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Federal Magistrates Court Amendment Rules 2006 (No. 1)

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Federal Magistrates Court Amendment Rules 2006 (No. 1)1
Select Legislative Instrument 2006 No. 2
We, Federal Magistrates, make the following Rules of Court under the Federal Magistrates Act 1999.
Dated 30 January 2006
 
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Federal Magistrates
 
JOHN MATHIESON
Chief Executive Officer
1              Name of Rules
                These Rules are the Federal Magistrates Court Amendment Rules 2006 (No. 1).
2              Commencement
                These Rules commence on 6 February 2006.
3              Amendment of Federal Magistrates Court Rules 2001
                Schedule 1 amends the Federal Magistrates Court Rules 2001.
Schedule 1        Amendments
(rule 3)
  
[1]           Rule 1.05, General outline
omit
·    Chapter 4 applies to proceedings under the Bankruptcy Act 1966
[2]           Paragraph 4.06 (2) (a)
omit
decree nisi;
insert
divorce order;
[3]           Subrule 6.01 (3)
substitute
         (3)   An address for service:
                (a)    must be an address in Australia; and
               (b)    must include a telephone number at which the party may be contacted during normal business hours; and
                (c)    may include a facsimile number (if any) for the party.
[4]           Rule 6.05
omit
affidavit.
insert
affidavit in accordance with the form of affidavit of service (general) set out in Part 1 of Schedule 2.
[5]           Division 6.4, heading
substitute
Division 6.4           Substituted service and dispensing with service
[6]           Subrule 6.14 (1)
omit
substituting another way of serving the document.
insert
dispensing with service or substituting another way of serving the document.
[7]           Rule 6.15
omit
for substituted service,
insert
for dispensing with service or for substituted service,
[8]           Paragraph 6.15 (a)
substitute
                (a)    whether reasonable steps have been taken to attempt to serve the document; and
              (aa)    whether it is likely that the steps that have been taken have brought the existence and nature of the document to the attention of the person to be served; and
[9]           Subrule 10.01 (2)
substitute
         (2)   Without limiting subrule (1), the Court or a Registrar may hear and determine all or part of the proceedings.
[10]         Rule 13.03A, including the note
substitute
13.03A   Default of appearance of a party
                If a party to a proceeding is absent from a hearing (including a first court date), the Court may do one or more of the following:
                (a)    adjourn the hearing to a specific date or generally;
               (b)    order that there is not to be any hearing unless:
                          (i)    the proceeding is again set down for hearing; or
                         (ii)    any other steps that the Court directs are taken;
                (c)    if the party absent is an applicant — dismiss the application;
               (d)    if the party absent is a party who has made an interlocutory application or a cross-claim — dismiss the interlocutory application or cross-claim;
                (e)    proceed with the hearing generally or in relation to any claim for relief in the proceeding.
[11]         Before rule 15.13
insert in Division 15.3
15.13A   Definitions for Division 15.3
                In this Division:
issuing party means the party at whose request a subpoena is issued.
person subpoenaed means a person required by a subpoena to produce a document or give evidence.
[12]         Subrule 15.13 (3)
omit
person to whom it is directed.
insert
person subpoenaed.
[13]         Subrule 15.16 (1), at the foot
insert
Note   Under subrule 6.06 (1), service by hand is required for an application starting a proceeding or a subpoena requiring the attendance of a person.
[14]         Subrule 15.16 (2)
omit
party for whom the subpoena was issued
insert
issuing party
[15]         Rule 15.17
substitute
15.17      Conduct money
         (1)   The person serving a subpoena must give the person subpoenaed conduct money sufficient for return travel between the place of residence or employment (as appropriate) of the person subpoenaed and the court.
         (2)   The amount of conduct money must be at least $25.
15.17A   Undertaking not to require compliance with subpoena
                The issuing party for a subpoena may, by notice in writing served on the person subpoenaed and on each other party, undertake not to require the person subpoenaed to comply with the subpoena.
[16]         Rule 15.19
substitute
15.19      Order for cost of complying with subpoena
                Subject to rule 15.20, the Court may, on application, make an order for the payment of any loss or expense incurred in complying with a subpoena.
[17]         Paragraph 15.20 (1) (b)
substitute
               (b)    before complying with the subpoena, the person subpoenaed has given the issuing party notice that substantial loss or expense would be incurred in properly complying with the subpoena, including an estimate of the loss or expense; and
[18]         Subrule 15.20 (2)
substitute
         (2)   Unless the Court or a Registrar otherwise directs, the amount of the loss or expense estimated under paragraph (1) (b) is payable by the issuing party.
[19]         Subrule 15.21 (2)
omit
by the day before the first day on which attendance is required.
insert
no later than 2 days before the first day on which attendance is required.
[20]         Rule 15.23
substitute
15.23      Failure to comply with subpoena
         (1)   If a person fails, without lawful excuse, to comply with a subpoena, the Court or a Registrar may issue a warrant for the arrest of the person and order that person to pay any costs of failure to comply.
         (2)   Subrule (1) does not affect any power of the Court to punish a person for failure to comply with a subpoena.
[21]         After rule 15.29
insert
15.29A   Use of affidavit without cross-examination of maker
                The Court may:
                (a)    dispense with the attendance for cross-examination of a person making an affidavit; or
               (b)    direct that an affidavit be used without the person making the affidavit being cross-examined on the affidavit.
[22]         Subrule 16.05 (3), note
substitute
Note   See sections 57 and 58 of the Family Law Act in relation to rescission of a divorce order.
[23]         Rule 16.08
substitute
16.08      Entry of orders
         (1)   An order may be entered:
                (a)    under an arrangement under section 90 of the Act; or
               (b)    under the seal of the Court signed by:
                          (i)    a Federal Magistrate; or
                         (ii)    a Registrar; or
                         (iii)    an officer of the Court acting with the authority of the Chief Executive Officer.
         (2)   An order may be entered, in accordance with subrule (1):
                (a)    in the registry; or
               (b)    in court ; or
                (c)    in chambers.
[24]         Paragraphs 20.00A (1) (b) and (c)
substitute
               (b)    the following powers of the Court under the Family Law Act:
                          (i)    the power to make a divorce order in undefended proceedings;
                         (ii)    the powers under subsection 55 (2) and section 55A of that Act to make an order, or a declaration, in relation to a divorce order;
                         (iii)    the power to rescind a divorce order under section 57 of that Act.
[25]         Paragraph 20.01 (1) (a)
omit
[26]         Rule 21.10, note
substitute
Note   For costs in a proceeding to which the Bankruptcy Act 1966 applies, see Part 13 of the Federal Magistrates Court (Bankruptcy) Rules 2006.
[27]         Part 25
substitute
Part 25               Divorce
Division 25.1         Application
25.01      Application for divorce order
         (1)   An application for a divorce order must be in accordance with the form of application for divorce set out in Part 1 of Schedule 2.
         (2)   The applicant must file with the application the relevant marriage certificate, unless the applicant has already filed it in relation to other proceedings in the same registry.
         (3)   If the applicant is unable to file the marriage certificate, the applicant must:
                (a)    file an affidavit setting out the reasons; or
               (b)    give a Registrar an undertaking, satisfactory to the Registrar, to file the marriage certificate within a specified time.
         (4)   If the marriage certificate is not in English, the applicant must file with the application:
                (a)    a translation of the marriage certificate in English; and
               (b)    an affidavit by the person who made the translation verifying the translation and setting out the person’s qualifications.
25.02      Service of application
                An application for a divorce order must be served on the respondent by:
                (a)    service by hand in accordance with rule 6.07; or
               (b)    sending it by pre-paid post in a sealed envelope addressed to the respondent at the respondent’s last known address.
25.03      Additional requirements for service by post
                A person serving a document by post must include with the document:
                (a)    a form of acknowledgment of service in accordance with the form of acknowledgment of service set out in Part 1 of Schedule 2; and
               (b)    an envelope that:
                          (i)    is addressed to the address for service of the person on whose behalf the document is served; and
                         (ii)    if the document is to be sent to an address in Australia, bears the correct postage for the return by post of the acknowledgment of service.
25.04      Acknowledgment of service
         (1)   A person served with a document may acknowledge service of the document by an acknowledgment of service in accordance with the form of acknowledgment of service set out in Part 1 of Schedule 2.
         (2)   An acknowledgment of service may be signed by the person on whom the document is served or by the person’s lawyer.
         (3)   If a lawyer signs, the filing of the acknowledgment is taken to be proof of service of the document to which it refers on the date on which service is acknowledged.
25.05      Affidavit of service
         (1)   Unless the Court otherwise orders, any evidence of service to be given (other than for acknowledgment of service) must be given by affidavit in accordance with the appropriate form of affidavit of service set out in Part 1 of Schedule 2.
         (2)   If the person making an affidavit of service can give evidence relating to the identity of the person served, the evidence may be included in the affidavit of service.
25.06      Evidence of service
         (1)   Subject to the Court being satisfied that the identity of the person served is established, an acknowledgment of service of a document that is signed by the person served is evidence of service in accordance with the acknowledgment.
         (2)   If the server of a document can identify the person served, service may be proved by evidence to that effect by the server.
         (3)   If the server of a document can identify a photograph of the person served, and another person who knows the person served identifies the photograph as a photograph of the person served, service may be proved by evidence to that effect by the server and the other person.
         (4)   If a person other than the server of a document saw the document handed to, or put down in the presence of, the person served and can identify the person served, service may be proved by evidence to that effect given by that other person.
25.07      Evidence of signature and identity of person served
                Evidence that the signature on an acknowledgment of service is the signature of the person required to be served may be given in accordance with the form of affidavit of proof of signature set out in Part 1 of Schedule 2.
Division 25.2         Response
25.08      Response
         (1)   A party who wishes to oppose an application for a divorce order must file a response in accordance with the form of response (Divorce or other principal relief) set out in Part 1 of Schedule 2.
         (2)   The party must serve the response on the applicant as soon as practicable after it is filed.
25.09      Objection to jurisdiction
         (1)   A respondent to an application for a divorce order who wishes to object to the jurisdiction of the Court must file an application in accordance with the form of response objecting to jurisdiction set out in Part 1 of Schedule 2.
         (2)   The respondent must serve the application on the other party as soon as practicable after it is filed.
25.10      Time for filing response or objection
                A respondent’s response to an application, or objection to jurisdiction must be filed within:
                (a)    if the respondent is served with the application in Australia — 28 days after service; and
               (b)    otherwise — 42 days after service.
Division 25.3         Attendance at hearing
25.11      Attendance at hearing by electronic communication
         (1)   A party may apply to attend the hearing of an application for a divorce order by electronic communication.
         (2)   Before making an application, the party must ask any other party whether the other party agrees, or objects, to the use of electronic communication for attending the hearing.
         (3)   An application must:
                (a)    be in writing; and
               (b)    be made at least 7 days before the date fixed for the hearing; and
                (c)    set out the following information:
                          (i)    the kind of electronic communication to be used;
                         (ii)    the expense of using the electronic communication, including any expense to the court, and the applicant’s proposals for paying those expenses; and
               (d)    set out details of the notice in relation to the application that has been given to any other party; and
                (e)    state whether any other party agrees or objects to the application.
         (4)   An application may be considered in chambers, on the documents.
         (5)   The Court may take the following matters into account when considering an application:
                (a)    the distance between the party’s residence and the place where the Court is to sit;
               (b)    any difficulty the party has in attending because of illness or disability;
                (c)    the expense associated with attending;
               (d)    the expense to be incurred, or the savings to be made, by using the electronic communication;
                (e)    any concerns about security, including family violence and intimidation;
                (f)    whether any other party objects to the request.
         (6)   If the Court grants the application, the Court may:
                (a)    order a party to pay the expense of using the electronic communication; or
               (b)    apportion the expense between the parties.
         (7)   If an application is granted, the party who made the application must immediately give written notice to each other party.
25.12      Failure to attend hearing
                Subject to Division 25.4:
                (a)    if the applicant fails to attend the hearing in person or by a lawyer, the Court may dismiss the application; and
               (b)    if the respondent fails to attend the hearing in person or by a lawyer, the applicant may proceed with the hearing as if the application were undefended.
Division 25.4         Hearing in absence of parties
25.13      Seeking a hearing in absence of parties
                If, in an application for a divorce order (other than a case started by a joint application):
                (a)    no response has been filed; and
               (b)    at the date fixed for the hearing, there are no children of the marriage within the meaning of subsection 98A (3) of the Family Law Act; and
                (c)    the applicant has requested that the case be heard in the absence of the parties; and
               (d)    the respondent has not requested the court not to hear the case in the absence of the parties;
the court may determine the case in the absence of the parties.
25.14      Hearing in absence of parties — joint application
                If, in a joint application for a divorce order, the applicants request that the case be heard in their absence, the court may so determine the case.
Note   See subsection 98A (2A) of the Family Law Act.
25.15      Request not to hear case in parties’ absence
                A respondent to an application for a divorce order who objects to the case being heard in the absence of the parties must, at least 7 days before the date fixed for the hearing, file and serve a written notice to that effect.
Division 25.5         Events affecting divorce order
25.16      Application for rescission of divorce order
         (1)   An application under section 57 or 58 of the Family Law Act must be in accordance with the form of application set out in Part 1 of Schedule 2.
         (2)   The applicant must file and serve with the application an affidavit setting out:
                (a)    the reasons why the divorce order should be rescinded; and
               (b)    the evidence in support of the application.
25.17      Discontinuance of application
         (1)   An application for a divorce order may be discontinued with the leave of the Court or a Registrar.
         (2)   The Court or Registrar may impose conditions, including conditions in relation to service.
         (3)   A notice of discontinuance must be in accordance with the form of notice of discontinuance set out in Part 1 of Schedule 2.
25.18      Death of party
                If a party to an application for a divorce order dies after the divorce order is made but before the order takes effect, the surviving party must inform the Registry Manager of the death of the other party by filing:
                (a)    the death certificate of the deceased party; or
               (b)    an affidavit stating the details of the deceased party’s date and place of death.
[28]         Rule 25B.01, including the notes
substitute
25B.01   Application of Division 25B.1
                This Division applies to an application for an order:
                (a)    under Division 13A of Part VII of the Family Law Act; or
               (b)    under Part XIIIA of the Family Law Act.
Note 1   Subsection 69C (2) of the Family Law Act specifies who may apply for an order in relation to a child. Division 13A of Part VII of the Family Law Act sets out the consequences of failing to comply with an order or other obligation that affects children. Part XIIIA of the Family Law Act sets out the sanctions the Court may impose on a person who fails to comply with an order or other obligation that does not affect children. Part XIIIB of the Family Law Act sets out the punishment the Court may impose on a person found to be in contempt of court.
Note 2   If a maintenance order is complied with before an application for contravention (Form 18) is heard by the Court, the failure to comply with the order that led to the application being filed does not constitute a contravention of the maintenance order (see subsection 112AP (1A) of the Family Law Act).
Note 3   The Court:
(a)   must not impose a sentence of imprisonment:
(i)    for non-compliance with a maintenance order unless it is satisfied that the contravention was intentional or fraudulent (see subsections 70NJ (6) and 112AD (2A) of the Family Law Act); or
(ii)   if it considers that another consequence is more appropriate (see subsections 70NO (2) and 112AE (2) of the Family Law Act); and
(b)   cannot enforce an order of another court unless the order is registered in the first-mentioned court (see section 105 of the Family Law Act and regulation 17 of the Family Law Regulations).
Note 4   Part 19 sets out the rules relating to contempt.
[29]         Paragraph 25B.02 (2) (b)
after
order,
insert
bond,
[30]         Rule 25B.04, note
substitute
Note   For the penalties that may be imposed by the Court, see sections 67X, 70NG, 70NJ, 70NN, 112AD and 112AH of the Family Law Act.
[31]         Chapter 4
omit
[32]         After rule 41.02
insert
41.02A   Form of application
                An application must be in accordance with Form 167.
[33]         Rule 41.04
substitute
41.04      Form of response to application
         (1)   A response to an application must be in accordance with Form 168.
         (2)   Rule 4.05 does not apply to a response to an application under this rule.
[34]         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
1 500.00
Daily hearing fee
2 005.00
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
1 875.00
Daily hearing fee
2 505.00
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
1 250.00
Daily hearing fee
1 250.00
Daily hearing fee

Stage 3: Up to and including conciliation conference
 
 

Lump sum
1 250.00
not applicable

Stage 4: PDR litigation intervention
 
 

Lump sum
1 250.00
2 250.00

Stage 5: Preparation for final hearing
 
 

For a 1 day matter:
 
 

Lump sum
3 195.00
4 505.00

For a 2 day matter:
 
 

Lump sum
Preparation each additional hearing day
3 965.00
850.00
6 770.00
1 425.00

Stage 6: Final hearing costs for solicitor
 
 

Attendance at hearing
To take judgement and explain orders
Daily hearing fee
205.00
Daily hearing fee
205.00

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
635.00
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
205.00
750.00
1 500.00
205.00
750.00
1 500.00

Disbursements
 
 

Court fees and other fees and payments, to the extent that they have been reasonably incurred
 
 

Photocopying per page
0.57
0.57

Agents fees/travelling costs
 
 

Increase lump sum fee by
420.00
420.00

2 hours travel is the benchmark. There is no entitlement to an increase in lump sum for under 2 hours travel time.
 
 

[35]         Schedule 2, Part 1, after Affidavit of service (divorce)
insert
Affidavit of service (general)
[36]         Schedule 2, Part 2, Form 18
substitute
Form 18      Application — Contravention
[37]         Schedule 2, Part 3
omit
[38]         Schedule 2, after Part 2
insert
Part 4          Human rights proceedings
Form 167      Application under the Human Rights and Equal Opportunity Commission Act 1986 alleging unlawful discrimination
(rule 41.02A)
Application alleging unlawful discrimination
 
Human Rights and Equal Opportunity Commission Act 1986, section 46PO
 
Details of applicant(s)

1     Full name(s)
q   Mr       q   Mrs       q   Ms
Family name:
Given names:
Attach extra page for any additional applicants

2     Home or contact address
 
 
                                       Postcode:

3     Telephone No.
 
       Fax No.
Business hours:    (     )
After hours:         (     )
(     )

4     Are you more than 18 years old?
q     Yes
q     No

5     If you are an individual, what is your first language?
       Do you need an interpreter?
This includes languages such as Sign and Auslan.
q     Yes                    q    No
If yes, please state language or type:

6     Do you have any special requirements?
Please give details of any special requirements (eg wheelchair access, hearing loop, presence of personal assistant or carer) to enable this matter to proceed in Court

Details of respondent(s)

7     Against whom are you bringing this claim?
Name of person:
Address:
                                       Postcode:
Phone:     (     )
Fax:         (     )
Name of organisation:
Address:
                                      Postcode:

 
Phone:     (     )
Fax:         (     )
Attach extra page for any additional respondents

8     What is your relationship to the person or organisation in question 7?
q     Employee of person/organisation
q     Former employee of person/organisation
q     Co-employee
q     Customer of person/organisation
q     Other (please specify)

Representation

9     Are you represented by a lawyer, or will you seek to be represented by someone else (eg a union official) who is not a lawyer?
q     No       Go to question 10
q     Yes
Representative’s name:
Name of firm or organisation:
Address:
                                       Postcode:
DX:
Phone:     (     )
Fax:         (     )
Go to question 11

10    Have you applied for legal aid?
q     No
q     Yes

Relevant legislation

11    Describe the discrimination you are complaining of
        (The unlawful discrimination must:
(a)   be the same or substantially the same as the discrimination that was the subject of the complaint terminated by the Human Rights and Equal Opportunity Commission; or
 

(b)   arise out of the same or substantially the same acts, omissions or practices that were the subject of complaint.)
Attach an extra page if necessary

12    Under what Act is the discrimination you are complaining of unlawful?
q     the Age Discrimination Act 2004
q     the Disability Discrimination Act 1992
q     the Racial Discrimination Act 1975
q     the Sex Discrimination Act 1984

13    State all sections of the Act that are relevant to this claim
 

Remedy sought

14    What remedy are you asking the Court for?
q     Apology from respondent
q     Compensation
        Please give details on an attached sheet of how much compensation you are claiming and how the amount has been calculated (eg loss of income).
q     Other
        Please give details on an attached sheet

Extension of time

15    Do you need an extension of time?
You must complete this section if your application and claim is made more than 28 days after the date of issue of written notice of the termination of the complaint by the President of the Human Rights and Equal Opportunity Commission.
I am seeking an extension of time to lodge my application and claim because (give reasons).
Attach an extra page if necessary

Required documents

16    These documents must accompany your application and claim
 
q     A copy of your original complaint to the Human Rights and Equal Opportunity Commission (if available)
 
q     The notice of termination of complaint given by the President of the Human Rights and Equal Opportunity Commission

 
Prepared and filed by:
 
Name: (please print)
 
Signature:
 
Date:
Form 168      Response to application under the Human Rights and Equal Opportunity Commission Act 1986 alleging unlawful discrimination
(rule 41.04)
Response to application alleging unlawful discrimination
Human Rights and Equal Opportunity Commission Act 1986, section 46PO
 
Details of applicant(s)

1      Full name of person(s) bringing application against you
Family name:
Given names:
Attach extra page for any additional applicants

Details of respondent(s)

2      Full name of person(s) or organisation
q   Mr       q   Mrs                   q   Ms
Family name:
Given names:
Name of organisation:
Attach extra page for any additional respondents

3      Home or contact address
 
       Telephone No.
 
        Fax No.

                                       Postcode:
Business hours:    (     )
After hours:         (     )
(     )

4      Who is the contact person in your organisation (if applicable)?
Family name:
Given names:
Phone:     (     )
Fax:         (     )

5      If you are an individual, what is your first language?
       Do you need an interpreter?
This includes languages such as Sign and Auslan.
q     Yes                    q    No
If yes, please state language or type:

6      Do you have any special requirements?
Please give details of any special requirements (eg wheelchair access, hearing loop, presence of personal assistant or carer) to enable this matter to proceed in Court

Representation

7      Are you represented by a lawyer, or will you seek to be represented by someone else (eg a union official) who is not a lawyer?
q     No       Go to question 8
q     Yes
Representative’s name:
Name of firm or organisation:
Address:
                                       Postcode:
DX:
Phone:     (     )
Fax:         (     )
Go to question 9

8      Have you applied for legal aid?
q     No
q     Yes

Address for service
 

9     At what address do you want documents in proceedings left for you and posted for you? (The address must be within the District for the Registry in which the application is filed.)
q     To the address in question 2
q     To the address of the representative in question 7
q     Other (give details)
 

Prepared and filed by:
Name: (please print)
Signature:
Date:

[39]         Schedule 3, Part 1
omit
·    rule 3.13
[40]         Schedule 3, Part 1
after
·    rules 4.08 to 4.10
insert
·    Part 6.5
[41]         Schedule 4
omit
[42]         Dictionary, after definition of Assessment Act
insert
authenticate, in relation to an order of the Court, means to sign and seal the order.
[43]         Dictionary, definition of Bankruptcy Act
omit
[44]         Dictionary, after definition of eligible carer
insert
enter, in relation to an order, means to take out or authenticate the order.
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.