21Advice as to effect of proceedings

21 Advice as to effect of proceedings (1) The Chief Justice may give directions in relation to documents of the kind referred to in subsection 19J (2) of the Act. (2) Before filing an application instituting proceedings (except prescribed proceedings), a lawyer must give the applicant a copy of the document referred to in subsection 19J (2) of the Act. (3) In the case of an applicant who personally, and not by a lawyer, files an application instituting proceedings (except prescribed proceedings), an officer of the court must give the applicant a copy of the document referred to in subsection 19J (2) of the Act. (4) If a sealed copy of an application instituting proceedings (except prescribed proceedings) is served on a respondent in Australia, the respondent must be given with the sealed copy a copy of the document referred to in subsection 19J (2) of the Act. (5) A lawyer who gives an applicant a document in accordance with subrule (2) must certify as required in Form 3 or 12, as the case may be, that the document was given to the applicant. (6) A person who serves an application on a respondent under subrule (4) must depose to compliance with the subrule in the affidavit evidencing service. Order 26 Registration of agreements, State child orders and debts due to the Commonwealth 1 Registration of agreements under the Act (1) A party to a maintenance agreement or an agreement varying the maintenance of a child may register the agreement in a court having jurisdiction under the Act by filing: (a) the original of the agreement; and (b) 2 copies of the agreement. (2) Each copy of the agreement must be certified as a true copy by: (a) a lawyer; or (b) the parties to the agreement. (3) If the court registers an agreement the Registrar must, as soon as practicable after the date of registration, give each party to the agreement a sealed copy of the agreement endorsed with a certificate, signed by the Registrar, that specifies: (a) the court in which the agreement was registered; and (b) the date on which the agreement was registered. (2) Where a child agreement or a maintenance agreement has been registered in accordance with subrule (1), the Registrar shall, as soon as practicable after the date of filing, give written notice to each party to the agreement that the agreement has been registered and specifying the court and date of registration. 2 Registration of agreements under section 87 A maintenance agreement approved by a court in accordance with section 87 of the Act may be registered in another court having jurisdiction under the Act by filing a sealed copy of the order approving the agreement together with a sealed copy of the agreement. 3 Registration of State child orders under section 70C or 70D of the Act (1) For the purposes of section 70C of the Act, a State child order made under a law of a prescribed State may be registered in a court having jurisdiction under Part VII of the Act by filing a sealed copy of the order in a registry of the court. (2) For the purposes of section 70D of the Act, a State child order made by a court of a State may be registered in another State, in a court having jurisdiction under the Act, by filing a sealed copy of the order in a registry of the court of the other State. (3) In this rule, State includes a Territory. 4 Registration of debt due to the Commonwealth under the Child Support (Registration and Collection) Act 1988 A debt due to the Commonwealth under section 30 of the Child Support (Registration and Collection) Act 1988 may be registered in a court having jurisdiction under that Act by filing a certificate issued under subsection 116 (2) of that Act. Order 26A Parenting plans This Order applies to: (a) an application under section 63E of the Act for registration of a revocation agreement; and (b) an application: (i) under subsection 63H (1) of the Act to set aside a registered parenting plan; or (ii) to discharge, vary, suspend or revive provisions of a registered parenting plan as permitted by a provision mentioned in subsection 63H (3) of the Act. > registered parenting plan has the meaning given by subsection 63C (6) of the Act. > revocation agreement, in relation to a registered parenting plan, means an agreement revoking the registered parenting plan. Division 2 Registration of revocation agreements 3 Application of Division This Division applies to an application under section 63E of the Act for registration of a revocation agreement. 4 Requirements for revocation agreement A revocation agreement in respect of which an application for registration is made: (a) must be: (i) mechanically or electronically printed; or (ii) legibly hand-printed on ruled paper; and (b) must be signed by each party to the registered parenting plan to which the revocation agreement relates; and (c) must be contained in a single document. 5 Application for registration of revocation agreement (1) A party to a revocation agreement may apply to register the agreement by filing an affidavit setting out the facts on which the application is based. > Note Paragraph 63E (2) (b) of the Act provides that the following documents must accompany an application for registration of a revocation agreement: > Note: (a) a copy of the revocation agreement (see subparagraph 63E (2) (b) (i)); > Note: (b) a statement, in relation to each party, to the effect that the party has been provided with independent legal advice as to the meaning and effect of the revocation agreement, signed by the practitioner who provided the advice (see subparagraph 63E (2) (b) (iii)). (2) The affidavit must include the following information: (a) the name, age and place of residence of each child to whom the agreement relates; (b) the current and proposed arrangements for the child; (c) the reasons for revoking the registered parenting plan; (d) details of any current order made under the Act relating to the welfare of the child; (e) details of any current family violence order relating to the care, welfare and development of the child; (f) details of any current State child order relating to the care, welfare and development of the child; (g) if the person with whom the child is to reside, or have contact, has been convicted of an offence under a law relating to child welfare, or a criminal offence relevant to the care, welfare and development of the child — details of the conviction; (h) details of any proceedings pending in relation to any of the above matters; (i) a statement that the revocation agreement accompanying the application for registration is a true copy of the original agreement. (3) When the affidavit mentioned in subrule (1) and any accompanying documents are filed, the applicant must produce to the Registry sufficient copies of the documents to enable a sealed copy to be served on each party to the revocation agreement. 6 Court may require service or additional information Before making a decision about whether to register a revocation agreement, the court may: (a) order that a copy of the affidavit filed under subrule 5 (1) be served, in accordance with Order 18, on a specified person; or (b) require a party to file additional information in relation to the application for registration. 7 Application may be heard in chambers An application for registration of a revocation agreement may be dealt with in chambers, in the absence of the parties and their lawyers (if any). > Note Subsection 63E (3) of the Act provides that the court may register a revocation agreement if it considers it appropriate to do so, having regard to the best interests of the child to whom the agreement relates. 8 Notice of decision in relation to registration As soon as practicable after a decision is made on an application to register a revocation agreement, the Registry Manager of the filing registry must give to each party to the revocation agreement: (a) if the decision is to register the agreement — a copy of the agreement endorsed with a certificate, signed by a Registrar, specifying: (i) the court in which the revocation agreement was registered; and (ii) the date when the revocation agreement was registered; and (b) if the decision is to not register the agreement — written notice of the decision. Division 3 Applications in relation to registered parenting plans 16 Application of Division This Division applies to an application to: (a) set aside a registered parenting plan; or (b) discharge, vary, suspend or revive provisions of a registered parenting plan. 17 Form of application — Form 8 An application must be: (a) in accordance with Form 8; and (b) accompanied by an affidavit that sets out, briefly and concisely: (i) the facts sought to be relied on in support of the application; and (ii) the facts on the basis of which the court will be asked to find that it is in the best interests of the child in respect of whom the plan was made that the order sought be made; and (iii) particulars of any relevant consultations with a family and child counsellor attended by any party to the plan. 18 Who may make an application? An application may be made by: (a) a party to the relevant parenting plan; or (b) any other person who has parental responsibility in relation to the child in respect of whom the plan was made; or (c) a prescribed child welfare authority. 19 Respondent to application A person: (a) who is a party to a parenting plan in respect of which an application is made; and (b) who is not an applicant; must be made a respondent to the application. 20 Service of application A sealed copy of an application must be served, in accordance with Order 18: (a) on each respondent to the application; and (b) on any other person directed by the court, or a Registrar. Order 27 Change of venue 1 Change of venue (1) A party who has filed an application or response in proceedings in a court exercising jurisdiction under the Act may, by application filed in the filing registry, apply to have the proceedings heard: (a) in another registry of that court; or (b) in another court exercising jurisdiction under the Act. (2) A party who has filed an application or response in proceedings in the Supreme Court of a State or Territory may, by application filed in that Court, apply to have the proceedings heard at a particular place within that State or Territory. 2 Applications under subsection 40 (6), 41 (4A) or 46 (3A) of the Act An application under subsection 40 (6), 41 (4A) or 46 (3A) of the Act shall be in accordance with Form 8 and the applicant shall file with the application an affidavit in support. 3 Matters to be considered (1) In considering an application for an order under rule 1 or under subsection 40 (6), 41 (4A) or 46 (3A) of the Act, the court shall have regard to: (a) the availability of a court to hear the proceedings; (b) the convenience of the parties; (c) the limiting of expense and the costs of the proceedings; and (d) any other relevant matter. (2) In making an order under rule 1, the court may impose such terms and conditions as it thinks fit. 4 Transmission of papers — subsections 40 (6) and 41 (4A) (1) Where a Family Court makes an order under subsection 40 (6) or 41 (4A) of the Act, the Registrar of that court shall transmit the order to the Registrar or other proper officer of the Supreme Court from which the proceedings have been transferred, whereupon that Registrar or other proper officer shall forward to the Registry of the Family Court specified in the order the court papers in the proceedings. (2) Thereafter, the Family Court shall proceed as if the proceedings had been originally instituted in that court, and may have regard to the evidence given before the transfer of the proceedings. 4A Transmission of papers — subsection 46 (3A) (1) Where, in relation to proceedings, a Family Court makes an order under subsection 46 (3A) of the Act: (a) the Registrar of that court shall transmit the order to the Registrar of the court of summary jurisdiction from which the proceedings are to be removed under the order; and (b) the Registrar of the court of summary jurisdiction shall forward to the Registry of the Family Court specified in the order the court papers in the proceedings. (2) Upon the forwarding of the court papers, the Family Court shall proceed as if the proceedings had been instituted in that court and may have regard to any evidence given before the removal of the proceedings. 5 Transmission of papers — sections 45 and 46 of the Act (1) Where an order to transfer proceedings is made by a court under section 45 or 46 of the Act, the court papers shall be transmitted by the Registrar to the court to which the proceedings have been transferred. (2) Thereafter the court to which the proceedings have been transferred shall proceed as if the proceedings had been originally instituted in that court, and may have regard to the evidence given before the transfer of the proceedings. 6 Transmission of Court papers — generally Where further proceedings between parties are instituted in a court or registry other than the court or registry in which earlier proceedings were heard and determined, the Registrar of the first-mentioned court or registry may request the Registrar of the other court or registry to transmit to him the court papers in the earlier proceedings and the Registrar of that court or registry shall comply with the request. Order 28 Subpoenas 1 Issue by Registrar (1) Subject to subrules (1A) and (1B), in any proceedings, the Registrar of the filing registry shall, at the direction of the court, and may, at the request of a party to the proceedings, issue a subpoena on behalf of the court commanding a person or persons named in the subpoena, to attend before the court as indicated in the subpoena and then and there to: (a) give evidence; (b) give evidence and produce any books, documents or things in the possession, custody or control of the person or persons named in the subpoena that are referred to in the subpoena; or (c) produce any books, documents or things in the possession, custody or control of the person or persons named in the subpoena that are referred to in the subpoena. (1A) A subpoena may be directed to 2 or more persons named in the subpoena if: (a) the subpoena is to give evidence only; or (b) the subpoena requires the production of the same books, documents or things from each person named. (1B) Subject to subrule (1C), in proceedings commenced by an application in accordance with Form 3, unless the court, or a Registrar, has first granted leave, the Registrar must not issue a subpoena until: (a) the directions hearing (including any adjournments) has been completed; and (b) if a conciliation conference was ordered at the directions hearing — that conciliation conference has been completed. (1C) The court, or a Registrar, must not grant leave under subrule (1B) unless there are special circumstances by reason of which the order granting leave should be made. (2) The party at whose request a subpoena is issued must serve a sealed copy of the subpoena on each person to whom the subpoena is addressed: (a) by delivering the copy to the addressee; or (b) if the addressee is a body corporate, by delivering or posting the copy: (i) in the case of a body corporate that has a registered office in the State or Territory where the filing registry is located — to that office; and (ii) in any other case — to the principal office or place of business of the body corporate in that State or Territory. (3) A subpoena containing a command of a kind referred to in subparagraph (1) (b) or (c) shall not, without the leave of the court or a Registrar, be served less than 7 days before the day on which the book, document or thing is required to be produced. (4) A subpoena shall not be served upon a person under the age of 18 years, without the leave of the court or a Registrar. (5) A subpoena under subrule (1) must be in accordance with Form 36. (6) A subpoena issued in proceedings remains in force until the conclusion of the hearing unless the witness is excused by the court or a Registrar. 2 Conduct money At the time of service of a subpoena under this Order, the person serving the subpoena shall tender to the person served sufficient money for return travel by the person served between that person’s place of residence or employment (whichever is appropriate) and the court. 3 Production of books etc and access by parties (1) Where the person commanded by a subpoena to attend and to produce books, documents or things in accordance with paragraph (1) (c) is not a party to the proceedings in which the subpoena is issued, that person may, unless the Registrar by whom the subpoena was issued otherwise directs, comply with the subpoena by producing those books, documents or things: (a) if an officer of the Court is named in the subpoena as the officer to whom the books, documents or things may be produced — to the officer so named; (b) if an officer of the Court is not so named in the subpoena but an officer is named for that purpose by the Registrar — to the officer so named; or (c) in any other case — to the Registrar; at a time not later than the day before the day specified in the subpoena for the production of the books, documents or things. (2) Following compliance with a subpoena: (a) in accordance with subrule (1); or (b) later; the court, or a Registrar, may make an order permitting the parties and the child’s representative (if any) to inspect or copy the book, document or thing produced. (3) Before making an order under subrule (2), the court, or the Registrar, must be satisfied that each party: (a) who has an address for service in the proceedings; and (b) who does not consent to the order; and (c) who is not present, and whose lawyer is not present, in the court; has been given reasonable notice of: (d) the name and address of the person to whom the subpoena is addressed; and (e) the book, document or thing required to be produced by the subpoena; and (f) the fact that the subpoena has been served; and (g) the date on which the subpoena is listed. 4 Application of Order 20 to this Order Order 20, rules 14, 16, 17 and 18 apply mutatis mutandis to a subpoena requiring the production of any books, documents or things as if that subpoena were an order made pursuant to Order 20, rule 8. 6 Time for service A subpoena may not be served after the expiry of 3 months after the date of its issue. 7 Setting aside subpoena (1) The Court may, of its own motion or on the application of any person having a sufficient interest, set aside a subpoena wholly or in part. (2) An application to set aside a subpoena relating to an appeal to be heard by a Full Court must be heard by the Full Court before which the appeal is listed for hearing. 8 Non-compliance — warrant may issue If a person on whom a subpoena is duly served does not appear, or does not remain in attendance as required by the subpoena, a Judge, Judicial Registrar or Magistrate may, on being satisfied that the person was duly served and tendered expenses in accordance with rule 2, issue a warrant for the arrest of that person and order that person to pay any costs occasioned by such failure. 9 Witnesses’ fees and expenses (1) A person who attends in obedience to a subpoena under this Order is entitled to be paid fees and travelling allowances according to the scale of fees and allowances payable to witnesses in the Supreme Court of the State or Territory in which the person is required to attend, or, in special circumstances, such fees and allowances as the court or a Registrar directs (less any amount previously paid to the person in accordance with rule 2). (2) Unless the court or a Registrar otherwise orders, fees and travelling allowances payable under this rule are payable by the party at whose request the subpoena was issued. 10 Interpretation For the purposes of this Order, document includes: (a) a record; and (b) where a document or record is recorded or stored on tapes, discs or by any other mechanical or electronic means, or otherwise, and is capable of being reproduced into a material form readily understood, whether directly or through the use of any device or thing — a reproduction of the document or record in that material form. Division 2 Proceedings to which Part 2 of the Evidence and Procedure (New Zealand) Act 1994 applies 11 Application of Division This Division applies to a subpoena that is issued in a proceeding in the Family Court to which Part 2 of the Evidence and Procedure (New Zealand) Act 1994 applies. > Note Section 7 of the Evidence and Procedure (New Zealand) Act 1994 provides that Part 2 of that Act applies to a subpoena that is issued in a proceeding, except a criminal proceeding or a family proceeding, in a federal court or in a court of a State or Territory that is specified in the regulations. 12 Interpretation In this Division, unless the contrary intention appears: (a) court means the Family Court of Australia; and (b) any expression used that is also used in the Evidence and Procedure (New Zealand) Act 1994 has the same meaning as it has in that Act. 13 Form of subpoena A subpoena that is to be served in New Zealand under section 8 of the Evidence and Procedure (New Zealand) Act 1994 must be in accordance with Form 36. 14 Leave to serve subpoena A person seeking leave to serve a subpoena in New Zealand under section 8 of the Evidence and Procedure (New Zealand) Act 1994 must file: (a) an application in accordance with Form 8; and (b) an affidavit in accordance with rule 15. > Note Subsection 10 (3) of the Evidence and Procedure (New Zealand) Act 1994 provides that service of a subpoena is effective only if it is accompanied by a copy of the order giving leave to serve the subpoena in New Zealand and by a notice in the prescribed form. The prescribed form of notice is the form set out in Schedule 2 of the Evidence and Procedure (New Zealand) Regulations. 15 Contents of affidavit An affidavit filed under rule 14 must have attached to it a copy of the subpoena and must set out, so far as the applicant can assert, the following information: (a) the name, age, occupation and address of the person named in the subpoena; (b) the nature and significance of the evidence required from the person, or of the document or thing required to be produced by the person; (c) any available evidence relating to whether the evidence, document or thing could be obtained by other means without significantly greater expense; (d) the steps taken to ascertain whether the evidence, document or thing could be obtained without significantly greater expense; (e) details of any inconvenience and hardship that may be caused to the person as a result of complying with the subpoena; (f) the steps taken to ascertain whether any inconvenience or hardship would be caused to the person as a result of complying with the subpoena; (g) the date by which it is intended to serve the subpoena on the person; (h) the amount to be paid or tendered to the person for allowances and travelling expenses sufficient to meet the person’s reasonable expenses of complying with the subpoena; (i) whether the amount referred to in paragraph (h) is to be paid or tendered partly or wholly by vouchers; (j) if the subpoena requires the person to attend the court to give evidence — the estimated time that attendance will be required; (k) if the applicant is aware of any facts or matters that may be grounds on which the subpoena might be set aside under subsection 14 (2) or (3) of the Evidence and Procedure (New Zealand) Act 1994 — those facts or matters. 16 Service of leave application Unless the court otherwise orders, a person who files an application for leave to serve a subpoena in New Zealand under section 8 of the Evidence and Procedure (New Zealand) Act 1994 is not required to serve the application. 17 Hearing of leave application Unless the court otherwise orders or the applicant objects, the court may determine an application for leave to serve a subpoena in New Zealand under section 8 of the Evidence and Procedure (New Zealand) Act 1994 in chambers. 18 Conditions in giving leave The conditions referred to in paragraph 9 (4) (b) of the Evidence and Procedure (New Zealand) Act 1994 may include a condition that the applicant undertake to pay to the person named in the subpoena any losses and expenses reasonably incurred by the person in complying with the subpoena even if those losses and expenses exceed the allowances and travelling expenses paid or tendered to the person at the time of service of the subpoena. 19 Application to set aside subpoena A person seeking leave to set aside a subpoena that has been served in New Zealand under section 8 of the Evidence and Procedure (New Zealand) Act 1994 must file: (a) an application in accordance with Form 8; and (b) an affidavit setting out the facts in support of the application. 20 Production of document or thing in accordance with subpoena (1) This rule applies to a subpoena that: (a) only requires production of a document or thing; and (b) is served in New Zealand under section 8 of the Evidence and Procedure (New Zealand) Act 1994. (2) If: (a) in accordance with a subpoena, a document or thing is produced, by a person, at a registry of the High Court of New Zealand; and (b) the person obtains a receipt from the registry that identifies the document or thing and acknowledges its receipt and the receipt of the money or vouchers for the transportation of the document or thing; and (c) the person transmits, by fax, a copy of the receipt and a copy of the subpoena to the registry of the court that issued the subpoena; the fax referred to in paragraph (c) is evidence of compliance with the subpoena. (3) Despite compliance with subsection 11 (1) of the Evidence and Procedure (New Zealand) Act 1994, if: (a) an amount of money or vouchers sufficient to meet the cost of transporting a document or thing from New Zealand to the place in Australia specified in a subpoena is not paid or tendered to the registry of the High Court of New Zealand by or on behalf of the person named in the subpoena; and (b) the document or thing is so transported; the cost must be paid by the person who obtained leave to serve the subpoena. (4) If a document or thing is received at a place in Australia in accordance with a subpoena, the Registrar of the court that issued the subpoena must: (a) list the matter for a directions hearing; and (b) notify each party to the proceeding of the receipt of the document or thing and the date of the directions hearing. 21 Non-compliance with subpoena (1) A certificate issued under section 16 of the Evidence and Procedure (New Zealand) Act 1994 must be in accordance with Form 38A. (2) An application for a certificate referred to in subrule (1) is not required to be in writing but must be accompanied by a draft certificate in accordance with Form 38A. Order 29 Offers of settlement 1 Filing of copy of offer, acceptance or withdrawal of offer Where: (a) a copy of an offer of settlement in accordance with Form 60; (b) a notice of withdrawal of an offer of settlement in accordance with Form 61; or (c) a copy of an acceptance of an offer of settlement in accordance with Form 62; is filed, the copy or notice, as the case may be, shall not be placed on the court file in relation to the proceedings but shall be placed in a separate file. 2 Further offer may be made The withdrawal of an offer of settlement does not preclude a party from making a further offer of settlement. Order 30 Evidence 1 Oaths and affirmations A court exercising jurisdiction under the Act may require and administer all necessary oaths. 1A Court may give directions Despite any other provision of these Rules, the court may give directions: (a) as to the order of evidence and addresses; and (b) generally, as to the conduct of a trial. 1B Order for adducing evidence (1) If an applicant adduces evidence, the evidence must be adduced before evidence is adduced by a respondent, or a child’s representative. (2) If a respondent adduces evidence, the evidence must be adduced before evidence is adduced by a child’s representative.