Family Law Rules – March 2018 Update

5th March 2018

By Lisa Wagner & Prue Hawkes

Anyone who has been a party to an application for orders in the Family Courts will tell you that the time taken from application to final orders was much longer than expected.  Whilst we try to provide accurate estimates of time frames and do all we can to efficiently progress each matter, the reality is that the Family Courts receive in excess of 100,000 new applications each year and they are very much “under the pump”.

Amendments have been made to the Family Law Rules that came into effect on 1 March 2018 in an attempt to streamline applications and reduce the time between filing an application and receiving Final Orders.  The most significant changes include: –

1.    Family Violence Orders – if a Family Violence Order exists and a copy of that order is not available at the time of filing an Application for Consent Orders, parties no longer need to file an undertaking to provide the order.  This will enable a court to make orders without the need to wait for a Family Violence Order to be located. Where previously this could involve contacting courts for Family Violence Orders that had been lost, parties who have consented to orders and agree that the Family Violence Order exists will not be delayed by the need to relocate the Family Violence Order.

2.    Notice of Risk the form required when an allegation of risk to the child or party to proceedings has been changed.  There are now two (2) forms in Schedule 2:

       Notice of Child Abuse, Family Violence or Risk of Family Violence (Current Case)

       Notice of Child Abuse, Family Violence or Risk of Family Violence (Application for Consent Orders)

Importantly, when filing an Application for Consent Orders there is an updated Application for Consent Orders and parties will only need to file a Notice of Child Abuse, Family Violence or Risk of Family Violence (Application for Consent Orders) where allegations of risk are made.

3.    Safety Concerns must now be considered when determining an application for a transfer of venue.

4.    Additional Copies of Consent Orders are no longer required when Consent Orders are being filed electronically.  Additional copies must still be provided where the orders are filed in hardcopy.

5.    Subpoena can now be produced in an electronic format that is approved by the Registry Manager so long as it is capable of printing without any loss of content.  This should increase the ease of compliance for third parties who are subpoenaed in Family Court matters, particularly Family and Community Services, Police, schools, hospitals and Banks, where the material to be filed often results in significant printing and postage as it can now be served electronically.  It may also reduce disbursement costs for clients who are often charged a significant amount in conduct money due to the large volume of documents needing to be produced.

6.    Superannuation Information Forms (or a Form 6) are no longer required when filing an Application for Consent Orders relating to superannuation.  Instead, a statement or some other proof of the value must be filed.  This will significantly reduce the turn around time in preparing Consent Orders where a super splitting order is sought. There will no longer be a need to apply for the information from a superannuation company, which requires the submission of a formal request and often comes with additional fees for our clients.

7.    Form of an Affidavit – affidavits filed after 1 March 2018 in accordance with these Rules can no longer contain annexures or attachments.  Any document sought to be relied upon in alongside an affidavit should be referenced in the body of the Affidavit and served in hard copy on each person then tendered as an Exhibit before the court.  This places the burden of filing and printing supporting documents on the person who seeks to rely upon the documents rather than the court or other party.

8.    Undertakings made in the Family Courts must now always be reduced to writing, even if they were made orally before the court. Under the amended Rules, undertakings must be signed by the party, or their lawyer, then filed and served within 14 days.

9.    Deputy Registrars have been vested with more power to assist in the efficient running of court business.  Specifically, Deputy Registrars now hold the following powers:

For the institution of proceedings in certain cases where the parties consent to leave being granted (s 44(3A)(d), s 44(3B)(d) and s 44(6) of the Family Law Act)

To make Location Orders (s 67M(2) of the Family Law Act)

To make information Orders (s 67N(2) of the Family Law Act)

For the execution of instruments by the court where a party has neglected their duty pursuant to an Order made pursuant to the Family Law Act (s 106A of the Family Law Act)

For the registration of overseas child orders (Sub reg 23(6) of the Family Law Regulations)

To dismiss an application if no party attends (sub rule 5.11 of the Family Law Rules)

To make orders concerning the appointment of a Case Guardian (Part 6.3 of the Family Law Rules)

To dismiss all or part of the proceedings where there is a failure to comply with the Family Law Rules, regulations or procedural orders (Para 11.02(2)(a) of the Family Law Rules)

To dismiss an application before the court where no action has been taken in one year, provided not less than 14 days’ notice has been provided to the parties (para 11.06(1) and (2) of the Family Law Rules)

10.  Submitting Notices can now be filed where a party is served with an application but does not contest the orders sought.  This avoids any delay that might be caused by a party who does not wish to participate in the court proceedings. Previously the court would need to adjourn such matters and ensure further correspondence has been served on the uninterested party to provide for procedural fairness. If a Submitting Notice is filed it will enable a court to finalize applications without the concern that the other party has not been provided with the opportunity to be heard.

11.  Notice of Contention has been introduced in appeals whereby a party who is a respondent to an appeal can indicate that they do not dispute the orders made but say they should be affirmed on reasons different to those provided by the original court.

12.  Cost Assessments now carry the force and effect of an order of the court.  As such, where a costs assessment has not been complied with enforcement proceedings can be commenced in the usual way.

These amendments come on the heels of a Practice Direction in the Federal Circuit Court which commenced on 1 January 2018 limiting Affidavit material in support of Interim proceedings to ten (10) pages and providing that no more than 5 annexures be attached.  No doubt the Federal Circuit Court will soon follow suit with the Family Court Rules and require that any annexures be tendered.

The media often highlights the logjam situation of the Family Courts and we can only hope that these amendments, along with increased access to Alternative Dispute Resolution processes, might relieve some of the pressure on parties experiencing delays in the Family Court system.

If you would like assistance in preparing your family law matter or simply want advice about your separation, please contact us on 9437 0010 or enquiries@familylawyersdw.com.au to discuss your matter. We are conveniently situated in St Leonards on Sydney’s Lower North Shore and have a team of experienced and caring professionals available to help you.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

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