the purpose of seizing any property the subject of the warrant;
(b) if the warrant is for the seizure and sale of real property — enter and eject from the property any person who is not lawfully entitled to be on the property;
(c) take possession of or secure against interference any property the subject of the warrant;
(d) remove any property the subject of the warrant from the place where it is found, place it in storage or deliver it to another person or place for a purpose authorised by the warrant.
Note The powers specified in this rule are in addition to, and do not derogate from, any other powers conferred by law on the enforcement officer.
[32] Subrule 25B.74 (2)
omit
sealed
[33] After subrule 27.01 (1)
insert
(1A) However, this Part does not apply if the Court refers a proceeding to a mediator for mediation under rule 45.13B.
[34] After Part 28
insert
Part 29 Enforcement of judgements and orders
29.01 Attendance
(1) This rule applies if:
(a) a person is required to attend court on being served with:
(i) a subpoena or order directing the person to attend court; or
(ii) an application for an order that the person be punished for contempt of court; and
(b) the person does not attend court on the date fixed for attendance.
(2) The Court may:
(a) issue a warrant for the arrest and detention of the person in custody until the person attends before the Court; and
(b) order the person to pay any costs of failure to attend court on the date fixed for attendance.
(3) This rule does not affect:
(a) the powers of the Court to punish for the contempt; or
(b) the provisions of Part 19 (which relates to contempt).
29.02 Service before committal or sequestration
(1) An order may be enforced by committal or sequestration only if:
(a) the order or a certified copy of the order is served by hand on the person against whom the order is made; and
(b) for an order that requires the person to do an act within a specified time — the order or certified copy of the order is served before the specified time.
(2) If the person is a corporation or organisation, the order may be enforced by committal of an officer of the person or by sequestration of the property of an officer of the person only if the order or certified copy of the order:
(a) is served in accordance with subrule (1); and
(b) is served by hand on the officer; and
(c) if the order requires the person to do an act within a specified time — is served on the officer before the specified time.
(3) The order or certified copy of the order must include a notice that the person is liable to imprisonment or to sequestration of property if:
(a) the order requires the person to do an act within a specified time and the person refuses or neglects to do the act within that time; or
(b) the order requires the person to abstain from doing an act and the person disobeys the order.
(4) If an order requires a person to do an act, and another order specified the time in which the act is required to be done, each order or a certified copy of each order must be served on the person before the specified time.
(5) Despite a failure to comply with service under this rule, a judgement or order may be enforced by committal of a person or of sequestration of the property of a person if:
(a) the person is present when the judgement is given or when the order is made; or
(b) the person is notified of the terms of the judgement or order by telephone, fax or other means of communication.
(6) The Court may dispense with service under this rule.
29.03 Substituted performance
(1) If a judgement or order requires a person (the first-mentioned person) to do an act and the first-mentioned person does not do the act, the Court may:
(a) direct that the act be done by a person appointed by the Court; and
(b) order the first-mentioned person to pay the costs incurred by the failure to do the act.
(2) Subrule (1) does not affect any other mode of enforcement of the judgement or order, or the powers of the Court to punish for contempt.
29.04 Enforcements by or against non-party
(1) If a person who is not a party to a proceeding obtains an order, or an order is made in favour of a person who is not a party to a proceeding, the order may be enforced as if the person were a party to the proceeding.
(2) A judgement may be enforced against a person who is not a party to a proceeding as if the person were a party to the proceeding.
(3) A judgement may be enforced against an officer of a corporation or organisation that is not a party to a proceeding as if the corporation or organisation were a party to the proceeding.
29.05 Non-performance of condition
Unless the Court orders otherwise, if a person fails to fulfil a condition of a judgement:
(a) the person loses the benefit of the judgement; and
(b) any other interested person may take any steps that:
(i) are warranted by the judgement; or
(ii) might have been taken if the judgement had not been pronounced or the order had not been made.
29.06 Matters occurring after judgement
(1) If a judgement is given against a person, the person may apply to the Court for an order to stay execution of the judgement or for another order if there are matters occurring after the date on which the judgement takes effect.
(2) The Court may make any orders or directions that the Court considers appropriate.
(3) This rule does not affect the powers of the Court to stay execution under rule 29.10.
29.07 Enforcement of orders of State and Territory Supreme Courts
(1) In order to enforce a judgement or order of the Court, the Court may make any order, issue any writ or take any other step that the Supreme Court of the State or Territory in which the judgement or order is to be enforced could make, issue or take if the judgement or order had been made by that Supreme Court.
(2) For subrule (1), the Court must, to the extent practicable, follow the practice and procedure of the Supreme Court of the State or Territory in which the judgement or order is to be enforced.
(3) When executing the orders of the Court, the Sheriff of the Court is authorised to exercise the same powers and perform the same duties as the Sheriff or similar officer of the Supreme Court of the State or Territory in which the judgement or order is to be enforced.
(4) If a judgement or order is to be enforced in more than one State or Territory, the Court may follow the practice and procedure of one of the States or Territories in which the judgement or order is to be enforced for the purpose of enforcing the judgement or order in each State or Territory.
(5) This rule does not limit any other means of enforcement available to the Court.
29.08 Ex parte application
A party interested in the execution or enforcement of an order may apply to the Court ex parte for directions in relation to its execution or enforcement.
29.09 Warrant for committal
If the Court makes an order to commit a person, the Court may issue a warrant for committal:
(a) if the order is made for a contempt of court — in accordance with the approved form; or
(b) in any other case — in accordance with the approved form.
29.10 Stay of execution
The Court may stay execution of a judgement or order.
[35] Subrule 41.02 (1)
substitute
(1) In this Chapter:
Commission means the Australian Human Rights Commission.
special-purpose Commissioner has the meaning given by section 46PV of the Human Rights Act.
[36] Subrule 41.02 (2), note
omit
· special‑purpose Commissioner
[37] Rule 45.10, heading
substitute
45.10 Definitions for Division 45.4
[38] Subrule 45.11 (2)
substitute
(2) The Court is not bound by any rules of evidence and procedure when dealing with a small claims application and may act:
(a) in an informal manner; and
(b) without regard to legal forms and technicalities.
[39] Rule 45.13, heading
substitute
45.13 Lawyers — Fair Work Act small claims proceeding
[40] Subrule 45.13 (2)
omit
to ensure that no other party to the proceedings is unfairly disadvantaged
[41] After rule 45.13
insert
45.13A Representation for corporations — Fair Work Act small claims proceeding
Despite rule 9.04, an officer or employee of a corporation may represent the corporation in a small claims proceeding under this Division if the officer or employee is authorised by the corporation to represent the corporation in the proceeding.
[42] Before Division 45.5
insert
Division 45.4A Dispute Resolution — Fair Work Act proceedings
45.13B Mediation — Fair Work Act proceedings
(1) This rule applies if the Court refers for mediation under section 34 of the Act a proceeding, or a part of a proceeding, or a matter arising out of a proceeding, to which this Part applies.
Note 1 Section 34 of the Act does not apply to family law proceedings. For dispute resolution in family law proceedings, see Part III of the Family Law Act.
Note 2 The Court may refer a proceeding for mediation under section 34 of the Act with or without the consent of the parties.
(2) The mediator for the mediation must be:
(a) a Federal Magistrate; or
(b) a Registrar; or
(c) another person appointed by the Court for the purpose; or
(d) a FWA Member nominated by the President of Fair Work Australia.
(3) Unless the Court or a Registrar otherwise orders:
(a) the parties to the proceeding must attend the mediation in person; and
(b) the lawyer or lawyers representing the parties to the proceeding must attend the mediation.
(4) Unless the Court otherwise orders, if an order for mediation is made, the proceeding is adjourned until the earlier of the following:
(a) the day the mediator reports to the Court; or
(b) the day fixed by the Court on which the mediator must report to the Court about progress in the mediation.
(5) The parties must make a genuine effort to reach agreement on relevant matters in issue.
(6) If the mediator considers that the mediation should not continue, the mediator must, subject to any order of the Court:
(a) end the mediation; and
(b) advise the Court of the outcome.
(7) If an issue between the parties remains unresolved at the end of the mediation, the Federal Magistrate or Registrar may:
(a) give further directions; and
(b) make any other order, including an order for costs.
(8) In this rule:
FWA Member has the meaning given by section 12 of the Fair Work Act.
President has the meaning given by section 12 of the Fair Work Act.
[43] After Chapter 7
insert
Chapter 8 Proceedings under National Consumer Credit Protection Act
Part 46 Small claims application under National Consumer Credit Protection Act
46.1 Definitions
In this Part:
National Consumer Credit Protection Act means the National Consumer Credit Protection Act 2009.
small claims application means an application for an order covered by subsection 199 (2) of the National Consumer Credit Protection Act that is dealt with under this Part.
small claims proceeding means a proceeding relating to a small claims application.
46.2 Small claims proceeding — National Consumer Credit Protection Act
(1) An applicant may request that an application for an order covered by subsection 199 (2) of the National Consumer Credit Protection Act be dealt with under this Part.
(2) The Court is not bound by any rules of evidence and procedure when dealing with a small claims application and may act:
(a) in an informal manner; and
(b) without regard to legal forms and technicalities.
46.3 Starting a small claims proceeding
A small claims application must be made in accordance with the approved form.
Note Part 4 of Chapter 1 sets out the general rules about starting proceedings.
46.4 Lawyers — National Consumer Credit Protection Act small claims proceeding
(1) A party to a small claims application may not be represented by a lawyer without the leave of the Court.
(2) If the Court grants a party leave to be represented by a lawyer, the leave may be given subject to conditions the Court considers appropriate.
(3) For subrule (1), a party is not taken to be represented by a lawyer if the lawyer is an employee or officer of that party.
46.5 Representation for corporations — National Consumer Credit Protection Act small claims proceeding
Despite rule 9.04, an officer or employee of a corporation may represent the corporation in a small claims proceeding under this Division if the officer or employee is authorised by the corporation to represent the corporation in the proceeding.
[44] Schedule 1, Part 1
substitute
Part 1 Family law and general federal law proceedings
Work performed
Family law amount
General federal law amount
Stage 1: Initiating or opposing application up to completion of first court day
Lump sum
Plus: Court attendance
$1 873.00
Daily hearing fee
$2 500.00
Daily hearing fee
Stage 1A: Initiating or opposing application which includes interim orders (other than procedural orders) up to completion of first court day
Lump sum
Plus: Court attendance
$2 341.00
Daily hearing fee
$3 128.00
Daily hearing fee
Stage 2: Interim or summary hearing — as a discrete event
(This stage applies to an interim application, or a summary proceeding of a type not otherwise addressed in this fee structure. It does not include the stage 1 or 1A component.)
Lump sum
Plus: Court attendance
$1 559.00
Daily hearing fee
$1 559.00
Daily hearing fee
Stage 3: Up to and including conciliation conference
Lump sum
$1 559.00
Not applicable
Stage 4: Dispute resolution litigation intervention
Lump sum
$1 559.00
$2 623.00
Stage 5: Preparation for final hearing
For a 1 day matter:
Lump sum
$3 990.00
$5 623.00
For a 2 day matter:
Lump sum
Preparation each additional hearing day
$4 948.00
$1 059.00
$8 448.00
$1 777.00
Stage 6: Final hearing costs for solicitor
Attendance at hearing
To take judgement and explain orders
Daily hearing fee
$255.00
Daily hearing fee
$255.00
Additional events
Stage 7: Application for family law location, recovery or enforcement of an order
(This stage applies to an application where there is an existing court order.)
Lump sum
Court attendance
$793.00
Daily hearing fee
Not applicable
Advocacy loading
Increase relevant daily hearing fee
50%
50%
Daily hearing fee
Short mention
Half‑day hearing
Full‑day hearing
$255.00
$936.00
$1 873.00
$255.00
$936.00
$1 873.00
Disbursements
Court fees and other fees and payments, to the extent that they have been reasonably incurred
Photocopying per page
$0.67
$0.67
Agents fees/travelling costs
Increase lump sum fee by
$527.00
$527.00
2 hours travel is the benchmark. There is no entitlement to an increase in lump sum for under 2 hours travel time.
[45] Schedule 1, Part 2, paragraph 1 (a)
omit
$1 175;
insert
$1 250;
[46] Schedule 1, Part 2, paragraph 1 (b)
omit
$2 935;
insert
$3 123;
[47] Schedule 1, Part 2, paragraph 1 (c)
omit
$5 865.
insert
$6 240.
[48] Schedule 1, Part 2, paragraph 2 (a)
omit
$585;
insert
$622;
[49] Schedule 1, Part 2, paragraph 2 (b)
omit
$1 465;
insert
$1 559;
[50] Schedule 1, Part 2, paragraph 2 (c)
omit
$2 935;
insert
$3 123;
[51] Schedule 1, Part 2, paragraph 2 (d)
omit
$4 105.
insert
$4 368.
[52] Schedule 3, Part 2
after
· Order 8
insert
· Order 11
· Order 12
[53] Schedule 3, Part 2
omit
· Order 37
[54] Schedule 5
omit
[55] Dictionary, after definition of enter
insert
Fair Work Australia has the meaning given by section 12 of the Fair Work Act 2009.
[56] Dictionary, definition of Human Rights Act
substitute
Human Rights Act means the Australian Human Rights Commission Act 1986.
[57] Dictionary, after definition of minor
insert
parenting order has the meaning given by subsection 64B (1) of the Family Law Act.
Schedule 3 Amendments commencing on commencement of Part 2 of Civil Dispute Resolution Act 2011
(rule 3)
[1] Part 4, heading
substitute
Part 4 Starting proceedings
Division 4.1 General rules about starting proceedings
[2] After rule 4.08
insert
Division 4.2 Rules for proceedings if Civil Dispute Resolution Act applies
4.09 Applicant’s genuine steps statement
(1) If Part 2 of the Civil Dispute Resolution Act applies to a proceeding, the applicant to the proceedings must, when filing the application mentioned in subrule 4.01 (1), file the applicant’s genuine steps statement in accordance with the approved form.
(2) The applicant’s genuine steps statement must comply with section 6 of the Civil Dispute Resolution Act.
Note 1 Civil Dispute Resolution Act is defined in the Dictionary.
Note 2 A party who wants to start a proceeding must have regard to the Civil Dispute Resolution Act before starting the proceeding to determine whether the Civil Dispute Resolution Act applies to the proceeding that the party wants to start.
Note 3 A lawyer must comply with section 9 of the Civil Dispute Resolution Act if that Act applies to the proceeding.
4.10 Respondent’s genuine steps statement
(1) If an applicant has filed a genuine steps statement, the respondent must file the respondent’s genuine steps statement in accordance with the approved form within 14 days of service of the applicant’s application.
(2) The respondent’s genuine steps statement must comply with section 7 of the Civil Dispute Resolution Act.
Note 1 Civil Dispute Resolution Act is defined in the Dictionary.
Note 2 Rule 4.09 requires an applicant in a proceeding to which the Civil Dispute Resolution Act applies to file an applicant’s genuine dispute resolution statement at the same time as the application is filed.
[3] Dictionary, after definition of Child Support Registrar
insert
Civil Dispute Resolution Act means the Civil Dispute Resolution Act 2011.
[4] Dictionary, after definition of general federal law proceedings
insert
genuine steps statement has the meaning given by section 5 of the Civil Dispute Resolution Act.
Note
1. All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See http://www.frli.gov.au.
