Thursday, 4 June 2009

Family Law Rules changes- summary from the Family Court

FAMILY COURT OF AUSTRALIA
Amendments to the Family Law Rules 2004 to accommodate the
new trial and case management pathway and docket system –
A summary of the changes

Registrar Belinda Crawford

DATED: 22 April 2009

When did the changes commence?
1 March 2009

On the same day, changes to accommodate the De Facto amendments commenced,
along with the use of the Initiating Application (Family Law) and Response to
Initiating Application (Family Law) for all applications for final orders. This paper
will focus on the changes that affect family lawyers in relation to the new case
management pathway. However, it should be noted that a number of the changes
reflect systems and practices that may already be in place in various registries of the
Court.

What are the major changes?
1. The terms ‘resolution phase’ and ‘determination phase’ have been removed from
the rules. Broadly, the court events are now broken into those managed by
Registrars (Chapter 12) and those managed by Judges (Chapter 16).
2. There is a new important phrase, namely, “the first day before the Judge.” The
meaning of this varies depending upon the issues in the case. For parenting
matters where Division 12A applies, or where there is consent to property
matters being dealt with under Division 12A, it is considered the first day of the
trial. For property matters where Division 12A does not apply, it is the first
procedural hearing before the Judge. For combined cases, it is the first of either
the first day of the trial, or the first procedural hearing before the Judge.
3. The trial notice, compliance certificate and pre-trial conference have been
removed from the Rules.
4. There are some new powers delegated to Deputy Registrars, including;
a. Power to make an order under Rule 6.05 in relation to a person seeking
to intervene in a case to become a party (previously only Senior
Registrars had this power).
b. Power to grant permission under a re-worked Rule 15.17 to issue a
subpoena for applications for final orders.
c. Power to make orders for expedition pursuant to the expedition rule
that has been reworked and relocated to 12.10A. Note – once a case
has been expedited to a first day before the Judge, the priority it’s
given by the Docket Judge will be solely in the discretion of that
Docket Judge.
d. Power to make an order in relation to the provision of costs estimates
under a re-worked rule 19.04 at events other than the conciliation
conference and the final stage of trial (parenting case) or trial (financial
case).

There are also some existing powers that will now be delegated to Deputy
Registrars including;
e. Power under paragraph 65G(2)(b) to make a parenting order by
consent in favour of a non-parent without attendance at a conference
with a family consultant; and
f. Power under subsection 68M(2) to make an order that a child be made
available for an examination for the purposes of preparing a report in
connection with the proceedings.

5. Introduction of a new event, namely a “compliance check”.
6. Replacing the conciliation conference document with a Financial Questionnaire.
7. Introduction of a balance sheet.
8. Reference is now made to the Child Responsive Program. All parenting cases
except those cases in the Magellan Project will generally proceed through this
program after the first procedural hearing.
9. In parenting cases a case will normally proceed to ‘the first day before the
Judge’, a ‘continuation of trial’ and then the ‘final stage of the trial’. For
financial cases, the case would normally proceed to ‘the first day before the
Judge’, ‘further days before the Judge’ and then ‘the trial’.
10. The following Divisions have been removed from the rules given that they have
been rarely used;
a. Division 11.2.3 – Small claims; and
b. Division 13.4.2 – Non-party documents.

What is the first day before the Judge?
The first day before the Judge is defined to mean;
(a) if Division 12A of Part VII of the Act applies to the whole case — the
first day of trial (rule 16.08);
(b) if that Division does not apply to the whole case — the first procedural
hearing before the Judge (rule 16.11); or
(c) if the case includes applications to which that Division applies and
other applications to which it does not — the first of the events for the
case mentioned in paragraphs (a) and (b) (rule 16.14).

In other words;
For parenting matters – it is the current form of first day of LAT, where the first day
before the Judge is the first day of the trial.
For property matters – it is a form of procedural hearing where the Judge will identify
issues in dispute, consider the balance sheet, possibly hear interlocutory issues or
interim applications and determine a plan for the trial. Following this, there may be
‘further days before the Judge’ and then eventually, ‘the trial’.
What are the order of events and the new events?
In parenting cases, generally the order of events will be:
Event Rule No. Managed/conducted by?
Initial procedural hearing 12.04 Registrar
Child Responsive Program N.A. Family Consultant
Procedural hearing after the child responsive
program
12.09 Registrar
Compliance check 16.02 Registrar
First day of trial 16.08 Judge
Continuation of trial 16.09 Judge
Final stage of trial 16.10 Judge
In financial cases, generally the order of events will be:
Event Rule No. Managed/conducted by?
Case Assessment Conference 12.03 Registrar
Conciliation Conference
- Procedural hearing in a financial case
12.07
12.08
Registrar
Registrar
Compliance check 16.02 Registrar
First procedural hearing before the Judge 16.11 Judge
Further days before the Judge 16.12 Judge
The trial 16.13 Judge

In combined cases, generally the order of events will be;
Event Rule No. Managed/conducted by?
Case Assessment Conference 12.03 Registrar
Child Responsive Program N.A. Family Consultant
Conciliation Conference
- Procedural hearing where the application
includes both a financial case and a parenting
case
12.07
12.10
Registrar
Registrar
Compliance check 16.02 Registrar
Where there is consent to property proceeding
under Division 12A;
First day of trial 16.08 Judge
Continuation of trial 16.09 Judge
Final stage of trial 16.10 Judge
Where there is no consent to property being dealt
with under Division 12A;
The 3 events in Rules 16.08-16.10 will occur as well
as the events in Rules 16.11-16.13.
16.08-
16.13
Judge

Changes for family lawyers
• The first return date of a parenting application is no longer a case assessment
conference, but rather a procedural hearing. A combined case continues to be
listed to a case assessment conference, but a Family Consultant does not
participate. The matter is generally referred to a Family Consultant and CRP
at a later date.
• Once a case has been allocated to the first day before the Judge, an amended
application or response cannot be filed without permission. Previously, an
amended application or response could be filed at any time with consent. This
change is primarily intended to catch those matters where a new cause of
action is raised after the case has been referred to the first day before the Judge.
(Rule 11.10)
• Parties can no longer agree to administratively postpone a conciliation
conference 7 days before the date fixed for the conference. Only a Registrar
can postpone the conference.
• Except for those matters where directions were already made under the old
rules, conciliation conference documents are no longer required 7 days before
the conciliation conference. Instead, a Financial Questionnaire is to be filed
21 days after the case assessment conference (Rule 12.06).
• Rule 12.05 no longer contains the comprehensive list of disclosure documents
to be exchanged, ie. ‘financial contributions made when the parties began
cohabiting’, ‘any inheritances, gifts or compensation payments received after
the parties began cohabiting’, etc, etc. It will be up to the Registrar to order
which relevant documents need to be provided after the case assessment
conference. It is suggested therefore, that if additional disclosure is sought by
a party, a Minute of Directions is brought to the case assessment conference.
• The balance sheet is to be prepared by the parties within 9 weeks of the case
assessment conference. The applicant has 28 days after the case assessment
conference to prepare the first draft. The respondent has 21 days to provide a
reply. Within 14 days thereafter, the applicant is to file the balance sheet with
the court. (Rule 12.06)
• Where the case is both parenting and financial, the first day before the Judge
will only be allocated once the conciliation conference and CRP have taken
place. (Rule 12.10)
• Undertakings as to disclosure are to be filed 28 days before the first day before
the Judge (rule 13.16).
• A request for disclosure by way of service of a list of documents, and service
of specific questions may only occur after the case has been allocated to a first
day before the Judge (as opposed to after the final resolution event).
• There is a new rule 15.05: ‘No general right to file affidavits’. It provides that
a party may file an affidavit without leave of the court only if a provision of
the rules or an order of the court allows the affidavit to be filed in that way.
• There are no changes to the single expert rules.
• For all parenting cases (whether Div 12A or not) a parenting questionnaire is
to be filed 28 days before the first day before the Judge (Rule 15.77).
• Change to the court events before which a notification of costs must be given
by a lawyer, namely, the conciliation conference, the first day of the allocated
dates mentioned in rules 16.10 (for parenting cases) and 16.13 (for financial
cases) and any other court event that the court orders. (Rule 19.04 & subclause
6.04 in schedule 6)
• Compliance check – this is now a formal event to generally take place 21 days
before the first day before the Judge. The event would usually be conducted
by phone. (Rule 16.02)
• Rule 16.03 deals with the vacation of dates that are Judge managed. Such
dates will only be vacated for ‘substantial and significant reason’. Any
application to vacate a date before a Judge must be made ‘at the earliest
possible time before the allocated date’ (subrule 16.03(1))
• Permission must be obtained before any subpoena can be issued in relation to
an application for final orders. However, a request for permission may be
made orally or in writing and can be determined in chambers. In addition,
notice need not be given to the other party about the request for permission. A
Registrar has the power to grant permission. (Rule 15.17)
• Permission/leave is not required to issues subpoenas for Applications in a Case.
(Rule 15.17)

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