Federal Magistrates Court Amendment Rules 2007 (No. 1)

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Federal Magistrates Court Amendment Rules 2007 (No. 1)1
Select Legislative Instrument 2007 No. 179
We, Federal Magistrates, make the following Rules of Court under the Federal Magistrates Act 1999.
Dated 18 June 2007
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Federal Magistrates
JOHN MATHIESON
Chief Executive Officer
1              Name of Rules
                These Rules are the Federal Magistrates Court Amendment Rules 2007 (No. 1).
2              Commencement
                These Rules commence on the day after they are registered.
3              Amendment of Federal Magistrates Court Rules 2001
                Schedule 1 amends the Federal Magistrates Court Rules 2001.
Schedule 1        Amendments
(rule 3)
  
[1]           Before subrule 2.04 (1)
insert
      (1A)   The Chief Federal Magistrate may approve a form for a provision of these Rules.
[2]           Paragraph 2.05 (1) (c)
omit
unless a fee is payable for the filing, by
[3]           After subrule 4.01 (3)
insert
         (4)   If a person makes an application in a case before final orders have been made in a proceeding, the application must be made in accordance with rule 4.08.
[4]           Subrule 4.05 (2)
substitute
         (2)   However, an affidavit is not required:
                (a)    in an application for interim or procedural orders — if the evidence relied on is in an affidavit or affidavits filed in the pending proceeding; or
               (b)    in a proceeding that is not a child support proceeding or family law proceeding — if the person filing an application files a statement of claim or points of claim.
         (3)   If a statement of claim or points of claim are filed under paragraph (2) (b), a respondent:
                (a)    must file a defence or points of defence instead of an affidavit; and
               (b)    may file a cross‑claim.
Note   Subsection 43 (2) of the Act provides for the Rules of Court made under the Family Law Act and Federal Court of Australia Act 1976 to apply, with necessary modifications, to the practice and procedure of the Federal Magistrates Court for particular jurisdictions of the Court if the Rules are insufficient. Those Rules may be used to direct how pleadings are to be dealt with in the Federal Magistrates Court, if subrules 4.05 (2) and (3) apply.
[5]           Rule 4.06
omit
[6]           After rule 4.07
insert
4.08        Application in a case
         (1)   An application in a case must be made in accordance with the approved form.
         (2)   In addition to the requirements in rule 4.05, the application must state:
                (a)    the name and address of the person making the application in a case; and
               (b)    the names and addresses for service of all persons affected by the order which is sought; and
                (c)    the names and addresses of the parties in the application filed for starting proceedings, as stated in that application.
         (3)   The application and supporting affidavit must be served on all persons against whom the order is sought, in accordance with Part 6.
[7]           Rule 5.02
substitute
5.02        Form of application
                Unless the Court orders otherwise, an urgent application must be made in the form approved for the purpose of starting a proceeding under subrule 4.01 (1) or an application in a case under subrule 4.08 (1).
[8]           Subrule 6.03 (2)
omit
as soon as practicable.
insert
within the time mentioned in rule 6.19.
[9]           Subrule 6.03 (3)
omit
other than an application
insert
, other than an application and its related documents,
[10]         Rule 6.05
substitute
6.05        Affidavit of service
         (1)   Unless the Court otherwise orders, any evidence of service to be given must be given by affidavit.
         (2)   For subrule (1), the approved form may be used.
[11]         After rule 6.18
insert
6.19        Time for service of applications
                Unless the Court orders otherwise, an application and any document filed with it may not be served:
                (a)    less than 3 days before the day fixed for the hearing of an application in a case; or
               (b)    less than 7 days before the day fixed for the hearing of any other application.
[12]         Division 10.2, heading
substitute
Division 10.2         Dispute Resolution
[13]         Rule 10.04, heading
substitute
10.04      Agreement reached by dispute resolution
[14]         Rule 10.04
omit
primary
[15]         Rule 10.04, note 1
omit
primary
[16]         Rule 10.04, note 3
omit
mediation and arbitration
insert
family counselling and family dispute resolution
[17]         Subrule 10.05 (2)
omit
a family and child counsellor or welfare officer.
insert
a family counsellor, family dispute resolution practitioner or family consultant.
[18]         Subrule 11.08 (2)
omit
(other than a proceeding under the Family Law Act)
[19]         Subrule 12.03 (1)
omit
assistance
insert
assistance in relation to a proceeding before the Court,
[20]         After rule 12.03
insert
12.03A   Further direction
                The Registrar may seek the direction of the Court or a Federal Magistrate in relation to a referral made under rule 12.03.
[21]         After subrule 12.05 (1)
insert
      (1A)   Unless the Court or a Federal Magistrate otherwise directs, a referral ceases to have effect if:
                (a)    a lawyer has provided the legal assistance mentioned in the referral; or
               (b)    a lawyer has ceased to provide legal assistance under subrule (2); or
                (c)    the proceeding the referral relates to is finalised or transferred to another court.
[22]         Rule 13.03B, note
omit
[23]         Part 15
insert before Division 15.1
Note   Section 69ZT of the Family Law Act provides that particular provisions of the Evidence Act 1995 dealing with:
(a)   general rules about giving evidence, examination in chief, re‑examination and cross‑examination;
(b)   documents and other evidence;
(c)   hearsay, opinion, admissions, evidence of judgements and convictions, tendency and coincidence, credibility and character;
do not apply to child‑related proceedings unless the Court is satisfied that there are exceptional circumstances and has taken into account the matters set out in paragraph 69ZT (3) (b) of that Act.
[24]         Subrule 20.00A (2), at the foot
insert
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.
[25]         Rule 20.00B
omit
[26]         Part 23, heading including notes 1, 2, and 3
substitute
Part 23               Family counselling and family dispute resolution
Note   The Family Law Act imposes duties on the Court and lawyers to provide information about non‑court based family services and court’s processes and services (including services provided by family counsellors and family dispute resolution practitioners), and services available to help with a reconciliation:  see sections 12E and 12F of that Act.
[27]         Division 23.1, heading
substitute
Division 23.1         Family counselling, family dispute resolution and family reports
[28]         Subparagraph 23.01A (2) (a) (ii)
substitute
                         (ii)    if a child is mature enough for the child’s views to be significant in determining the proceeding — a dispute about the child’s views; or
[29]         Rule 23.01, including the note
substitute
23.01      Report after family counselling or family dispute resolution
                At the end of court‑ordered family counselling or family dispute resolution, the family counsellor or family dispute resolution practitioner must give to the Court a report of:
                (a)    the number of family counselling and family dispute resolution sessions; and
               (b)    the outcome; and
                (c)    the recommended future management of the matter.
Note   In certain circumstances the Court may direct the parties to attend family counselling or family dispute resolution: see Part IIIB and Division 3 of Part VII (which deals with counselling in matters affecting children) of the Family Law Act.
[30]         Division 23.2
substitute
Division 23.2         Family dispute resolution
23.02      Referral for family dispute resolution
                If the Court makes an order referring any or all of the matters in dispute in a proceeding for family dispute resolution, the Court must:
                (a)    refer the matter directly to a family dispute resolution practitioner for assessment so that the practitioner may proceed with family dispute resolution if assessed as appropriate; or
               (b)    refer the matter to the Dispute Resolution Coordinator for assessment so that the Coordinator may arrange for family dispute resolution if assessed as appropriate; or
                (c)    make any other order necessary to facilitate the family dispute resolution.
[31]         Subrule 25.08 (1)
substitute
         (1)   A party who wishes to oppose an application for a divorce order, or to object to the jurisdiction of the Court, must file a response in accordance with the approved form.
[32]         Rule 25.09
omit
[33]         Rule 25.10, heading
substitute
25.10      Time for filing response
[34]         Rule 25.10
omit
application, or objection to jurisdiction
insert
application
[35]         Part 25A
substitute
Part 25A             Child support and child maintenance
25A.01   Application of Part 25A
         (1)   This Part applies to:
                (a)    an application or appeal under the Assessment Act or the Registration Act; and
               (b)    an application under Division 7 of Part VII of the Family Law Act; and
                (c)    an application under the Child Support (Assessment) (Overseas‑related Maintenance Obligations) Regulations 2000; and
               (d)    an application under Parts III and IV of the Family Law Regulations.
         (2)   Nothing in this Part affects the operation of Division 25B.2.
25A.02   Commencing proceedings
         (1)   An application under this Part must be made in accordance with the approved form.
         (2)   A notice of appeal under this Part must be made in accordance with the approved form.
Note   For the procedure on the first court date see rule 10.01.
25A.03   Documents to be filed with applications
                Except if rule 25A.05 applies, a person must file with an application under this Part, the following documents:
                (a)    an affidavit setting out the facts and circumstances relied on and the grounds of the application, attaching:
                          (i)    a copy of any assessment relevant to the application made by the Child Support Registrar; and
                         (ii)    a copy of any decision relevant to the application made by the Child Support Registrar or SSAT, and statement of reasons for that decision; and
                         (iii)    a copy of any orders relevant to the application;
               (b)    a completed financial statement in accordance with the approved form.
25A.04   Child support agreements
                A person who makes an application about a child support agreement must register a copy of the agreement with the Court by filing 1 of the following:
                (a)    an affidavit attaching the original agreement;
               (b)    an affidavit attaching a copy of the agreement and stating that the copy is a true copy of the original agreement;
                (c)    an affidavit stating that the original agreement has been lost and the steps taken to locate the agreement, and attaching a copy of a document received from the Child Support Registrar setting out the terms of the agreement as accepted by the Child Support Registrar.
25A.05   Appeals from the SSAT or Child Support Registrar
         (1)   A person seeking to appeal a decision of the SSAT or the Child Support Registrar must attach to the notice of appeal:
                (a)    a copy of the SSAT’s or Child Support Registrar’s decision; and
               (b)    the statement of reasons for that decision.
         (2)   The person may also file a completed financial statement in accordance with the approved form and any affidavits that are to be relied on in the appeal.
         (3)   Rules 43.03, 43.04 and 43.05 apply, so far as they are relevant and not inconsistent with this rule, to an appeal from the SSAT or the Child Support Registrar.
Note   Rule 43.03 relates to amendment of a notice of appeal, rule 43.04 relates to a notice of cross‑appeal and contention, and rule 43.05 relates to directions at the first court date.
25A.06   Time limits
         (1)   A person must file an application for a declaration under subsection 106A (2) or 107 (1) of the Assessment Act within 56 days of the service on the applicant of a notice given under section 33 or 34 of that Act.
         (2)   A person must file an appeal from a decision of the SSAT within 28 days of receiving a written statement of reasons for the decision under subsection 103X (3) or (5) of the Registration Act.
Note   The Court may extend or shorten the time fixed by this Rule:  see Rule 3.05.
25A.07   Service of application or notice of appeal
         (1)   The persons to be served with an application or appeal under this Part are:
                (a)    each respondent; and
               (b)    a parent or eligible carer of the child in relation to whom the application or appeal is made; and
                (c)    the Child Support Registrar; and
               (d)    for appeals from the SSAT — the Executive Director of the SSAT and any other parties to the appeal.
         (2)   Except for an application for an order staying a decision or an urgent order for child maintenance, an application or appeal must be served at least 28 days before the hearing date.
         (3)   A person seeking to appeal a decision of the SSAT must serve a notice of the appeal on the SSAT within 7 days of the day of filing the appeal.
         (4)   Any documents on which the applicant or the appellant intends to rely must be served on the persons mentioned in subrule (1) at least 21 days before the hearing date.
         (5)   An applicant or an appellant must serve on each respondent, with the application or notice of appeal, a brochure called Child Support Applications approved by the Chief Federal Magistrate.
Note 1   The Assessment Act provides that the parties to a child support application should be the liable parent and the eligible carer. The Child Support Registrar does not need to be joined as a party but may intervene in the case if served with a copy of the application.
Note 2   For service of an application see Part 6.
Note 3   A response to an application must be filed and served within 14 days of service of the application to which it relates:  see subrule 4.03 (2).
Note 4   A response is not required in appeals but a notice of address for service under rule 6.01 must be filed and served.
25A.08   Evidence to be provided
         (1)   This rule applies to applications other than applications under subsection 106A (2) or 107 (1) of the Assessment Act.
         (2)   On the first court date and the hearing date of an application each party (other than the Child Support Registrar) must bring to the Court the following documents:
                (a)    a copy of the party’s taxation returns for the 3 most recent financial years;
               (b)    the party’s taxation assessments for the 3 most recent financial years;
                (c)    the party’s bank records for the period of 3 years ending on the date when the application was filed;
               (d)    if the party receives wage or salary payments — the party’s payslips for the past 4 pay periods;
                (e)    if the party owns or controls a business, either as a sole trader, in partnership or through a company — the business activity statements and the financial statements and accounts (including profit and loss statements and balance sheets) for the business for the 3 most recent financial years;
                (f)    any other document relevant to determining the income, needs and financial resources of the party.
Note   Documents that may need to be produced under paragraph (f) include documents setting out the details mentioned in rule 24.03.
         (3)   Before the hearing date, a party must produce for inspection, if the documents mentioned in subrule (2) the other party to the proceedings makes a written request for their production.
         (4)   If a request is made under subrule (3), the documents must be produced within 7 working days of the request being received.
[36]         Rule 25B.01, note 3
omit
70NJ (6)
insert
70NFB (4)
[37]         Rule 25B.01, note 3
omit
70NO (2)
insert
70NFG (2)
[38]         Rule 25B.04, note
substitute
Note   For the orders that may be made by the Court, see sections 67X, 70NBA, 70NCB, 70NDB, 70NDC, 70NEB, 70NFB, 70NFF, 112AD, 112AH and 112AP of the Family Law Act.
[39]         After subrule 25B.05 (2)
insert
         (3)   Subject to subrule (4), a reference in Order 33 of the Family Law Rules 1984, as applied by subrule (1), to Order 18  is a reference to Part 6,     Division 6.2 of these Rules.
         (4)   A reference in Order 33 of the Family Law Rules 1984, as applied by subrule (1), to Order 18, paragraph 5 (1) (a) is a reference to rule 6.03 of these Rules.
[40]         Rule 25B.06, note
substitute
Note   See sections 67J to 67W of the Family Law Act.
[41]         Part 27, heading
substitute
Part 27               Dispute resolution
[42]         Rule 41.02A
substitute
41.02A   Form of application
         (1)   An application must be in accordance with the approved form.
         (2)   Rule 4.05 does not apply to an application in the approved form.
[43]         Paragraph 41.03 (b)
substitute
               (b)    a copy of any other documents filed.
[44]         Rule 41.04 
substitute
41.04      Form of response to application
         (1)   A response to an application must be in accordance with the approved form.
         (2)   Rule 4.05 does not apply to a response to an application in the approved form.
[45]         Paragraph 43.04 (1) (a)
omit
cross‑appeal;
insert
cross‑appeal in the approved form;
[46]         Further amendments — approved form
 
Provision
omit
insert

Subrule 4.01 (1)
form of application set out in Part 1 of Schedule 2.
approved form.

Subrule 4.03 (1)
form of response set out in Part 1 of Schedule 2.
approved form.

Subrule 4.07 (1)
form of reply set out in Part 1 of Schedule 2.
approved form.

Paragraph 6.01 (2) (b)
notice set out in Part 1 of Schedule 2.
approved form.

Subrule 9.01 (4)
notice set out in Part 1 of Schedule 2.
approved form.

Subrule 9.02 (4)
notice set out in Part 1 of Schedule 2.
approved form.

Subrule 13.01 (1)
notice set out in Part 1 of Schedule 2.
approved form.

Rule 13.09
form of application set out in Part 1 of Schedule 2.
approved form.

Subrule 15.13 (2)
form of subpoena set out in Part 1 of Schedule 2.
approved form.

Subrule 15.31 (1)
form of notice set out in Part 1 of Schedule 2,
approved form,

Paragraph 19.02 (2) (a)
form of application set out in Part 1 of Schedule 2;
approved form;

Subrule 20.02 (1)
form of application for review set out in Part 1 of Schedule 2.
approved form.

Subrule 21.01 (3)
form of application set out in Part 1 of Schedule 2
approved form

Paragraph 24.02 (1) (a)
form of financial statement set out in Part 1 of Schedule 2;
approved form;

Subrule 25.01 (1)
form of application for divorce set out in Part 1 of Schedule 2.
approved form.

Paragraph 25.03 (a)
form of acknowledgement of service set out in Part 1 of Schedule 2;
approved form;

Subrule 25.04 (1)
form of acknowledgement of service set out in Part 1 of Schedule 2.
approved form.

Subrule 25.05 (1)
form of affidavit of service set out in Part 1 of Schedule 2.
approved form.

Rule 25.07
in accordance with the form of affidavit of proof of signature set out in Part 1 of Schedule 2.
by an affidavit proving signature in accordance with the approved form.

Subrule 25.16 (1)
form of application set out in Part 1 of Schedule 2.
approved form.

Subrule 25.17 (3)
form of notice of discontinuance set out in Part 1 of Schedule 2.
approved form.

Subrule 25B.02 (1)
Form 18 set out in Part 2 of Schedule 2.
the approved form.

Subrule 25B.05 (2)
Form identified by that number, or by that number and letter, set out in Part 2 of Schedule 2.
approved form identified by that number, or by that number and letter.

Rule 25B.07
form of application set out in Part 1 of Schedule 2.
approved form.

Subrule 28.05 (1)
form of response set out in Part 1 of Schedule 2.
approved form.

Subrule 43.02 (1)
form of application set out in Part 1 of Schedule 2.
approved form.

Subrule 44.05 (1)
form of application under the Migration Act set out in Part 1 of Schedule 2.
approved form.

[47]         Schedule 2
omit
[48]         Schedule 3, Part 2
omit
·        Order 35
insert
·        Order 35 (except rule 7)
·        Order 35A
[49]         Schedule 3, Part 2
omit
·        Order 54B
insert
·        Order 48, Divisions 1 and 2
[50]         Dictionary, after the definition of answers to specific questions
insert
application in a case means an application that is made in a proceeding which has already been started under these Rules and that is an application for:
(a)    an interim order; or
(b)    a procedural order; or
(c)    an ancillary order; or
(d)    an interlocutory order; or
(e)    any other incidental order relating to an application or order.
[51]         Dictionary, after definition of appropriate registry
insert
approved form, for a provision of these Rules, means a form approved by the Chief Federal Magistrate under subrule 2.04 (1A) for the provision.
[52]         Dictionary, definition of child support application or appeal
omit
[53]         Dictionary, after definition of service by hand
insert
SSAT means the Social Security Appeals Tribunal.
Note
1.       All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See www.frli.gov.au.
 

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