Division 10.1.2Offer to settle—property cases

#### 4.16 Application of Division 4.2.5 This Division applies to: (a) an application under the Assessment Act, other than an application for leave to appeal from an order of a court exercising jurisdiction under the Assessment Act; (ba) an application under section 111C of the Registration Act; (c) an application under Division 7 of Part VII of the Family Law Act; and (e) an application under Parts III and IV of the Family Law Regulations. > Note 1: Chapter 2 provides for the form to be used to make an Initiating Application (Family Law) and the documents to be filed with that form. > Note 2: Chapter 22 sets out the procedure for appealing from a decision of a court. > Note 3: The Assessment Act provides that the parties to a child support application should be the liable parent and the eligible carer. The Child Support Registrar does not need to be joined as a party but, after being served with a copy of the application, may intervene in the case. #### 4.17 Commencing proceedings An application under this Part must be made in accordance with an Initiating Application (Family Law). #### 4.18 Documents to be filed with applications (1) A person must file with an application mentioned in an item of Table 4.1, the documents mentioned in the item. Table 4.1 Documents to file with applications | Item | Application | Documents to be filed with application | | ---- | --------------------------------------------------------------------------------------------------------------------- | --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | | 1 | All applications for child support | An affidavit setting out the facts relied on in support of the application, attaching:(a) a schedule setting out the section of the Assessment Act or Registration Act under which the application is made;(b) a copy of any decision, notice of decision or assessment made by the Child Support Registrar relevant to the application and statement of reasons for that decision; and(c) a copy of any document lodged by a party with the Child Support Registrar, or received by a party from the Child Support Registrar, relevant to the decision or assessment | | 2 | Application under section 111, 116, 123, 129, 136, 139 and 143 of the Assessment Act and 111C of the Registration Act | An affidavit setting out the facts relied on in support of the application, attaching:(a) the documents mentioned in this column in item 1;(b) a completed Financial Statement;(c) a copy of any relevant order or agreement | | 3 | All applications for child maintenance | A completed Financial Statement | Note: The documents required to be filed with an application under this rule are in addition to the documents required to be filed under rule 2.02. (2) For paragraph (c) of item 1 of Table 4.1, if the applicant does not have a copy of a document lodged by the other party with the Child Support Agency, the applicant may file the summary of the document prepared by the Child Support Agency. #### 4.19 Child support agreements A person who makes an application in relation to a child support agreement must register a copy of the agreement with the court by filing one of the following: (a) an affidavit attaching the original agreement; (b) an affidavit attaching a copy of the agreement and stating that the copy is a true copy of the original agreement; (c) an affidavit stating that the original agreement has been lost and the steps taken to locate the agreement, and attaching a copy of a document received from the Child Support Registrar setting out the terms of the agreement as registered by the Child Support Agency. #### 4.20 Time limits for applications under Assessment Act A person must file an application for a declaration under subsection 106A(2) or 107(1) of the Assessment Act within 56 days after being served with a notice given under section 33 or 34 of that Act. > Note 1: A person may apply for an extension of time to file after the time limit mentioned in this rule by filing an Initiating Application (Family Law) or an Application in a Case and an affidavit (see rules 1.14 and 5.01). > Note 2: For information about when a document is taken to be served, see rule 7.17. #### 4.23 Service of application (1) The persons to be served with an application under this Part are: (a) each respondent; (b) a parent or eligible carer of the child in relation to whom the application is made; (c) the Child Support Registrar. (2) Except for an application for an order staying a decision or an urgent order for child maintenance, an application must be served at least 28 days before the hearing date. (4) Any documents on which the applicant intends to rely must be served on the persons mentioned in subrule (1) at least 21 days before the hearing date. #### 4.24 Service by Child Support Registrar For rule 4.20, if the Child Support Registrar serves a document on a person under the Assessment Act, the document is taken to have been served on the person on the day specified in rule 7.17. #### 4.25 Procedure on first court date (1) On the first court date of a child maintenance application or a child support application, the Registrar must, if practicable, conduct a case assessment conference. > Note: The Registry Manager fixes the first court date (see rule 4.03). (2) If the application is not resolved on the first court date, the Registrar may make orders for the future conduct of the case, including the exchange of affidavits between the parties and the listing of the case for hearing. #### 4.26 Evidence to be provided (1) This rule applies to a child support application under section 111, 116, 123, 129, 136, 139 or 143 of the Assessment Act or section 111C of the Registration Act, or a child maintenance application. (2) On the first court date and the hearing date of the application, each party must bring to the court the following documents: (a) a copy of the party’s taxation returns for the 3 most recent financial years; (b) the party’s taxation assessments for the 3 most recent financial years; (c) the party’s bank records for the period of 3 years ending on the date on which the application was filed; (d) if the party receives wages or salary payments—the party’s payslips for the past 12 months; (e) if the party owns or controls a business, either as sole trader, partnership or a company—the business activity statements and the financial statements (including profit and loss statements and balance sheets) for the 3 most recent financial years of the business; and (f) any other document relevant to determining the income, needs and financial resources of the party. > Note 1: Documents that may need to be produced under paragraph (f) include documents setting out the details mentioned in rule 13.04. > Note 2: For variation of a maintenance order, see subsection 66S(3) of the Act. (3) Before the hearing date, a party must produce the documents mentioned in subrule (2) for inspection, if the other party to the proceedings makes a written request for their production. (4) If a request is made under subrule (3), the documents must be produced within 7 working days of the request being received. ### Division 4.2.6—Nullity and validity of marriage and divorce #### 4.27 Application of Division 4.2.6 This Division applies to the following applications: (a) an application for an order that a marriage is a nullity; (b) an application for a declaration as to the validity of a marriage; (c) an application for a declaration as to the validity of a divorce or annulment of marriage. > Note: Chapter 2 provides for the form to be used to make an Initiating Application (Family Law) and the documents to be filed with that application. #### 4.28 Fixing hearing date (1) On the filing of an application under this Division, the Registry Manager must fix a date for the hearing of the application. (2) The date fixed must be: (a) if the respondent is in Australia—at least 42 days after the application is filed; or (b) if the respondent is outside Australia—at least 56 days after the application is filed. #### 4.29 Affidavit to be filed with application An applicant must file with the application an affidavit stating: (a) the facts relied on; (b) for an application for an order that a marriage is a nullity or a declaration as to the validity of a marriage—details of the type of marriage ceremony performed; and (c) for an application for a declaration as to the validity of a divorce or annulment of marriage: (i) the date of the divorce or order of nullity; (ii) the name of the court that granted the divorce or order of nullity; and (iii) the grounds on which the divorce or order of nullity was ordered. ### Division 4.2.7—Applications relating to passports #### 4.30 Application relating to passport A party seeking only an order that relates to a passport must file an Initiating Application (Family Law) and an affidavit stating the facts relied on. > Note: An application under this rule includes an application under section 67ZD, 68B or 114 of the Act. See also section 7A of the Passports Act 1938. #### 4.31 Fixing hearing date On the filing of an application referred to in rule 4.30, the Registry Manager must fix a date for hearing that is as soon as practicable after the date when the application was filed. ### Division 4.2.8—Children born under surrogacy arrangements #### 4.32 Application of Division 4.2.8 This Division applies to an application for a parenting order in relation to a child who was born under a surrogacy arrangement. > Note: See also section 60HB of the Act in relation to children born under surrogacy arrangements. #### 4.33 Evidence supporting application—general (1) The evidence in support of an application to which this Division applies must include the evidence, and establish the matters, mentioned in rules 4.34 to 4.36. (2) The evidence may be given: (a) in the form of an affidavit; or (b) with the court’s permission, orally. #### 4.34 Evidence from applicant and surrogate mother (1) The evidence must include a copy of the surrogacy agreement (if any), however described. (2) The evidence must include evidence from the applicant that establishes the applicant’s personal circumstances, including those personal circumstances: (a) at the time the surrogacy procedure took place; and (b) in the period immediately before the surrogacy arrangement was entered into; and (c) in the period immediately before conception; and (d) in the period immediately after the birth of the child and during subsequent arrangements for the care of the child. > Note: If several applicants jointly file an application for a parenting order to which this Division applies, each applicant must file an affidavit that establishes the matters mentioned in paragraphs (2)(a) and (b). (3) The evidence must include evidence from the surrogate mother that establishes the surrogate mother’s personal circumstances, including those personal circumstances: (a) at the time the surrogacy procedure took place; and (b) in the period immediately before the surrogacy arrangement was entered into; and (c) in the period immediately before conception; and (d) in the period immediately after the birth of the child and during subsequent arrangements for the care of the child. (4) The evidence must include evidence from the surrogate mother as to the following: (a) whether the surrogacy arrangement was made with her informed consent; (b) whether she received counselling before entering into the surrogacy arrangement; (c) whether she received any legal advice before entering into the surrogacy arrangement. #### 4.35 Evidence about child’s identity The evidence must include evidence regarding the identity of the child, including the following: (a) evidence regarding the surrogacy arrangement entered into between: (i) the applicant and the surrogate mother; or (ii) the applicant and the clinic (if any) at which the surrogacy procedure was performed; or (iii) the applicant, the surrogate mother and the clinic (if any); (b) a certified copy of the child’s birth certificate; (c) a report, prepared in accordance with regulation 21M of the Regulations, relating to the information obtained as a result of carrying out a parentage testing procedure; (d) if the child is an Australian citizen: (i) a certified copy of the child’s Australian citizenship certificate; or (ii) if the child’s name is mentioned on an Australian citizenship certificate issued to one of the child’s parents—a certified copy of the parent’s Australian citizenship certificate; (e) if an order of the kind referred to in subsection 60HB(1) of the Act has been made in relation to the child—a copy of the order. #### 4.36 Evidence about relevant law in child’s birth country The evidence must include evidence regarding the law in the country where the child was born in relation to: (a) surrogacy arrangements; and (b) the rights of the surrogate mother in relation to the child; and (c) the rights of the surrogate mother’s husband (if any) or de facto partner (if any) in relation to the child. #### 4.37 Procedure on first hearing date On the first court date for an application for a parenting order to which this Division applies, the court must: (a) make procedural orders for the conduct of the case; and (b) consider whether to make an order under section 68L of the Act that the child’s interests in the proceedings are to be independently represented by a lawyer; and (c) consider whether to direct a family consultant: (i) to prepare a family report; or (ii) to carry out other tasks, having regard to the functions of family consultants set out in section 11A of the Act; and (d) consider whether a condition mentioned in paragraph 65G(2)(a) or (b) of the Act has been met in relation to the parenting order. Chapter 5—Applications for interim, procedural, ancillary or other incidental orders > Note: Summary of Chapter 5 > Note: Chapter 5 sets out the procedure for making an application for interim, procedural, ancillary, or other incidental orders. You may also need to refer to other Chapters in these Rules when making an Application, in particular, Chapters 2, 4, 7 and 24. > Note: The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules. > Note: A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules. ## Part 5.1—General #### 5.01 Restrictions in relation to applications (1) A party may apply for an interim, procedural, ancillary or other incidental order in relation to a cause of action only if: (a) the party has made an application for final orders in that cause of action; and (b) final orders have not been made on that application. > Note: A reference to application includes a reference to cross‑application (see the dictionary). (2) A party may apply for an interim, procedural, ancillary or other incidental order only if the order sought relates to a current case. (3) Subrule (2) does not apply if the party is seeking: (a) permission to start a case or extend a time limit to start a case; (b) to start a case for a child or a person with a disability under rule 6.10; or (c) an order for costs. (4) This rule does not apply to restrict the filing of an Application in a Case by: (a) an independent children’s lawyer; (b) the Director of Public Prosecutions, when making an application under section 79C, 79D, 90N, 90P, 90VB or 90VC of the Act, to stay or lift a stay of a property settlement or spousal or de facto maintenance case; (c) a bankruptcy trustee; or (d) a trustee of a personal insolvency agreement. (4A) This rule does not apply to restrict the filing of an application for an order in relation to an arbitration by a party to the arbitration or an arbitrator conducting the arbitration. (5) If a party applies for an interim, procedural, ancillary or other order at the start of a case, the application must be in an Initiating Application (Family Law). (6) If a party applies for an interim, procedural, ancillary or other order after a case has commenced, the application must be in an Application in a Case. > Note 1: An Application in a Case is used to make: (a) an Application for review of a Judicial Registrar’s or Registrar’s order (see Chapter 18); and (b) an Application to enforce an obligation to pay money or to enforce a parenting order (see Chapter 20 and rule 21.01). > Note 2: A party may ask for a procedural order orally (see paragraph (h) of item 3 of Table 11.1). #### 5.01A Filing of applications seeking parenting orders during the Christmas school holiday period (1) This rule applies to an application for a parenting order relating in whole or part to the school holiday period beginning in December in a year (the application year) and extending to January in the following year. (2) The application must be filed before 4.00 pm on the second Friday in November of the application year. > Note: Except in cases of urgency (where the usual criteria for an urgent hearing will apply), an application filed after the deadline under subrule (2) will be allocated the next available date in the usual way. That date may be after Christmas. In other words, if the deadline has passed, the fact that an application relates to the school holiday period will not of itself justify a listing before Christmas. In urgent cases, applications to abridge times and to list a matter on short notice can be made to the Registry. #### 5.02 Evidence in applications to which Chapter 5 applies (1) A party who applies for an interim, procedural, ancillary or other incidental order in an Initiating Application (Family Law), or who files an Application in a Case, must at the same time file an affidavit stating the facts relied on in support of the orders sought. (2) Subrule (1) does not apply to an Application in a Case in which a review of the order of a Judicial Registrar or Registrar is sought. > Note: Some rules require that the affidavit filed with the Application address specific factors (see, for example, rule 5.12). #### 5.03 Procedure before filing (1) Before filing an application seeking interim, procedural, ancillary or other incidental orders, a party must make a reasonable and genuine attempt to settle the issue to which the application relates. (2) An applicant does not have to comply with subrule (1) if: (a) compliance will cause undue delay or expense; (b) the applicant would be unduly prejudiced; (c) the application is urgent; or (d) there are circumstances in which an application is necessary (for example, if there is an allegation of child abuse, family violence or fraud). > Note: The court may take into account a party’s failure to comply with subrule (1) when considering any order for costs (see subsections 117(2) and (2A) of the Act). #### 5.05 Fixing a date for hearing or case assessment conference (1) On the filing of an Application in a Case, or an Initiating Application (Family Law) in which application is made for interim, procedural, ancillary or other orders, the Registry Manager must fix a date for a hearing, procedural hearing or case assessment conference on a date that is as near as practicable to 28 days after the application was filed. (2) An application in which the only orders sought are procedural orders must be listed for a hearing on the first court date. (3) If an Application in a Case is filed after another related application, the Application in a Case may be listed for the same first court date as the related application if a Registrar considers it to be reasonable in the circumstances. > Note: If an Initiating Application (Family Law) seeks interim, procedural, ancillary or other incidental orders, and an earlier date is fixed for the hearing of the application under subrule 5.05(4), the Application to the extent that it concerns final orders must be dealt with on the same court date (see subrule 4.03). (4) The Registry Manager may fix an earlier date for the hearing of an Application in a Case, or an Initiating Application (Family Law) in which application is made for interim, procedural, ancillary or other incidental orders, if a Registrar is satisfied that: (a) the reason for the urgency is significant and credible; and (b) there is a harm that will be avoided, remedied or mitigated by hearing the application earlier. > Note: The court may order costs against a party who has unreasonably had a matter listed for urgent hearing. (5) If a date for a hearing is fixed, the application must, as far as practicable, be heard by the court on that day. #### 5.06 Attendance by electronic communication (1) A party may request permission to do any of the following things by electronic communication at a hearing: (a) attend; (b) make a submission; (c) give evidence; (d) adduce evidence from a witness. (2) Before making a request, the party must ask any other party whether the other party agrees, or objects, to the use of electronic communication for the purpose proposed by the party. (3) A request must: (a) be in writing; (b) be made at least 7 days before the date fixed for the hearing; (c) set out the information required under subrule 16.05(3); (d) set out details of the notice in relation to the request that has been given to any other party; (e) state whether any other party agrees or objects to the request; and (f) state the expense to be incurred by using the electronic communication. (4) A request may be considered in chambers, on the documents. (5) The court may take the following matters into account when considering a request: (a) the distance between the party’s residence and the place where the court is to sit; (b) any difficulty the party has in attending because of illness or disability; (c) the expense associated with attending; (d) the expense to be incurred, or the savings to be made, by using the electronic communication; (e) any concerns about security, including family violence and intimidation; (f) whether any other party objects to the request. (6) If the court grants the request, the court may: (a) order a party to pay the expense of using the electronic communication; or (b) apportion the expense between the parties. (7) If a request is granted, the party who made the request must immediately give written notice to the other parties. #### 5.07 Attendance of party or witness in prison (1) A party who is in prison must attend at a hearing by electronic communication. (2) A party who intends to adduce evidence from a witness in prison must: (a) arrange for the witness to attend and give evidence at the hearing by electronic communication; and (b) advise the court and the other parties about that arrangement at least 2 days before the date fixed for the hearing. (3) A party may seek permission from the court for a party or witness who is in prison to attend the hearing in person. > Note: Example: A party may apply for an order under subrule (3) if a prison or court has no facilities for the hearing to proceed by electronic communication. (4) A request under subrule (3) must: (a) be in writing; (b) be made at least 7 days before the date fixed for the hearing; (c) set out the reasons why permission should be granted; and (d) inform the court whether the other party objects to the request. (5) Subrules 5.06(4) and (7) apply to a request under this rule. ## Part 5.2—Hearing—interim and procedural applications #### 5.08 Interim orders—matters to be considered When considering whether to make an interim order, the court may take into account: (a) in a parenting case—the best interests of the child (see section 60CC of the Act); (b) whether there are reasonable grounds for making the order; (c) whether, for reasons of hardship, family violence, prejudice to the parties or the children, the order is necessary; (d) the main purpose of these Rules (see rule 1.04); and (e) whether the parties would benefit from participating in one of the dispute resolution methods. #### 5.09 Affidavits The following affidavits may be relied on as evidence in chief at the hearing of an interim or procedural application: (a) subject to rule 9.07, one affidavit by each party; (b) one affidavit by each witness, provided the evidence is relevant and cannot be given by a party. #### 5.10 Hearing time of interim or procedural application (1) The hearing of an interim or procedural application must be no longer than 2 hours. (2) Cross‑examination will be allowed at a hearing only in exceptional circumstances. #### 5.11 Party’s failure to attend (1) If a party does not attend when a hearing starts, the other party may seek the orders sought in that party’s application, including (if necessary) adducing evidence to establish an entitlement to the orders sought against the party not attending. (2) If no party attends the hearing, the court may dismiss the application and response, if any. > Note: A reference to application includes a reference to cross‑application (see the dictionary). ## Part 5.3—Application without notice #### 5.12 Application without notice An applicant seeking that an interim order or procedural order be made without notice to the respondent must: (a) satisfy the court about why: (i) shortening the time for service of the application and the fixing of an early date for hearing after service would not be more appropriate; and (ii) an order should be made without notice to the other party; and (b) in an affidavit or orally, with the court’s permission, make full and frank disclosure of all the facts relevant to the application, including: (i) whether there is a history or allegation of child abuse or family violence between the parties; (ii) whether there has been a previous case between the parties and, if so, the nature of the case; (iii) the particulars of any orders currently in force between the parties; (iv) whether there has been a breach of a previous order by either party to the case; (v) whether the respondent or the respondent’s lawyer has been told of the intention to make the application; (vi) whether there is likely to be any hardship, danger or prejudice to the respondent, a child or a third party if the order is made; (vii) the capacity of the applicant to give an undertaking as to damages; (viii) the nature of the damage or harm that may result if the order is not made; (ix) why the order must be urgently made; and (x) the last known address or address for service of the other party. > Note: The applicant must file any existing family violence order when filing the application (see rule 2.05). #### 5.13 Necessary procedural orders If the court makes an order on application without notice, the order must be expressed to operate: (a) until a time specified in the order; or (b) if the hearing of the application is adjourned—until the date of the hearing. ## Part 5.4—Hearing on papers in absence of parties #### 5.14 Request for hearing in absence of parties A party applying for an interim order, enforcement order or procedural order may, in the application, ask the court to determine the application in the absence of the parties. > Note: This Part also applies to an Application in an Appeal (see rule 22.45). #### 5.15 Objection to hearing in absence of parties If a respondent objects to an application being determined by the court in the absence of the parties: (a) the respondent must notify the court and the other party, in writing, of the objection at least 7 days before the date fixed for the hearing; and (b) the parties must attend on the first court date for the application. > Note: A notice under this rule must comply with rule 24.01. #### 5.16 Court decision to not proceed in absence of parties Despite parties consenting to a hearing being held in their absence, the court may postpone or adjourn the application and direct the Registry Manager: (a) to fix a new date for hearing the application; and (b) to notify the parties that they are required to attend court for the hearing. #### 5.17 Procedure in hearing in absence of parties (1) If the application is to be determined in the absence of the parties, each party must file, at least 2 days before the date fixed for hearing the application: (a) a list of documents to be read by the court; and (b) a supporting submission. (2) A supporting submission must: (a) state the reasons why the orders sought by that party should be made; (b) refer to any material in a document filed with the application by the page number of the document, and should not repeat the text of that material; (c) not be more than 5 pages; (d) have all paragraphs consecutively numbered; (e) be signed by the party or the lawyer who prepared the submission; and (f) include the signatory’s name, telephone number, facsimile number (if any) and e‑mail address (if any) at which the signatory can be contacted. ## Part 5.5—Postponement of interim hearing #### 5.18 Administrative postponement of interim hearing (1) If the parties agree that the hearing of an interim application should not proceed on the date fixed for the hearing, the parties may request the Registry Manager to postpone it. (2) A request must: (a) be in writing; (b) specify why it is appropriate to postpone the hearing; (c) specify the date to which the hearing is sought to be postponed; (d) be signed by each party or the party’s lawyer; and (e) be received by the Registry Manager no later than 12 noon on the day before the date fixed for the hearing. (3) If a request is made, the Registry Manager must tell the parties: (a) that the event has been postponed; and (b) the date to which it has been postponed. ## Part 5.6—Application for certain orders #### 5.19 Application for suppression or non‑publication order An applicant for an order to suppress publication of a judgment must file an affidavit that sets out evidence relating to the following: (a) the public interest in suppressing or not suppressing publication; (b) why further anonymisation of the judgment would not be sufficient; (c) whether publication of the entire judgment should be suppressed or only part of the judgment; (d) whether publication should be suppressed in one medium or in all media; (e) whether a summary of the judgment should be made publicly available if publication of the judgement is suppressed; (f) one or more of the grounds, mentioned in subsection 102PF(1) of the Act, on which the application is made. > Note: The Court anonymises all judgments in accordance with the requirements of section 121 of the Act. Chapter 6—Parties > Note: Summary of Chapter 6 > Note: Chapter 6 sets out who are the necessary parties to a case and how a person becomes, or ceases to be, a party or a case guardian. > Note: The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules. > Note: A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules. ## Part 6.1—General #### 6.01 Parties A party includes the following: (a) an applicant in a case; (b) an appellant in an appeal; (c) a respondent to an application or appeal; (d) an intervener in a case. > Note 1: An independent children’s lawyer is not a party to a case but must be treated as a party (see rule 8.02). > Note 2: Pre‑action procedures must be complied with by all prospective parties under rule 1.05. #### 6.02 Necessary parties (1) A person whose rights may be directly affected by an issue in a case, and whose participation as a party is necessary for the court to determine all issues in dispute in the case, must be included as a party to the case. > Note: Example: If a party seeks an order of a kind mentioned in section 90AE or 90AF of the Act, a third party who will be bound by the order must be joined as a respondent to the case. (2) If an application is made for a parenting order, the following must be parties to the case: (a) the parents of the child; (b) any other person in whose favour a parenting order is currently in force in relation to the child; (c) any other person with whom the child lives and who is responsible for the care, welfare and development of the child; (d) if a State child order is currently in place in relation to the child—the prescribed child welfare authority. (3) If a person mentioned in subrule (2) is not an applicant in a case involving the child, that person must be joined as a respondent to the application. > Note 1: The court may dispense with compliance with a rule (see rule 1.12). > Note 2: Pre‑action procedures must be complied with by all prospective parties under rule 1.05. ## Part 6.2—Adding and removing a party #### 6.03 Adding a party (2) A party may add another party after a case has started by amending the application or response to add the name of the party. (3) A party who relies on subrule (2) must: (a) file an affidavit setting out the facts relied on to support the addition of the new party, including a statement of the new party’s relationship (if any) to the other parties; and (b) serve on the new party: (i) a copy of the application, amended application, response or amended response; and (ii) the affidavit mentioned in paragraph (a); and (iii) any other relevant document filed in the case. > Note 1: For amendment of an application, see Division 11.2.2. > Note 2: If a Form is amended after the first court date, the Registry Manager will set a date for a further procedural hearing (see subrule 11.10(3)). > Note 3: Pre‑action procedures must be complied with by all prospective parties under rule 1.05. #### 6.04 Removing a party A party may apply to be removed as a party to a case. > Note: Rule 5.01 sets out the procedure for making an Application in a Case. #### 6.05 Intervention by a person seeking to become a party If a person who is not a party to a case (other than a person to whom rule 6.06 applies) seeks to intervene in the case to become a party, the person must file: (a) an Application in a Case; and (b) an affidavit: (i) setting out the facts relied on to support the application, including a statement of the person’s relationship (if any) to the parties; and (ii) attaching a schedule setting out any orders that the person seeks if the court grants permission to intervene. > Note: Part IX of the Act deals with intervention in a case. Once a person has, by order or under rule 6.06, intervened in a case, the person becomes a party with all the rights and obligations of a party (see subsections 91(2) and 91A(4), paragraph 91B(2)(b) and subsections 92(3) and 92A(3) of the Act). #### 6.06 Intervention by a person entitled to intervene (1) This rule applies if the Attorney‑General, or any other person who is entitled under the Act to do so without the court’s permission, intervenes in a case. (2) The person intervening must file: (a) a Notice of Intervention by Person Entitled to Intervene; and (b) an affidavit: (i) stating the facts relied on in support of the intervention; and (ii) attaching a schedule setting out the orders sought. > Note: The following are examples of when a person is entitled under the Act to intervene in a case without the court’s permission: (a) subsection 79(10) authorises a creditor of a party to a case who may not be able to recover his or her debt if an order is made under section 79, and a person whose interests would be affected by an order under section 79, to become a party to the case; (aa) subsection 90SM(10) authorises a creditor of a party to a case who would not be able to recover a debt if an order is made under section 90SM of the Act, a party to a de facto relationship or marriage with a party to a case, a party to certain financial agreements and a person whose interests would be affected by the making of an order to become parties to the case; (b) section 91 of the Act and section 78A of the Judiciary Act 1903 authorise the Attorney‑General to intervene in a case; (c) section 92A of the Act authorises the people mentioned in subsection 92A(2) to intervene in a case without the court’s permission; (d) section 145 of the Assessment Act authorises the Child Support Registrar to intervene in a case. (3) On the filing of a Notice of Intervention by Person Entitled to Intervene, the Registry Manager must fix a date for a procedural hearing. (4) The person intervening must give each other party written notice of the procedural hearing. #### 6.07 Notice of constitutional matter (1) If a party is, or becomes, aware that a case involves a matter that: (a) arises under the Constitution or involves its interpretation, within the meaning of section 78B of the Judiciary Act 1903; and (b) is a genuine issue in the case; the party must give written notice of the matter to the Attorneys‑General of the Commonwealth, and each State and Territory, and to each other party to the case. (2) The notice must state: (a) the nature of the matter; (b) the issues in the case; (c) the constitutional issue to be raised; and (d) the facts relied on to show that section 78B of the Judiciary Act 1903 applies. > Note: Section 78B of the Judiciary Act 1903 provides that once a court becomes aware that a case involves a matter referred to in that section, it is the court’s duty not to proceed to determine the case unless and until it is satisfied that notice of the case has been given to the Attorneys‑General of the Commonwealth and of the States and Territories. ## Part 6.3—Case guardian #### 6.08A Interpretation In this Part: > a manager of the affairs of a party includes a person who has been appointed, in respect of the party, a trustee or guardian under a Commonwealth, State or Territory law. #### 6.08 Conducting a case by case guardian (1) A child or a person with a disability may start, continue, respond to, or seek to intervene in, a case only by a case guardian. (2) Subrule (1) does not apply if the court is satisfied that a child understands the nature and possible consequences of the case and is capable of conducting the case. > Note 1: For service on a person with a disability, see rule 7.09. > Note 2: If a case is started by a child or person with a disability without a case guardian, the court may appoint a case guardian to continue the case. #### 6.09 Who may be a case guardian A person may be a case guardian if the person: (a) is an adult; (b) has no interest in the case that is adverse to the interest of the person needing the case guardian; (c) can fairly and competently conduct the case for the person needing the case guardian; and (d) has consented to act as the case guardian. #### 6.10 Appointment, replacement or removal of case guardian (1) A person may apply for the appointment, replacement or removal of a person as the case guardian of a party. > Note 1: Chapter 5 sets out the procedure for making an Application in a Case. > Note 2: An application in relation to a case guardian may be made by a party or a person seeking to be made the case guardian or by a person authorised to be a case guardian. (2) A person who is a manager of the affairs of a party is taken to be appointed as the case guardian of the party if the person has filed: (a) a notice of address for service; and (b) an affidavit which: (i) provides evidence that the person has been appointed manager of the affairs of the party; and (ii) states that the person consents to being appointed as the case guardian of the party. #### 6.11 Attorney‑General may nominate case guardian (1) If in the opinion of the court a suitable person is not available for appointment as a case guardian of a person with a disability, the court may request that the Attorney‑General nominate, in writing, a person to be a case guardian. (2) A person nominated by the Attorney‑General to be a case guardian of a person with a disability is taken to be appointed as such if the person files: (a) a consent to act in relation to the person with a disability; (b) a copy of the written nomination of the person as a case guardian; and (c) a Notice of Address for Service. > Note: A consent to act must comply with subrule 24.01(1). #### 6.12 Notice of becoming case guardian A person appointed as a case guardian of a party must give written notice of the appointment to each other party and any independent children’s lawyer in the case. > Note: The case guardian may also need to file a Notice of Address for Service (see rules 8.05 and 8.06). #### 6.13 Conduct of case by case guardian (1) A person appointed as the case guardian of a party: (a) is bound by these Rules; (b) must do anything required by these Rules to be done by the party; (c) may, for the benefit of the party, do anything permitted by these Rules to be done by the party; and (d) if seeking a consent order (other than an order relating to practice or procedure), must file an affidavit setting out the facts relied on to satisfy the court that the order is in the party’s best interests. (2) The duty of disclosure applies to a case guardian for a child and a person with a disability. > Note 1: The court may order a case guardian to pay costs. > Note 2: Rule 13.01 sets out the elements of the duty of disclosure. #### 6.14 Costs of case guardian The court may order the costs of a case guardian to be paid: (a) by a party; or (b) from the income or property of the person for whom the case guardian is appointed. ## Part 6.4—Progress of case after death #### 6.15 Death of party (1) This rule applies to a property case or an application for the enforcement of a financial obligation. (2) If a party dies, the other party or the legal personal representative must ask the court for procedural orders in relation to the future conduct of the case. (3) The court may order that the legal personal representative of the deceased person be substituted for the deceased person as a party. > Note 1: The court may make other procedural orders, including that a person has permission to intervene in the case (see rules 1.12 and 6.05). > Note 2: For the effect of the death of a party in certain cases, see subsections 79(1A), 79(8), 79A(1C), 90SM(2), 90SM(8), 90SN(5), 90UM(8) and 105(3) of the Act. ## Part 6.5—Progress of a case after bankruptcy or personal insolvency agreement #### 6.16 Interpretation In this Part: > bankruptcy proceedings means proceedings under the Bankruptcy Act, in the Federal Court or the Federal Circuit Court, in relation to: (a) the bankruptcy of a relevant party; or (b) a relevant party’s capacity as a debtor subject to a personal insolvency agreement. > relevant case means any of the following: (a) a pending case under section 66G, 66S, 74, 78, 79, 79A, 83, 90SE, 90SL, 90SM or 90SN of the Act; (b) a pending case under Division 4 or 5 of Part 7 of the Assessment Act; (c) a pending case for enforcement of an order made under a provision mentioned in paragraph (a) or (b). > relevant party means a person who is: (a) a party to a marriage or de facto relationship; and (b) a party to a relevant case in relation to that marriage or de facto relationship. > Note: The following terms are defined in the Act:  bankruptcy trustee (subsection 4(1))  debtor subject to a personal insolvency agreement (section 5)  trustee, in relation to a personal insolvency agreement (subsection 4(1)). #### 6.17 Notice of bankruptcy or personal insolvency agreement (1) If a relevant party is also a bankrupt or a debtor subject to a personal insolvency agreement, that party must notify: (a) all other parties to the relevant case, in writing, about the bankruptcy or personal insolvency agreement; (b) the bankruptcy trustee or the trustee of the personal insolvency agreement, as the case may be, about the relevant case in accordance with rule 6.18; and (c) the court in which the relevant case is pending, in accordance with rule 6.19. (2) A party may apply for procedural orders for the future conduct of the case. #### 6.18 Notice under paragraph 6.17(1)(b) For paragraph 6.17(1)(b), notice to a bankruptcy trustee or a trustee of a personal insolvency agreement must: (a) be in writing; (b) be given within 7 days, or as soon as practicable, after the date on which the party becomes both: (i) a relevant party; and (ii) a bankrupt or debtor; (c) attach a copy of the application starting the relevant case, response (if any), and any other relevant documents; and (d) state the date and place of the next court event in the relevant case. #### 6.19 Notice under paragraph 6.17(1)(c) For paragraph 6.17(1)(c), notice to the court must: (a) be in writing; (b) be given within 7 days, or as soon as practicable, after the date on which the party becomes both: (i) a relevant party; and (ii) a bankrupt or debtor; and (c) attach a copy of the notices given in accordance with paragraphs 6.17(1)(a) and (b). #### 6.20 Notice of bankruptcy proceedings (1) If a relevant party is a party to bankruptcy proceedings the party must give notice of the bankruptcy proceedings, in accordance with subrule (2), to: (a) the court in which the relevant case is pending; and (b) the other party (or parties) to the case. (2) The notice must: (a) be in writing; (b) be given within 7 days, or as soon as practicable, after the date on which the party becomes a party to bankruptcy proceedings; and (c) state the date and place of the next court event in the bankruptcy proceedings. #### 6.21 Notice of application under section 139A of the Bankruptcy Act (1) If the bankruptcy trustee of a bankrupt party to a marriage or de facto relationship has applied under section 139A of the Bankruptcy Act for an order under Division 4A of Part VI of that Act, and the trustee knows that a relevant case in relation to the bankrupt party is pending in a court exercising jurisdiction under the Act, the trustee must notify: (a) the court exercising jurisdiction under the Act in the relevant case, in accordance with subrule (2); and (b) if the bankruptcy trustee’s application relates to an entity other than the other party to the marriage or de facto relationship—the other party to the marriage or de facto relationship, in accordance with subrule (3). (2) For paragraph (1)(a), notice to the court must: (a) be in writing; (b) be given within 7 days, or as soon as practicable, after the bankruptcy trustee makes the application under section 139A of the Bankruptcy Act; and (c) state the date and place of the next court event in the proceedings under section 139A of the Bankruptcy Act. (3) For paragraph (1)(b), notice to the other party to the marriage or de facto relationship must: (a) be in writing; (b) be given within 7 days, or as soon as practicable, after the bankruptcy trustee makes the application under section 139A of the Bankruptcy Act; (c) attach a copy of the application, other initiating process and any other relevant documents in the application under section 139A of the Bankruptcy Act; and (d) state the date and place of the next court event in the proceedings under section 139A of the Bankruptcy Act. #### 6.22 Official name of trustee (1) If a bankruptcy trustee or a trustee of a personal insolvency agreement is added as a party to a relevant case, the trustee must be added using the prescribed official name of the trustee. (2) In subrule (1): > prescribed official name of the trustee has the meaning given by: (a) for a bankruptcy trustee—subsection 161(2) of the Bankruptcy Act; and (b) for a trustee of a personal insolvency agreement—subsection 219(2) of the Bankruptcy Act. Chapter 7—Service > Note: Summary of Chapter 7 > Note: Chapter 7 sets out the rules for serving documents and proving service. The rules in this chapter apply only to the service of documents in Australia and non‑convention countries. The Regulations deal with service in countries that are party to certain conventions. If there is an inconsistency between the Regulations and these Rules, the Regulations prevail (see subsection 125(3) of the Act). > Note: When a court determines a case, the judicial officer must be satisfied that all the documents filed that are to be relied on in the case have been served or otherwise brought to the attention of the other parties to the case. > Note: The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules. > Note: A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules. ## Part 7.1—General #### 7.01A Application This Chapter does not apply to service of a document in a foreign country that is a party to a convention to which Australia is also a party regarding legal proceedings in civil and commercial matters. > Note: Regulation 12 of the Regulations deals with service of documents in convention countries. #### 7.01 Service Service of a document may be carried out by special service (see Part 7.2) or ordinary service (see Part 7.3) unless otherwise required by a legislative provision. > Note: Certain applications must have other documents served with them. For example, an Initiating Application (Family Law), when served, must be accompanied by the brochure mentioned in rule 2.03; when a subpoena is served, the witness must be paid conduct money. #### 7.02 Court’s discretion regarding service (1) A court may find that a document has been served or that it has been served on a particular date, even though these Rules or an order have not been complied with in relation to service. > Note: Rule 7.17 also sets out when a document is taken to have been served. (2) The court may order a party, or a person applying to intervene in a case under rule 6.05, to serve a document or give written notice of a matter or case to a person specified in the order. #### 7.03 Service of documents A person must serve a document in the manner set out in Table 7.1. Table 7.1 Service of documents | Item | Document | Form of service | | ---- | ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | ------------------------------------------------------- | | 1 | Initiating Application (Family Law) | Special service | | 3 | Application in a Case fixing an enforcement hearing | Special service | | 4 | Application for Divorce | Special service | | 5 | A subpoena, or a copy of a subpoena, required to be served under rule 15.22 or 26B.17 | The manner of service required by that rule | | 6 | Application—Contravention | Special service by hand | | 7 | Application—Contempt | Special service by hand | | 8 | Document mentioned in item 3, 4, 5 or 6 of Table 2.2 in rule 2.02 that must be filed with a Form mentioned in this Table | The form of service set out in this Table for that Form | | 9 | Brochure required by these Rules to be served with a Form mentioned in this Table (see rules 2.03 and 4.13 and subrules 15.22(1), 20.11(3) and 26B.17(1)) | The form of service set out in this Table for that Form | | 10 | Order made on application without notice (see rule 5.12) | Special service | | 12 | Document that is not required to be served by special service. For example: an Application in a Case (other than an Application in a Case mentioned in item 3) and any document filed with it a document filed after a case is started a notice required to be given under these Rules | Ordinary service | #### 7.04 Service of filed documents (1) A document that is filed must be served on each person to be served: (a) as soon as possible after the date of filing and within 12 months after that date; or (b) if a provision elsewhere in these Rules specifies a time for service—within the specified time. > Note: If a document is not served within the time required, service after that time is ineffective unless the court otherwise orders (see rules 1.12, 7.02 and 11.02). (1A) A person who serves a document filed by electronic communication must: (a) if the Registry Manager has sent the person who filed the document a communication recording the date of filing—ensure that a copy of the communication is served; or (b) in any other case—write on the front of the served copy of the document the date of filing. (2) Despite subrule (1) and rule 7.03, the following documents do not have to be served on any other party: (a) a joint application; (b) an application without notice; (c) an Affidavit of Service; (d) a document signed by all parties; (e) an affidavit seeking the issue, without notice, of an Enforcement Warrant under rule 20.16 or a Third Party Debt Notice under rule 20.32. > Note: A draft consent order signed by all parties does not have to be served on the other parties to the application. However, if an order is sought affecting a superannuation interest, it must be served on the trustee of the superannuation fund in which that interest is held (see rule 10.16). (3) If a document or notice is served on or given to a party under these Rules, a copy of the document or notice must also be served on or given to any independent children’s lawyer. (4) For subrule (1): > each person to be served, for a case, includes: (a) all parties to the case; (b) any independent children’s lawyer; and (c) any other person specifically required by a legislative provision or order to be served in the case. ## Part 7.2—Special service > Note: Special service of a document may be performed by delivering the document: > Note:  to the person to be served by hand (see rule 7.06) or by post or electronic communication (see rule 7.07); or > Note:  if a lawyer representing the person undertakes, in writing, to accept service of the document, by delivering it to the person’s lawyer (see rule 7.08). #### 7.05 Special service A document that must be served by special service must be personally received by the person served. > Note: For proof of service, see Part 7.4. #### 7.06 Special service by hand (1) A document to be served by hand must be given to the person to be served (the receiver). (2) If the receiver refuses to take the document, service occurs if the person serving the document: (a) places it down in the presence of the receiver; and (b) tells the receiver what it is. (3) A party must not serve another party by hand but may be present when service by hand occurs. #### 7.07 Special service by post or electronic communication (1) A document may be served on a person in Australia by sending a copy of it to the person’s last known address by post. (2) A document may be served on a person in Australia by sending it to the person by electronic communication. (3) A person serving a document by post or electronic communication must include with the document: (a) an Acknowledgement of Service for the person served to sign; and (b) for service by post within Australia—a stamped self‑addressed envelope. > Note: Subrule 24.07(3) does not apply to an Acknowledgement of Service. If an applicant wants to prove service by electronic communication (other than by facsimile), the applicant must still produce a signed Acknowledgement of Service. This means that the person served will need to print out and sign a hard copy of the Acknowledgement of Service and arrange for the signed copy to be returned to the applicant in a form in which the applicant is able to identify the signature on the signed copy as that of the person served (see note to rule 7.14). #### 7.08 Special service through a lawyer A document is taken to be served by special service on a person if: (a) a lawyer representing the person agrees, in writing, to accept service of the document for the person; and (b) the document is served on the lawyer in accordance with rule 7.06 or 7.07. #### 7.09 Special service on person with a disability (1) A document that is required to be served by special service on a person with a disability, must be served: (a) on the person’s case guardian; (b) on the person’s guardian appointed under a State or Territory law; or (c) if there is no one under paragraph (a) or (b)—on an adult who has the care of the person. (2) For paragraph (1)(c), the person in charge of a hospital, nursing home or other care facility is taken to have the care of a person who is a patient in the hospital, nursing home or facility. > Note: If a person with a disability wants to start, continue or respond to, or seek to intervene in, a case, the person may do so through a case guardian (see rule 6.08). #### 7.10 Special service on a prisoner (1) A document that is required to be served by special service on a prisoner must be served by special service on the person in charge of the prison. (2) At the time of service of an Application, Subpoena or Notice of Appeal on a prisoner, the prisoner must be informed, in writing, about the requirement to attend by electronic communication under rule 5.07, subrule 12.12(4) or rule 22.40 (whichever is applicable). #### 7.11 Special service on a corporation A document that is required to be served by special service on a corporation must be served in accordance with section 109X of the Corporations Act 2001. > Note: A subpoena must be served on the proper officer or other person entitled to accept service of a subpoena for a corporation (see subrule 15.17(4)). ## Part 7.3—Ordinary service #### 7.12 Ordinary service If special service of a document is not required, the document may be served on a person: (a) by any method of special service; (b) if the person has given an address for service: (i) by delivering it to the address in a sealed envelope addressed to the person; (ii) by sending it to the address by post in a sealed envelope addressed to the person; or (iii) by sending it to the facsimile or e‑mail address stated in the address for service by electronic communication addressed to the person (see rule 7.16); (c) if the person has not given an address for service: (i) by handing it to the person; (ii) by delivering it to the person’s last known address or place of business in a sealed envelope addressed to the person; or (iii) by sending it by post in a sealed envelope addressed to the person at the person’s last known address or place of business; (d) if a lawyer representing the person agrees, in writing, to accept service of the document, by sending it to the lawyer; or (e) if the person’s address for service includes the number of a lawyer’s document exchange box, by delivering it in a sealed envelope, addressed to the lawyer at that box address, to: (i) that box; or (ii) a box provided at another branch of the document exchange for delivery of documents to the box address. ## Part 7.4—Proof of service #### 7.13 Proof of service (1) Service of an application is proved: (a) by filing an Affidavit of Service; (b) by the respondent filing a Notice of Address for Service or a Response; or (c) if service was carried out by giving the document to a lawyer—by filing an Acknowledgement of Service that has been signed by the lawyer. (2) Service of any other document is proved by filing an Affidavit of Service. #### 7.14 Proof of special service (1) This rule applies if a document is required to be served by special service and the applicant seeks to prove service by way of affidavit. (2) If service was by post or electronic communication, service is proved by: (a) attaching to an Affidavit of Service, an Acknowledgement of Service signed by the respondent; and (b) evidence identifying the signature on the Acknowledgement of Service as the respondent’s signature. > Note: If a person serving a document seeks to prove service under this rule, an Acknowledgment of Service must be signed by the person served with the document. However, if the Affidavit of Service with the Acknowledgement of Service is filed by electronic communication, subrule 24.07(4) applies to the original affidavit and the signed acknowledgment. #### 7.15 Evidence of identity (1) A statement by a person of the person’s identity, office or position is evidence of the identity, the holding of the office or position. (2) Another person may give evidence about the identity, office or position of a person served. > Note: Example: A person may give evidence about the identity of another person by identifying: (a) the signature of the person served on the Acknowledgment of Service; (b) the person served from a photograph; or (c) the person when accompanying the process server. ## Part 7.5—Other matters about service #### 7.16 Service by electronic communication (1) Service of a document may be carried out by facsimile only if the total number of pages (including the cover page) to be transmitted: (a) is not more than 25; or (b) if the person on whom the document is to be served has first agreed to receiving more than 25 pages—is not more than the number of pages agreed to be transmitted. (2) A document served by electronic communication must include a cover page stating: (a) the sender’s name and address; (b) the name of the person to be served; (c) the date and time of transmission; (d) the total number of pages, including the cover page, transmitted; (e) that the transmission is for service of court documents; (f) the name and telephone number of a person to contact if there is a problem with transmission; and (g) a return electronic address. #### 7.17 When service is taken to have been carried out A document is taken to have been served: (a) on the date when service is acknowledged; (b) if served by post to an address in Australia—on the third day after it was posted; (c) if served by delivery to a document exchange—on the next working day after the day when it was delivered; or (d) on a date fixed by the court. #### 7.18 Service with conditions or dispensing with service (1) A party who is unable to serve a document may apply, without notice, for an order: (a) to serve the document in another way; or (b) to dispense with service of the document, with or without conditions. (2) The factors the court may have regard to when considering an application under subrule (1) include: (a) the proposed method of bringing the document to the attention of the person to be served; (b) whether all reasonable steps have been taken to serve the document or bring it to the notice of the person to be served; (c) whether the person to be served could reasonably become aware of the existence and nature of the document by advertisement or another form of communication that is reasonably available; (d) the likely cost of service; and (e) the nature of the case. (3) If the court orders that service of a document is: (a) dispensed with unconditionally; or (b) dispensed with on a condition that is complied with; the document is taken to have been served. > Note: An application under this rule is made by filing an Application in a Case and an affidavit (see rules 5.01 and 5.02). ## Part 7.6—Service in non‑convention country #### 7.19 Service in non‑convention country (1) A person may serve a document on a person in a non‑convention country: (a) in accordance with the law of the non‑convention country; or (b) if the non‑convention country permits service of judicial documents through the diplomatic channel—through the diplomatic channel. (2) A person seeking to serve a document in a non‑convention country through the diplomatic channel must: (a) request the Registry Manager, in writing, to arrange service of the document under this Part; and (b) lodge 2 copies of each document to be served, translated, if necessary, into an official language of that country. (3) If the Registry Manager receives a request under subrule (2), the Registry Manager must: (a) seal the documents to be served; and (b) send to the Secretary of the Department of Foreign Affairs and Trade: (i) the sealed documents; and (ii) a written request that the documents be sent to the government of the non‑convention country for service. #### 7.20 Proof of service in non‑convention country (1) This rule applies if: (a) a document is sent to the Secretary of the Attorney‑ General’s Department for service on a person in a non‑convention country; and (b) an official certificate or declaration by the government or court of the country, stating that the document has been personally served, or served in another way under the law of the country, is sent to the court. (2) The certificate or declaration is proof of service of the document and, when filed, is a record of the service and has effect as if it were an affidavit of service. > Note: If service cannot be carried out under this rule, the applicant may apply for an order dispensing with service (see rule 7.18). Chapter 8—Right to be heard, address for service and submitting notices > Note: Summary of Chapter 8 > Note: Chapter 8 sets out rules about: > Note:  the people who may be heard by the court and the requirements for their address for service; and > Note:  submitting notices; and > Note:  the appointment of an independent children’s lawyer; and > Note:  lawyer’s conflict of interest and ceasing to act. > Note: The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules. > Note: A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules. ## Part 8.1—Right to be heard and representation #### 8.01 Right to be heard and representation (1) A person (other than a corporation or authority) who is entitled to be heard in a case may conduct the case on the person’s own behalf or be represented by a lawyer. (2) A corporation or authority that is entitled to be heard in a case may be represented by a lawyer, or an officer of the corporation or authority. > Note 1: For the right of a lawyer to appear in a court exercising jurisdiction under the Act, see Part VIIIA of the Judiciary Act 1903. > Note 2: A party may apply to appear at a hearing or trial by electronic communication (see rules 5.06 and 16.05). > Note 3: A party is not entitled to be represented by a person who is not a lawyer unless the court otherwise orders. The court will give permission for representation by a person other than a lawyer only in special circumstances. #### 8.02 Independent children’s lawyer (1) A party may apply for the appointment or removal of an independent children’s lawyer by filing an Application in a Case. > Note: A party may ask for a procedural order orally (see paragraph (h) of item 3 of Table 11.1 in rule 11.01). (2) If the court makes an order for the appointment of an independent children’s lawyer: (a) it may request that the representation be arranged by a legal aid body that is a relevant authority within the meaning of subsection 116C(5) of the Act; and (b) it may order that the costs of the independent children’s lawyer be met by a party. > Note: Section 68L of the Act provides for the independent representation of children. (3) A person appointed as an independent children’s lawyer: (a) must file a Notice of Address for Service; (b) must comply with these Rules and do anything required to be done by a party; and (c) may do anything permitted by these Rules to be done by a party. (4) If an independent children’s lawyer is appointed, the parties must conduct the case as if the independent children’s lawyer were a party. (5) The appointment of an independent children’s lawyer ceases: (a) when the Initiating Application (Family Law) is determined or withdrawn; or (b) if there is an appeal—when the appeal is determined or withdrawn. > Note 1: If a document or notice is served on or given to a party under these Rules, the document or notice must also be served on or given to any independent children’s lawyer (see subrule 7.04 (4)). > Note 2: This rule applies unless the court orders otherwise (see rule 1.12). #### 8.03 Lawyer—conflicting interests A lawyer acting for a party in a case must not act in the case for any other party who has a conflicting interest. > Note: This rule does not purport to set out all the situations in which a lawyer may not act for a party. #### 8.04 Lawyer—ceasing to act (1) A lawyer may cease to act for a party: (a) by serving on the party a Notice of Ceasing to Act and, no sooner than 7 days after serving the notice, filing a copy of the notice; or (b) with the court’s permission. (2) If: (a) a party’s address for service is the party’s lawyer’s address; and (b) the lawyer ceases to act for the party; the party’s last known residential address is the address for service until the party files a Notice of Address for Service. ## Part 8.2—Address for service #### 8.05 Address for service (1) A party must give an address for service if: (a) the party files or responds to an application; or (b) the party seeks to be heard by the court. (2) A party must give only one address for service for each application filed. (3) A party may give an address for service: (a) in the first document filed by the party; or (b) by filing a Notice of Address for Service. (4) An address for service: (a) must be an address in Australia where documents may be left or received by post; (aa) must include a telephone number at which the party may be contacted; and (b) may include a facsimile number and an address for service by electronic communication. (5) A party may include an address for service by electronic communication only if documents sent to or from that address can be read by the computer software of each party and the court. > Note: If an address for service includes a facsimile number or an address for service by electronic communication, documents served on the person by that method are taken by the court to be served on the person on the day when the documents were transmitted to that address (see paragraph 7.17(d)). #### 8.06 Change of address for service If a party’s address for service changes during a case, the party must file a Notice of Address for Service within 7 days after the change. > Note 1: A new address for service will be needed if a party: (a) acts in person and changes address; (b) initially acts in person and later appoints a lawyer; (c) initially appoints a lawyer and later acts in person; or (d) changes lawyers during the case. > Note 2: Until a Notice of Address for Service is filed and served, the previous address remains on the court record as the address for service and all documents will be served at that address unless subrule 8.04(2) applies. ## Part 8.3—Submitting notices #### 8.07 Submitting notices (1) A party who has been served with an application referred to in subrule (2), and who does not want to contest the relief sought in the application, may file a submitting notice in the approved form. > Note: A document that is filed must be served on each person to be served (see rule 7.04). (2) The applications are the following: (a) an Initiating Application (Family Law) seeking final orders; (b) a Response to an Initiating Application (Family Law); (c) a Reply to a Response to an Initiating Application (Family Law); (d) a Notice of Appeal. (3) The submitting notice must: (a) state that the party submits to any order that the court may make; and (b) state whether the party wants to be heard on the question of costs; and (c) include an address for service. (4) A submitting notice for a party served with an application referred to in paragraph (2)(a), (b) or (c) must be filed: (a) before the first court date fixed under rule 4.03; or (b) if the party was added to the case after that date—before the date for the procedural hearing set under subrule 11.10(3). (5) A submitting notice for a party served with a Notice of Appeal must be filed within 14 days after the party was served with the Notice of Appeal. (6) A party who has filed a submitting notice may apply to the court for leave to withdraw the notice. (7) An application under subrule (6) must be accompanied by an affidavit stating: (a) why the party wants to withdraw the submitting notice; and (b) the party’s intentions in relation to the further conduct of the proceeding. Chapter 9—Response and reply > Note: Summary of Chapter 9 > Note: Chapter 9 sets out the procedure for: > Note:  responding to an Initiating Application (Family Law) (known as a Response to Initiating Application (Family Law); > Note:  responding to an Application in a Case (known as a Response to an Application in a Case); and > Note:  replying to a Response to Initiating Application (Family Law) seeking orders in a cause of action other than one mentioned in the application (known as a Reply). > Note: A Response to Application for Divorce is used to respond to an Application for Divorce (see rule 3.04). > Note: The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules. > Note: A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules. ## Part 9.1—Response to an Initiating Application (Family Law) #### 9.01 Response to an Initiating Application (Family Law) (1) A respondent to an Initiating Application (Family Law) who seeks to oppose the orders sought in the application or seeks different orders must file a Response to an Initiating Application (Family Law). (2) A Response to an Initiating Application (Family Law) must: (a) state the facts in the application with which the respondent disagrees; (b) state what the respondent believes the facts to be; and (c) give full particulars of the orders the respondent wants the court to make. (3) In addition to the matters in subrule (2), a Response to an Initiating Application (Family Law) may: (a) consent to an order sought by the applicant; (b) ask that the application be dismissed; or (c) ask for orders in another cause of action. (4) A Response to an Initiating Application (Family Law) must not include a request for any of the following orders: (a) a divorce order; (b) an order that a marriage be annulled; (c) a declaration as to validity of a marriage, divorce or annulment; (d) an order under Division 4.2.3 authorising a medical procedure. > Note: If: (a) a Response to an Initiating Application (Family Law) includes a request for orders in another cause of action; and (b) documents would be required to be filed under rule 2.02 to support that cause of action; > Note: the respondent must file with the Response to an Initiating Application (Family Law) the document required under rule 2.02 to be filed for that cause of action. #### 9.02 Filing an affidavit with Response to Initiating Application (Family Law) A respondent must not file an affidavit with a Response to Initiating Application (Family Law) unless: (a) responding to interim, procedural, ancillary or other incidental orders sought in the Initiating Application; (b) seeking interim, procedural, ancillary or other incidental orders in the Response; or (c) required to do so by item 5 or 6 of Table 2.2. #### 9.03 Response objecting to jurisdiction (1) A respondent seeking to object to the jurisdiction of the court: (a) must file a Response to an Initiating Application (Family Law); and (b) is not taken to have submitted to the jurisdiction of the court by seeking other orders in the Response to an Initiating Application (Family Law). (2) The objection to the jurisdiction must be determined before any other orders sought in the Response to an Initiating Application (Family Law). ## Part 9.2—Reply to Response to an Initiating Application (Family Law) #### 9.04 Applicant reply to Response to an Initiating Application (Family Law) (Reply) An applicant must file a Reply if: (a) in the Response to an Initiating Application (Family Law), the respondent seeks orders in a cause of action other than a cause of action mentioned in the application; and (b) the applicant seeks: (i) to oppose the orders sought in the Response to an Initiating Application (Family Law); or (ii) different orders in the cause of action mentioned in the Response to an Initiating Application (Family Law). #### 9.04A Additional party reply to Response to an Initiating Application (Family Law), (Reply) (1) This rule applies if, in a Response to an Initiating Application (Family Law), a respondent seeks orders against a person other than the applicant (an additional party). (2) An additional party who seeks to oppose the orders sought in the Response to an Initiating Application (Family Law), or who seeks different orders, must file a Reply. ## Part 9.3—Response to Application in a Case #### 9.05 Response to Application in a Case A respondent to an Application in a Case who seeks to oppose the Application or seeks different orders must file a Response to an Application in a Case. #### 9.06 Affidavit to be filed with Response to an Application in a Case (1) A respondent who files a Response to an Application in a Case must, at the same time, file an affidavit stating the facts relied on in support of the Response to an Application in a Case. (2) Subrule (1) does not apply to a Response to an Application in a Case filed in response to an application to review an order of a Judicial Registrar or Registrar. #### 9.07 Affidavit in reply to Response to an Application in a Case If: (a) a respondent files a Response to an Application in a Case seeking orders in a cause of action other than a cause of action mentioned in the Application in a Case; and (b) the applicant opposes the orders sought in the Response to an Application in a Case; the applicant may file an affidavit setting out the facts relied on. ## Part 9.4—Filing and service #### 9.08 Time for filing and service of response or reply (1) A party may respond to an application by filing and serving a Response (and any affidavit filed with it) at least 7 days before the date fixed for the case assessment conference, procedural hearing or hearing to which the response relates. (2) If a party wishes to file a Reply, the party must file and serve the reply as soon as possible after the response is received. (3) All affidavits in a case started by an Application in a Case or a Response to an Application in a Case must be filed at least 2 days before the date fixed for the hearing. > Note: The affidavits to which subrule (3) applies include those affidavits that must be filed with the application or response and any affidavit by the applicant responding to the orders sought in a new cause of action in a Response to an Application in a Case. Chapter 10—Ending a case without a trial > Note: Summary of Chapter 10 > Note: Chapter 10 sets out how a party may resolve a case without a trial and the procedure to end a case, if agreement is reached. > Note: The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules. > Note: A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules. ## Part 10.1—Offers to settle > Note: Each party is encouraged at all times to make an offer to settle to the other party in an effort to resolve a case. This Part sets out the rules that apply to offers to settle in the Family Court. Part 10.1 contains two Divisions. > Note: Division 10.1.1 applies to all offers to settle and provides for: > Note: (a) how an offer is made; > Note: (b) the form an offer is to take; > Note: (c) how an offer is accepted or withdrawn; > Note: (d) the timing of acceptance or withdrawal; and > Note: (e) what to do when an offer is accepted and a case is resolved. > Note: Division 10.1.2 applies only to offers to settle in property cases in which an offer to settle must be made after a conciliation conference. ### Division 10.1.1—General #### 10.01 How to make an offer  (1) A party may make an offer to another party to settle all or part of a case by serving on the other party an offer to settle at any time before the court makes an order disposing of the case. > Note: See also paragraph 117(2A)(f) and section 117C of the Act in relation to offers to settle. (2) A party may make an offer to settle all or part of an appeal by serving on the other party an offer to settle at any time before the court makes an order disposing of the appeal. (3) An offer to settle: (a) must be in writing; and (b) must not be filed. > Note: A later offer to settle has the effect of withdrawing an earlier offer (see subrule 10.03(3)). #### 10.02 Open and ‘without prejudice’ offer (1) An offer to settle is made without prejudice (a without prejudice offer) unless the offer states that it is an open offer. (2) A party must not mention the fact that a without prejudice offer has been made, or the terms of the offer: (a) in any document filed; or (b) at a hearing or trial. (3) If a party makes an open offer, any party may disclose the facts and terms of the offer to other parties and the court. (4) Subrule (2) does not apply to: (a) an application relating to an offer; or (b) an application for costs. #### 10.03 How to withdraw an offer (1) A party may withdraw an offer to settle by serving a written notice on the other party that the offer is withdrawn. (2) A party may withdraw an offer to settle at any time before: (a) the offer is accepted; or (b) the court makes an order disposing of the application or appeal to which the offer relates. (3) A second or later offer by a party has the effect of withdrawing an earlier offer. #### 10.04 How to accept an offer (1) A party may accept an offer to settle by notice, in writing, to the party making the offer. (2) A party may accept an offer to settle at any time before: (a) the offer is withdrawn; or  (b) the court makes an order disposing of the application or appeal. (3) If an offer to settle is accepted, the parties must lodge a draft consent order. > Note 1: The draft consent order should set out the orders agreed to by the parties and must be signed by both parties. Once lodged, it will be considered by the court under rule 10.17. The parties may agree to the dismissal of all applications. > Note 2: Paragraph 6.13(1)(d) requires that, if a party seeks a consent order and a case guardian has been appointed for the party, the case guardian must file an affidavit stating why the consent order is in the best interests of the party, and any other matter the court may require. #### 10.05 Counter‑offer A party may accept an offer to settle even though the party has made a counter‑offer to settle. ### Division 10.1.2—Offer to settle—property cases #### 10.06 Compulsory offer to settle (1) This rule applies to a property case. (2) Each party must make a genuine offer to settle to all other parties within: (a) 28 days after the conciliation conference; (b) if no conciliation conference has been held—28 days after the procedural hearing at which the case was allocated the first day before the Judge; or (c) such further time as ordered by the court. (3) The offer to settle must state that it is made under this Division. > Note: Example: The offer to settle must include a statement along the following lines: > Note: ‘This offer to settle is made under Division 10.1.2 of the Family Law Rules 2004.’ > Note 1: For rules about making, withdrawing and accepting an offer, see Division 10.1.1. > Note 2: An offer to settle is a factor that must be taken into account when the court exercises its discretion in relation to costs (see paragraph 117(2A)(f) of the Act). > Note 3: Rule 11.02 sets out the consequences of failing to comply with these Rules. #### 10.07 Withdrawal of offer A party who withdraws an offer to settle made under this Division must, at the same time, make another genuine offer to settle. ## Part 10.2—Discontinuing a case #### 10.10 Definition In this Part: > case includes: (a) part of a case; (b) an order sought in an application; and (c) an application for a consent order when there is no current case (see Part 10.4). #### 10.11 Discontinuing a case (1) A party may discontinue a case by filing a Notice of Discontinuance . (2) A party must apply to the court for permission to discontinue a case if: (a) the case relates to property of the parties, or a party, and one of the parties dies before the case is determined; or (b) in an application for divorce—there are less than 7 days before the date of the hearing. > Note: Under subsection 79(8) of the Act, a party may continue with an application for property even if one of the parties has died. (3) Discontinuance of a case by a party does not discontinue any other party’s case. > Note: If one or more joint applicants, but not all, discontinue a case, any discontinuing applicant becomes a respondent. (4) If a party discontinues a case, another party may apply for costs within 28 days after the Notice of Discontinuance is filed. (5) If: (a) a party is required to pay the costs of another party because of the discontinuance of a case; and (b) the party required to pay the costs starts another case on the same, or substantially the same, grounds before paying the costs; the other party may apply for the case to be stayed until the costs are paid. ## Part 10.3—Summary orders and separate decisions > Note: An application under this Part is made by filing an Application in a Case and an affidavit (see rules 5.01 and 5.02). #### 10.12 Application for summary orders A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that: (a) the court has no jurisdiction; (b) the other party has no legal capacity to apply for the orders sought; (c) it is frivolous, vexatious or an abuse of process; or (d) there is no reasonable likelihood of success. #### 10.13 Application for separate decision A party may apply for a decision on any issue, if the decision may: (a) dispose of all or part of the case; (b) make a trial unnecessary; (c) make a trial substantially shorter; or (d) save substantial costs. #### 10.14 What the court may order under this Part On an application under this Part, the court may: (a) dismiss any part of the case; (b) decide an issue; (c) make a final order on any issue; (d) order a hearing about an issue or fact; or (e) with the consent of the parties, order arbitration about the case or part of the case. > Note: This list does not limit the powers of the court. The court may make orders on an application, or on its own initiative (see rule 1.10). ## Part 10.4—Consent orders #### 10.15 How to apply for a consent order (1) A party may apply for a consent order: (a) in a current case: (i) orally, during a hearing or a trial; (ii) by lodging a draft consent order; or (iii) by tendering a draft consent order to a judicial officer during a court event; or (b) if there is no current case—by filing an Application for Consent Orders. > Note: A case guardian for a party seeking a consent order (other than an order relating to practice or procedure), must file an affidavit setting out the facts relied on to satisfy the court that the consent order is in the party’s best interests (see paragraph 6.13(1)(d)). (1A) A party who files an Application for Consent Orders if there is no current case must: (a) lodge a draft consent order; or (b) tender a draft consent order to a judicial officer during a court event. (2) A draft consent order must: (a) set out clearly the orders that the parties ask the court to make; (b) state that it is made by consent; (c) be signed by each of the parties; and (d) unless the order relates to an Application for Consent Orders filed by electronic communication, be accompanied by additional copies of the order: (i) so that there is a copy for each person to be served and an additional copy for the court; and (ii) each of which is certified by the applicant’s lawyer, or by each party to the application, as a true copy. (2A) Subrule (1) does not apply to an application for a parenting order in relation to a child born under a surrogacy arrangement. > Note: Applications for a parenting order in relation to a child born under a surrogacy arrangement must be made by Initiating Application: see paragraph (c) in item 2A of table 2.2 in rule 2.02. Division 4.2.8 of these Rules and section 60HB of the Act also relate to children born under surrogacy arrangements. (3) Paragraph (1)(b) does not apply if a party applies for a consent order: (a) for step‑parent maintenance under section 66M of the Act; (b) relying on a cross‑vesting law; (c) approving a medical procedure; (d) for a parenting order when section 65G of the Act applies; or (e) for an order under the Assessment Act or Registration Act. (4) A party applying for a consent order in a case mentioned in subrule (3) must file an Initiating Application (Family Law) as soon as the consent is received. > Note: If an independent children’s lawyer has been appointed in a case, the court will not make a consent order unless the independent children’s lawyer has also signed the draft consent order (see subrule 8.02(4)). #### 10.15A Consent parenting orders and allegations of abuse or family violence (1) This rule applies if an application is made to the court for a parenting order by consent. Application made orally in a current case (2) If the application is made orally during a hearing or trial, each party, or if represented by a lawyer, the party’s lawyer: (a) must advise the court whether the party considers that the child concerned has been, or is at risk of being, subjected to or exposed to abuse, neglect or family violence; (b) must advise the court whether the party considers that he or she, or another party to the proceedings, has been or is at risk of being subjected to family violence; and (c) if allegations of abuse or family violence have been made—must explain to the court how the order attempts to deal with the allegations. Other applications made in a current case (3) If the application is made in a current case by lodging or tendering a draft consent order, each party, or if represented by a lawyer, the party’s lawyer: (a) must certify in an annexure to the draft consent order whether the party considers that the child concerned has been, or is at risk of being, subjected to or exposed to abuse, neglect or family violence; (b) must certify in the annexure whether the party considers that he or she, or another party to the proceedings, has been or is at risk of being subjected to family violence; and (c) if allegations of abuse or family violence have been made—must explain in the annexure how the order attempts to deal with the allegations. Application when there is no current case (4) If the application is made when there is no current case, each party, or if represented by a lawyer, the party’s lawyer: (a) must certify, in the Application for Consent Orders, whether the party considers that the child concerned has been, or is at risk of being, subjected to or exposed to abuse, neglect or family violence; (b) must certify, in the Application for Consent Orders, whether the party considers that he or she, or another party to the proceedings, has been or is at risk of being subjected to family violence; and (c) if allegations of abuse or family violence have been made—must explain, in the Application for Consent Orders, how the order attempts to deal with the allegations. #### 10.16 Notice to superannuation trustee (1) This rule applies in a property case if a party intends to apply for a consent order which is expressed to bind the trustee of an eligible superannuation plan. (2) The party must, not less than 28 days before lodging the draft consent order or filing the Application for Consent Orders, notify the trustee of the eligible superannuation plan in writing of the following: (a) the terms of the order that will be sought to bind the trustee; (b) the next court event (if any); (c) that the parties intend to apply for the order sought if no objection to the order is received from the trustee within the time mentioned in subrule (3); (d) that 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 notice under subrule (2), the party may file the application or lodge the draft consent order. (4) Despite subrule (3), if, after service of notice under subrule (2) on the trustee, the trustee consents, in writing, to the order being made, the parties may file the Application for Consent Orders or lodge the draft consent order. > Note: Eligible superannuation plan is defined in section 90MD of the Act. #### 10.17 Dealing with a consent order If a party applies for a consent order, the court may: (a) make an order in accordance with the orders sought; (b) require a party to file additional information; (c) dismiss the application > Note: A party applying for a consent order must satisfy the court as to why the consent order should be made. #### 10.18 Lapsing of respondent’s consent A respondent’s consent to an application that an order be made in the same terms as the draft consent order attached to an Application for Consent Orders lapses if: (a) 90 days have passed since the date of the first statement of truth in the Application for Consent Orders; and (b) the Application for Consent Orders has not been filed. Chapter 11—Case management > Note: Summary of Chapter 11 > Note: Chapter 11 sets out the ways the court may manage a case to achieve the main purpose of these Rules (see rule 1.04), including: > Note:  making procedural orders; > Note:  limiting the issues in dispute; > Note:  permitting amendment of applications or documents to clarify the issues in dispute; and > Note:  changing the venue of a case. > Note: The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules. > Note: A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules. ## Part 11.1—Court’s powers of case management #### 11.01 General powers The court may exercise any of the powers mentioned in Table 11.1 to manage a case to achieve the main purpose of these Rules (see rule 1.04). Table 11.1 Court’s powers | Item | Subject | Power | | ---- | ---------------- | -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | | 1 | Attendance | (a) order a party to attend:(ii) a procedural hearing;(iii) a family consultant;(iv) family counselling or family dispute resolution;(v) a conference or other court event; or(vi) a post‑separation parenting program;(b) require a party, a party’s lawyer or an independent children’s lawyer to attend court | | 2 | Case development | (a) consolidate cases;(b) order that part of a case be dealt with separately;(c) decide the sequence in which issues are to be tried;(d) specify the facts that are in dispute, state the issues and make procedural orders about how and when the case will be heard or tried;(e) finalise the balance sheet setting out all assets, liabilities and financial resources that either party asserts are relevant to the determination of the case;(f) with the consent of the parties, order that a case or part of a case be submitted to arbitration;(g) order a party to provide particulars, or further and better particulars, of the orders sought by that party and the basis on which the orders are sought;(h) order a party to produce any relevant document in a financial case to the court or to any other party for the purpose of developing and finalising the balance sheet | | 3 | Conduct of case | (a) hold a court event and receive submissions and evidence by electronic communication;(b) postpone, bring forward or cancel a court event;(c) adjourn a court event;(d) stay a case or part of a case;(e) make orders in the absence of a party;(f) deal with an application without an oral hearing;(g) deal with an application with written or oral evidence or, if the issue is a question of law, without evidence;(h) allow an application to be made orally;(i) determine an application without requiring notice to be given;(j) order that a case lose listing priority;(k) make a self‑executing order;(l) make an order granting permission for a party to perform an action if a provision of the Rules requires a party to obtain that permission;(m) for a fee that is required by law to be paid—order that the fee must be paid by a specified date | Note 1: The powers mentioned in this rule are in addition to any powers given to the court under a legislative provision or that it may otherwise have. Note 2: Rule 1.10 provides that a court may make an order on its own initiative and sets out what other things the court may do when making an order or giving a party permission to do something. #### 11.02 Failure to comply with a legislative provision or order (1) If a step is taken after the time specified for taking the step by these Rules, the Regulations or a procedural order, the step is of no effect. > Note: A defaulter may apply to the court for relief from this rule (see rule 11.03). (2) If a party does not comply with these Rules, the Regulations or a procedural order, the court may: (a) dismiss all or part of the case; (b) set aside a step taken or an order made; (c) determine the case as if it were undefended; (d) make any of the orders mentioned in rule 11.01; (e) order costs; (f) prohibit the party from taking a further step in the case until the occurrence of a specified event; or (g) make any other order the court considers necessary, having regard to the main purpose of these Rules (see rule 1.04). > Note: This list does not limit the powers of the court. It is an expectation that a non‑defaulting party will minimise any loss. #### 11.03 Relief from orders (1) A party may apply for relief from: (a) the effect of subrule 11.02(1); or (b) an order under subrule 11.02(2). (2) In determining an application under subrule (1), the court may consider: (a) whether there is a good reason for the non‑compliance; (b) the extent to which the party has complied with orders, legislative provisions and the pre‑action procedures; (c) whether the non‑compliance was caused by the party or the party’s lawyer; (d) the impact of the non‑compliance on the management of the case; (e) the effect of non‑compliance on each other party; (f) costs; (g) whether the applicant should be stayed from taking any further steps in the case until the costs are paid; and (h) if the application is for relief from the effect of subrule 11.02(1)—whether all parties consent to the step being taken after the specified time. > Note 1: This list does not limit the powers of the court. See also subrule 1.12(3). > Note 2: A party may make an application under this rule by filing an Application in a Case or, with the court’s permission, orally at a court event. #### 11.04 Certificate of vexatious proceedings order (1) A request under subsection 102QC(1) of the Act for a certificate relating to a vexatious proceedings order must: (a) be in writing; and (b) include the following: (i) the name and address of the person making the request; (ii) the person’s interest in making the request. (2) The request must be lodged in the Registry in which the vexatious proceedings order was made. (3) For the purposes of paragraph 102QC(2)(b) of the Act, the certificate must specify the following information: (a) the name of the person subject to the vexatious proceedings order; (b) if applicable, the name of the person who applied for the vexatious proceedings order; (c) the orders made by the court under subsection 102QB(2) of the Act. > Note: The certificate must also specify the date of the vexatious proceedings order: see paragraph 102QC(2)(a) of the Act. #### 11.05 Application for leave to institute proceedings after vexatious proceedings order made (1) This rule applies if the court has made an order under: (a) subsection 102QB(2) of the Act; or (b) any of the following, as in force immediately before the commencement of Schedule 3 to the Access to Justice (Federal Jurisdiction) Amendment Act 2012: (i) paragraph 118(1)(c) or subsection 118(2) of the Act; (ii) paragraph 11.04(1)(b) of these Rules; and the person against whom the order was made applies for leave to institute or continue proceedings. (2) An application under subsection 102QE(2) of the Act must be: (a) in the form of an Application in a Case; and (b) made without notice to any other party. > Note: For the contents of the affidavit that must be filed with the application, see subsection 102QE(3) of the Act. (3) On the first court date for the application, the court may: (a) dismiss the application; or (b) order the person to: (i) serve the application and affidavit; and (ii) file and serve any further affidavits in support of the application; and (iii) list the application for hearing. #### 11.06 Dismissal for want of prosecution (1) If a party has not taken a step in a case for one year, the court may: (a) dismiss all or part of the case; or (b) order an act to be done within a fixed time, in default of which the party’s application will be dismissed. (2) The court must not make an order under subrule (1) unless, at least 14 days before making the order, the court has given the parties written notice of the date and time when it will consider whether to make the order. (3) If: (a) an application is dismissed under subrule (1); (b) a party is ordered to pay the costs of another party; and (c) before the costs are paid, the party ordered to pay them starts another application on the same or substantially the same grounds; the other party may apply for the case to be stayed until the costs are paid. > Note: This rule applies unless the court orders otherwise (see rule 1.12). ## Part 11.2—Limiting issues ### Division 11.2.1—Admissions Note: To reduce cost and delay, parties are encouraged to make admissions in relation to facts and documents. The admission is for the purposes of the case only, in order to narrow the issues in dispute. A party should give the other party written notice of any admissions as early as practicable in the case. For example, if admissions are made before the disclosure process, disclosure may be able to be limited and the costs of the case reduced. #### 11.07 Request to admit (1) A party may, by serving a Notice to Admit on another party, ask the other party to admit, for the purposes of the case only, that a fact is true or that a document is genuine. (2) A Notice to Admit must include a note to the effect that, under subrule 11.08(2), failure to serve a Notice Disputing a Fact or Document will result in the party being taken to have admitted that the fact is true or the document is genuine. (3) If a Notice to Admit mentions a document, the party serving the Notice must attach a copy of the document to the notice, unless: (a) the other party has a copy of the document; or (b) it is not practicable to attach the copy to the Notice. (4) If paragraph (3)(b) applies, the party must: (a) in the Notice: (i) identify the document; and (ii) specify a convenient place and time at which the document may be inspected; and (b) produce the document for inspection at the specified place and time. #### 11.08 Notice disputing fact or document (1) If a party who is served with a Notice to Admit seeks to dispute a fact or document specified in the Notice, the party must serve on the party who served the Notice, within 14 days after it was served, a Notice Disputing the Fact or Document. (2) If a party does not serve a notice in accordance with subrule (1), the party is taken to admit, for the purposes of the case only, that the fact is true or the document is genuine. (3) If: (a) a party serves a Notice Disputing a Fact or Document; and (b) the fact or the genuineness of the document is later proved in the case; the party who served the Notice may be ordered to pay the costs of proof. #### 11.09 Withdrawing admission (1) A party may withdraw an admission that a fact is true or a document is genuine only with the court’s permission or the consent of all parties. (2) When allowing a party to withdraw an admission, the court may order the party to pay any other party’s costs thrown away. (3) In subrule (1): > admission includes an admission in a document in the case or taken to be made under subrule 11.08(2). > Note: The court may, on application, order that a party not pay costs (see rule 1.12). ### Division 11.2.2—Amendment #### 11.10 Amendment by a party or court order (1) A party who has filed an application or response may amend the application or response: (a) for a case started by an Initiating Application (Family Law): (i) at any time before the procedural hearing at which the case is allocated the first day before the Judge; or (ii) if the court gives permission—at a later time; (b) for an Application in a Case: (i) at or before the first court date; or (ii) at any later time, with the consent of the other parties or by order; and (c) for all other applications—at any time, with the consent of the other parties or by order. > Note: An amendment of an application may be necessary to ensure that the court determines the real issues between the parties or to avoid multiple cases. (2) A party who: (a) has filed an Initiating Application (Family Law) or Response to an Initiating Application (Family Law); and (b) seeks to add or substitute another cause of action or another person as a party to the case; must amend the Form in accordance with this Division. (3) If an amendment mentioned in subrule (2) is made after the first court date, the Registry Manager must set a date for a further procedural hearing. (4) If a date is set for a further procedural hearing, the party amending the Initiating Application (Family Law) or Response to an Initiating Application (Family Law) under subrule (2) must give each other party written notice of the hearing. #### 11.11 Time limit for amendment A party who has been given permission by the court to amend an application must do so within 7 days after the order is made. > Note: The court may shorten or extend the time for compliance with a rule (see rule 1.14). #### 11.12 Amending a document (1) A party must amend a document by filing a copy of the document: (a) with the amendment clearly marked; and (b) if the document is amended by order—endorsed with the date when the order and amendment are made. (2) If the court gives permission for a party to amend a document, the permission is taken to be given by court order. > Note: Example: An amendment may be made by: (a) placing a line through the text to be changed; and (b) underlining the new text or using a different type‑face to indicate the new text. > Note: Rule 13.06 sets out the requirements for amending a Financial Statement. #### 11.13 Response to amended document If an amended document that has been served on a party affects a document (the affected document) previously filed by the party, the party may amend the affected document: (a) in accordance with rule 11.12; and (b) not more than 14 days after the amended document was served on the party. #### 11.14 Disallowance of amendment The court may disallow an amendment of a document. > Note: Example: The court may disallow an amendment if it is frivolous, vexatious or not in accordance with these Rules or an order. ## Part 11.3—Venue ### Division 11.3.1—Open court and chambers #### 11.16 Venue for proceedings (1) Proceedings in the court (other than a trial) may be heard in chambers. (2) If a case is determined in chambers, the judicial officer who determined the case must record the following: (a) the file number; (b) the names of the parties; (c) the date of the determination; (d) the orders made. (3) If a judgment is given in proceedings: (a) the judgment must be pronounced in open court; and (b) if the reasons for judgment are reduced to writing—the written reasons must be published by delivering them to the Registrar or an associate in open court. ### Division 11.3.2—Transferring a case #### 11.17 Transfer to another court or registry A party may apply to have a case: (a) heard at another place; or (b) transferred to another registry or court exercising jurisdiction under the Act. #### 11.18 Factors to be considered for transfer (1) In making a decision under rule 11.17 or in deciding whether to remove a case from another court under subsection 46(3A) of the Act, the court may consider: (a) the public interest; (b) whether the case, if transferred or removed, is likely to be dealt with: (i) at less cost to the parties; (ii) at more convenience to the parties; or (iii) earlier; (c) the availability of a judicial officer specialising in the type of case to which the application relates; (d) the availability of particular procedures appropriate to the case; (e) the financial value of the claim; (f) the complexity of the facts, legal issues, remedies and procedures involved; (g) the adequacy of the available facilities, having regard to any disability of a party or witness, and any safety concerns; and (h) the wishes of the parties. > Note: Subsection 33B(6) of the Act provides that, in deciding whether a case should be transferred to the Federal Circuit Court, the court must have regard to: (a) any rules of the court applying to the transfer of cases; (b) whether cases in respect of an associated matter are pending in the Federal Circuit Court; (c) whether the resources of the Federal Circuit Court are sufficient to hear and determine the case; and (d) the interests of the administration of justice. (2) Subrule (1) does not apply to: (a) a case raising, or relying on, a cross‑vesting law in which a party objecting to the case being heard in the Family Court applies to have the case transferred to another court; (b) the transfer of a case under the Corporations Act 2001; or (c) a case that must be transferred in accordance with a legislative provision. > Note: Division 4.2.2 deals with cross‑vesting laws and Chapter 25 deals with cases under the Corporations Act 2001. ### Division 11.3.3—Transfer of court file #### 11.20 Transfer between courts If an order is made to transfer a case from a court to another court, the Registry Manager, after receiving the file, must: (a) fix a date for a procedural hearing; and (b) give each party notice of the date fixed. Chapter 12—Court events—Registrar managed > Note: Summary of Chapter 12 > Note: Chapter 12 sets out rules about the events that parties to an Application for Final Orders may be required to attend before the first day before the Judge is allocated. Depending on whether it is a parenting case or a financial case, these include: > Note: (a) a case assessment conference; > Note: (b) an initial procedural hearing; > Note: (c) the Child Responsive Program; > Note: (d) a conciliation conference; and > Note: (e) a procedural hearing where the case is set down for the first day before the Judge > Note: The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules. > Note: A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules. ## Part 12.1—Application of Chapter 12 #### 12.01 Application of Chapter 12 This Chapter applies to all Initiating Applications (Family Law), except: (a) a Medical Procedure Application; (b) a Maintenance Application; (c) a child support application or appeal; (d) an application for an order that a marriage is a nullity or a declaration as to the validity of a marriage, divorce or annulment; (e) an application in which the only order sought relates to a passport (see Division 4.2.7). ## Part 12.2—Specific court events #### 12.02 Property case—exchange of documents before first court date At least 2 days before the first court date in a property case, each party must, as far as practicable, exchange with each other party a copy of all of the following documents: (a) a copy of the party’s 3 most recent taxation returns and assessments; (b) if relevant, documents about any superannuation interest of the party, including: (i) if not already filed, the completed superannuation information form for the superannuation interest; and (ii) if the party is a member of a self‑managed superannuation fund—a copy of the trust deed and the 3 most recent financial statements for the fund; (c) for a corporation in relation to which a party has a duty of disclosure under rule 13.04: (i) a copy of the financial statements for the 3 most recent financial years, including balance sheets, profit and loss accounts, depreciation schedules and taxation returns; (ii) a copy of the corporation’s most recent annual return that lists the directors and shareholders; and (iii) if relevant, a copy of the corporation’s constitution; (d) for a trust in relation to which a party has a duty of disclosure under rule 13.04: (i) a copy of the financial statements for the 3 most recent financial years, including balance sheets, profit and loss accounts, depreciation schedules and taxation returns; and (ii) a copy of the trust deed; (e) for a partnership in relation to which a party has a duty of disclosure under rule 13.04: (i) a copy of the financial statements for the 3 most recent financial years, including balance sheets, profit and loss accounts, depreciation schedules and taxation returns; and (ii) a copy of the partnership agreement; (f) for a person or entity mentioned in paragraph (a), (c), (d) or (e)—any business activity statements for the 12 months ending immediately before the first court date; (g) unless the value is agreed—a market appraisal or an opinion as to value in relation to any item of property in which a party has an interest. > Note: All parties have a general duty of disclosure (see Chapter 13). For examples of the type of property about which disclosure must be made, see rule 13.04. #### 12.03 Case assessment conference (1) A case assessment conference must be held in the presence of a Registrar. (2) The purpose of a case assessment conference is: (a) to enable the person conducting the conference to assess and make any recommendations about the appropriate future conduct of the case; and (b) to enable the parties to attempt to resolve the case, or any part of the case, by agreement; and (c) to determine whether the case: (i) is suitable to remain in the Family Court; or (ii) should be transferred to another court exercising jurisdiction under the Act. (3) At a case assessment conference, each party must, as far as practicable, identify each of the following: (a) any procedural orders sought; (b) the agreed issues; (c) the items to be included on the balance sheet; (d) any areas of controversy about the assets, liabilities, superannuation and financial resources of the parties; (e) any person who may be entitled to become a party to the case; (f) any other relevant matter related to the main purpose of these Rules (see rule 1.04). (4) If the case is not settled by the end of the conference, the court will make procedural orders for the future conduct of the matter, including: (a) if appropriate—an order that the parties attend a conciliation conference; or (b) if the case is suitable to be allocated the first day before the Judge—procedural orders under rule 12.08. (5) If the proceedings also involve parenting issues and the case is not settled by the end of the conference, the parties may be ordered to attend the Child Responsive Program. > Note 1: A party and a party’s lawyer must attend a case assessment conference (see subrule 1.08(3) and rule 12.11). > Note 2: A party to a parenting case must disclose a copy of an expert’s report no later than 2 days before a case assessment conference (see paragraph 15.55(1)(a)). > Note 3: Evidence of a communication made at a case assessment conference may be excluded (see section 131 of the Evidence Act 1995). #### 12.04 Initial procedural hearing in a parenting case (1) The purpose of an initial procedural hearing in a parenting case is: (a) to enable the person conducting the hearing: (i) to assess the case; (ii) to make recommendations about the future conduct of the case; and (iii) to determine whether the case is suitable to remain in the Family Court or should be transferred to another court exercising jurisdiction under the Act; and (b) to enable the parties to attempt to resolve the case, or any part of the case, by agreement. (2) If the case is not settled at the end of the hearing, the person conducting the hearing: (a) must make procedural orders for the future conduct of the case; and (b) may order the parties to attend the Child Responsive Program. > Note: A party to a parenting case must disclose a copy of an expert’s report no later than 2 days before the first court event (see paragraph 15.55(1)(a)). #### 12.05 Property case—exchange of documents before conciliation conference (1) This rule applies to a party to a property case in which the parties are required to attend a conciliation conference. (2) Within 28 days after the case assessment conference, each party must, as far as practicable, exchange with each other party: (a) if not already exchanged, a copy of all the documents mentioned in rule 12.02; and (b) any other documents ordered at the case assessment conference to be exchanged. #### 12.06 Financial questionnaire and balance sheet (1) Within 21 days after the case assessment conference, each party must file a financial questionnaire in the form approved by the Chief Executive Officer. (2) Within 28 days after the case assessment conference, the applicant must: (a) prepare a balance sheet in the form approved by the Chief Executive Officer by completing all items and values asserted by the applicant; and (b) send the balance sheet to the respondent. (3) Within 21 days after receiving the balance sheet, the respondent must: (a) add the respondent’s estimated values for all items on the balance sheet prepared by the applicant; (b) add any items to the balance sheet the respondent asserts have been omitted from the balance sheet and assert values for those items; (c) complete the notes relating to all disputed items and all disputed values for items; and (d) return the amended balance sheet to the applicant. (4) Within 14 days after receiving the amended balance sheet, the applicant must: (a) add the applicant’s estimated values for all items added to the balance sheet by the respondent; (b) complete the notes relating to all disputed items and all disputed values for items; and (c) file the balance sheet with the court. > Note 1: For the service requirements for a document filed with the court, see rule 7.04. > Note 2: Subsection 131(1) of the Evidence Act 1995 does not apply to the financial questionnaire or balance sheet. #### 12.07 Conduct of a conciliation conference (1) A conciliation conference must be conducted by a judicial officer. (2) Each party at a conciliation conference must make a genuine effort to reach agreement on the matters in issue between them. > Note 1: A party and a party’s lawyer must attend a conciliation conference (see subrule 12.11(1)). > Note 2: Evidence of a communication made at a conciliation conference may be excluded (see section 131 of the Evidence Act 1995). #### 12.08 Procedural hearing in a financial case (1) For a financial case: (a) if a conciliation conference has been held—a procedural hearing must take place immediately after the conciliation conference ends; and (b) if a conciliation conference is not scheduled to be held before the first day before the Judge, the procedural hearing must be held at the conclusion of the case assessment conference. (2) The purpose of the procedural hearing in a financial case is to enable the person conducting the hearing to make procedural orders for the conduct of the case, including orders for any of the following matters: (a) if a conciliation conference has been held: (i) the clarification of any disputed items in the balance sheet; and (ii) the clarification of any issue arising out of a statement made by a party in a financial questionnaire; (b) payment of the hearing fee; (c) filing of undertakings as to disclosure; (d) allocating a date for a compliance check as close as practicable to 21 days before the first day before the Judge; (e) allocating the first day before the Judge. #### 12.09 Procedural hearing after the Child Responsive Program (1) A procedural hearing must take place as soon as practicable after the parties complete the Child Responsive Program. (2) The purpose of the procedural hearing after the Child Responsive Program is to enable the person conducting the hearing to make procedural orders for the conduct of the case, including orders for any of the following matters: (a) referring parties to family counselling, family dispute resolution and other family services; (b) appointment of an independent children’s lawyer; (c) payment of the hearing fee; (d) completion by each party of a parenting questionnaire; (e) filing of undertakings as to disclosure; (f) allocating a date for a compliance check as close as practicable to 21 days before the first day before the Judge; (g) allocating the first day before the Judge. > Note: The court would usually order that the parties attend this event by electronic communication. #### 12.10 Procedural hearing where the application includes both a financial case and a parenting case (1) This rule applies if: (a) an application includes a financial case and a parenting case; (b) the financial case remains unresolved after the conciliation conference; and (c) the parenting case remains unresolved after the parties complete the Child Responsive Program. (2) A procedural hearing must be held as soon as practicable after the later of: (a) completion of the conciliation conference; or (b) completion of the Child Responsive Program. (3) The purpose of the procedural hearing is to enable the person conducting the hearing to take the actions mentioned in subrules 12.08(2) and 12.09(2). > Note: The court would usually order that the parties attend this event by electronic communication. #### 12.10A Expedition (1) A party may apply to expedite the first day before the Judge. > Note: For the procedure for making an application in a case, see Chapter 5. (2) The court may take into account: (a) whether the applicant has acted reasonably and without delay in the conduct of the case; (b) whether the application has been made without delay; (c) any prejudice to the respondent; and (d) whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases. (3) If the court is satisfied of the matters in subrule (2), the court may: (a) set an early first day before the Judge; and (b) make procedural orders for the further conduct of the case. (4) For paragraph (2)(d), a relevant circumstance includes: (a) whether the age, physical or mental health of, or other circumstance (such as an imminent move interstate or overseas) affecting, a party or witness would affect the availability or competence of the party or witness; (b) whether a party has been violent, harassing or intimidating to another party, a witness or any child the subject of, or affected by, the case; (c) whether the applicant is suffering financial hardship that: (i) is not caused by the applicant; and (ii) cannot be rectified by an interim order; (d) whether the continuation of interim orders is causing the applicant or a child hardship; (e) whether the purpose of the case will be lost if it is not heard quickly (for example, a job opportunity will be lost if not taken; property will be destroyed; an occasion will have passed); (f) whether the case involves allegations of child sexual, or other, abuse; and (g) whether an expedited trial would avoid serious emotional or psychological trauma to a party or child who is the subject of, or affected by, the case. ## Part 12.4—Attendance at court events #### 12.11 Party’s attendance (1) A party and the party’s lawyer (if any) must attend each procedural hearing, case assessment conference or conciliation conference. (2) Subrule (1) does not apply if the parties are seeking a consent order that will finally dispose of the case. > Note 1: A request under rule 5.14 for an application to be determined in the absence of the parties does not apply to a court event mentioned in Chapter 12 because rule 5.14 applies only to interim, procedural or enforcement orders. > Note 2: If, at a court event mentioned in subrule (1), the parties intend to seek a consent order that will finally dispose of the case, a party or the party’s lawyer may be excused from attending the event. > Note 3: A lawyer attending a court event for a party must be familiar with the case and authorised to deal with any issue in the case (see subrule 1.08(3)). > Note 4: Rule 16.02 deals with compliance checks. #### 12.12 Attendance by electronic communication Rules 5.06 and 5.07 apply in relation to the use of electronic communication to attend a court event (other than a trial) as if the court event were a hearing. > Note: Rule 16.05 sets out the requirements in relation to attending a trial by electronic communication. #### 12.13 Failure to attend court events (1) If an applicant does not attend a case assessment conference or procedural hearing, the court may: (a) dismiss the application; or (b) make an order for the future conduct of the case. (2) If a respondent does not attend a case assessment conference or procedural hearing, the court may: (a) if respondent has not filed a Response to an Application for Final Orders—make the order sought in the application; (b) list the case for dismissal or hearing on an undefended basis; or (c) make an order for the future conduct of the case. (3) If a party does not attend a conciliation conference, the court may: (a) list the case for dismissal or hearing on an undefended basis; and (b) make an order for the future conduct of the case. > Note: See rules 11.01 and 11.02 for the court’s power to make orders for the conduct of a case. ## Part 12.5—Adjournment and postponement of court events #### 12.14 Administrative postponement of conferences or procedural hearings (1) If the applicant and any party served agree that a case assessment conference or a procedural hearing should not proceed on the date fixed for it, the applicant and any party served may request the Registry Manager to postpone the conference or hearing. (2) A request must: (a) be in writing; (b) specify why it is appropriate to postpone the event; (c) specify the date to which the event is sought to be postponed; (d) be signed by each party making the request or the party’s lawyer; and (e) be received by the Registry Manager no later than 12 noon on the day before the date fixed for the conference or hearing. (3) If a request is made, the Registry Manager must tell the parties: (a) that the event has been postponed; and (b) the date to which it has been postponed. (4) The Registry Manager must not postpone a conference more than once or any procedural hearing more than twice. (5) A court event mentioned in subrule (1) must not be postponed to a date that is more than 8 weeks after the date fixed for the event.