Div 5Conference of experts

Division 5 Conference of experts 9 Evidence of expert witnesses (1) This rule applies if 2 or more parties to a proceeding call expert witnesses to give opinion evidence about the same, or a similar, question. (2) The Court may give any direction it thinks fit in relation to: (a) the preparation by the expert witnesses (in conference or otherwise) of a joint statement of how their opinions on the question agree and differ; or (b) the giving by an expert witness of an oral or written statement of: (i) his or her opinion on the question; or (ii) his or her opinion on the opinion of another expert on the question; or (iii) whether in the light of factual evidence led at trial, he or she adheres to, or wishes to modify, any opinion earlier given; or (c) the order in which the expert witnesses are to be sworn, are to give evidence, are to be cross-examined or are to be re-examined; or (d) the position of witnesses in the courtroom (not necessarily in the witness box). Example The Court may direct that the expert witnesses be sworn one immediately after another, and that they give evidence after all or certain factual evidence has been led, or after each party’s case is closed (subject only to hearing the evidence of expert witnesses) in relation to the question. Order 30B Assessors 1 Court may call in assessors (1) In any proceedings under the Act, the Regulations or these Rules (except prescribed proceedings), the court may call on one or more assessors to assist the court in relation to any matter before the court. (2) If the court calls on an assessor, the court is not bound by any opinion or finding of the assessor. 2 Procedure at hearings with assessors present A hearing with an assessor is to be conducted as the court directs. 3 Remuneration of assessors The remuneration of an assessor is to be determined by the court, and paid by: (a) the court; or (b) such party, or other person, as the court orders; and the court may order a party or other person to pay, or to give security for payment of, the remuneration prior to an assessor being called on to assist the court. Order 31 Decrees 2 Decree of nullity The formal record of a decree of nullity of marriage shall be in accordance with Form 40. 3 Death of party after decree nisi but before decree absolute (1) Where, after a decree nisi of dissolution of marriage has been made but before that decree has become absolute, it comes to the notice of any person that a party to the marriage has died, that person may file an affidavit or certificate stating particulars of the date and place of the death. (2) Where the Registrar is satisfied that a party to the marriage has died in the circumstances specified in subrule (1), the Registrar shall endorse the court papers to that effect. 5 Certificate of decree or order Except where the court or a Registrar otherwise directs, all decrees, warrants and bonds made under the Act, the Regulations or these Rules shall be drawn up and signed by the Registrar of the filing registry. 6 Errors in record of decrees (1) If a party wishes to claim that the formal record of a decree contains an error, that party shall draw the attention of the Registrar of the filing registry to the matter as soon as possible. (2) The Registrar may rectify an error that appears on the face of a decree. (3) Where it is claimed that the formal record of a decree contains an error, then, in a case of doubt or where it appears that the error arises from an accidental slip or omission, the Registrar or a party may, after giving reasonable notice to each other party to the proceedings in which the decree was made of the intention to do so, refer it: (a) to the court; or (b) to the Magistrate or Registrar who made the decree. (4) Where a decree is referred under subrule (3), the court, Magistrate or Registrar to whom it is referred: (a) may rectify the decree, without an appeal; and (b) may make or give such consequential orders or directions as may be necessary to ensure that justice is done between the parties. (5) A party to proceedings is entitled to receive a sealed copy of the formal record of a decree made in the proceedings and, where such a decree is rectified, of the decree as rectified, without fee. 7 Registration of decrees (1) A decree (other than a decree for principal relief) may be registered in any court having jurisdiction under the Act by filing a sealed copy of the decree in that court. (2) A decree may be filed under subrule (1) by: (a) a party to the proceedings in which the decree was made; (b) a child entitled to benefit under the decree; (c) an officer of the court; (d) an authority or person entitled to take proceedings for the enforcement of the decree; or (e) with the leave of the court, any other person. 9 Maintenance orders Where a court orders a person to pay maintenance or other money for the benefit of a party to a marriage, or a child, the court shall, in its order, stipulate: (a) the time or times by which, or the intervals at which, the maintenance money is to be paid; (b) the person, authority or court to whom the money is to be paid; and (c) where necessary, the means by which the payments are to be made or disbursed. 10 Form of undertakings An undertaking to the court, given in court, must: (a) be in accordance with Form 41A; and (b) be signed: (i) by the person giving the undertaking; or (ii) if the person is not available to sign it personally — by the person’s legal representative; unless the Court allows otherwise. 11 When may a lawyer give an undertaking? (1) A person’s lawyer may give an undertaking on behalf of the person if: (a) the person is not available to give the undertaking personally; and (b) the person has authorised the lawyer to give an undertaking on his or her behalf. (2) If a person who proposes to give an undertaking to the court is legally represented, the person’s lawyer must: (a) before the undertaking is given, explain to the person the nature and terms of the proposed undertaking and the possible consequences of breaching it; and (b) unless the Court otherwise orders, certify in writing to the Court that he or she has complied with paragraph (a). Order 31A Jurisdiction under Cross‑vesting Act > Cross-vesting Act means the Jurisdiction of Courts (Cross‑vesting) Act 1987. > cross-vesting law means: (a) a law of the Commonwealth, other than Part 9 of the Corporations Act 2001; or (b) a law of a State or Territory; relating to cross-vesting of jurisdiction. > special federal matter has the same meaning as in the Cross‑vesting Act. 2 Cross-vesting provisions to prevail The provisions of this Order prevail over any other provision of these Rules to the extent of any inconsistency. 3 Application for transfer of proceedings (1) Proceedings for the transfer of proceedings under the Cross‑vesting Act shall be commenced by way of application. (2) The heading to an application shall refer to the Cross-vesting Act. (3) An application shall be heard and determined by a Judge. (4) If an application is made by the Attorney-General of the Commonwealth or of a State or Territory, the Attorney-General does not, by reason of the application, become a party to the proceedings in respect of which the application is made. 4 Proceedings involving cross-vesting law (1) Where a party applies to a Family Court in reliance on a cross‑vesting law: (a) the application must include particulars of the State or Territory law on which the party intends to rely; and (b) the party shall seek a determination and if necessary directions from the court as soon as practicable as to whether the proceedings should be transferred under the Cross-vesting Act. (2) An application or an affidavit that raises a question involving a special federal matter shall identify that matter as a special federal matter and state the grounds on which it is a special federal matter. 5 Transfer under cross-vesting laws (1) The Registrar shall send to the Registrar of a court to which proceedings are transferred under the Cross-vesting Act all documents filed and orders made in the proceedings before the transfer. (2) The Registrar shall file documents received in respect of proceedings transferred to a Family Court under a cross-vesting law so that the proceedings are identified by year of filing and number. (3) On the transfer of proceedings to a Family Court under a cross‑vesting law, the Registrar of the filing registry must: (a) fix a date for a directions hearing; and (b) inform the parties of that date. 6 Conduct of proceedings in Family Court (1) A party to proceedings in the Family Court who intends to rely on the law of a State or Territory that may be applied under paragraph 11 (1) (b) of the Cross-vesting Act must: (a) specify in the party’s application the particular State or Territory law on which the party intends to rely; and (b) attach to the application a statement of claim. (1A) A respondent who wishes to object to the proceedings being heard in the Family Court may apply to the court for a transfer of the proceedings to another court. (1B) An application for transfer of proceedings must be: (a) in accordance with Form 8; and (b) accompanied by an affidavit setting out the grounds in support of the application. (1C) The date fixed for a hearing in relation to an application for transfer of proceedings must be the same date as the date fixed for the directions hearing in relation to the application that instituted the proceedings sought to be transferred. (2) If, in proceedings before a Family Court, a party seeks to have rules of evidence and procedure other than those of the relevant Family Court applied under paragraph 11 (1) (c) of the Cross‑vesting Act in dealing with a matter for determination in the proceedings, the party must, in the party’s application, specify the rules the party seeks to have applied. (3) If, in proceedings before a Family Court, a party intends to submit that the law of a State or Territory should be applied under paragraph 11 (1) (b) of the Cross-vesting Act, or that rules of evidence and procedure other than those of the relevant Family Court should be applied under paragraph 11 (1) (c) of the Cross‑vesting Act: (a) the party shall seek directions on the matter before the proceedings are set down for hearing; (b) the court may at any time give directions in relation to the matter of its own motion; and (c) the court may at any time vary or revoke a direction given by the court in relation to the matter. Order 31B Child support jurisdiction > administrative assessment has the same meaning as it has in the Assessment Act. > child support agreement has the same meaning as in the Assessment Act. > regional appeal registrar has the same meaning as in Order 32. > regional appeal registry has the same meaning as in Order 32. (1) This Order applies in relation to any application or appeal under, or for the purposes of, the Assessment Act or the Registration Act. (2) Subject to Order 11, rule 1, in relation to any application or appeal to which this Order applies, the provisions of this Order prevail over any other provision of these Rules to the extent of any inconsistency. Division 2 Applications or appeals under the Assessment Act and the Registration Act other than appeals from a court of summary jurisdiction or to a Full Court 3 Interpretation (a) application does not include an application for leave to appeal from an order of the Family Court; and (b) appeal does not include an appeal from a court of summary jurisdiction or to a Full Court. 4 Form of application — Form 63 or 64 (1) An application or appeal to which this Division applies must be made by filing the appropriate form as specified in subrule (2) or (3) in a court having jurisdiction under the Assessment Act or the Registration Act. (2) Subject to subrule (3), the application or appeal shall be in accordance with Form 63. (3) An appeal under subsection 110 (1) or section 132 of the Assessment Act or section 88 of the Registration Act shall be in accordance with Form 64. 5 Hearing of application or appeal On the filing of the application or appeal, the Registrar of the filing registry shall set down the application or appeal for hearing as soon as practicable but not less than 21 days after the day of filing. 6 Service of application or appeal (1) As soon as practicable after filing an application or an appeal under the Assessment Act, the applicant, or appellant, must serve, in accordance with Order 18, a sealed copy of the application or appeal, and of any document filed with the application or appeal: (a) on the respondent to the application or appeal; and (2) As soon as practicable after filing an application or an appeal under the Registration Act, the applicant, or appellant, must serve, in accordance with Order 18, a sealed copy of the application or appeal, and of any document filed with the application or appeal: (a) on each other person who is a parent or carer of the child in relation to whom the application or appeal is made; and 7 Proceedings in relation to an application or appeal On the return day of the application or appeal, the court shall if practicable hear and determine the application or appeal or may give directions. Division 3 Special provisions relating to specific applications or appeals 8 Provisions of Division 2 still apply Where a rule in this Division specifies particular requirements in relation to an application or appeal the particular requirements are in addition to the general requirements relating to an application or appeal specified in Division 2. 9 Application under subsection 95 (6) of the Assessment Act Where an application is made in relation to a child support agreement under subsection 95 (6) of the Assessment Act a copy of the child support agreement to which the application relates shall be attached to each copy of the application. 10 Application for declaration under subsection 106 (1), 106A (1) or 107 (1) of Assessment Act (1) An application under subsection 106 (1), 106A (1) or 107 (1) of the Assessment Act must be filed: (a) within 28 days after receipt by the applicant of the notice given under subsection 98ZC (2) of that Act; or (2) However, if the ground on which the applicant seeks a declaration under subsection 107 (1) of the Assessment Act is that the applicant is not the parent of the child concerned, the application must be filed: (a) within 28 days after receipt by the applicant of the notice given under section 34 of that Act; or (3) Unless subrule (2) applies, the application must be accompanied by: (a) a copy of the notice given under section 33 or 34 of the Assessment Act, as the case requires; and (e) an affidavit, in accordance with Order 16, setting out the facts in support of the application. (4) An application to which subrule (2) applies must be accompanied by: (a) a copy of the notice given under section 34 of the Assessment Act; and (b) an affidavit, in accordance with Order 16, setting out the facts in support of the application. 11 Appeal against assessment under subsection 110 (1) of Assessment Act (1) An appeal under subsection 110 (1) of the Assessment Act must be filed: (a) if Part 6B of that Act applies, within 28 days after receipt by the appellant of the notice given under subsection 98ZC (2) of that Act; or (b) within 28 days after the receipt by the appellant of the notice of decision sought to be appealed; or (c) within such further time as the court allows. (2) The appeal must be accompanied, as applicable, by: (a) a copy of the notice served under the relevant section of the Assessment Act; and (e) an affidavit, in accordance with Order 16, setting out the facts in support of the appeal. 12 Application for order for departure from administrative assessment under section 98, 116, 123 or 129 of Assessment Act (1) An application under section 98, 116, 123 or 129 of the Assessment Act must be accompanied by: (a) a copy of any relevant administrative assessment; and (b) a Form 17; and (c) an affidavit, in accordance with Order 16, setting out the facts in support of the application; and (d) a copy of any relevant order or agreement. (2) An application under section 116 of the Assessment Act must also be accompanied, as applicable, by a copy of: (a) any decision made under Part 6A of that Act; and (b) any objection lodged under subsection 98X (1) of that Act; and (c) any notice lodged under subsection 98ZB (2) of that Act; and (d) any notice given under subsection 98ZC (2) of that Act. 14 Appeal under section 132 of Assessment Act (1) An appeal under section 132 of the Assessment Act must be filed: (a) within 28 days after the receipt by the appellant of the notice given under subsection 98ZC (2) of that Act; or (2) The appeal must be accompanied by: (a) a copy of the notice given under section 96 of the Assessment Act; and (e) an affidavit, in accordance with Order 16, setting out the facts in support of the appeal. 15 Affidavit to be filed with application under section 140 of the Assessment Act Where an application is made under section 140 of the Assessment Act, there shall be filed with the application an affidavit which specifies concisely: (a) the nature of the case; and (b) the relevant questions involved in the case; and (c) the reasons why a stay should be granted. 16 Appeal under section 88 of Registration Act (1) An appeal under section 88 of the Registration Act must be filed: (a) within 28 days after the day of service by the Child Support Registrar of the notice under subsection 87 (2) of that Act; or (2) The appeal must be accompanied by a copy of: (a) the notice served under subsection 80 (1) of the Registration Act; and (b) the relevant objection under section 82, 83 or 84 of that Act; and (c) any notice in opposition to or in support of the objection lodged by the appellant under subsection 86 (3) of that Act; and (d) the notice served under subsection 87 (2) of that Act. Division 4 Application for leave to appeal or review 18 Leave to appeal from decision of court of summary jurisdiction (1) An application for leave to appeal from the decision of a court of summary jurisdiction under section 105 of the Assessment Act or section 110 of the Registration Act must be made by filing an application for leave to appeal in duplicate in accordance with Form 63. (2) The application must be made: (a) not later than 1 month after the day on which the decision appealed from was made; or 19 Affidavit to be filed with application In relation to an application under rule 18, there must be filed with the application an affidavit that specifies concisely: (a) the nature of the case; and (b) the questions involved in the case; and (c) the reasons why leave to appeal should be given. 20 Hearing date The Registrar of the filing registry must set down an application for hearing as soon as practicable but not less than 21 days after the day of filing of the application. 21 Papers relating to application for leave (1) On filing an application for leave to appeal from a court of summary jurisdiction, the applicant must file with the application a copy of the reasons for judgment of the court of summary jurisdiction, certified by the proper officer of that court. (2) If the reasons for judgment were given orally in the court of summary jurisdiction but no transcript of those proceedings is available, the applicant must file an affidavit, sworn by a person who was present during the giving of those reasons, as a record of those reasons.