20Interpretation

20 Interpretation A reference in this Order to a document includes a reference to a record. Order 21 Preservation of property 1 Orders for preservation In proceedings concerning any property, or in which a question in relation to property arises, the court may make orders for the detention, custody, preservation, insurance or inspection of the property. 2 Entry onto land etc An order under rule 1 may authorise a person to enter upon land or premises and to do any other thing for the purpose of giving effect to the order. Order 22 Admissions 1 Voluntary admission (1) A party to proceedings may, by notice served on another party, admit, in favour of the other party but for the purpose of the proceedings only, the facts specified in the notice. (2) A party may, with the leave of the court, withdraw an admission under subrule (1). 2 Notice to admit facts or documents (1) A party to a proceeding may, by notice served on another party, require that other party to admit, for the purpose of the proceeding only, the facts or documents specified in the notice. (2) A notice under subrule (1) shall be in accordance with Form 27. (3) If, as to any fact or document specified in the notice, the party on whom the notice is served does not, within 14 days after service, serve on the party serving the notice to admit facts or documents, a notice disputing that fact or document, that fact or document shall, for the purpose of the proceedings, be admitted by the party on whom the notice to admit facts or documents is served in favour of the party serving the notice. (4) A notice under subrule (3) disputing a fact or document shall be in accordance with Form 28. (5) A party may, with the leave of the court, withdraw an admission under subrule (3). (6) Where a party serves a notice disputing a fact or a document under subrule (3), and afterwards that fact or the authenticity of the document is proved in the proceedings, the party disputing the fact or document shall, unless the court otherwise orders, pay the costs of proof. 3 Admission of documents discovered (1) Where an affidavit of documents is served on a party under Order 20, then, subject to subrule (2), the following admissions by that party in favour of the party serving the affidavit, in relation to a document specified in the affidavit, shall have effect unless the court otherwise orders: (a) that the document, if described in the affidavit as an original document, is an original document and was printed, written, signed or executed as it purports to have been; or (b) that the document, if described in the affidavit as a copy, is a true copy. (2) Where a party: (a) has in a pleading or affidavit denied the authenticity of a document; or (b) within 14 days after the time specified in an order for inspection under Order 20, or in an affidavit of documents, as the time for inspection of a document, serves on the party giving inspection a notice disputing the authenticity of the document; subrule (1) does not work an admission by the first-mentioned party as to that document. (3) Subrules (1) and (2) apply in relation to an affidavit made in compliance with an order under Order 20, rule 4 (which relates inter alia to discovery of particular documents) as they apply in relation to an affidavit of documents served under that Order. Order 23 Children > child means a person under the age of 18 years. 2 Child party — court may require next friend (1) If a party to proceedings is a child and the court is satisfied that the child does not understand the nature and possible consequences of the proceedings or is not capable of conducting the proceedings on the child’s own behalf, the court may, at any time, require that a next friend of the child be appointed for the purposes of the proceedings as if the child is a person who needs a next friend in accordance with Division 4 of Order 15. (2) If the court requires that a next friend be appointed, it may order a stay of the proceedings for such time and on such terms as it thinks fit. 3 Application for separate representation (1) An application under section 68L of the Act in relation to a child may be heard and determined by the court even if a next friend has not been appointed for the child. (2) If the court makes an order for separate representation, the court may request that the representation be arranged by a legal aid body that is a relevant authority within the meaning of section 116C of the Act. 4 Interviews (1) A judicial officer may interview in chambers or elsewhere a child who is the subject of proceedings under Part VII of the Act. (2) However, if the child is separately represented in accordance with an order made under section 68L of the Act, the child must not be interviewed unless the child’s representative consents. (3) The interview may be in the presence of a family and child counsellor, a welfare officer or another person specified by the judicial officer. (5) For this rule, judicial officer means a Judge, Magistrate or Judicial Registrar or a Registrar approved for the purposes of Order 36A, subrule 2 (1D). 5 Child as a witness If an order is made for a child to be called as a witness, the evidence of the child is to be given by electronic means unless the court otherwise orders. Order 23A Notification of child abuse or family violence order 1 Filing of notice under section 67Z of the Act (1) Where a party to proceedings is required to file a notice under subsection 67Z (2) of the Act: (a) the notice shall be in accordance with Form 66; and (b) 2 copies of the notice shall be filed in the filing registry. (2) As soon as practicable after filing a notice under subrule (1), the Registry Manager of the filing registry shall forward a sealed copy of the notice to a prescribed child welfare authority. 2 Service of notice (1) If a party files a notice under subsection 67Z (2) of the Act, the party must serve a copy of the notice on each other party as soon as is practicable. (2) Service of a copy of the notice on a person: (a) who is alleged to have abused a child; or (b) from whom a child is alleged to be at risk of abuse; must be in accordance with Order 18. 3 Informing court of family violence order (1) For the purposes of subsection 68J (2) of the Act, a person who: (a) is not a party to proceedings; and (b) is aware that a family violence order applies to a child, or a member of the child’s family; and (c) wishes to inform the court of that order; must do so by giving the information, in writing, to the Registry Manager of the filing registry. (2) If the person giving the information knows: (a) the date on which the family violence order was made; or (b) the place at which the order was made; or (c) the court that made the order; the person must include those details, in writing, in the information given to the Registry Manager. (3) If possible, the person must give the Registry Manager a copy of the family violence order. (4) If the Registry Manager receives information about a family violence order, the Registry Manager: (a) must provide a copy of the information to each party to the proceedings who has an address for service; and (b) must place the information on the court file; and (c) may direct a party to the proceedings (including a child’s representative) to: (i) obtain and file a copy of the relevant family violence order; and (ii) serve the copy on each other party to the proceedings who has an address for service. (5) The Registry Manager must present the information and any copy of the family violence order to the court, or a Registrar, at the next hearing in the proceedings that concerns the care, welfare and development of the child affected by the order. 4 Variation of Division 11 contact order — Form 23A (1) For subsection 68T (1) of the Act, an order making, reviving, varying, discharging or suspending a Division 11 contact order must be in accordance with Form 23A. (2) In this rule, Division 11 contact order has the meaning given by section 68P of the Act. > Note An order under subsection 68T (1) of the Act must be registered in the Family Court: see subsection 68T (6) of the Act and regulation 12CC of the Regulations. Order 23B Special medical procedures 1 Approval of medical procedures for children This Order applies to applications for a declaration that a person is authorised to consent to a medical or surgical procedure for a child. 2 Who may apply for a medical procedure order? (1) An application may be made to a Family Court for: (a) a declaration that the applicant or another named person is authorised to consent to the carrying out of a medical or surgical procedure for a child; and (b) any necessary consequential orders. (2) An application may be made by: (a) a parent of the child; or (b) a person who has a parenting order in relation to the child; or (c) any other person who has an interest in the care, welfare and development of the child. 3 Form of application Despite any other provision of these Rules, an application must be made in accordance with Form 8 with any appropriate modifications. 4 Respondent to application If a parent of a child in relation to whom an application is made, or a person who has a parenting order in relation to the child, is not an applicant, the person must be joined as a respondent to the application. 5 Affidavits supporting the application (1) The applicant must file with the application an affidavit or affidavits to which are annexed relevant reports by medical, psychological or other experts. (2) An affidavit or report must set out: (a) the exact nature and purpose of the proposed medical or surgical procedure; and (b) the likely long term social and psychological effects of the procedure on the child; and (c) that: (i) alternative and less invasive procedures or treatments would be, or have proved to be, inadequate; and (ii) the procedure proposed is necessary for the welfare of the child; and (iii) the child is incapable of making his or her own decision about undergoing the procedure; and (iv) the child is unlikely to develop sufficiently to be able to make an informed judgment about undergoing the procedure within the time in which the procedure should be carried out, or within the foreseeable future; and (d) any other reasons for granting the application. 6 Return date of application An application must be made returnable before a Judge of a Family Court as soon as possible, and in any case, if possible, within 14 days after the date of issue. 7 Proceedings on return day On the return day of an application the Court may: (a) make the child a party and appoint a person as the next friend of the child; or (b) appoint a child’s representative; or (c) join any other appropriate person as a respondent; or (d) direct service of the application and affidavits on any other person or persons, as the Court thinks proper; or (e) fix a date for the hearing of the application before a Judge of a Family Court; or (f) make any orders or give any other directions, as the Court thinks proper; or (g) hear and determine the application. 8 Hearing an application On hearing the application the Court may: (a) grant the application; or (b) refuse the application; or (c) grant an injunction or any other relief the Court thinks proper; or (d) make any declaration or order the Court thinks proper. 9 Reasons for decision At, or as soon as practicable after, the conclusion of the final hearing of an application, the judge before whom the application was heard must give reasons, in writing, for the decision. Order 24 Conciliation conferences and information sessions 1 Conciliation conferences (1) If the court, or a Registrar of a Family Court, is of the opinion that it would be advantageous to do so, the court, or the Registrar, may order the parties to proceedings to attend a conciliation conference in relation to the matters to which the proceedings relate. (1A) In proceedings in which an order (except an order until further order or an order made with the consent of all the parties to the proceedings), under section 79 of the Act is sought, the court, or a Registrar of a Family Court, must order the parties to proceedings to attend a conciliation conference in relation to the matters to which the proceedings relate. (2) Unless the court or a Registrar otherwise orders: (a) a party must attend a conciliation conference in person; and (b) if the party is represented by a lawyer — the lawyer must also attend the conciliation conference. (3) Parties who attend a conference under this rule must make a bona fide endeavour to reach agreement on relevant matters in issue between them. (4) A conference that is ordered under subrule (1) must be held in the presence of a Judicial Registrar, a Registrar, a family and child counsellor or a welfare officer, as specified in the order. (5) A conference that is ordered under subrule (1A) must be held with a Judicial Registrar, a Registrar, a Deputy Registrar, a family and child counsellor or a welfare officer. (6) A conference under this rule may be adjourned from time to time and from place to place. (7) The person specified in the order referred to in subrule (4) (that is, the person in whose presence a conference is to be held) may adjourn the conference to be continued in the presence of a Registrar. 2 Documents about financial matters (1) This rule applies to a conciliation conference in relation to proceedings with respect to financial matters. (2) Each party who attends the conciliation conference must produce all relevant and significant documents in the party’s possession, custody or control, or which, with reasonable diligence, the party can obtain, about: (a) the financial matters referred to in a financial statement filed by the party in accordance with Order 17, rule 2; or (b) the value of any item of property in which any party attending the conference has an interest, including: (i) if the party is not relying on a superannuation information form — any documents containing evidence of the basis on which the value of the superannuation interest has been calculated; and (ii) any documents calculating the value of the superannuation interest; or (c) the financial matters referred to in those parts of the case summary document that the party must complete for the conference. (3) The documents must be produced: (a) at the conciliation conference; or (b) if ordered or directed by the court or a Registrar — at an earlier time. 4 Unresolved issues (1) If any issue remains unresolved between the parties at the end of a conciliation conference, the Registrar may: (a) give further directions in accordance with subrule (2); and (b) convene an immediate pre-trial conference, or direct that a pre-trial conference be held on a date fixed by the Registrar that is practicable in the matter; and (c) make any other order, including an order for costs. (2) Before giving further directions, the Registrar must consider, if appropriate, all issues relating to the following matters: (a) whether further primary dispute resolution procedures are appropriate; (b) consent orders; (c) the appointment of child representatives; (d) discovery of documents; (e) specific questions; (f) notices to admit facts or documents; (g) issue of subpoenas; (h) compliance with any previous orders or directions; (i) the appropriate court list; (j) whether any directions are necessary to ensure that the matter proceeds in accordance with court case management directions. 5 Information sessions (1) The court, or a Registrar of a Family Court, may order the parties to proceedings to attend an information session if the court, or the Registrar, is of the opinion that it would be advantageous to do so. (2) A party to proceedings who is ordered to attend an information session must attend the information session in person. Order 24A Pre-trial conferences > court means a Family Court. 2 Matters to be considered at pre-trial conference At a pre-trial conference, all issues relating to the following matters must be considered, if appropriate: (a) the possibility of settlement of any issue or issues in the proceedings; (b) the date of the trial; (c) the likely length of the trial; (d) the defining of issues and orders sought; (e) amendment of documents; (f) the appointment of child representatives; (g) issues (if any) as to valuation; (h) conferences with experts under Order 30A, rule 9; (i) the number, and names, of witnesses (both expert and non-expert) taking into account Order 30A, rule 8; (j) the filing and service of affidavits; (k) requests to make discovery; (l) specific questions; (m) notices to admit facts or documents; (n) issue of subpoenas; (o) the appointment of assessors; (p) if there is more than 1 application in the proceedings that has not yet been determined — the possibility of applications being heard at the same time; (q) which party is to have carriage of the proceedings; (r) the filing of documents before the trial, or at the beginning of the trial, according to any relevant practice direction; (s) any other necessary directions to ensure that the proceedings are ready for trial. 3 Attendance at pre-trial conference Unless the court or a Registrar otherwise orders: (a) a party must attend a pre-trial conference in person; and (b) if the party is represented by a legal practitioner — the legal practitioner must also attend the pre-trial conference. 4 Conduct of pre-trial conference At a pre-trial conference a Registrar may: (a) attempt to resolve the proceedings or any part of them by agreement; and (b) make any necessary orders, including an order for costs; and (c) if all the issues are not resolved: (i) fix a date for the hearing; and (ii) give any appropriate directions to facilitate the hearing of the matter. Order 25 Counselling and family reports Division 1 Counselling 1 Nomination of person to assist reconciliation If the Registry Manager of the court, or an appropriate officer of a State Family Court, nominates a person who is not a family and child counsellor, or an organisation that is not an approved counselling organisation, to assist parties in considering a reconciliation, the Registry Manager or officer must: (a) sign a form of nomination in accordance with Form 31; and (b) deliver the signed form to the person nominated. 2 Notice or request seeking counselling (1) A notice under subsection 15 (1) or 62C (1) of the Act that is filed in the Family Court, or a Family Court of a State, may be in accordance with Form 32. (2) A request under subsection 16 (2) or 62E (1) of the Act that is filed in the Family Court, or a Family Court of a State, may be in accordance with Form 32. 3 Advice as to effect of proceedings (1) The Chief Justice may give directions in relation to the preparation of documents of the kinds referred to in sections 17 and 62H of the Act. (2) Documents setting out the matters referred to in section 17 of the Act prepared prior to the commencement of these Rules in accordance with regulation 19 of the Regulations shall be deemed to have been prepared in accordance with directions given by the Chief Justice under subrule (1). (2A) Documents prepared before the commencement of this provision for the purposes of section 17 of the Act and setting out the matters referred to that section shall be taken to have been prepared in accordance with directions given by the Chief Justice under subrule (1). (3) A lawyer must, before filing an application, furnish to the applicant a copy of such of the documents referred to in sections 17 and 62H of the Act as are applicable in relation to the proceedings. (4) An officer of the court shall furnish to an applicant who, otherwise than by a lawyer, files an application under the Act, a copy of such of the documents referred to in sections 17 and 62H of the Act as are applicable in relation to the proceedings. (5) Where a sealed copy of an application instituting proceedings for principal relief is served on a respondent in Australia, there shall be furnished to the respondent, with that copy, a copy of whichever of the documents setting out the matters required by section 17 of the Act is applicable in relation to the application. (6) Compliance with subrule (3) or (4) is not required where an application instituting proceedings for principal relief has already been filed. (7) A lawyer who furnishes a document in accordance with subrule (3) must certify, as required by Form 2, 3, 4 or 6, as the case requires, that the document was so furnished. (8) A person who serves an application instituting proceedings for principal relief on a respondent shall, in the affidavit evidencing service, make a full statement concerning compliance with subrule (5). 4 Form of certificates under subsection 44 (1B) and subsection 44 (1C) (1) A certificate for the purposes of subsection 44 (1B) of the Act shall be in accordance with Part H of Form 4. (2) For the purposes of subsection 44 (1C) of the Act, a person or organisation specified in paragraph 44 (1B) (a) of the Act may provide a certificate in accordance with Part H of Form 4. (3) The court may receive in evidence a certificate of a kind referred to in subrules (1) and (2). 4A Memorandum to the court At the conclusion of a court-ordered counselling conference, the relevant Manager Mediation must: (a) ensure that a memorandum in accordance with Form 69 is forwarded to the court; and (b) advise the parties of the recommendations made in the memorandum. Division 2 Family reports 5 Reports of family and child counsellors (1) In proceedings, the court, or a Registrar of a Family Court, may order a family and child counsellor or a welfare officer to prepare a report for the purposes of subsection 55A (2) or section 62G or 65G of the Act. (1A) If: (a) the court is asked to make an order in favour of a person under section 65G of the Act; and (b) the court orders a family and child counsellor or welfare officer to prepare a report for the purposes of subparagraph 65G (2) (a) (ii) of the Act; the counsellor or officer must: (c) find out whether the person has been convicted of: (i) an offence under the Act; or (ii) an offence under a law relating to child welfare; or (iii) any other criminal offence relevant to the welfare of a child; and (d) include details of any convictions in the report. (2) Where a report has been obtained under subrule (1), the court or a Registrar of a Family Court may: (a) release copies of the report to the parties or their lawyers, or to a lawyer separately representing a child under an order made under section 68L of the Act; (b) receive the report in evidence; (c) permit oral examination of the person making the report; and (d) give such directions as to the future disposition of the report and any copies of the report as it thinks fit. Order 25A Mediation > dispute has the same meaning as in section 19A of the Act. > pending proceedings does not include prescribed proceedings. > Principal Mediator includes the appropriate officer of a State Family Court. > Note Paragraph 19A (2) (b) of the Family Law Act 1975 provides, among other things, that arrangements for mediation are to be made only if a mediation service is available at the Registry of the court in which the notice is filed. Division 2 Voluntary mediation 2 Form of notice for the help of a mediator A notice filed under subsection 19A (1) of the Act may be in accordance with Form 68. 3 Information about mediation If a notice is filed under subsection 19A (1) of the Act, the mediator must provide each party to the dispute with information about mediation before or at the first appointment for mediation. 4 Interview to decide whether dispute may be mediated A party or parties to a dispute requesting mediation must attend an interview with a court mediator, or other officer of the court, to decide whether the dispute may be mediated. 5 Matters to be taken into account at interview In deciding whether the dispute may be mediated, the person conducting the interview must take into account: (a) the degree of equality (or otherwise) in bargaining power of the parties; and (b) the risk of child abuse (if any); and (c) the risk of family violence (if any); and (d) the emotional and psychological state of the parties; and (e) whether one of the parties may be using the mediation option to gain delay or some other advantage; and (f) any other matter relevant to the proposed mediation. 6 If dispute not to be mediated If the person conducting the interview decides that the dispute is not to be mediated, the person must: (a) advise the parties of other dispute resolution methods available; and (b) provide for other dispute resolution, if appropriate. Division 3 Mediation ordered by the court 8 Application for order under section 19B of the Act If there are pending proceedings, an application for an order under section 19B of the Act referring any or all of the matters in dispute for mediation may be made orally or in writing at any time. Division 4 General 10 Conduct of mediation conferences (1) A mediation conference must be conducted: (a) as a decision making process in which the court mediator assists the parties by facilitating discussion between them so that they may: (i) communicate with each other regarding the matters in dispute; and (ii) find satisfactory solutions which are fair to each of the parties and (if relevant) the children; and (iii) reach agreement on matters in dispute; and (b) in accordance with any general directions given by the Principal Mediator. (2) A court mediator may at any time in the course of the mediation direct any of the parties to prepare or produce any documents that the mediator considers necessary or appropriate. 11 Parties may be attended by lawyers A party who attends a mediation conference may be accompanied by 1 or more lawyers. 12 Mediator to advise parties to seek legal advice At: (a) the commencement of mediation; and (b) if the mediator considers it appropriate — any other time during the mediation; and (b) the conclusion of mediation and before any agreement becomes legally binding; the mediator must advise the parties that they should seek legal advice as to their rights, duties and obligations in respect of the dispute and the mediation. 13 If a party does not attend a mediation conference If a party does not attend a mediation conference, the court mediator, after considering any reasons for non-attendance given by or on behalf of the non-attending party, must either: (a) appoint a date and time for a further conference; or (b) terminate the mediation and as soon as practicable notify the parties in writing of the other primary dispute resolution methods available. 14 If the mediator considers that mediation should not continue If the court mediator considers that a mediation should not continue, the mediator may, subject to any order of the court under subsection 19B (2): (a) adjourn the mediation; or (b) refer the parties, or any one or more of them, for counselling under section 62F of the Act; or (c) give directions to the parties that may assist in a later continuation of the mediation; or (d) end the mediation; or (e) advise the parties of other dispute resolution methods available and, if appropriate, provide for other methods. 16 Action after mediation At the end of a mediation commenced under an order made under section 19B of the Act, the mediator who conducted the mediation must ensure that a memorandum in accordance with Form 69 is forwarded to the court and to each party. 17 Registrar to make directions On receipt of the Form 69, unless all matters in dispute have been resolved, the Registrar may make any appropriate directions as to the future conduct of the proceedings. 18 Court may take mediation into account For the purposes of determining if there are special circumstances under paragraph 79 (9) (b) of the Act, the court may take into account: (a) whether the dispute has been submitted to mediation under section 19A or 19B of the Act; and (b) any recommendation for further mediation made in the Form 69. 20 If matters are resolved at mediation If any or all matters in dispute are resolved at mediation, the court mediator, in the presence of the parties, must set out the terms of agreement in writing and deliver a copy of the terms to each of the parties.