28Withdrawal of application

28 Withdrawal of application (1) An applicant may, at any time, file in the Regional Appeal Registry a notice of withdrawal of an application to the court in accordance with Form 42B. (2) On the filing of a notice, the proceedings to which the notice relates are taken to be abandoned. (3) The filing of a notice does not affect any other applicant in the proceedings. (4) An applicant who files a notice must pay the costs of each other party occasioned by the application, unless otherwise ordered by a Judge. Order 32C Applications for leave to appeal to a single judge from the Federal Magistrates Court 1 Application of Order 32C This Order applies to an application for leave to appeal that is to be determined by a single Judge. > application means: (a) an application under subsection 94AA (2A) of the Act for leave to appeal to the Family Court of Australia from a prescribed decree of the Federal Magistrates Court; or (b) an application under subsection 102A (1) of the Assessment Act or subsection 107A (1) of the Registration Act for leave to appeal to the Family Court of Australia from a decree of the Federal Magistrates Court. > Note Subregulation 15A (1) of the Family Law Regulations 1984 sets out which decrees are prescribed decrees for the purposes of subsection 94AA (2A) of the Act. > Regional Appeal Registry has the same meaning as in Order 32. 3 Institution of applications (1) A person may institute an application: (i) an application in accordance with Form 67; and (ii) 2 copies of the application; or (b) by sending to the Regional Appeal Registry, by fax or e‑mail, a copy of the application. (2) If an application is instituted in accordance with paragraph (1) (b), the application, and 2 copies, must be filed in the Regional Appeal Registry within 3 days after the copy of the application was sent under paragraph (1) (b). (3) If an application is sent by fax, it must be sent with a cover sheet that clearly states: (4) If an application is sent by e‑mail, the sender must: (b) state clearly, in the application, his or her name, postal address, document exchange number (if any), telephone number, fax number and e‑mail address. (5) If an application sent by fax or e‑mail is accepted for filing, it is taken to be filed: (a) if the application is received by 4.30 pm on a day when the Regional Appeal Registry is open for business — on that day; and (1) This rule applies if an application under subsection 94AA (2A) of the Act, subsection 102A (1) of the Assessment Act or subsection 107A (1) of the Registration Act, is instituted under rule 3. (2) As soon as practicable after an application is instituted, the Regional Appeal Registrar must refer the application to the Chief Justice to determine whether the jurisdiction of the Family Court in relation to the application should be exercised by a Full Court or a single Judge. 5 Time for filing an application An application must be filed: (a) within 28 days after the day on which the decree to which the application relates was made; or 6 Affidavit in support of application (1) An application must be supported by an affidavit setting out briefly: (a) the facts on which the application is based; and (b) the specific questions of law (if any) raised by the application. (2) The affidavit must have attached: (a) a copy of the decree from which leave to appeal is sought; and (b) the reasons for judgment (if any); and (c) a draft notice of appeal setting out briefly but specifically the grounds of appeal to be relied on if leave to appeal is granted; and (d) the reasons why leave to appeal should be granted. 7 Service (1) Within 7 days after instituting an application, the applicant must serve, in accordance with Order 18, a sealed copy of the application on each person who was a party to the proceedings when the decree to which the application relates was made. (2) If an application has been instituted: (a) the Federal Magistrate who made the decree (or, if that Federal Magistrate is not reasonably available, another Federal Magistrate); or (b) a Judge of the Family Court; may, on application by a party to the application, direct the applicant to serve a sealed copy of the application on a person who is not a party to the application. (3) As soon as practicable after an application under subsection 102A (1) of the Assessment Act or subsection 107A (1) of the Registration Act is filed, the Regional Appeal Registrar must give a copy of the application and any affidavit filed with it to the Child Support Registrar. 8 Stay of execution of decree (1) If an application has been instituted: (a) the Federal Magistrate who made the decree from which an appeal is sought (or, if that Federal Magistrate is not reasonably available, another Federal Magistrate); or (b) a Judge of a court having jurisdiction under the Act; may make an order, on such terms as the Federal Magistrate or Judge thinks fit, staying the execution or operation of the decree wholly, or in part, until the application is determined. (2) If an order under subrule (1) has been made, a court having jurisdiction under the Act must not enforce the decree or entertain proceedings for its enforcement, in so far as its execution or operation has been stayed, until the application is determined. 9 Directions (1) Before an application is heard, it must be listed for directions before a Judge, unless otherwise directed by the Chief Justice. (2) The Judge before whom the application is listed for directions may make directions in relation to the conduct of an application, including a direction that the application be dealt with, without an oral hearing. 10 Supporting submissions (1) If an applicant is directed, under rule 9, to prepare a supporting submission, the applicant must: (a) within 14 days after the direction is made, prepare a supporting submission; and (b) lodge a copy of the submission with the Regional Appeal Registrar; and (c) serve a copy of the submission on each other party to the application. (2) A supporting submission must: (a) concisely state: (i) the circumstances in which the application arises; and (ii) the matters on which the application is based; and (iii) the reasons why leave to appeal should be granted; and (b) as far as practicable, refer to material in a document filed in relation to the application by the page number of the document and not extract the text of that material; and (c) be signed: (i) by the lawyer who prepared the submission; or (ii) by the party; and (d) include the signatory’s name and telephone number, and a fax number (if any) or central document exchange number (if any) at which the signatory can be contacted. (3) The paragraphs of a supporting submission must be numbered consecutively. (4) Within 7 days after a copy of a supporting submission is served on a party, the party: (a) may lodge with the Regional Appeal Registrar a concise response to the matters raised in the submission; and (b) if paragraph (a) is acted on — must serve a copy of the response on each other party to the application. 11 Leave to appeal may be on terms A Judge hearing an application may grant leave to appeal on terms. Order 32D Appeals from courts of summary jurisdiction 1 Application of Order 32D This Order applies to an appeal under section 96 of the Act to the Family Court of Australia from a decree of a court of summary jurisdiction of a State or Territory exercising jurisdiction under the Act. 2 Definition > appeal means an appeal under section 96 of the Act to the Family Court of Australia from a decree of a court of summary jurisdiction of a State or Territory exercising jurisdiction under the Act. (a) by filing, in the registry of the court appealed to that is nearest the court of summary jurisdiction from which the appeal is made, a notice of appeal in accordance with Form 43; or (b) by sending, by fax or e-mail, a copy of the notice of appeal to the registry of the court appealed to that is nearest the court of summary jurisdiction from which the appeal is made. (2) If an appeal is instituted in accordance with paragraph (1) (b), the notice of appeal must be filed in the registry of the court appealed to that is nearest the court of summary jurisdiction from which the appeal is made within 3 days after the copy of the notice was sent under paragraph (1) (b). 4 Time for filing a notice of appeal A notice of appeal must be filed: (a) within 28 days after the day on which the decree from which an appeal is sought was made; or 5 Fixing a hearing date On the filing of the notice of appeal, the Registry Manager must fix a date for a directions hearing or the hearing of the appeal that is as near as practicable to 28 days after the notice was filed. 6 Service Within 2 days after filing a notice of appeal, the appellant must: (a) serve, in accordance with Order 18, a sealed copy of the notice on each party to the appeal; and (b) file a sealed copy of the notice in the court appealed from. 7 Stay of proceedings (1) An appeal does not operate as a stay of proceedings or invalidate any intermediate act or proceedings. (2) If an appeal has been instituted: (a) the Magistrate who made the decree appealed from; or (b) if that Magistrate is not reasonably available, a Judge of the court in which the appeal is instituted; may make an order, on such terms as the Magistrate or Judge thinks fit, staying the execution or operation of the decree wholly or in part until the appeal is decided. (3) If an order under subrule (2) has been made, a court must not enforce the decree or entertain proceedings for the enforcement of the decree, in so far as its execution or operation has been stayed, until the appeal is decided. 8 Transmission of papers As soon as practicable after a sealed copy of a notice of an appeal has been filed in the court appealed from, the Registrar of that court must send all the documents in the Registrar’s possession relating to the appeal to the Registrar of the court in which the appeal has been instituted. Order 33 Enforcement 1 Definitions > obligation means an obligation to which rule 2 applies. > prescribed personal property, in relation to a person, means: (a) clothes, bed, bedding and kitchen furniture (including a stove, oven and refrigerator, but not including a washing machine or automatic dishwasher); and (b) ordinary tools of trade, plant and equipment, and professional instruments and reference books, the combined value of which is not more than $1 000. 2 Enforcement of obligations (1) This rule applies to: (a) the recovery of a debt due to the Commonwealth under section 30 or 67 of the Child Support (Registration and Collection) Act 1988; and (b) an order that a party pay maintenance or other money for the benefit of the other party, or of a child, made under: (i) the Act; or (ii) the Child Support (Registration and Collection) Act 1988; and (ba) a parenting plan registered under section 63E of the Act that has not been set aside or otherwise ceased to have effect; and (bc) an order made under section 67D of the Act; and (c) a maintenance agreement registered under subsection 86 (1) of the Act that has not been set aside or has not otherwise ceased to have effect; and (d) a maintenance agreement approved under section 87 of the Act in respect of which there is in force an order under paragraph 87 (11) (c) of the Act; and (da) an agreement varying or revoking an original agreement dealing with the maintenance of a child under section 66SA of the Act; and (e) an overseas maintenance order or agreement that, under the Regulations, is enforceable in Australia; and (f) an order under the Act or the repealed Act for the payment of costs; and (g) an order made in the exercise of jurisdiction conferred by the Act, the Regulations or these Rules that a person pay a fine or forfeit a bond; and (h) an order under subsection 82 (7) of the Act for the recovery of moneys; and (ha) a financial agreement under Part VIIIA of the Act in respect of which an order is in force under paragraph 90KA (c) of the Act; and (i) an order under section 117A of the Act for the payment of reparations; and (j) a liability to pay child support under an assessment or order made under the Child Support (Assessment) Act 1989; and this rule (except subrule (4)) applies in relation to an agreement referred to in paragraph (ba), (c), (d), (da) or (e) as if it were an order of the court in which it is registered or taken to be registered. (1A) A reference in paragraph (1) (d) to a maintenance agreement shall, where an order under paragraph 87 (11) (c) of the Act is in force in respect of a part of the agreement, be read as a reference to that part of the agreement. (2) Where a court by an order referred to in paragraph (1) (g) imposes a fine, the fine shall, unless the court otherwise orders, be payable forthwith into the filing registry. (3) Where in or in relation to proceedings a court orders the forfeiture of a bond, the money forfeited shall, unless the court otherwise orders, be payable forthwith into the filing registry. (4) Subject to subrule (4A), if an obligation arises under an order and the person under the obligation was not present, or represented by a lawyer, in court when the order was made, a sealed copy of the order must be served on the person in accordance with Order 18 by: (a) in case of a fine imposed by a court — the Marshal, an officer of the court, or a person appointed by the Registrar; and (b) in any other case — by a representative or agent of the person for whose benefit the order was made. (4A) If, by an order to which this rule applies: (a) a person: (i) is liable to pay a registrable maintenance liability under the Child Support (Registration and Collection) Act 1988; or (ii) is ordered to pay a debt due to the Commonwealth under that Act; and (b) that person is not present or represented by a lawyer in the Court when the order is made; the Child Support Registrar shall cause a sealed copy of the order to be served on that person in accordance with Order 18, paragraph 5 (1) (a). (4B) If a person seeks to enforce an obligation that is not an order of the court, or is not deemed by the court to be an order of the court, the person may apply to the court for: (a) an order declaring the amount of the obligation; and (b) a second order that the obligation be paid. (5) An obligation may be enforced by one or more of the following means: (a) garnishment; (b) seizure and sale of personal property; (c) sequestration of estate; (d) sale of real property. (6) Where a person ordered to pay maintenance or other money for the benefit of a party or child fails or refuses to make the payment, proceedings for the enforcement of the payment may be taken by the party or child for whose benefit the order was made or on behalf of that party or child by a person entitled to do so under the Act or Regulations. (7) Where proceedings for the enforcement of the payment of maintenance or other money payable under an order for the benefit of a party or child are taken on behalf of that party or child by a person entitled to do so under the Act or Regulations, that maintenance or other money may, unless the court otherwise orders, be paid to that person, and the receipt of that person for any maintenance or other money so paid shall be sufficient discharge of the liability of the person required under the order to pay that maintenance or other money. (8) If a person ordered to pay a fine under an obligation fails to do so, proceedings for the enforcement of the payment of that fine may be taken by a Registrar, the Marshal or an officer of the Attorney-General’s Department, but not by a party. (9) Where a court has ordered that a bond be forfeited, proceedings for the enforcement of that forfeiture may be taken by the Marshal, an officer of a police force, or by an officer of the Attorney-General’s Department designated by the Secretary to that Department, but not by a party. (10) Where, immediately before the date of commencement of the Act, an order that a party to a marriage pay maintenance or other money for the benefit of the other party to the marriage or of a child of the marriage was registered in a court that has jurisdiction under the Act, that order may be enforced in accordance with this order. (11) An application for the enforcement of an obligation shall state whether any other decree is in force for the enforcement of the obligation and whether any other proceedings for the enforcement of the obligation are pending and, if any such proceedings are pending (being proceedings taken by a person referred to in subrule (7)), the name of that person. (12) Where an application for the enforcement of an obligation names a person referred to in subrule (7) as the person who has taken other proceedings that are pending for the enforcement of the obligation, the Registrar shall enquire of the person so named as to the present position with regard to those proceedings and shall file with the court papers relating to the application a memorandum containing any information ascertained as a result of that enquiry. 3 Summary procedures on failure to comply with obligation (1) If a person fails to satisfy an obligation, a person seeking to enforce the obligation may file an affidavit requesting the issue of: (a) in relation to a debt due to the Commonwealth: (i) a notice in accordance with Form 45A; or (ii) a summons in accordance with Form 45B; or (b) in any other case: (i) a notice in accordance with Form 45; or (ii) a summons in accordance with Form 46. (1A) An affidavit filed under subrule (1) must: (a) contain evidence in support of the request made in the affidavit; and (b) state whether any other order is in force for the enforcement of the obligation; and (c) state whether any other proceedings for the enforcement of the obligation are pending; and (d) if proceedings taken by a person referred in subrule 2 (7) are pending — state the name of the person who has taken the proceedings; and (e) be accompanied by the appropriate form of notice or summons under subrule (1). (1B) If: (a) a person has taken proceedings to enforce an obligation; and (b) before those proceedings are completed, the person is named in an affidavit filed under subrule (1) as the person who has taken proceedings to enforce the obligation; the Registrar must: (c) ask the person for details in relation to progress of the proceedings; and (d) attach a memorandum containing those details to the affidavit. (2) On receipt of an affidavit filed under subrule (1) and an appropriate form of notice, the Registrar may issue a notice in accordance with Form 45 or 45A. (3) On receipt of an affidavit filed under subrule (1) and an appropriate form of summons, the Registrar may issue a summons in accordance with Form 45B or 46 if: (a) in the case of an obligation, other than an obligation to which paragraph (b) of this subrule applies — the Registrar is satisfied that the person under the obligation has failed to make a payment for a period of at least 2 weeks; and (b) in the case of an order mentioned in paragraph 2 (1) (f), (g), (h) or (i) — the Registrar is satisfied that the person against whom the order was made has failed to comply with the order. (4) A summons under this rule for the enforcement of an order of a kind referred to in paragraph 2 (1) (g) may be issued by the Registrar of the court that imposed the relevant fine or ordered the forfeiture of the relevant bond and not otherwise. (5) A summons under this rule, shall be served on the person to whom it is addressed in a manner referred to in Order 18. (6) A person served with a summons under this rule shall not, without reasonable excuse: (a) fail to attend as required by the summons and then on such days and at such times as the court may direct; (b) refuse or fail to be sworn; (c) refuse or fail to answer a question on any matter relating to the failure to satisfy the obligation sought to be enforced; or (d) refuse or fail to produce a document that is required to be produced by the summons. (7) Where a person fails to attend before a court as required by a summons under this rule duly served on that person, or on such days and at such times as the court directs, the court may issue a warrant directing that the person be taken into custody and brought before the court. (8) The Registrar of the court that issues a warrant under subrule (7) shall cause to be attached to the warrant: (a) a sealed copy of the order in relation to which the warrant is issued; or (b) a copy of that order certified by the Registrar to be a true copy of the sealed copy in the custody of the Registrar. (9) If a court is satisfied that a person appearing before it, whether in person or represented by a lawyer, has failed to satisfy an obligation, the court may: (a) order the payment of the amount found to be owing under the obligation; and (b) enforce the obligation by any of the following means: (i) a garnishment order under rule 4; (ii) an order under rule 5 for the seizure and sale of personal property belonging to the person; (iii) an order under rule 6 that the estate of the person be sequestrated; (iv) an order under rule 7 for the sale of an interest in real property belonging to the person; (v) any order it considers necessary to enable enforcement of the obligation or to prevent the dissipation of property or the wasting of assets. 4 Garnishment (1) In this rule, unless the contrary intention appears: > applicant means a person or authority instituting proceedings under subrule (2). > garnishee means a person (including a corporation, the Commonwealth, a State or Territory or an authority or institution constituted by or under a law of the Commonwealth, or of a State or Territory) from whom the applicant claims that money is due or accruing to the respondent. > respondent means the person who has failed to satisfy an obligation. (2) If a person fails to satisfy an obligation, a person entitled to take proceedings to enforce the obligation may apply to the court for a garnishment order to enforce the obligation. (3) An application for a garnishment order may be made ex parte. (4) The following moneys may be the subject of a garnishment order: (a) a sum standing to the credit of the respondent in a bank, building society, co-operative housing society or similar society, credit union, credit society or investment fund or corporation, that is payable to the respondent on call or on notice; (b) the earnings of the respondent (being wages or salary and fees, bonus, commission, overtime pay or other emoluments payable in addition to or in lieu of wages or salary), a pension, annuity, moneys payable in lieu of leave, or retirement benefit due or accruing to the respondent; (c) any debt or other sum of money due or accruing to the respondent. (5) Where the application for a garnishment order is made by a person other than the Registrar, it shall be verified by affidavit. (6) An affidavit in support of an application for a garnishment order shall state: (a) particulars of the moneys payable by the respondent; (b) efforts made by the applicant or any other person to obtain payment of those moneys; (c) details of any relevant information furnished by the respondent in response to a notice under paragraph 3 (1) (a) or obtained in an examination pursuant to a summons issued under paragraph 3 (1) (b); (d) particulars of the moneys referred to in subrule (4) in respect of which application is made for garnishment; and (e) the order sought against the garnishee. (7) The court shall, in respect of an application for a garnishment order: (a) make the order sought or such other appropriate order on the application as it thinks fit; or (b) dismiss the application. (8) Prior to the making of an order under subrule (7), the court may, in proceedings on an application for a garnishment order: (a) adjourn the proceedings and require the garnishee and the respondent or either of them to be served with a copy of the application; (b) give directions as to service and the further hearing of the proceedings; and (c) make such other order as it thinks necessary to prevent the moneys that are the subject of the application from disappearing or being dissipated. (9) Where the court makes a garnishment order attaching the earnings of the respondent, it shall: (a) specify the periodic amount to be deducted from the respondent’s earnings in satisfaction of the moneys payable, that is to say, the normal deduction rate; (b) specify an amount fixed by the court as the amount below which the respondent’s earnings shall not be reduced by compliance with the order, that is to say, the protected earnings rate; (c) specify the person to whom, the place at which and the manner in which payment of amounts to be paid by the garnishee under the order is to be made; (d) specify the amount that the garnishee may deduct from the normal deduction rate referred to in paragraph (a) for administrative expenses; and (e) specify the date from which the payments shall commence. (10) A sealed copy of an order under subrule (7) shall be served on the garnishee and on the respondent in accordance with Order 18. (11) A garnishee who has been served with a garnishment order: (a) may apply to the court disputing his liability to make payments under the order; or (b) shall comply with the order. (12) If the garnishee applies to the court disputing the order, the garnishee shall file an affidavit setting out the facts and circumstances upon which the order is disputed, and serve a copy of the affidavit on the applicant and the respondent in accordance with Order 18. (13) On the hearing of an application by a garnishee disputing the liability of the garnishee to make payments under a garnishment order, the court: (a) may proceed with the hearing and determination of the dispute notwithstanding that the respondent has not been served with the application; and (b) shall hear and determine the matter in dispute and make such order, including an order as to costs, as it thinks fit. (14) Where a person complies with an order under paragraph (7) (a), his compliance with the order shall be a valid discharge of the indebtedness of the person to the respondent to the extent of the amount paid under the order. (15) The court may, on application or of its own motion, vary or discharge an order under paragraph (7) (a) upon such conditions as it thinks fit. (16) Where an order is varied or discharged under subrule (15), the court shall make such orders as to service of the order as varied or the order for discharge on the garnishee and other persons as it thinks fit. (17) The provisions of subrule (11) apply, insofar as they are applicable, to an order that has been varied under subrule (15). (18) An amount standing to the credit of a respondent in an account in a bank, building society, co-operative housing society or similar society, credit union or credit society, or investment fund or corporation, that is payable to the respondent on call or on notice shall, subject to subrule (19), for the purposes of this rule, be a debt due to the respondent notwithstanding that any condition relating to the account or a demand or notice for payment under the account is unsatisfied. (19) Where an amount referred to in subrule (18) is made the subject of an order under this rule then, unless the court otherwise orders, the first-mentioned order only operates to require payment of the said amount when any necessary period of notice has expired, but service on the garnishee of the order for payment of the said amount shall be deemed to be the giving of that notice. (20) A garnishee shall not, without reasonable excuse: (a) fail to comply with an order made under subrule (7), (13) or (15); or (b) dismiss a respondent from or injure a respondent in respect of employment, or alter the respondent’s position to the prejudice of the respondent, by reason of an order made under this rule. (21) A conviction under subrule (20) does not limit, restrict or otherwise affect any obligation that the garnishee may have in relation to the respondent or any right or remedy that the respondent may have against the garnishee under any other law of the Commonwealth or of a State or Territory. (22) A pension, annuity or allowance that is protected from garnishment or encumbrance under any law shall not be subject to an order under this rule. (23) Where an order under this rule is in force and the respondent ceases to be employed by the garnishee, the respondent and the garnishee shall, within 21 days after the respondent ceases to be so employed, each give notice to the court: (a) notifying that the respondent has ceased employment with the garnishee; and (b) specifying the date on which the employment ceased; and, if the respondent has a new employer, the respondent shall, in the notice given under this subrule, specify: (c) the name and address of that employer and the place of the respondent’s employment by that employer; and (d) the amount of the respondent’s earnings from employment with that employer. (24) Where the Court receives a notice under subrule (23), it shall notify the applicant in writing and, if no written objection is received from the applicant or the respondent within a reasonable time, it may, of its own motion, issue a fresh order in appropriate terms naming the new employer as garnishee. 5 Seizure and sale of personal property (1) If a person fails to satisfy an obligation, a person entitled to take proceedings to enforce the obligation may apply to the court for an order to seize personal property belonging to the first-mentioned person to enforce the obligation. (2) An application under subrule (1) may be made ex parte. (3) An affidavit in support of an application for seizure of property under subrule (1) shall state: (a) particulars of the moneys not paid by the person against whom the order is sought; (b) efforts made by the applicant and any other person to obtain payment of the moneys; (c) details of any relevant information furnished by the respondent in response to a notice under paragraph 3 (1) (a) or obtained in an examination under paragraph 3 (1) (b); and (d) details of personal property owned or believed to be owned by the person against whom the order is sought. (4) Where application is made under this rule by a Registrar or other public authority, verification thereof by affidavit is not required. (5) Where an application is made under subrule (1), the court may order: (a) a Marshal of the court; or (b) any other officer of the court or some other person (such officer or person being an officer or person who is willing and able to execute the order); to seize and realize some or all of the personal property, not being prescribed personal property, of the person named in the order. (6) An order made under subrule (5) shall specify the amount owing by the person named in the order and may include such further amount to cover the expenses of obtaining and executing the orders as the court thinks fit. (7) If the person named in the order pays to the Marshal, officer of the court or other person specified in the order or into the registry of the court where the order was made the total of the amounts specified under subrule (6), the order shall be deemed to have been complied with and no further steps shall be taken under it. (8) Where it appears to the Marshal, officer or other person specified in the order that the property ordered to be seized in accordance with subrule (5) is substantially greater in value than the amounts specified under subrule (6), the Marshal, officer or other person shall first seize and realize so much of the property as appears to be sufficient. (9) The Marshal, officer or other person specified in the order shall seize or realize the property: (a) in such order as seems to the Marshal, officer or other person best for the speedy execution of the order without undue expense; (b) subject to paragraph (a), in such order as the person named in the order may request; and (c) subject to paragraphs (a) and (b), in such order as appears to the Marshal, officer or other person best for minimizing hardship to the person named in the order and any other person affected. (10) The Marshal, officer or other person specified in the order shall, in relation to all property seized by the Marshal, officer or other person: (a) put the property up for sale as quickly as is consistent with due regard to the interests of the parties and to the desirability of a beneficial realization of the property; (b) put the property up for sale at the place where it seems best for a beneficial realization of the property; (c) advertise the sale in such manner as appears to be adequate; and (d) sell the property by auction or private treaty. (11) The Marshal, officer or other person specified in the order shall pay the proceeds of sale into the registry of the court where the order was made, whereupon the Registrar shall apply the proceeds so paid: (a) firstly, in or towards the discharge of the amount specified under subrule (6) for the expenses of obtaining and executing the order or, if no such amount is so specified or the amount specified is found to have been too great or too small, then in or towards the discharge of such sum as the Registrar may fix as the proper expenses of obtaining and executing the order; and (b) secondly, in or towards the discharge of the amount specified in the order under that subrule as the amount owing by the person named in the order. (12) The Registrar shall: (a) if the Registrar considers that the person named in the order may have a continuing obligation — retain the balance to be dealt with in accordance with the further order of the court; or (b) in any other case — pay the balance, if any, to the person named in the order. (13) Where the Registrar retains money under paragraph (12) (a), the Registrar shall report that fact to the court, whereupon the court, having regard to any continuing obligation the person named in the order may have, may make such orders as to the further disposition of the moneys as it thinks fit. (14) Where the court makes an order under subrule (13), it may make such further orders as to service of the order and other matters related thereto as it thinks fit. 6 Sequestration of estate (1) If a person fails to satisfy an obligation, a person who is entitled to take proceedings to enforce the obligation may apply to the court for an order that the estate of the first-mentioned person be sequestrated. (2) The affidavit filed by the applicant with an application under subrule (1) shall set out: (a) particulars of the estate sought to be sequestrated; and (b) the reasons for seeking the order, including any attempts to obtain satisfaction of the obligation by other means. (3) Where an application has been made under subrule (1), the court may make an order: (a) sequestrating the estate in part or in whole; (b) appointing the Marshal, an officer of the court or other named person as receiver of the estate; and (c) as to the costs and expenses of the sequestration. (4) In urgent cases, the court may hear the application ex parte and make an order, but such an order shall be expressed to operate only until the further order of the court. (5) Where the court makes an order under subrule (4), it may give such directions as to service and the further hearing of the application as it thinks fit. (6) A court exercising jurisdiction under the Act may, on application by a person whose estate has been sequestrated in pursuance of an order made under this rule by the court, discharge the order upon such terms and conditions as the court thinks fit. (7) A Family Court or the Supreme Court of the Northern Territory may, on the application of a person whose interests the Court is satisfied are materially affected by an act or omission of, or decision made by, a person appointed as receiver of an estate under subrule (3), make such order as it thinks just. (8) A Family Court or the Supreme Court of the Northern Territory may, on the application of: (a) a person who applied to the Court for an order under which the estate of another person has been ordered under paragraph (3) (a) to be sequestrated; (b) a person whose estate has been sequestrated in pursuance of such an order; (c) a creditor of a person whose estate has been so sequestrated; or (d) the Principal Registrar or a Registrar of a Family Court; make any one or more of the following orders: (e) an order for the examination before the Court of the receiver or any other person in connection with the sequestration; (f) an order removing the receiver from office; (g) such other orders as it thinks fit. (9) In this Rule estate, in relation to a person, does not include the prescribed personal property of that person. 7 Power of sale of real property (1) If a person fails to satisfy an obligation, a person who is entitled to take proceedings to enforce the obligation may apply to the court for an order that any interest in real property of the first-mentioned person be sold to enforce the obligation. (2) On an application under subrule (1), the court may do any of the following: (a) appoint the Marshal or another person (including a party to the proceedings) as trustee for the sale of the interest; (b) order that the interest be transferred or assigned to the trustee, and direct a party to execute a deed or instrument necessary for the transfer or assignment; (c) give any necessary directions for the sale of the interest, including directions about the possession or occupancy of the real property until the sale; (d) give directions about the disposition of the proceeds of the sale of the interest. 8 Certificate as to payments under maintenance order (1) Where a Registrar or a public authority is specified in an order of a court as the person to whom maintenance payable under the order is to be paid, that Registrar or authority shall, at the request of a Registrar or of the person who obtained the order, or of the person liable to make payments under the order, give to that Registrar or person a certificate: (a) stating the amount that, according to the records of the court or authority, has been paid under the order or, in the case of a second or subsequent certificate to be given to the same Registrar or person in respect of the same order, the amount that, according to those records, has been paid under the order since the last certificate was given; and (b) the amount that, according to those records, remains unpaid. (2) Where, under subrule (1), a certificate is to be given by a Collector of Maintenance or by the Director of the Department for Community Welfare of South Australia, it shall be sufficient if the certificate is given by a subordinate of the Collector or Director. (3) When a certificate has been given in accordance with subrule (1) or (2), the Court may receive the certificate in evidence. 9 Certain orders enforceable in South Australia (1) This Rule applies to an order or agreement referred to in subrule 2 (1). (2) Where an order to which this rule applies is enforceable by a court of the State of South Australia having jurisdiction under the Act, all money to be paid under the order is, unless that court otherwise orders, payable, so long as the person required under the order to pay that money resides in that State, to the Collector of Maintenance of that State, and the receipt of that Collector for any amount so paid shall be sufficient discharge of the liability of the person required under the order to pay that amount. 10 Payment into court by order If a party to proceedings pays money into court under paragraph 66P (1) (f), 67D (2) (e) or 80 (1) (f) of the Act, the party must file a notice of payment in accordance with Form 46A. Order 34 Recovery orders, warrants and procedure after arrest Division 1 Recovery orders In this Division, recovery order has the meaning given by section 67Q of the Act. 2 Application for recovery order — Form 8 An application for a recovery order must be in accordance with Form 8. 3 Form of recovery order — Form 34 For the purposes of section 67U of the Act, a recovery order must be in accordance with Form 34. 4 Service of application An application for a recovery order must be served in accordance with Order 18, paragraph 9 (1) (a), 9 (2) (a), 10 (1) (a), or 10 (2) (a), (b) or (c), as the case requires. 4A Service of recovery order (1) This rule applies to a recovery order that authorises or directs a person to take action of the kind described in paragraph 67Q (b), (c) or (d) of the Act. (2) If the person to whom the recovery order is addressed finds and recovers the child who is the subject of the recovery order, the person must serve a sealed copy of the recovery order on the person from whom the child is recovered at the time the child is recovered. Division 2 Warrants 6 Form of warrant — Form 51 or 53 (1) A warrant that authorises a person to be arrested and brought before a court must be in accordance with Form 51. (3) A warrant that authorises a person to be committed to prison must be in accordance with Form 53. 7 Execution of warrants (1) A warrant that is issued under the Act or these Rules may be executed by: (a) a member of the Australian Federal Police; or (b) a member of the police force of a State or Territory; or (c) the Marshal of a Family Court; or (d) any other person to whom it is directed. (2) For the purpose of executing a warrant: (a) the original warrant is not necessary; and (b) a copy of the sealed warrant is sufficient. 8 How long does a warrant remain in force? Unless the court otherwise orders, a warrant (except a warrant issued under subsection 65Q (2) of the Act) ceases to be in force 12 months after it is issued. > Note Subsection 65Q (3) of the Act provides that a warrant issued under subsection 65Q (2) of the Act ceases to be in force 6 months after it is issued, unless a shorter period is specified in the warrant. Division 3 Procedure after arrest 9 Application of Division This Division does not apply to a person who is arrested: (a) under a warrant issued under subsection 65Q (2) of the Act; or (b) without a warrant, under a recovery order. 10 Person arrested may be held in custody If a person is arrested under a warrant issued under the Act, the Regulations or these Rules, the court must direct that the person: (a) be held in custody until the hearing of the proceedings; or (b) be released from custody, either on his or her entering into a bond (with or without surety or security) that he or she will attend before the court at the hearing of the proceedings, or otherwise. 11 Persons taken into custody If, in proceedings: (a) a court issues a warrant that authorises a person to be taken into custody and brought before the court sitting at a particular place; and (b) the person is taken into custody and brought before: (i) the court sitting at another place; or (ii) another court; the court before which the person is brought may direct that the person: (c) be held in custody until the person is brought before the court specified in the warrant; or (d) be released from custody, either on his or her entering into a bond (with or without surety or security) that he or she will attend before the court specified in the warrant, or otherwise. Order 35 Contraventions, offences and contempt > applied provisions: (a) in relation to an order not affecting children, has the meaning given by section 112AA of the Act; and (b) in relation to an order affecting children, has the meaning given by section 70NB of the Act. > contravene an order: (a) in relation to an order not affecting children, has the meaning given by section 112AB of the Act; and (b) in relation to an order affecting children, has the meaning given by section 70NC of the Act. > order affecting children has the meaning given to the term ‘order under this Act affecting children’ by section 70NB of the Act. > order not affecting children has the meaning given to the term ‘order under this Act’ by section 112AA of the Act. > third party recovery order means an order that authorises or directs a person or persons to take action of the kind described in paragraph 67Q (b), (c) or (d) of the Act. 2 Application of order This Order applies if it is alleged that a person: (a) has contravened an order affecting children; or (b) has without reasonable excuse (within the meaning of Part XIIIA of the Act) contravened an order not affecting children; or (c) has, intentionally and without reasonable excuse, prevented or hindered the taking of action under a third party recovery order; or (d) has, without reasonable excuse, failed to comply with: (i) a sentence imposed on the person under paragraph 70NJ (3) (a) or (b) or paragraph 112AD (2) (b) of the Act; or (ii) an order directed to the person under one of those paragraphs; or (iii) a requirement made, in relation to the sentence or order, by or under the applied provisions; or (e) has committed a contempt of: (i) the Family Court; or (ii) another court exercising jurisdiction under the Act. 3 Who may make an application? (1) An application under this Order may be made by: (a) a person who is aggrieved by an action of the kind referred to in rule 2; or (b) the Marshal; or (c) a member of the Australian Federal Police; or (d) a member of a police force of a State or Territory; or (e) an officer of the Attorney-General’s Department. (2) The Family Court may direct the Marshal to make an application under this Order. 4 Service An application or order under this Order must be served in accordance with Order 18, paragraph 9 (1) (a), 9 (2) (a), 10 (1) (a), or 10 (2) (a), (b) or (c), as the case requires. Division 2 Applications 5 Contravention of orders not affecting children — Form 48 (1) A person may apply to the court to impose a sanction under subsection 112AD (2) of the Act on another person who is alleged to have, without reasonable excuse, contravened an order not affecting children. (3) The application must: (a) be in accordance with Form 48; and 6 Contravention of orders affecting children — Form 49 (1) A person may apply to the court to impose a sanction under Division 13A of Part VII of the Act on another person who is alleged to have contravened an order affecting children. (a) be in accordance with Form 49; and 7 Imposition of sanction for preventing or hindering action under a third party recovery order — Form 35 (1) A person may apply to the court to impose a sanction under subsection 67X (3) of the Act on another person who is alleged to have prevented or hindered, intentionally and without reasonable excuse, the taking of action under a third party recovery order. (a) be in accordance with Form 35; and 9 Contempt in the face of the court — Form 8 (1) If: (a) it is alleged, or it appears to the court, that a person is guilty of contempt in the face of the court; and (b) the person is not, at that time, before the court; the court may: (c) order the person to attend before the court; or (d) issue a warrant authorising the person to be arrested and brought before the court. (2) An application for an order, or the issue of a warrant, must: (a) be in accordance with Form 8; and 10 Contempt other than in the face of the court — Form 47 (1) If it is alleged that a person has committed a contempt of the court (except a contempt to which rule 9 applies), an application may be made to the court for the person to be dealt with for the contempt. (a) be in accordance with Form 47; and Division 3 Hearing of applications 11 Hearing date (1) The Registrar must: (a) fix a date for the hearing of an application that is, subject to subrule (2), as near as practicable to 14 days after the date on which the application is filed; and (2) In the case of an application for urgent relief: (a) the applicant may apply ex parte to the Registrar for the Registrar to fix an early date for the hearing of the application; and (b) the Registrar may fix, as the date for the hearing, the date that the Registrar considers appropriate. 12 Arrest of respondent for failure to appear at hearing — Form 8 (1) If the respondent to an application under this Order does not appear before the court on the date fixed for the hearing of the application, the applicant in the proceedings may request the court to issue a warrant authorising the person to whom it is addressed to: (a) arrest the respondent; and (b) bring the respondent before the court. (2) An application for the issue of a warrant: (a) may be made orally at the hearing; or (b) in any other case — must be in accordance with Form 8. 13 Respondent may be held in custody Subject to Subdivision D of Division 6 of Part VII of the Act, the court may order that the respondent: (a) be kept in custody until the hearing of the proceedings; or (b) be released from custody, either on his or her entering into a bond (with or without surety or security) that he or she will attend before the court at the hearing of the proceedings, or otherwise. 14 Procedure at hearing At the hearing of an application, the court must: (a) tell the respondent the allegation made against him or her; and (b) ask the respondent to state whether he or she admits or denies the allegation; and (c) hear any evidence in support of the allegation; and (d) ask the respondent to state his or her defence to the allegation; and (e) hear any evidence that the respondent adduces; and (f) determine the issues raised in the application and any response; and (h) make any orders that are appropriate in the circumstances. 16 Duties of provider of program (1) The provider of a program before whom a person attends for initial assessment under an order made under subparagraph 70NG (1) (a) (i) of the Act must notify the court in writing if the person is unsuitable to attend a program. (2) If a person is ordered to attend a program, or part of a program, under subparagraph 70NG (1) (a) (ii) of the Act, the provider of the program must notify the court in writing, as soon as practicable, if: (a) the person fails to attend the program or part of the program; or (b) the provider considers that the person is unsuitable to take any further part in the program or part of the program. 17 Relisting for directions The court may, on application of a party or on its own motion, relist the matter for further directions under section 70NIA of the Act on receiving notification under subrule 16 (2). Division 4 Information laid before a magistrate 18 Information laid before a magistrate — Form 49A (1) In this rule, information means an information that: (a) alleges that a person has, without reasonable excuse failed to comply with: (i) a sentence imposed on the person under paragraph 70NJ (3) (a) or (b) or paragraph 112AD (2) (b) of the Act; or (ii) an order directed to the person under one of those paragraphs; or (iii) a requirement made, in relation to the sentence or order, by or under the applied provisions; and (b) is to be laid before a magistrate under subsection 70NN (2) or 112AH (2) of the Act. (2) An information may be laid before a magistrate only by the Marshal. (3) The Family Court may direct the Marshal to lay an information before a magistrate. (4) An information must be in accordance with Form 49A. (5) If: (a) an information is laid before a magistrate; and (b) the magistrate issues a summons under paragraph 70NN (2) (a) or 112AH (2) (a) of the Act; a copy of the sealed information and summons must be served, in accordance with Order 18, paragraph 9 (1) (a), 9 (2) (a), 10 (1) (a) or 10 (2) (a), (b) or (c), on the person to whom the summons is directed. (6) If: (a) an information is laid before a magistrate; and (b) the magistrate issues a warrant under paragraph 70NN (2) (b) or 112AH (2) (b) of the Act for the arrest of the person named in the information; the person executing the warrant must give a copy of the sealed information to the person arrested at the time the arrest is made. Order 36 Powers of Registrars 1 Exercise of powers and functions of Registrar (1) Where a power or function is expressed by these Rules to be conferred upon a Registrar, that power or function may also be exercised by the holders of the following offices: (a) in the Family Court of Australia — by a Judge or a Judicial Registrar; (b) in a Family Court, or in the Supreme Court, of a State or Territory — by a Judge; (c) in a court of summary jurisdiction — by a Magistrate. (2) Where a Registrar is required or able to do an act not involving the exercise of a power of the court, it is sufficient if the act is done on behalf of the Registrar by another officer of the court or by a clerk in the office of the Registrar or of such officer. Division 2 Certain powers of Registrars of the Family Court of Australia 2 Interpretation In this Division, Registrar means the Principal Registrar, a Registrar or a Deputy Registrar of the Family Court of Australia. 5 Power to summon witnesses Where under the Act, the Regulations or these Rules, a Registrar has power to hear and determine a matter the Registrar has, for that purpose, the powers of the Court to summon and examine witnesses under oath. 6 Protection and immunity (1) In the exercise of a power of the court or in the conduct of a conference or enquiry under these Rules, a Registrar or officer of the court, has the same protection and immunity as a Judge or Magistrate. (2) A party, lawyer or witness appearing before a Registrar or officer of the court on the hearing of any application or matter, or on the conducting of any conference or enquiry, has the same protection and immunity as the party, lawyer or witness would have if appearing in proceedings in a court. (3) This rule applies mutatis mutandis to Division 1 of this Order. Order 36A Delegation of powers to Registrars and Judicial Registrars > gross value, in relation to property, means the value of the property disregarding any mortgage, lien, charge or other security over the property. > order, in relation to an exercise of power by a Judicial Registrar or a Registrar, includes a decree. > Registrar means the Principal Registrar, a Registrar or a Deputy Registrar of the Family Court of Australia. > the Court means the Family Court of Australia. 2 Delegation of powers to Registrars (1) This rule applies only to a Registrar who is enrolled as a legal practitioner of the High Court or of the Supreme Court of a State or Territory. (1A) The following powers of the Court are delegated to each Registrar: (a) the power to dispense with the service of any process; (b) the power to make orders in relation to service and substituted service; (c) the power to make orders in relation to discovery, inspection and production of documents in the possession, power or custody of a party to proceedings or of any other person; (d) the power to set aside, in whole or in part, a subpoena; (e) the power to direct a party to proceedings to answer particular questions; (f) the power to direct a party to proceedings to attend a conference conducted by a family and child counsellor or a welfare officer; (fa) the powers under subsections 19D (1) and (3) of the Act in relation to referral of proceedings, part of proceedings or any matter arising under the proceedings for arbitration; (fb) the power under subsection 19E (1) of the Act to make an order to facilitate a private arbitration. (g) the power to make an order (including an order for garnishment, seizure of property or sequestration) for the enforcement of a maintenance order; (h) the power to make an order for subsection 44 (1C) of the Act; (ha) the power to order the attendance of a party or child for the purpose of the preparation of a report under section 62G of the Act; (hb) the power to make an order under subsection 65LA (1) of the Act; (i) the power to make an order under section 68L of the Act; (j) the power, under subsection 79 (9) of the Act, to dispense with the appointment of a conference; (k) the power under section 106A of the Act; (l) the power, under section 92 of the Act, to grant leave to intervene in proceedings; (m) the power to make an order the terms of which have been agreed upon by all the parties to proceedings; (n) the power to make an order adjourning the hearing of proceedings; (o) the power to grant an injunction under subsection 114 (3) of the Act in relation to enforcement proceedings instituted under Order 33; (p) the power to make an order transferring proceedings, including the transfer of proceedings, in whole or in part, to the Federal Magistrates Court; (q) the power to make an order in relation to the removal of proceedings; (r) the power to make an order exempting a party to proceedings from compliance with a provision of the regulations or these rules; (s) the power, under subsection 105 (2) of the Child Support (Registration and Collection) Act 1988, to give directions, and make orders, for the resolution of any difficulty arising in relation to the application of subsection 105 (1) of that Act or in relation to a particular proceeding. (1AB) In addition to the powers mentioned in subrule (1A), the following powers of the Court are delegated to each Registrar: (a) the power to make a decree of dissolution of marriage in undefended proceedings; (b) the power, under subsection 55 (2), or section 55A, of the Act, to make an order, or a declaration, in relation to a decree of dissolution of marriage; (c) the power to make, in undefended proceedings, a parenting order, including an order to which section 65G or 66F of the Act applies; (d) the power to make an order in relation to maintenance; (e) the power to make an order under subsection 67D (1) of the Act; (f) the power to make an order under sections 67E and 67G of the Act; (g) the power, under section 87 of the Act, to make an order approving a maintenance agreement; (h) the power, under section 117 of the Act, to make an order as to costs; (i) the power, under section 139 of the Child Support (Assessment) Act 1989, to make an order for the payment of urgent maintenance. (1AC) In addition to the powers mentioned in subrules (1A) and (1AB), the following powers of the Court are delegated to each Registrar: (a) the power to make a location order under subsection 67M (2) of the Act; (b) the power to make a Commonwealth information order under subsection 67N (2) of the Act; (c) the power, under subsection 68M (2) of the Act, to order a person to make a child available for a psychiatric or psychological examination; (d) the power, under section 69V, subsection 69W (1), section 69X, or subsection 69ZC (2), of the Act, to make an order in relation to the parentage of a child; (da) the power to issue a declaration of parentage under section 69VA of the Act; (e) the power, under section 102A of the Act, to grant leave for a child to be examined; (f) the power, under subsection 63H (1) of the Act, to set aside registered parenting plans until further order; (g) the power, under section 65D of the Act, to make a parenting order until further order; (h) the power, under section 67ZD of the Act, to make an order to deliver up a passport to a Registrar until further order; (j) the power: (i) under subsection 68B (1) of the Act, to make an order, or grant an injunction, until further order; and (ii) under subsection 68B (2) of the Act, to grant an injunction until further order; (k) the power under subsection 100B (1) of the Act to make an order allowing a child to swear an affidavit; (l) the power under subsection 100B (2) of the Act to make an order allowing a child to be called as a witness or be present during proceedings. (1AD) The powers mentioned in subrule (1AC) may be exercised by a Registrar only: (a) if the Registrar is approved, or is in a class of Registrars approved, by a majority of Judges for the exercise of those powers; and (b) in accordance with an arrangement under subsection 37B (2) of the Act. (2) The powers of the court under the following Orders and rules of these Rules are delegated to each Registrar: (a) Order 2; (aa) Order 3; (b) Order 4; (c) Order 7; (d) Order 8; (da) Order 8A, rule 5; (e) Order 9; (ea) Order 11; (f) Order 13; (g) Order 14; (h) Order 15; (i) Order 16; (j) Order 17; (ja) Order 18; (k) Order 19; (l) Order 20; (m) Order 22; (n) Order 23 (except rule 4); (o) Order 24; (p) Order 24A; (r) Order 25; (ra) Order 25A; (rb) Order 26A; (s) Order 27; (t) Order 28; (u) Order 30; (v) Order 30A; (va) Order 31; (w) Order 33; (x) Order 34, rule 11 (in respect of a person taken into custody under a warrant issued by a Registrar); (z) Order 40 (except rule 6). 3 Delegation of powers to Judicial Registrars The following powers of the Court are delegated to each Judicial Registrar: (a) the powers of the Court delegated to each Registrar under these Rules; (b) the powers of the Court delegated to each Registrar under the Regulations; (c) the power to make an interim order for property settlement; (d) the power to make an order in any undefended proceedings; (da) the power to make an order in defended proceedings for dissolution of a marriage; (db) the power to make an order in relation to an application for a decree of nullity of marriage; (dc) the power under section 19EA of the Act to determine a question of law referred by an arbitrator; (dd) the power under section 19F of the Act to review a registered award made in arbitration; (de) the power under subregulation 67Q (5) to determine whether to register an award made in an arbitration; (df) the power under section 34 of the Act to make orders and issue writs; (e) the power to grant leave under subsection 44 (3) of the Act in relation to the institution of proceedings; (eaa) the powers of the court under sections 57 and 58 of the Act; (f) the power to issue a warrant under subsection 65Q (2) of the Act; (fa) the power to make an order under subsection 65U (2), 65V (2) or 65W (1) of the Act; (g) the power to: (iii) make a recovery order under section 67U of the Act; or (iv) make an order under subsection 67X (3) or 67X (4) of the Act; (h) the power to make an order or grant an injunction under section 68B of the Act; (ha) the powers of the Court under section 70NF of the Act; (i) the power to make an order under section 70NG of the Act; (j) the power to make an order under section 70NIA of the Act; (ja) the power to make an order under section 70NJ of the Act; (jb) in relation to an order made by a Judicial Registrar under section 70NJ, the power to vary or discharge an order under section 70NL; (jc) the powers of the Court under section 70NN of the Act; (jd) the powers of the court under section 70NO of the Act; (k) the power to make an order under section 68C or 114AA of the Act; (l) the power to make a declaration and orders under section 78 of the Act, or an order under section 79 of the Act: (i) in a case where, in relation to the exercise of the power, the parties consent to the hearing and determination of the matter by a Judicial Registrar — irrespective of the gross value of the property; or (ii) in any other case in relation to the exercise of the power — in respect of property having a gross value not exceeding $700,000; (m) the power under subsection 79A (1) of the Act to vary or set aside an order, being an order that could have been made under paragraph (l), and to make another order as referred to in that subsection under section 79 of the Act; (n) the power under section 105 of the Act to enforce decrees; (o) the power to make an order under section 106B of the Act; (p) the power to set aside a maintenance agreement under subsection 86 (3) of the Act; (q) the power to make an order revoking the approval of a maintenance agreement under subsection 87 (8) of the Act: (i) in a case where, in relation to the exercise of the power, the parties consent to the hearing and determination of the matter by a Judicial Registrar — irrespective of the gross value of the property; or (ii) in any other case in relation to the exercise of the power — in respect of property having a gross value not exceeding $700,000; (r) the power to make an order under subsection 87 (11) of the Act; (raa) the power to make an order under subsection 90J (3) or subsection 90K (1) of the Act in relation to a financial agreement or termination agreement: (i) in a case where, in relation to the exercise of the power, the parties consent to the hearing and determination of the matter by a Judicial Registrar — irrespective of the gross value of the property; or (ii) in any other case in relation to the exercise of the power — in respect of property having a gross value not exceeding $700 000; (raaa) the powers of the Court under section 90KA of the Act; (ra) the power to make an order under section 112AD of the Act; (rb) in relation to an order made by a Judicial Registrar, the power, under section 112AK of the Act, to vary or discharge an order under section 112AD of the Act; (rbb) the powers of the court under section 112AH of the Act; (rc) the power to make a declaration under section 113 of the Act; (rca) the power: (i) to make an order, or grant an injunction, under subsection 114 (1) of the Act; or (ii) to grant an injunction under subsection 114 (3) of the Act; (rd) the power to make a direction to publish a notice or report under paragraph 121 (9) (d) of the Act; (s) the power to make an order under subsection 92 (1) of the Marriage Act 1961; (u) the powers of the Court under regulations 4, 5 and 6, subregulations 28A (6), 28D (5) and 28E (2), regulations 29 and 29B, subregulations 31 (1), 32 (1) and 34 (1), regulation 38B, subregulations 36 (2), 39 (4) and 50 (4), regulation 51 and subregulation 53 (4); (v) the powers of the Court under regulations 15, 16 and 17 and subregulation 25 (4) of the Family Law (Child Abduction Convention) Regulations; (va) the powers of the court under Order 21; (w) the power under subrule 5 (2) of Order 25 of these Rules in relation to a report; (x) the powers of the court under Order 31A to make an interim or procedural order excluding the court’s powers under Order 31A, subrule 6 (3); (y) the power under Order 38, subrule 27 (2) to make an order in relation to a costs agreement made under Order 38, rule 26; (ya) the powers of a judge to deal with contempt in the face of the court; (yb) the power to hear an application for a person to be charged with contempt of court under section 112AP of the Act; (z) the power to make an order on any application or appeal under or in relation to the Child Support (Registration and Collection) Act 1988 or the Child Support (Assessment) Act 1989 other than an appeal from a court of summary jurisdiction, State Family Court or the Supreme Court of the Northern Territory; (za) the power under section 60G of the Act to grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent; (zb) Order 34, rules 10 and 11 and Order 35, rules 12 and 13. 3A Property value exceeding limit — power to determine proceedings (1) If in proceedings: (a) a Judicial Registrar proposes to exercise a power of the Court referred to in paragraph (3) (l) or (q); and (b) it becomes apparent: (i) that the gross value of the property to be dealt with in the proceedings exceeds $700,000; and (ii) that it is not possible to make any relevant declaration or orders (or both) by consent; the Judicial Registrar may continue to hear and may determine the proceedings and may make a declaration or orders (or both) accordingly. (2) For subparagraph (1) (b) (i), the gross value of the property includes the value of any superannuation interest. 4 Protection and immunity of Judicial Registrar In the exercise of a power of the Court or in the conduct of a conference or inquiry under these Rules, a Judicial Registrar has the same protection and immunity as a Judge or Magistrate. 5 Prescribed times for review (1) For subsection 26C (1) of the Act, the time prescribed for an application to the Court to review the exercise of a power by a Judicial Registrar is: (a) for a power delegated to each Registrar under these rules (other than subrule 2 (1AB) or (1AC) of this Order) — 7 days after the day on which the Judicial Registrar exercises the power; or (b) for a power delegated to each Registrar under subrule 2 (1AB) or (1AC) of this Order — 1 month after the day on which the Judicial Registrar exercises the power; or (c) for a power mentioned in rule 3 of this Order (other than a power mentioned in paragraph 3 (a) of this Order) — 1 month after the day on which the Judicial Registrar exercises the power. (2) For subsection 37A (9) of the Act, the time prescribed for an application to the Court to review the exercise by a Registrar of a power is: (a) for a power mentioned in subrule 2 (1A) or (2) of this Order — 7 days after the day on which the Registrar exercises the power; or (b) for a power mentioned in subrule 2 (1AB) or (1AC) of this Order — 1 month after the day on which the Registrar exercises the power. 6 Extensions of time (1) A time prescribed by rule 5 of this Order in relation to a Judicial Registrar may be extended in any proceedings: (a) by the Court or a Judicial Registrar on such terms as the Court or Judicial Registrar thinks fit; or (b) by the consent of all the parties to those proceedings; whether or not that time has expired. (2) The time prescribed by rule 5 of this Order in relation to a Registrar may be extended in any proceedings: (a) by the Court or a Registrar upon such terms as the Court or Registrar thinks fit; or (b) by the consent of all the parties to those proceedings; whether or not that time has expired. (3) Where a time prescribed by rule 5 of this Order is extended by the consent of all the parties to the relevant proceedings, the consent may be endorsed on the cover sheet of the application filed in those proceedings. 7 Procedure on application for review (1) An application for a review of an exercise of power by a Judicial Registrar or a Registrar shall be in accordance with Form 44. (1A) An application must be listed before a Judge for a hearing as soon as possible and, if practicable, within 60 days after the date of filing. (2) Not later than 7 days after the filing of an application, the applicant shall provide to each other party to the relevant proceedings, in accordance with Order 18, a sealed copy of the application. (3) Subject to this rule, an application for a review of an exercise of power by a Judicial Registrar or a Registrar shall not operate as a stay of the order under review. (3A) Where an application for review has been instituted: (a) the Judicial Registrar or the Registrar whose exercise of power is the subject of the application; or (b) if the power was exercised by a Registrar and that Registrar is not reasonably available — another Registrar, a Judicial Registrar or a Judge; or (c) if the power was exercised by a Judicial Registrar and that Judicial Registrar is not reasonably available — another Judicial Registrar or a Judge; may make an order, on such terms as the Registrar, Judicial Registrar or Judge, as the case may be, thinks fit, staying the exercise of power wholly or in part until the application for review has been decided. (4) A court reviewing an exercise of power by a Judicial Registrar or a Registrar: (a) shall proceed by way of a hearing de novo; and (b) may receive as evidence any affidavit or exhibit tendered before the Judicial Registrar or Registrar; and (c) may by leave receive further evidence; and (d) may receive as evidence: (i) the transcript (if any) of the proceedings before the Judicial Registrar or Registrar; or (ii) if a transcript is not available, an affidavit sworn by a person who was present at the hearing before the Judicial Registrar or Registrar as a record of that hearing. (5) A review of an exercise of power referred to in subrule (3) shall be taken, for the purposes of section 55 of the Act, to be an appeal within the meaning of that section. (6) In this rule, a reference to an exercise of power by a Registrar includes a reference to a decision made in relation to an appeal by the appeal registrar within the meaning of Order 32. Order 37 Representation by lawyers 1 Change of lawyer (1) A party to proceedings who is represented by a lawyer may employ another lawyer without an order for that purpose. (2) Where a party to proceedings changes lawyers, the new solicitor shall thereupon file in the filing registry a notice of address for service in accordance with Form 18, and shall serve a copy of the notice on each other party to the proceedings who has an address for service, and on the former lawyer. (3) Where a party to proceedings who has not been legally represented instructs a lawyer to represent the party in the proceedings, that lawyer shall thereupon file in the filing registry a notice of address for service in accordance with Form 18, and shall on the day on which that notice was filed, or as soon as practicable thereafter, serve a copy of the notice on each other party to the proceedings who has an address for service. (4) Where a party who has been legally represented in proceedings decides to continue the proceedings without being represented, the party shall thereupon file a notice of address for service in accordance with Form 18, and shall, on the day on which that notice is filed or as soon as practicable thereafter serve a copy of the notice on each other party to the proceedings who has an address for service. (5) Where: (a) the address for service of a party is the address of a lawyer who has represented, but is no longer representing, the party in the proceedings; (b) the lawyer has served on the party a notice in accordance with Form 54 signed by the lawyer personally, and the period of not less than 7 days has elapsed after service of that notice; and (c) the party has not, since the lawyer ceased, or last ceased, to represent the party filed a notice under subrule (2) or (4) of this rule; the lawyer shall file a notice, in accordance with Form 55, of the lawyer having ceased to represent the party. (6) Where a lawyer who has represented a party files a notice in accordance with Form 55, the lawyer shall, on the day on which that notice is filed, or as soon as practicable thereafter, serve a copy of the notice on each other party who has an address for service. (7) Where a lawyer who has represented a party has filed a notice under subrule (5), the party may give notice, in accordance with these Rules, that the party is represented by another lawyer or intends to act in person and, in default of doing so, in a case where the address for service of the party was the address of the first‑mentioned lawyer or that lawyer’s agent, that person shall be deemed not to have an address for service for the purposes of the proceedings. 2 Lawyer not to represent parties with adverse interests A lawyer shall not in any proceedings represent or act for any 2 or more parties having adverse interests in the proceedings. Order 38 Costs > bill means a bill of costs in accordance with rule 40. > costs includes fees and disbursements. > costs agreement means an agreement under subrule 26 (1). > costs order means an order under subsection 117 (2) of the Act. > lawyer and client, in relation to costs, has the same meaning as solicitor and client. > legal aid body means a relevant authority within the meaning of section 116C of the Act. > taxed costs means costs taxed in accordance with this Order. > work done for a proceeding includes work done in relation to a proceeding. (1) This Order applies to costs for work done for a proceeding: (a) ordered to be paid or taxed; or (b) payable, or to be taxed, as between lawyer and client; or (c) payable by one person to another person. (2) This Order applies even if an account for costs has been paid. 3 Interest on outstanding costs (1) Unless the court otherwise orders, or a costs agreement otherwise provides, interest is payable on outstanding costs at the rate specified in Order 40, rule 1. (2) Interest on outstanding costs becomes due and payable on and from the date when the lawyer, or the party, entitled to be paid the costs is entitled under these Rules to commence a proceeding to recover the costs. Division 2 Notification of costs 4 Notification to party at certain stages in proceeding In a defended proceeding, the lawyer for each party to the proceeding must give to the party: (a) immediately before the directions hearing or case assessment conference — a written memorandum stating: (i) the actual costs (both paid and owing) of the party up to and including the directions hearing or case assessment conference; and (ii) the estimated future costs of the party up to and including the conciliation conference; and (iii) the estimated future costs of the party up to and including the pre-trial conference; and (iv) the estimated future costs of the party up to the conclusion of the final hearing; and (b) immediately before the first conciliation conference — a written memorandum stating: (i) the actual costs (both paid and owing) of the party up to and including the conciliation conference; and (ii) the estimated costs mentioned in subparagraphs (a) (iii) and (iv); and (c) immediately before the pre-trial conference —a written memorandum stating: (i) the actual costs (both paid and owing) of the party up to and including the pre-trial conference; and (ii) the estimated costs mentioned in subparagraph (a) (iv). 5 Notification to party before final hearing Immediately before the commencement of the final hearing in a proceeding (except a proceeding for an interim or procedural order), the lawyer for each party to the proceeding must give to the party a written memorandum stating: (a) the actual costs (both paid and owing) of the party up to and including the first day of the hearing (including any costs paid or payable to an expert); and (b) the costs payable for each day of the hearing; and (c) the estimated length of the hearing. 6 Notification to court and other party of costs (1) At the directions hearing or case assessment conference, first conciliation conference, pre-trial conference and final hearing in a defended proceeding, the lawyer for a party must give the court or Registrar, and each other party to the proceeding, a copy of the memorandum of costs given to the party under this Division. (2) At the directions hearing or case assessment conference, first conciliation conference, pre-trial conference and final hearing in a proceeding, an unrepresented party or separate representative must give the court or Registrar, and each other party to the proceeding, a statement of the actual costs incurred by the party or separate representative up to and including that stage of the proceeding and of the estimated future costs up to the conclusion of the final hearing. (3) The memorandum or statement of costs referred to in subrule (1) or (2) must be accompanied by a statement of the source of the funds for the costs paid or to be paid, unless, where the source is a third party, the court or Registrar directs that the source not be disclosed to the other party to the proceeding. (4) The court or Registrar must return the copy of the memorandum or statement of costs to the lawyer, the unrepresented party or the separate representative, after the directions hearing or case assessment conference, conciliation conference, pre-trial conference or final hearing. Division 3 Lawyer’s fees and disbursements 7 Division subject to costs agreement Subject to rule 10, 15 and 21, this Division does not apply to a charge, as between lawyer and client, that a lawyer may make for work done for a proceeding if: (a) the lawyer has entered into a costs agreement with the client; and (b) the costs agreement has not been set aside. 8 Proper costs (1) Unless the court otherwise orders, a lawyer may charge for work done for a proceeding: (a) fees for performing the work of a solicitor that are not more than the amount calculated using the scale of fees in Part 1 of Schedule 2; and (b) disbursements (including the fees of a lawyer engaged as counsel) properly incurred for the proceeding. (2) Unless the court otherwise orders, a lawyer performing the work of a solicitor for a proceeding heard by a court of summary jurisdiction must not charge for the work a fee that is more than 80% of the amount that may be charged for the work in accordance with the scale of fees in Part 1 of Schedule 2. 9 Additional charge for skill etc In addition to the fees that may be charged under rule 8 for work done for a proceeding, a lawyer performing the work of a solicitor may charge a fee calculated on the basis of: (a) the complexity of the proceeding; or (b) the difficulty or novelty of the matters raised in the proceeding; or (c) the special skill, knowledge or responsibility required of, or the demands placed on, the lawyer by the client or the proceeding; or (d) the amount or value of the property or financial resource involved in the proceeding; or (e) the importance of the proceeding to the client; or (f) any other relevant matter. 10 Work not reasonably required for proceeding (1) A lawyer must not charge costs for: (a) a kind, or amount, of work not reasonably required to be done for a proceeding; or (b) work done for the administration of the lawyer’s office; or (c) preparing documents not reasonably required for the conduct of the proceeding. (2) However, a lawyer may charge for work, or recover the cost of a disbursement, if: (a) a client instructs the lawyer to: (i) do work for a proceeding; or (ii) incur a disbursement of a particular kind or amount; and (b) the lawyer advises the client that: (i) the work is not reasonably required to be done; or (ii) the disbursement is not reasonably required to be incurred; and (c) in accordance with the client’s instruction, the lawyer does the work, or incurs the disbursement. 11 Charge for each page (1) A lawyer must not charge an amount for a page of a court document prepared for a proceeding unless the page complies with the requirements for documents specified in Order 2, rule 2. (2) In addition, the lawyer may only charge the amount specified in column 3 of an item in Schedule 2 for a page of a court document, or other written material, if the page: (a) contains at least 300 words (excluding material that is part of a prescribed form and material that could have been omitted from a document prepared in accordance with a prescribed form); or (b) is the whole of a document that is required by these Rules to be set out on a single sheet of paper. (3) If a page is not of a kind described in paragraph (2) (a) or (b), the lawyer may charge an amount calculated on the folio basis set out in column 3 of Schedule 2 for the page. 12 Copying, postage within Australia and local telephone calls (1) The charge for producing a typed or mechanically printed document (including a letter) specified in column 3 of item 3 in Schedule 2 includes an allowance for: (a) preparing one file copy of the document; and (b) postage of the document within Australia. (2) An amount paid for: (a) a local telephone call; or (b) postage within Australia; is not a disbursement properly incurred for a proceeding. 13 Lawyer and client costs — lawyer acting as counsel (1) This rule applies to costs as between lawyer and client. (2) Fees (including for time spent by a lawyer performing the work of a solicitor in accordance with rule 17) paid, or to be paid, to a lawyer acting for a party to a proceeding performing the work of both counsel and solicitor are properly incurred if: (ii) in any other case — it was reasonable to brief a lawyer to appear as counsel in the proceeding; and (b) the fees are reasonable, and do not exceed the amount otherwise payable under these Rules for a lawyer performing the work of counsel in the proceeding. 14 Preparation of appeal papers In calculating an amount payable under item 7 in Schedule 2 (preparation of appeal papers in a lawyer’s office), the lawyer must not charge at a rate that exceeds commercial rates for copying and binding. 15 Costs for proceeding not instituted together (1) If: (a) a lawyer commences a proceeding on behalf of a client; and (b) the proceeding could reasonably have been commenced: (i) at the same time as another proceeding between the same parties; and (ii) in the same court as the other proceeding; and (c) the proceeding was not commenced at that time in that court; the lawyer may charge for work done for all the proceedings only the amount that the lawyer could have charged if the lawyer had commenced all the proceedings at the same time in the same court. (2) Subrule (1) does not apply if: (a) the lawyer advised the client of the likely costs of: (i) commencing the proceeding at the same time and in the same court as the other proceeding; and (ii) conducting the proceeding separately; and (b) the lawyer commenced the proceeding separately in accordance with instructions from the client. 16 Work done by employees etc In calculating the fee that a lawyer may charge for work done for a proceeding, work done is taken to have been done by the lawyer if the work was done by: (a) a partner of the lawyer; or (b) another lawyer employed by the lawyer. 17 Waiting and travelling time (1) A lawyer may charge an amount for time reasonably spent attending court to perform the work of a solicitor for the hearing of a proceeding if the lawyer: (a) was at court waiting for a hearing, a conciliation conference or a pre-trial conference: (i) to commence after the due time for commencement of the hearing; or (ii) to resume after the due time for resumption of the hearing; or (b) was travelling to or from court. (2) However, the lawyer must not charge an amount for time spent travelling to or from court that exceeds 2 hours per day, unless the circumstances, or the client’s instructions, justify charging for the additional time. (3) A lawyer who attends court to perform the work of a solicitor for the hearing of 2 or more proceedings may charge, for each proceeding, an amount that is reasonable, having regard to the time spent at each hearing: (a) travelling to or from court; or (b) waiting for each hearing to commence or resume. (4) However, the total amount charged under this rule for all proceedings must not exceed the amount that may be charged under Part 1 of Schedule 2 for one proceeding. 18 Agent’s fees Fees paid to a lawyer acting as the agent of a lawyer for a party to a proceeding, in performing the work of a solicitor, are disbursements properly incurred for the proceeding only so far as the fees: (a) do not exceed the amount that the lawyer for the party would have been entitled to charge the client if the lawyer had done the work personally; or (b) are incurred in accordance with the client’s instructions to the lawyer for the party, or the lawyer’s agent, acknowledging the likely additional cost (if any) of the matter being undertaken by the lawyer’s agent. 19 Expenses for attendance by witness An amount paid, or to be paid, by a lawyer for attendance by a witness at a hearing of a proceeding is a disbursement properly incurred for the proceeding if: (a) the attendance was reasonably required for the proceeding; and (b) the amount: (i) is reasonable; or (ii) is authorised by the client; or (iii) is authorised, or approved, by the court. 20 Expenses for preparation of report by expert An amount paid by a lawyer to an expert for the preparation of a report for a party, or a child’s representative, is a disbursement properly incurred for a proceeding if: (a) the report was reasonably required for the conduct of the proceeding; and (b) the amount: (i) is reasonable; or (ii) is authorised by the client; or (iii) is authorised, or approved, by the court. 21 Costs improperly or negligently incurred A lawyer must not charge, for work done for a proceeding, an amount for costs if the costs were improperly or negligently incurred by the lawyer. 22 Undefended proceeding for dissolution of marriage — basic composite amount The lawyer for an applicant in an undefended proceeding for a decree of dissolution of marriage may charge for costs the appropriate amount set out in Part 3 of Schedule 2. Division 4 Fees for counsel’s work 23 Party and party costs — fees for lawyer briefed as counsel (1) This rule does not apply to costs as between lawyer and client. (2) Fees paid, or to be paid, to a lawyer performing the work of counsel for a person in a proceeding are properly incurred if: (ii) in any other case — it was reasonable to brief a lawyer to appear as counsel in the proceeding; and (b) the fees do not exceed the amount otherwise payable under these Rules for work of counsel. (3) A reading fee for a lawyer performing the work of counsel is not properly incurred unless: (a) the matter is unusually complex; or (b) the amount of material involved is particularly large; or (c) the fee is in accordance with a costs agreement. (4) The amount payable to a lawyer performing the work of counsel must not exceed an amount calculated, as the case requires, in accordance with: (a) Part 2 of Schedule 2; or (b) any relevant provision of this Order. (5) However, for a proceeding before a court of summary jurisdiction, the amount payable to a lawyer performing the work of counsel may include fees for the matters referred to in item 13 or item 14 of Part 2 of Schedule 2 only. (6) If a daily fee in respect of the appearance of a lawyer is payable in accordance with Part 2 of Schedule 2, no additional amount is payable for work done for the proceeding by the lawyer on any day in respect of which the daily fee applies. 24 Lawyer and client costs — fees for lawyer briefed as counsel (1) This rule applies to costs as between lawyer and client and is subject to any costs agreement relating to the costs. (2) Fees paid, or to be paid, to a lawyer performing the work of counsel for a party to a proceeding are properly incurred if: (ii) in any other case: (A) it was reasonable to brief a lawyer to appear as counsel in the proceeding; or (B) the client requested that a lawyer be briefed to appear as counsel in the proceeding; and (b) the fees: (i) are reasonable and do not exceed the amount otherwise payable under these Rules for counsel to appear in the proceeding; or (ii) were authorised by the client before the appearance by the lawyer. (3) However, a reading fee for a lawyer performing the work of counsel is not properly incurred, unless: (a) the matter is unusually complex; or (b) the amount of material involved is particularly large. 25 Certificate that reasonable to brief lawyer as counsel The court, Judicial Registrar, or Registrar, before whom a proceeding is heard may certify that it was reasonable to brief a lawyer to appear as counsel (including senior counsel) for a person in the proceeding. Division 5 Lawyer and client agreements 26 Agreements as to costs (1) A lawyer may enter into an agreement with a client of the lawyer relating to the costs to be charged by the lawyer for work done for a proceeding. (2) A costs agreement must be fair and reasonable. (3) A costs agreement must: (a) be in writing; and (b) be signed by both the lawyer and the client. (4) At the time of, or within a reasonable time after, entering into a costs agreement, a lawyer must: (a) provide each other party to the costs agreement with a copy of a pamphlet, prepared by the Principal Registrar, that summarises the main effects of this Order; and (b) advise each other party to the costs agreement of the availability of independent legal advice concerning the costs agreement. (5) The court, or a Judicial Registrar, may set aside a costs agreement if subrule (2), (3) or (4) is not complied with. 27 Validity and effect of costs agreements (1) A party to a costs agreement may apply to a Family Court for an order: (a) confirming, varying or setting aside the costs agreement; or (b) determining any question relating to the validity or effect of the costs agreement. (2) If an application is made under subrule (1), a Judge or a Judicial Registrar may make: (a) the order sought; or (b) any other order that the Judge or Judicial Registrar thinks fit. 28 Costs to be in accordance with costs agreement (1) This rule is subject to any order made under rule 27. (2) A lawyer must not charge an amount for costs that exceeds the amount that may be charged under a costs agreement entered into by the lawyer. (3) However, if the costs agreement has been set aside, the lawyer may charge an amount for costs that is in accordance with this Order.