1BAfter case assessment conference

1B After case assessment conference (1) At the end of a case assessment conference, the person who conducted the case assessment conference must ensure that a memorandum in accordance with Form 69A is given to the court and to each party. (2) If all issues are not resolved at the end of a case assessment conference, the Registrar must conduct a directions hearing. Division 2 Directions hearing 2 Scope of directions hearing (1) At a directions hearing, the court, or a Registrar, must give appropriate directions in relation to the conduct of the proceedings. (2) At a directions hearing, as far as practicable, all interim and procedural applications in the proceedings must be heard. (3) At a directions hearing, the court, or a Registrar, may: (a) fix a date for a further directions hearing; or (b) if the parties agree and the court, or the Registrar, thinks fit — hear and determine the proceedings; or (c) if no applicant appears at the hearing — do any of the following: (i) dismiss the application; (ii) make any other order the court, or the Registrar, thinks appropriate; or (d) if no respondent appears at the hearing — do any of the following: (i) make the order sought by the applicant; (ii) make any other order the court, or the Registrar, thinks appropriate; (iii) give any direction the court, or the Registrar, thinks appropriate. (4) At a directions hearing, each party must, as far as practicable, apply for: (a) any interim or procedural order that has not already been sought in a previous application; and (b) any necessary directions under subrule (5). (5) At a directions hearing, the court, or a Registrar, may: (a) investigate the possibility of settlement of any issue in the proceedings; and (b) make orders or directions in relation to any aspect of the following matters: (i) consent orders; (ii) attendance of parties at information sessions; (iii) counselling; (iv) mediation; (v) arbitration; (vi) defining the issues and orders sought; (vii) appointment of child representatives; (viii) giving notice to persons who are not parties to the proceedings; (ix) amendment of documents; (x) conciliation or pre-trial conferences; (xi) production of documents at a conciliation conference; (xii) production, filing and exchange of market appraisals or valuations of property; (xiii) withdrawal of proceedings; (xiv) costs. 3 Adjournment of directions hearing (1) If the parties to proceedings agree that, because of short service or other special circumstances, it is not appropriate for a directions hearing to proceed on the date fixed by the Registrar, the parties may request the Registrar to adjourn the directions hearing. (2) A request must be made by a letter that sets out: (a) why it is appropriate to adjourn the directions hearing; and (b) the date to which the directions hearing is sought to be adjourned. (3) The request must: (a) be signed by all parties; and (b) be delivered to the Registrar before 12 noon on the day before the date fixed for the directions hearing. (4) If a request is made, the Registrar, without requiring the parties to appear before the court, but subject to subrules (5) and (6), must adjourn the directions hearing to: (a) the date requested; or (b) a date that is practicable. (5) The Registrar must not adjourn the directions hearing more than twice under this rule. (6) An adjournment must not be for more than 4 weeks. Division 3 Amendment > document means an application, a response or a reply. 5 Amendment by a party A party who has filed and served a document may amend the document without the leave of the court, or the consent of any other party to the proceedings, at any time before a date is fixed for the hearing of the proceedings. 6 Amendment by the court (1) At any time, the court, or a Registrar, may give a party leave to amend a document that has been filed, even if the effect is: (a) to add or substitute a claim arising after the commencement of the proceedings; or (b) to substitute or add another person as a party to the proceedings. (2) If the court, or a Registrar, gives a party leave to amend a document, the court, or the Registrar, may give directions in relation to: (a) the time within which the amendment must be made; and (b) the manner in which the amendment must be made; and (c) the service of the amended document. (3) If the court, or a Registrar, does not fix a time for service of an amended document under paragraph (2) (c), the amended document must be served not later than 14 days after the date on which the order giving leave to amend the document was made. 7 Time limit for amendment by leave of the court An order giving leave under rule 6 ceases to have effect: (a) on the expiry of the period fixed by the order for the making of the amendment; or (b) if no period is fixed — at the end of 14 days after the order is made. 8 Filing amendment by party Unless the Registrar directs otherwise, if a party amends a document, the party must file with the Registrar a copy of the amended document that clearly indicates each of the amendments. 9 Endorsement of amended document If a party amends a document, the party must endorse on the amended document: (a) if the document was amended by leave of the court or a Registrar: (i) the date on which leave was given; and (ii) the date on which the amendment was made; and (b) the date on which the amended document was filed. 10 Service of amended document If a party amends a document, the party must serve a copy of it on each other party to the proceedings who has an address for service. 11 Response to amended document (1) If an amended document: (a) has been served on a party; and (b) affects a document previously filed by the party (the affected document); the party may amend the affected document in accordance with this Division. (2) A party who wishes to amend an affected document must do so not later than: (a) the date specified in the order giving leave to amend; or (b) in any other case — 14 days after service on the party of the amended document. (3) A party who: (a) has filed an affected document; and (b) does not: (i) amend the affected document; and (ii) file the document as so amended; is taken to rely on the document as originally filed by the party. Division 4 Discontinuance 12 Discontinuance — Form 15A (1) Subject to subrule (3), an applicant or a respondent may discontinue an application wholly, or in part, by filing a notice of discontinuance in accordance with Form 15A. (2) A notice of discontinuance may be filed: (a) without the leave of the court, or a Registrar — at any time before the day fixed for the final hearing of the application; or (b) with the leave of the court, or a Registrar — at any later time. (3) If: (a) the proceedings relate to property of the parties, or of any party; and (b) one of the parties dies before the proceedings are determined; the application must not be discontinued except with the leave of the court, or a Registrar. (4) If a party files a notice of discontinuance, the party must serve a copy of it on each other party to the proceedings who has an address for service, as soon as practicable after filing the notice. (5) Discontinuance of an application by a party to proceedings does not prevent another party to the proceedings from using the application or response in cross-examination or in evidence. (6) The Registrar must mark an application that is discontinued accordingly. (7) Unless the court, or a Registrar, otherwise orders, an application that is discontinued must be retained on the court file. (8) If a party to proceedings discontinues an application, either wholly, or in part, any other party to the proceedings may make an application to the court, or a Registrar, for costs. (9) An application for costs under subrule (8) must be made by a party: (a) not later than 28 days after service on the party of the notice of discontinuance; or (b) within the time that the court, or a Registrar, allows. Order 11 Proceedings for maintenance or contribution This Order applies to an application for: (a) maintenance; or (b) a contribution mentioned in section 67B of the Act. Division 2 Applications for maintenance and property 1A Application for spousal maintenance and property An application for spousal maintenance that is made at the same time as an application with respect to the property of a party to the application, or when such an application is pending, must be made in accordance with Order 8. Division 3 Applications for maintenance only 1B Application for maintenance or contribution only — Form 12 (1) This Division applies to all applications for maintenance or contribution except an application mentioned in Division 2. (2) An application for maintenance or contribution must be in accordance with Form 12. 2 Hearing date (1) If an application is filed, the Registrar must: (a) fix a date for the hearing of the application; and (2) The date fixed for the hearing of the application must be as near as practicable to, but not earlier than, 28 days after the date on which the application is filed. 3 Certain documents not required Unless the court, or a Registrar, otherwise orders, an applicant who makes an application, or a respondent to that application, is not required to file: (a) a financial statement in accordance with Order 17, rule 2; or (b) (unless rule 3A applies) an affidavit. 3A Application for step-parent to maintain (1) This rule applies to an application for a child maintenance order (including an order under section 66M of the Act) if: (a) the applicant and respondent are the parent and step-parent of the child or children to whom the application relates; and (b) the respondent consents to, or does not oppose, the order sought. (2) The applicant must: (a) file an affidavit setting out: (i) whether the parties are separated; and (ii) the financial circumstances of the parties; and (iii) the reason for seeking the order; and (iv) the obligations, or potential obligations, of each party for child support for any other child; and (b) serve a copy of the application on each person likely to be affected by the order. > Note A person affected by the order may be the Child Support Agency. 4 Response — Form 12B If a respondent to an application intends to ask the court to make an order other than the order sought by the applicant, the respondent must: (a) file a response in accordance with Form 12B; and (b) serve that response on the applicant as soon as practicable after it is filed. 5 Information to be provided (1) If a person wishes to apply personally, rather than by a lawyer, the Registrar must give the person: (a) a pamphlet prepared by the Principal Registrar that sets out: (i) how to complete Form 12; and (ii) how an application must be served; and (iii) how the applicant must prove that the application was served; and (iv) the procedure that will be followed at the hearing; and (v) the documents that the applicant must bring to the hearing; and (b) if the applicant seeks child maintenance — an estimate of the costs of maintaining a child, being an estimate in accordance with published research of the Australian Institute of Family Studies; and (c) a blank form of response in accordance with Form 12B. > Note The blank form of response referred to in paragraph (c) is intended to be given to a respondent at the same time as an application is served on the respondent. (2) If an application is served on a respondent, the person serving the application must also give the respondent: (a) a blank form of response in accordance with Form 12B; and (b) a pamphlet prepared by the Principal Registrar that sets out: (i) the procedure that will be followed at the hearing; and (ii) the documents that the respondent must bring to the hearing; and (iii) what may happen if the respondent does not come to the hearing; and (iv) how to oppose the application; and (v) how to complete Form 12B; and (vi) how the response in accordance with Form 12B is to be served; and (c) if the applicant seeks child maintenance — an estimate of the costs of maintaining a child, being an estimate in accordance with published research of the Australian Institute of Family Studies. 6 Documents to be provided by respondent A respondent to an application must bring the following documents to the court on the date fixed for the hearing of the application: (a) a copy of the respondent’s taxation return for the most recent financial year; (b) the respondent’s taxation assessment for the most recent financial year; (c) the respondent’s bank records for the 12 months immediately preceding the date on which the application was filed; (d) the respondent’s most recent pay advice; (e) any document in the respondent’s possession, custody or control that may assist the court in determining the income, needs and financial resources of the respondent. 7 Hearing So far as practicable, the court must hear and determine an application: (a) on the date fixed for the hearing of the application; and (b) without a directions hearing. Order 12 Urgent ex parte applications 1 Ex parte applications (1) In an urgent case on an application made ex parte, a court may make an order until a specified time or until further order. (2) An ex parte application under subrule (1) shall be made in accordance with this Order. 2 Form of application Unless the court otherwise orders an application in accordance with this Order shall be made in writing and shall be accompanied by a minute of the order sought. 3 Evidence supporting ex parte application Unless the court otherwise orders, on an application in accordance with this Order being made, the applicant shall establish, by affidavit or with the leave of the court by oral evidence: (a) whether there have been any previous proceedings between the parties and, if so, the nature of those proceedings; (b) the particulars of any orders currently in force between the parties, specifying the courts in which such orders were made; (c) the steps that have been taken to inform the respondent or the respondent’s lawyer of the applicant’s intention to make the application or, where no such steps have been taken, the reasons why no such steps have been taken; (d) the nature and immediacy of the damage or harm which may result if the order sought in the application is not made; (e) the grounds upon which the applicant claims that the making of the order sought in the application is a matter of urgency and the reasons why, in lieu of the making of an order ex parte, an abridgement of the time for service of the application and the fixing of an early date for hearing would not be appropriate; and (f) the other facts, matters and circumstances relied upon by the applicant in support of the application. 4 Directions for further hearing where no order made Where an application is made in accordance with this Order and the court does not make an order of the kind sought in the application, the court may give such directions with respect to the filing of a written application, the service of the application and the hearing of the application as it thinks fit. 5 Directions for further hearing where order made (1) Where, upon an application made ex parte, a court makes an order of a kind referred to in rule 1, the order shall be expressed to operate only until a specified time or until further order. (2) Where a court makes an order of a kind referred to in subrule (1) the court may give such directions as it thinks fit with respect to: (a) the service of the order and of other documents relating to the order; and (b) the date for hearing the application. Order 13 Oral applications in pending proceedings 1 Oral applications during a hearing The court may, on the hearing of an application, permit a further application relating to or arising out of the first-mentioned application to be made orally, upon such conditions as the court thinks fit. 2 Orders without written application In, or in relation to, proceedings, the court or a Registrar may, without written application, make an order with respect to the following matters: (a) consolidation of hearing of applications; (b) service of documents, and dispensing with service of documents; (c) admission of facts or documents; (d) the giving of particulars; (e) presentation of evidence by affidavit or in another documentary form; (f) answering specific questions; (g) conferences between the parties with a view to settling differences relating to matters in issue; (h) conferences with a family and child counsellor or a welfare officer; (i) obtaining a report from a family and child counsellor or a welfare officer under section 62G of the Act; (j) appointment of a child’s representative; (k) with the consent of all parties — mediation; (l) attendance by the parties at an information session; (m) registration of a parenting plan, or an agreement revoking a registered parenting plan; (n) a stay of proceedings under Order 4, rule 3; (o) any other matter relating to practice and procedure if making the order would help to resolve the matters in issue promptly and inexpensively; (p) transfer of proceedings to the Federal Magistrates Court. Order 14 Consent orders and orders under section 87 of the Act Division 1 Consent orders 1 Applications for consent orders In proceedings in which orders may be made by consent, an application for an order of that kind may be made in accordance with this Division. 2 Applications for consent orders — Form 12A (1) Despite any other provision of these Rules, a person may make an initiating application for consent orders in accordance with Form 12A. (2) This rule does not apply to an application to which Order 11, rule 3A applies. 3 Completing the application (1) An applicant must swear an affidavit in the form set out as Part H of the application. (2) A respondent must swear an affidavit in the form set out as Part J of the application. (3) Part E of the application need not be completed if there are no children under 18. (4) If an applicant seeks a parenting order, the applicant must complete Part E of the application. (5) If an applicant seeks financial orders, the applicant must complete Part F of the application. 3A Order for superannuation interest (1) This rule applies if, in an application for a consent order: (a) a party seeks an order in relation to a superannuation interest (the order sought); and (b) the order sought will impose an obligation on the trustee of the eligible superannuation plan in which the interest is held to take particular action in relation to the interest (for example, a payment split). (2) At least 28 days before filing the application, the party must serve the following documents on the trustee of the eligible superannuation plan in which the superannuation interest is held: (a) a copy of the draft consent order that the parties intend to apply for, signed by the parties; (b) a written notice stating that: (i) the parties intend to apply for the order sought if no objection to the order is received from the trustee within the time mentioned in subrule (3); and (ii) if the trustee objects to the order sought, the trustee must give the parties written notice of the objection within the time mentioned in subrule (3). (3) If the trustee does not object to the order sought within 28 days after receiving a notice under subrule (2), the parties may file the application. 4 Original and copies of orders sought to be filed with application (1) An applicant must file with an application the original, and 2 copies, of the orders sought: (a) endorsed with the consent of each party; and (b) in a form that is suitable for signature by a Registrar. (2) The copies must be certified as true copies by: (a) the applicant’s lawyer; or (b) each party to the application. 5 Filing period — consent lapses after 60 days (1) A respondent’s consent to the proposed consent orders lapses if the applicant does not file the application within 60 days after the day on which the respondent swore the affidavit at the end of Part C of the application. (2) If there is more than one respondent, the consent of the respondents lapses if the application is not filed within 60 days after the last day on which a respondent swore the affidavit at the end of Part C of the application. 6 Who can make consent orders? (1) Despite any other provision of these Rules, if an application for consent orders is filed within the period specified in rule 5, a Registrar: (a) if the Registrar is a Registrar of the Family Court — may make the orders in Chambers; or (b) in any other case — may bring the matter before a Judge, Judicial Registrar or Magistrate in Chambers. (2) At any time before the orders are made, the Judge, Judicial Registrar, Registrar or Magistrate may require a party to file additional information. 7 Application in pending proceedings An application for consent orders in pending proceedings may be made: (a) orally during a hearing or trial; or (b) in accordance with rules 8 and 8A. 8 Written consent by party to proceedings (1) A party to proceedings may consent, in writing, to the making of an order in the proceedings. (2) A proposed consent order must state that it is made by consent. (3) If a party consents, the party must file the consent. (4) Despite any other provision of these Rules, if a consent is filed by a party to the proceedings, a Registrar: (a) may bring the matter before a Judge, a Judicial Registrar, or a Magistrate, who: (i) if the Judge, Judicial Registrar, or Magistrate thinks fit; and (ii) without any other application being made; may direct the Registrar to prepare, sign and seal an order of the court in accordance with the terms of the consent; or (b) if the Registrar is a Registrar of a Family Court — may make an order in accordance with the terms of the consent. (5) For the purposes of subrule (4), a consent to the making of a particular order in proceedings is taken to be filed by each party to the proceedings if a consent that sets out the proposed order: (a) is filed by one of the parties to the proceedings; and (b) bears the signed endorsement of each other party. (6) A consent order made under this rule is taken to be of the same force and validity as if it had been made after a hearing by the court.