8AProposed order for superannuation interest

8A Proposed order for superannuation interest (1) This rule applies if, in a proposed consent order: (a) a party seeks an order in relation to a superannuation interest (the order sought); and (b) the order sought will impose an obligation on the trustee of the eligible superannuation plan in which the interest is held to take particular action in relation to the interest (for example, a payment split). (2) At least 28 days before filing the proposed consent order, the party must serve the following documents on the trustee of the eligible superannuation plan in which the superannuation interest is held: (a) a copy of the proposed consent order that the parties intend to file, signed by the parties; (b) a written notice stating that: (i) the parties intend to file the proposed consent order if no objection to the order is received from the trustee within the time mentioned in subrule (3); and (ii) if the trustee objects to the order sought, the trustee must give the parties written notice of the objection within the time mentioned in subrule (3). (3) If the trustee does not object to the order sought within 28 days after receiving a notice under subrule (2), the parties may file the proposed consent order. Division 2 Applications under section 87 of the Act 9 How to apply An application for approval of a maintenance agreement under section 87 of the Act must be made: (a) orally during a hearing or trial in the proceedings; or (b) by filing an application in accordance with Form 8. 10 Documents to be filed by applicant (1) An applicant for approval of a maintenance agreement must: (a) in the case of an oral application — provide to the court; or (b) in the case of an application in writing — file with the application; the documents specified in subrule (2), unless the applicant has already done so. (2) The documents are: (a) a financial statement in accordance with Order 17, rule 2; and (b) if an affidavit or other document is necessary to support the application and is relevant to the question of whether the provisions of the agreement with respect to financial matters are proper — the affidavit or document. 11 Documents to be filed by respondent Before the date fixed for the hearing of an application, a respondent must file: (a) a financial statement in accordance with Order 17, rule 2; and (b) if an affidavit or other document is necessary to support the respondent’s position in relation to the application and is relevant to the question of whether the provisions of the agreement with respect to financial matters are proper — the affidavit or document. Order 15 Parties and next friends Division 1 Parties 1 Application for parenting order If a parenting order is sought in proceedings, unless the court or a Registrar otherwise orders, the parties must include: (a) the parents of the child; and (b) any other person in whose favour a parenting order has been made in relation to the child; and (c) any other person or body on whom any aspect of parental responsibility has been conferred by order in relation to the child. 2 Person may be joined as party (1) A party to proceedings may join any person as a party to the proceedings by: (a) naming the person as a party in: (i) the application initiating proceedings; or (ii) the response to the application; or (iii) the reply to the response; and (b) serving on the person a copy of the application, response or reply and any other relevant documents filed in the proceedings. (2) A person may not be joined as a party after the directions hearing without the leave of the court. (3) The court may at any time order a party who has joined a person as a party to proceedings to file and serve on each other party to the proceedings an affidavit setting out the basis on which the person has been joined. 3 Party may apply to be removed (1) Any party to proceedings may apply to the Court to be removed as a party by filing an application in accordance with Form 8. (2) The party must file with the application an affidavit setting out: (a) the relationship (if any) of the applicant to the other parties; and (b) the evidence in support of the application. (3) The party must serve a copy of the application and affidavit on each other party to the proceedings. 4 Court may order notice to be given At any time during proceedings, the court or a Registrar may order a party, or a person who seeks leave to intervene, to give notice to a person specified in the order stating: (a) that proceedings have been instituted; or (b) that a person seeks leave to intervene in the proceedings; or (c) any other fact or matter the court or Registrar thinks appropriate. Division 2 Intervention 5 Intervention in proceedings by a person not a party (1) If a person who is not a party to proceedings seeks to intervene in the proceedings, the person must file an application for leave to intervene in accordance with Form 8. (2) The person must file with the application an affidavit setting out: (a) the relationship (if any) of the applicant to the parties; and (b) the orders (if any) that the applicant will ask the court to make if granted leave to intervene; and (c) the evidence in support of the application. (3) The person must serve the application and affidavit on each other party to the proceedings. (4) The court, or a Registrar, may make any orders it thinks proper with respect to the application including an order for intervention on limited terms or as to the filing of further documents. 6 Intervention by Attorney-General in proceedings generally If the Attorney-General intervenes in proceedings, the Attorney-General must: (a) file a notice: (i) stating that the Attorney-General intervenes in the proceedings; and (ii) setting out the basis or grounds of the intervention; and (iii) setting out the orders (if any) sought; and (b) if the proceedings are under section 58 of the Act — file an affidavit setting out the facts and matters relied on in support of the intervention; and (c) serve a copy of the notice and affidavit (if any) on each other party to the proceedings. 7 Child to whom State welfare law applies If, on an application for leave to intervene in proceedings under section 92 of the Act in relation to a child to whom subsection 69ZK (1) of the Act applies, the court does not grant leave, it may adjourn the proceedings and give the Attorney-General notice of its refusal to grant leave and of the date to which the proceedings are adjourned. Division 3 Proceedings after death 8 Proceedings after death of a person (1) A court may make any orders it thinks proper with respect to proceedings if: (a) a person dies; and (b) under the Act, the proceedings may be instituted or continued by or against the person’s estate or legal personal representative. (2) The orders may include: (a) an order that the legal personal representative be substituted for the deceased person as a party; and (b) an order that notice of the proceedings be given to a person in the manner directed by the court; and (c) an order granting leave to a person to intervene in the proceedings on the terms the court thinks fit; and (d) an order for the amendment of an application or other document in the proceedings, in the manner and subject to the conditions that the court thinks fit. Division 4 Person needing next friend 9 Definition > person who needs a next friend, in relation to proceedings, means a person who, because of physical or mental infirmity, does not understand the nature and possible consequences of the proceedings or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceedings. 10 Instituting, continuing, defending or intervening in proceedings A person who needs a next friend may institute, continue, defend or seek to intervene in proceedings by his or her next friend. 11 Conduct of proceedings by next friend A person appointed under this Order as the next friend of a party to proceedings: (a) must do anything required by these Rules to be done by the party; and (b) may do anything permitted by these Rules to be done by the party. 12 Service (1) This rule applies if a document is required to be served in proceedings on a person who needs a next friend. (2) The document may be served on any person (including the person who needs a next friend) whom the Court may, before or after service, approve. (3) If the person has a next friend in the proceedings, the document may be served on the next friend. (4) Unless a next friend is taken to be appointed under rule 16, the document may be served on a person with whom the person who needs a next friend is residing or who has the care of the person who needs a next friend. (5) However, service of a document on a person who needs a next friend is taken not to have been effected unless the court is satisfied: (a) that the nature and contents of the document was brought to the notice of the person; or (b) that the person could not understand the nature and contents of the document; or (c) that to bring to the attention of the person the nature and content of the document would be injurious to the person. (6) For subrule (4), a superintendent or other person in direct charge of a hospital or nursing home is taken to have the care of a person who is a patient in the hospital or nursing home. 13 Attorney-General may appoint next friend (1) The Attorney-General may appoint in writing a person (including a corporation sole) to be an authorised person for the purposes of this rule, either generally or for a particular person. (2) If an authorised person consents to be next friend of a person in proceedings by filing a consent in accordance with Form 29, the authorised person is taken to be appointed as the next friend of that person in the proceedings. 14 Court may appoint next friend (1) If a party to proceedings is a person who needs a next friend, the court may appoint a person to be next friend of the party: (a) on the application of a person under this Order; or (b) if it appears to the court to be necessary, of its own motion. (2) If the person to be appointed is not a corporation mentioned in subrule 15 (2), before making an appointment the court must be satisfied that the person: (a) is a fit and proper person to be next friend of the party; and (b) has no interest in the proceedings adverse to the party; and (c) has filed a consent in accordance with Form 29. (3) If a person is to be appointed to be next friend of a party, the court may order a stay of proceedings for such time and on such terms as the court thinks fit. 15 Application for appointment of next friend (for respondent) (1) If a respondent to an application is a person who needs a next friend and does not file a response, affidavit or notice of address for service in the proceedings, any person, including another party to the proceedings, may apply to the court for the appointment of a next friend for the respondent. (2) A corporation authorised under the law of a State or Territory to be appointed to defend the action on behalf of a person who needs a next friend may apply to the court to be appointed as next friend for the respondent. (3) An application under this rule may be made ex parte. (4) Unless the court otherwise orders, the proceedings must not be continued until a next friend has been appointed for the respondent and the next friend has filed a response, an affidavit or a notice of address for service. 16 Person taken to be appointed next friend (1) This rule applies if, for a person who needs a next friend, there is: (a) a committee of the person; or (b) no committee of person, but a committee of the estate of the person; or (c) under the law of a State or Territory, a trustee or manager of the person. (2) The committee, trustee or manager is taken to be appointed as the next friend of the person unless: (a) the committee, trustee or manager is unable or unwilling to be next friend; or (b) another person has been appointed as next friend under this Order. 17 Notice of becoming next friend A person appointed as the next friend of a respondent or intervener in proceedings must, as soon as practicable after the appointment, give notice of the appointment to each other party to the proceedings. 18 Removal of next friend The court may remove a person as next friend if: (a) the person makes application to be removed as next friend; or (b) the court considers that it is appropriate that the person be removed as next friend. 19 Costs and expenses of next friend The court may make such orders as it thinks fit for the payment of the costs and expenses of a next friend (including the costs of an application for the appointment of a next friend): (a) by a party; or (b) from the income or assets of the person for whom the next friend is appointed. Order 16 Affidavits 1 Form of affidavit — Form 16 (1) An affidavit must be in accordance with Form 16. (2) An affidavit must be divided into paragraphs, numbered consecutively, each paragraph being, as far as possible, confined to a distinct portion of the subject-matter. 2 Signing of affidavit (1) The deponent and the person before whom an affidavit is sworn must sign each page of the affidavit. (2) Subject to subrule (3), the deponent and the person before whom an affidavit is sworn must initial alterations, interlineations or erasures in the affidavit. (3) A deponent who is physically incapable of signing an affidavit need not: (a) sign the affidavit; or (b) initial alterations, erasures or interlineations in it. (4) A person before whom an affidavit is sworn must print his or her name legibly under, or beside, the signature, after signing the jurat. 3 Affidavit by blind or illiterate person etc (1) If the person before whom an affidavit is sworn considers that the deponent is illiterate or blind, the person must certify, in or below the jurat, that at the time the affidavit was sworn: (a) the affidavit was read aloud to the deponent; and (b) the deponent seemed to understand the affidavit. (2) If it appears to a person before whom an affidavit is sworn that the deponent is physically incapable of signing the affidavit, the person must certify, in or below the jurat, that at the time the affidavit was sworn: (a) the affidavit was read aloud to the deponent; and (b) the deponent seemed to understand the affidavit; and (c) the deponent signified that the deponent swore the affidavit. (3) If an affidavit is to be made by a person who does not have an adequate command of English: (a) the affidavit and the oath or affirmation to be taken must be translated to the deponent into a language that the deponent understands; and (b) the person who translated the affidavit and the oath or affirmation must certify, in or below the jurat, that the person has done so. (4) If an affidavit is made by a deponent who: (a) is illiterate or blind; or (b) is physically incapable of signing the affidavit; or (c) does not have an adequate command of English; and the certificate required by subrule (1), (2) or (3) has not been provided, the affidavit is not to be used unless the court, or a Registrar, is satisfied that: (d) the affidavit was read aloud or translated to the deponent, as the case requires; and (e) the deponent seemed to understand it; and (f) in the case of a person who is physically incapable of signing the affidavit — the deponent signified that the deponent swore the affidavit. 4 Documents attached or exhibited (1) A document that is to be used in conjunction with an affidavit must be attached to, or made an exhibit to, the affidavit. (2) An attachment to an affidavit must bear an endorsement, signed by the person before whom the affidavit is sworn, that identifies the attachment as the particular attachment referred to in the affidavit. (3) An exhibit to an affidavit must be identified: (a) by the title and number of the proceedings in which the affidavit is filed; and (b) by the person before whom the affidavit is sworn — as the particular exhibit referred to in the affidavit. (4) If a document is attached or exhibited to an affidavit, a copy of the document must be served with the affidavit. 5 Cover sheet An affidavit must have a cover sheet bearing, in addition to the matters required by Order 2, rule 3: (a) the name of the deponent; and (b) the date upon which the affidavit was sworn. 6 Name of person who prepares or settles affidavit (1) If a lawyer prepares or settles, or supervises the preparation or settling of, an affidavit, the lawyer must endorse on the affidavit, immediately after the jurat, a statement to that effect including the lawyer’s name. (2) If a party to proceedings prepares an affidavit, the party must endorse on the affidavit, immediately after the jurat, a statement to that effect including the party’s name. 7 Filing and service of affidavit A party who intends to rely on an affidavit in proceedings must: (a) file the affidavit; and (b) serve it on each other party to the proceedings; as soon as practicable after it is sworn and a reasonable time before the hearing at which the party intends to rely on it. 8 Affidavit that does not comply with these Rules If an affidavit does not comply with these Rules, the court, or a Registrar, may order that the affidavit must not be received in evidence. 9 Striking out of objectionable material (1) The court, or a Registrar, may order material to be struck out of an affidavit, at any stage of proceedings, if: (a) the material is inadmissible, unnecessary, irrelevant, prolix, scandalous or argumentative; or (b) the material sets out opinions of persons who are not properly qualified to give them. (2) If the court, or a Registrar, orders material to be struck out of an affidavit, the party who filed the affidavit must pay the costs (if any) caused by the material struck out, unless the court, or the Registrar, otherwise orders. 10 Notice to attend for cross-examination (1) A party may require a named deponent to attend for cross-examination, by written notice given to a party by whom an affidavit was filed. (2) If a party requires a deponent to attend for cross-examination and the deponent fails to do so, the court, or a Registrar, may: (a) refuse to allow the deponent’s affidavit to be used; or (b) allow the affidavit to be used only on terms directed by the court, or the Registrar; or (c) adjourn the proceedings until the deponent attends for cross-examination. 11 Deponent’s attendance and expenses The court, or a Registrar, may make any orders the court, or the Registrar, thinks fit regarding the attendance of, and the payment of the out-of-pocket expenses of, a deponent who attends for cross‑examination in accordance with rule 10. 12 Dates etc to be in figures In an affidavit, dates (except the name of a month), numbers and amounts of money must be written in figures and not in words. 13 Two or more deponents (1) If an affidavit is sworn by 2 or more deponents, the full name of each deponent must be set out: (a) at the beginning of the affidavit; and (b) subject to subrule (2), in the jurat. (2) If all the deponents swear the affidavit at the same time and before the same person, the jurat need only state that the affidavit was sworn by all the “abovenamed” deponents. 14 Affidavits not to be filed (1) A person must not file an affidavit in relation to an application except: (a) as provided by these Rules; or (b) by order of a court, or a Registrar. (2) Except as otherwise provided in these Rules, an affidavit filed under subrule (1), or by order of a court or a Registrar, must be received in evidence only for the purpose of the application in relation to which it was filed. Order 17 Financial circumstances (1) Subject to subrule (2), this Order applies to proceedings with respect to financial matters, including proceedings under section 79, 79A, 85A or 87 of the Act. (2) Unless the court, or a Registrar, otherwise orders, this Order does not apply to: (a) applications for interim or procedural orders; or (b) applications under Order 11, Division 3 or Order 14, Division 1. 2 Superannuation information form and financial statement (Form 17) (1) This rule applies to a person who: (a) files an application instituting proceedings to which this Order applies; or (b) is a respondent to proceedings to which this Order applies and who files a response in those proceedings. (2) The person must file with the application or response a financial statement in accordance with Form 17. (3) If the person is seeking an order for property settlement and has a superannuation interest, the person must attach to Form 17 a completed superannuation information form in relation to that interest. 3 Full and frank disclosure A person who is required by these Rules to file a financial statement in accordance with rule 2 must make in the financial statement a full and frank disclosure of the person’s financial circumstances including details of: (a) any vested or contingent interest in property (including real or personal property, superannuation and legal and equitable interests); and (b) the person’s income from all sources, including any benefit received in relation to, or in connection with, the person’s employment or business interests; and (c) the person’s other financial resources; and (d) any trust: (i) of which the person is the appointor or trustee; or (ii) of which the person, or the person’s child or spouse, or de facto spouse, is an eligible beneficiary as to capital or income; or (iii) of which a corporation is an eligible beneficiary as to capital or income if the person, or the person’s child or spouse, is a shareholder or director of that corporation; or (iv) over which the person has any power or control, either direct or indirect; or (v) of which the person has the power, directly or indirectly, to remove or appoint a trustee; or (vi) of which the person has the power (whether subject to the concurrence of another person or not) to amend the terms; or (vii) of which the person has the power to disapprove: (A) a proposed amendment of the terms; or (B) the appointment or removal of a trustee; or (viii) over which a corporation has a power referred to in subparagraphs (iv) to (vii), if the person is a director or shareholder of that corporation; and (e) any gift or other disposition of property made by the person since the separation of the parties. 4 Production of documents (1) Unless the court, or a Registrar, otherwise orders, a person who is required to file a financial statement in accordance with rule 2 must serve on each party who has an address for service in the proceedings the following documents: (a) copies of the person’s 3 most recent taxation returns; (b) copies of the person’s 3 most recent taxation assessments; (c) if the person is a member of a superannuation plan: (i) if not already filed or exchanged — the completed superannuation information form for any superannuation interest of the person; and (ii) for a self-managed superannuation fund — the trust deed and copies of the 3 most recent financial statements for the fund; (d) copies of the 3 most recent financial statements and taxation returns of any relevant partnership, trust or company (except a public company). (2) The documents must be served no later than 3 days before the case assessment conference or first directions hearing. 5 Amendment of statement if circumstances change (1) If a person files a financial statement in accordance with rule 2 and there is a significant change in relation to the person’s financial circumstances, the person must amend the statement, as soon as practicable: (a) if the amendment may be clearly set out in 3 folios or less — by filing and serving an affidavit setting out the amendments; or (b) in any other case — by filing and serving an amended financial statement. (2) If a person files an amended financial statement under paragraph (1) (b), the person must: (a) re-swear or reaffirm the statement; and (b) clearly identify the amendments. Order 18 Service Division 1 Address for service 1 Address for service — right to be heard in proceedings A person who has not given an address for service is not entitled to be heard by the court in proceedings unless the court orders otherwise. 2 Giving address for service (1) A person may give an address for service in proceedings: (a) by filing a notice of address for service in accordance with Form 18; or (b) by filing another relevant document, in a form prescribed by these Rules, that includes an address for service. (2) If a party to proceedings (in this subrule called the later proceedings): (a) has not given an address for service in the later proceedings in accordance with subrule (1); and (b) has an address for service in other proceedings between the parties (except proceedings for divorce or other principal relief); and (c) has taken a step in the other proceedings within 6 months before the day on which a document that is required to be served on the party is filed in the later proceedings; the party’s address for service in the other proceedings is taken to be the party’s address for service in the later proceedings unless the party changes his or her address for service in the later proceedings. (3) Unless the court orders otherwise, if a person who does not have an address for service files a document in proceedings, the document must include the person’s address for service. (4) An address for service must be an address in Australia. 3 Change of address for service A party to proceedings may change the party’s address for service in the proceedings by filing a notice of address for service in accordance with Form 18. 4 Notifying other parties of address for service Unless the court orders otherwise, a person who files a notice of address for service in proceedings under rule 2 or 3 must serve a sealed copy of the notice on each other party to the proceedings. Division 2 When and how are documents served? 5 When, and on whom, must documents be served? (1) If a document filed in proceedings is to be served under the Act, the Regulations or these Rules, the person who filed the document must serve a copy of it as soon as practicable: (a) on each other party to the proceedings who has an address for service in the proceedings; and (b) on any child’s representative appointed under section 68L of the Act; and (c) in the case of an application initiating a claim, or a cause of action, and any document filed with the application — on each other party to the application. (2) Unless the court orders otherwise, a person must not serve a document on another person more than 12 months after the date on which the document was filed. 6 Service by hand (1) If a document is served on a person by handing it to him or her, it must not be handed to him or her by the party on whose behalf it is being served, but it may be handed to him or her in the party’s presence. (2) If an individual refuses to accept a document from the person serving it, the document is taken to have been handed to the individual if: (a) the document is put down, and left, in his or her presence; and (b) the person serving the document tells the individual what the document is. 7 Service of applications for divorce or other principal relief A sealed copy of an application for divorce or other principal relief must be served on the respondent by: (a) handing it to him or her; or (b) sending it by pre-paid post in a sealed envelope addressed to him or her at his or her last known address. 8 Service of summary applications for maintenance An application referred to in rule 1 of Order 11 (which deals with summary maintenance procedure) must be served on the respondent: (b) by sending it in a sealed envelope addressed to the respondent at his or her last known address: (i) if the application is to be served in Australia — by pre‑paid post as certified mail; or (ii) if the application is to be served outside Australia — by pre-paid post as security mail. 8A Service of application or order for superannuation interest (1) This rule applies if, in an application, response or reply, a person: (a) seeks a flagging or splitting order in relation to a superannuation interest under Part VIIIB of the Act; or (b) applies under section 79A of the Act for an order to set aside an earlier order made in relation to a superannuation interest. (2) The person must, immediately after filing the application, response or reply, serve a sealed copy of that document on the trustee of the eligible superannuation plan in which the interest is held. (3) If the court makes an order splitting, flagging or otherwise affecting a superannuation interest, the applicant must serve a copy of it on the trustee of the eligible superannuation plan in which the interest is held. 9 Service of other documents on individuals (1) Except as otherwise provided in these Rules, if an individual has an address for service, a document (other than an application referred to in rule 7 or 8) may be served on the individual: (b) by delivering it to the address in a sealed envelope addressed to him or her; or (c) by sending it by pre-paid post in a sealed envelope addressed to him or her at the address; or (d) by fax addressed to him or her and sent to a fax receiver at the address; or (e) if the address includes the number of a document exchange box of a lawyer — by sealing the document in an envelope (that complies with any pre-payment requirements of the document exchange and is addressed to the lawyer at that box address) and placing the envelope: (i) in that box; or (ii) in a box provided at another branch of the document exchange for delivery of documents to the box address. (2) Except as otherwise provided in these Rules, if an individual does not have an address for service, a document (other than an application referred to in rule 7 or 8) may be served on the individual: (b) by delivering it to his or her last known address in a sealed envelope addressed to him or her; or (c) by sending it by pre-paid post in a sealed envelope addressed to the individual at his or her last known address. 10 Service on bodies corporate (1) Except as otherwise provided in these Rules, if a body corporate has an address for service, a document may be served on the body corporate: (a) by delivering it to the address in a sealed envelope addressed to the body corporate; or (b) by sending it by pre-paid post in a sealed envelope addressed to the body corporate at the address; or (c) by fax addressed to the body corporate and sent to a fax receiver at the address; or (d) if the address includes the number of a document exchange box of a lawyer — by sealing the document in an envelope (that complies with any pre-payment requirements of the document exchange and is addressed to the lawyer at that box address) and placing the envelope: (i) in that box; or (ii) in a box provided at another branch of the document exchange for delivery of documents to the box address. (2) Except as otherwise provided in these Rules, if a body corporate does not have an address for service, a document may be served on the body corporate: (a) if the body corporate has a registered office in the same State or Territory as the filing registry: (i) by delivering or sending it by pre-paid post in a sealed envelope addressed to the body corporate at the registered office; or (ii) by fax addressed to the body corporate and sent to a fax receiver at the registered office; or (b) if the body corporate does not have a registered office in that State or Territory: (i) by delivering or sending it by pre-paid post in a sealed envelope addressed to the body corporate at the principal place of business or principal office of the body corporate in the State or Territory; or (ii) by fax addressed to the body corporate and sent to a fax receiver at that office or place of business; or (c) if the body corporate does not have a registered office or place of business in the State or Territory: (i) by delivering it or sending it by pre-paid post in a sealed envelope addressed to the body corporate at the body corporate’s registered office in another State or Territory; or (ii) by fax addressed to the body corporate and sent to a fax receiver at the registered office; or (d) by handing the document to each of 2 directors of the body corporate who reside in the State or Territory where the filing registry is located; or (e) if a liquidator, or an official manager, of the body corporate has been appointed: (i) by delivering it or sending it by pre-paid post in a sealed envelope to the office of the liquidator or official manager; or (ii) by fax addressed to the liquidator or official manager and sent to a fax receiver at that office.