Division 4.2.3Medical procedure

## Part 4.1—Introduction #### 4.01 Contents of Application for Final Orders (1) In an Initiating Application (Family Law), the applicant must: (a) give full particulars of the orders sought; and (b) include all causes of action that can be disposed of conveniently in the same case. > Note: Under paragraph 1.08(1)(a), any orders sought must be reasonable in the circumstances of the case and within the power of the court. (2) A party seeking any of the following must not include any other cause of action in the Application: (a) an order that a marriage be annulled; (b) a declaration as to the validity of a marriage, divorce or annulment; (c) an order authorising a medical procedure under Division 4.2.3. > Note: An application for an order mentioned in subrule (2) may only be made in an Initiating Application (Family Law) and must not be made in a Response to an Initiating Application (Family Law) (see subrule 9.01(4)). (3) Despite subrule (2), a party may seek the following orders in the same Application: (a) an order that a marriage be annulled; (b) a declaration as to the validity of a marriage, divorce or annulment. > Note: For amendment of an application, see Division 11.2.2. #### 4.02 Filing affidavits A party must not file an affidavit with an Initiating Application (Family Law) unless permitted or required to do so by these Rules. > Note: Example: A party only seeking final orders for property settlement or parenting orders must not file an affidavit with an Initiating Application (Family Law). #### 4.03 First court date On the filing of an Initiating Application (Family Law), the Registry Manager must fix a date: (a) in a parenting case—for a procedural hearing that is as near as practicable to 28 days after the application was filed; (b) in a financial case—for a case assessment conference that is as near as practicable to 28 days after the application was filed; (c) if the application includes both a financial case and a parenting case—for a case assessment conference that is as near as practicable to 28 days after the application was filed; or (d) if an earlier date is fixed for the hearing of that or another application so far as it concerns an interim, procedural or other ancillary order in the case—for a procedural hearing on the same day. > Note: Under subrule 5.05(4), a Registrar may, in exceptional circumstances, allow an application for an interim, procedural, ancillary or other incidental order to be listed for urgent hearing. Chapter 12 sets out the requirements for case assessment conferences and procedural hearings. ## Part 4.2—Specific applications ### Division 4.2.1—General #### 4.04 General provisions still apply If a rule in this Part specifies particular requirements for an application, those requirements are in addition to the general requirements for an Initiating Application (Family Law). #### 4.05 Application by Attorney‑General for transfer of case If the Attorney‑General of the Commonwealth, or of a State or Territory, applies for the transfer of a case under Division 4.2.2 (Cross‑vesting) or Chapter 25 (Corporations Act 2001), the Attorney‑General does not, by that application, automatically become a party to the case. ### Division 4.2.2—Cross‑vesting #### 4.06 Cross‑vesting matters (1) If a party filing an Initiating Application (Family Law) or a Response to Initiating Application (Family Law) relies on a cross‑vesting law, the party must specify, in the application or response, the particular State or Territory law on which the party relies. (2) A party relying on a cross‑vesting law after a case has started must file an Application in a Case seeking procedural orders in relation to the matter. (3) A party to whom subrule (1) or (2) applies must also file an affidavit stating: (a) that the claim is based on the State or Territory law and the reasons why the Family Court should deal with the claim; (b) the rules of evidence and procedure (other than those of the relevant Family Court) on which the party relies; and (c) if the case involves a special federal matter—the grounds for claiming the matter involves a special federal matter. #### 4.07 Transfer of case A party to a case to which rule 4.06 applies may apply to have the case transferred to another court by filing an Application in a Case. > Note: An application under this rule must be listed for hearing by a Judge. ### Division 4.2.3—Medical procedure #### 4.08 Application for medical procedure (1) Any of the following persons may make a Medical Procedure Application in relation to a child: (a) a parent of the child; (b) a person who has a parenting order in relation to the child; (c) the child; (d) the independent children’s lawyer; (e) any other person concerned with the care, welfare and development of the child. (2) If a person mentioned in paragraph (1)(a) or (b) is not an applicant, the person must be named as a respondent to the application. > Note 1: Section 65C of the Act sets out who may apply for a parenting order. > Note 2: 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. #### 4.09 Evidence supporting application (1) If a Medical Procedure Application is filed, evidence must be given to satisfy the court that the proposed medical procedure is in the best interests of the child. (2) The evidence must include evidence from a medical, psychological or other relevant expert witness that establishes the following: (a) the exact nature and purpose of the proposed medical procedure; (b) the particular condition of the child for which the procedure is required; (c) the likely long‑term physical, social and psychological effects on the child: (i) if the procedure is carried out; and (ii) if the procedure is not carried out; (d) the nature and degree of any risk to the child from the procedure; (e) if alternative and less invasive treatment is available—the reason the procedure is recommended instead of the alternative treatments; (f) that the procedure is necessary for the welfare of the child; (g) if the child is capable of making an informed decision about the procedure—whether the child agrees to the procedure; (h) if the child is incapable of making an informed decision about the procedure—that the child: (i) is currently incapable of making an informed decision; and (ii) is unlikely to develop sufficiently to be able to make an informed decision within the time in which the procedure should be carried out, or within the foreseeable future; (i) whether the child’s parents or carer agree to the procedure. (3) The evidence may be given: (a) in the form of an affidavit; or (b) with the court’s permission, orally. #### 4.10 Service of application The persons on whom a Medical Procedure Application and any document filed with it must be served include the prescribed child welfare authority. > Note: For service of an Initiating Application (Family Law), see rules 7.03 and 7.04. #### 4.11 Fixing of hearing date (1) On the filing of a Medical Procedure Application, the Registry Manager must fix a date for a hearing before a Judge of a Family Court. (2) The date fixed must be: (a) as soon as possible after the date of filing; and (b) if practicable, within 14 days after the date of filing. > Note: Under subrule 9.08(1), a Response to an Initiating Application (Family Law) must be filed at least 7 days before the date fixed for the hearing of the application. #### 4.12 Procedure on first court date On the first court date for a Medical Procedure Application, the court must: (a) make procedural orders for the conduct of the case and adjourn the case to a fixed date of hearing; or (b) hear and determine the application. ### Division 4.2.4—Spousal or de facto maintenance Note: Applications should not be made under this Division unless an associated matter is pending in the court or filing with the Federal Circuit Court is not available. Under section 33B of the Family Law Act 1975, the Family Court may transfer the proceeding to the Federal Circuit Court without notice to the parties. #### 4.14 Procedure on first court date (1) On the first court date for an Application for spousal or de facto maintenance, the Registrar must, if practicable, conduct a case assessment conference. (2) If the case is not resolved at the case assessment conference, the Registrar may make orders for the conduct of the case, including the exchange of affidavits between the parties and the listing of the case for hearing. #### 4.15 Evidence to be provided (1) On the first court date and the hearing date of an Application for spousal or de facto maintenance, 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 modification of a spousal maintenance order, see section 83 of the Act. For modification of a de facto maintenance order, see section 90SI of the Act. (2) Before the hearing date, a party must produce the documents mentioned in subrule (1) for inspection, if the other party to the proceedings makes a written request for their production. (3) If a request is made under subrule (2), the documents must be produced within 7 working days of the request being received