Part 26.3—Examinations

## Part 21.1—Applications for enforcement of orders, contravention of orders and contempt of court #### 21.01 Application of Part 21.1 This Part applies to an application for an order: (a) to enforce a parenting order; (b) under Division 13A of Part VII or Part XIIIA of the Act; or (d) that another person be punished for contempt of court. > Note 1: Subsection 69C(2) of the Act specifies who may apply for an order in relation to a child. Division 13A of Part VII of the Act sets out the consequences of failing to comply with an order or other obligation that affects children. Part XIIIA of the Act sets out the sanctions the court may impose on a person who fails to comply with an order or other obligation that does not affect children. Part XIIIB of the Act sets out the punishment the court may impose on a person found to be in contempt of court. > Note 2: If a maintenance order is complied with before an Application for Contempt is heard by the court, the failure to comply with the order that led to the Application for Contempt being filed does not constitute a contempt of court (see subsection 112AP(1A) of the Act). > Note 3: The court: (a) must not impose a sentence of imprisonment: (i) for non‑compliance with a maintenance order unless it is satisfied that the contravention was intentional or fraudulent (see subsections 70NFB(4) and 112AD(2A) of the Act); or (ii) if it considers that another consequence is more appropriate (see subsections 70NFG(2)and 112AE(2) of the Act); and (b) cannot enforce an order of another court unless the order is registered in the first‑mentioned court (see section 105 of the Act and regulation 17 of the Regulations). #### 21.02 How to apply for an order (1) A person seeking to apply for an order under this Part must file an application as set out in Table 21.1. Table 21.1 Applications | Item | Kind of application | Application form to be filed | | ---- | -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | ---------------------------- | | 1 | Enforcement of parenting order | Application in a Case | | 1A | Contravention of subsection 67X(2) of the Act in relation to a recovery order | Application—Contravention | | 2 | Contravention of an order (of a kind included in the definition of an order under this Act affecting children under section 4 of the Act) under Division 13A of Part VII of the Act affecting children, for example, a breach of a parenting order | Application—Contravention | | 3 | Contravention of an order (of a kind included in the definition of an order under this Act under section 112AA of the Act) under Part XIIIA of the Act not affecting children, for example, a breach of a property order | Application—Contravention | | 4 | An order that another person be punished for contempt of court | Application—Contempt | | 5 | Failure to comply with a bond entered into in accordance with the Act | Application—Contravention | > Note: Example for item 1 of Table 21.1 > Note: A party may use an Application in a Case if: (a) the party does not want the other party to a parenting order to be punished for a failure to comply with the order but wants to be compensated for time not spent with a child as a result of the failure to comply; or (b) before the time due to be spent with a child, the other party refuses to comply with the handover arrangements. (2) A person filing an application mentioned in Table 21.1 must file with it an affidavit that: (a) states the facts necessary to enable the court to make the orders sought in the application; and (b) for an application mentioned in item 1 of Table 21.1—has attached to it a copy of any order, bond, agreement or undertaking that the court is asked to enforce or that is alleged to have been contravened. > Note: Example for paragraph (2)(a) > Note: If a person alleges, in an Application for Contempt, that a party is in contempt because of a contravention of an order that involved a flagrant challenge to the court’s authority (see subsection 112AP(1) of the Act), or alleges in an Application for Contravention that a person has behaved in a way that showed a serious disregard of his or her obligations under a parenting order (see paragraph 70NFA(2)(b) of the Act), the affidavit must set out the alleged facts necessary to prove this. > Note: An application and affidavit must be served by hand on the respondent (see Table 7.1). (3) If the application is for an order mentioned in item 2 of Table 21.1, the affidavit must also state: (a) whether a court has previously found that the respondent contravened the primary order without reasonable excuse; and (b) the details of any finding made under paragraph (a), including: (i) the date and place of the finding; (ii) the court that made the finding; and (iii) the terms of the finding in sufficient detail to show that the finding related to a previous contravention by the respondent of the primary order. #### 21.03 Application made or continued by Marshal The Family Court may direct the Marshal to make or continue an application under this Chapter. #### 21.04 Contempt in the court room (1) This rule applies if it appears to the court that a person is guilty of contempt in the court room. (2) The court may: (a) order the person to attend before the court; or (b) issue a warrant for the person’s arrest. > Note 1: The procedure in this rule is in addition to the procedure mentioned in rule 21.02. > Note 2: Contempt in the court room interferes with the administration of justice. Examples of actions that may be contempt include: (a) assaulting or threatening a Judge or another person; (b) insulting the court; (c) disrupting court proceedings; and (d) disrespect or other misbehaviour in court. #### 21.05 Fixing of hearing date On the filing of an application under subrule 21.02(1), the Registry Manager must fix a date for a hearing that is as near as practicable to 14 days after the date of filing. > Note: When an application is filed, the court may order the parties to attend family counselling, family dispute resolution or a specified parenting program (see section 65F of the Act). #### 21.06 Response to an application A respondent to an application mentioned in item 1A, 2, 3, 4 or 5 of Table 21.1 may file an affidavit but is not required to do so. #### 21.07 Failure of respondent to attend If a respondent fails to attend the hearing in person or by a lawyer, the court may: (a) determine the case; (b) for a respondent to an application mentioned in item 1A, 2, 3, 4 or 5 of Table 21.1—issue a warrant for the respondent’s arrest to bring the respondent before a court; or (c) adjourn the application. #### 21.08 Procedure at hearing At the hearing of an application mentioned in item 1A, 2, 3, 4 or 5 in Table 21.1, the court must: (a) inform the respondent of the allegation; (b) ask the respondent whether the respondent wishes to admit or deny the allegation; (c) hear any evidence supporting the allegation; (d) ask the respondent to state the response to the allegation; (e) hear any evidence for the respondent; and (f) determine the case. > Note: For the orders that may be made by the court, see sections 67X, 70NBA, 70NCB, 70NDB, 70NDC, 70NEB, 70NFB, 70NFF, 112AD, 112AH and 112AP of the Act. ## Part 21.2—Parenting orders—compliance #### 21.09 Duties of program provider (1) The provider of a post‑separation parenting program required to inform the court of a matter under section 70NED of the Act must do so by notice in accordance with subrule (2). (a) if the order is made under subparagraph 70NG(1)(a)(i) of the Act—if the person: (i) fails to attend the provider for the initial assessment; or (ii) is considered unsuitable to attend a program; or (b) if the order is made under subparagraph 70NG(1)(a)(ii) of the Act: (i) if the person fails to attend the program, or part of the program; or (ii) the program provider considers that the person is unsuitable to continue attending all or part of the program. (2) The notice must: (a) be in writing and addressed to the Registry Manager of the filing registry; and (b) comply with subrule 24.01(1). #### 21.10 Relisting for hearing If the Registry Manager receives a notice under subrule 21.09(1), the Registry Manager may list the case for further orders under section 70NEG of the Act. ## Part 21.3—Location and recovery orders #### 21.11 Application of Part 21.3 This Part applies to the following orders: (a) a location order; (b) a Commonwealth information order; (c) a recovery order. > Note: See sections 67J to 67W of the Act. #### 21.12 Application for order under Part 21.3 A person may apply for an order to which this Part applies by filing an Application in a Case. > Note 1: For the requirements for making a Commonwealth information order, see subsection 67N(3) of the Act. > Note 2: An affidavit must be filed with an Application in a Case (see rule 5.02) #### 21.13 Fixing of hearing date The Registry Manager must fix a date for a hearing that is within 14 days after the application was filed, if practicable. #### 21.14 Service of recovery order (1) This rule applies to a person who is ordered or authorised by a recovery order to take the action mentioned in paragraph 67Q(b), (c) or (d) of the Act. (2) If the person: (a) is ordered to find and recover a child; and (b) finds and recovers the child; the person must serve the recovery order on the person from whom the child is recovered at the time the child is recovered. (3) For the enforcement of a recovery order: (a) the original recovery order is not necessary; and (b) a copy of the sealed recovery order is sufficient. #### 21.15 Application for directions for execution of recovery order (1) The following people may, by written request to the court, seek procedural orders in relation to a recovery order: (a) a party; (b) a person who is ordered or authorised by a recovery order to take the action mentioned in paragraph 67Q(b), (c) or (d) of the Act. (2) A request under subrule (1) must: (a) comply with subrule 24.01(1); (b) set out the procedural orders sought; and (c) be accompanied by an affidavit setting out the facts relied on and the reason for the orders. (3) The court may determine the request in chambers. ## Part 21.4—Warrants for arrest #### 21.16 Application for warrant (1) A party may apply, without notice, for a warrant to be issued for the arrest of a respondent if: (a) the respondent is required to attend court on being served with: (i) an application for an enforcement hearing under rule 20.11; (ii) a subpoena or order directing the respondent to attend court; or (iii) an application mentioned in item 1A, 2, 3, 4 or 5 of Table 21.1; and (b) the respondent does not attend at court on the date fixed for attendance. (2) If a warrant is issued, it must have attached to it a copy of the application, subpoena or order mentioned in paragraph (1)(a). > Note: The court may issue a warrant on an oral application. #### 21.17 Execution of warrant (1) A warrant may authorise: (a) a member of the Australian Federal Police; (b) a member of the police service of a State or Territory; (c) the Marshal; or (d) any other person appointed by the court; to proceed to enforce the warrant. (2) A person authorised to enforce a warrant may act on the original warrant or a copy. (3) When the warrant is enforced, the person arrested must be served with a copy. #### 21.18 Duration of warrant A warrant (except a warrant issued under subsection 65Q(2) of the Act) ceases to be in force 12 months after the date when it is issued. #### 21.19 Procedure after arrest (1) If the court issues a warrant for a person’s arrest, it may order that the person arrested: (a) be held in custody until the hearing of the case; or (b) be released from custody on compliance with a condition, including a condition that the person enter into a bond. (2) A person who arrests another person under a warrant must: (a) arrange for the person to be brought before the court that issued the warrant or another court having jurisdiction under the Act, before the end of the holding period; and (b) take all reasonable steps to ensure that, before the person is brought before a court, the person on whose application the warrant was issued is advised about: (i) the arrest; (ii) the court before which the person arrested will be brought; and (iii) the date and time when the person arrested will be brought before the court. (3) When a person arrested under a warrant is brought before a court, the court may: (a) if the court issued the warrant: (i) make any of the orders mentioned in subrule (1); (ii) adjourn the case and direct the Registry Manager to take all reasonable steps to ensure that the person on whose application the warrant was issued is advised about the arrest and the date and time when the person must attend before the court if the person wishes to bring or continue an application; (iii) if the application for which the warrant was issued is before the court or the court allows another application—hear and determine the application; or (iv) if there is no application before the court—order the person’s release from custody; and (b) if the court did not issue the warrant: (i) order that the person be held in custody until the person is brought before the court specified in the warrant; (ii) make any of the orders mentioned in subrule (1); and (iii) make inquiries of the court that issued the warrant, (for example, inquiries about current applications and hearing dates). (4) A person arrested under this rule who is still in custody at the end of the holding period must be released from custody unless otherwise ordered. (5) This rule does not apply to a person who is arrested: (a) under a warrant issued under subsection 65Q(2) of the Act; (b) without a warrant, under a recovery order; or (c) without a warrant, under sections 68C and 114AA of the Act. > Note: The provisions mentioned in subrule (5) are excluded because the procedure on arrest is set out in the Act. #### 21.20 Application for release or setting aside warrant A person arrested in accordance with a warrant may apply: (a) for the warrant to be set aside; or (b) to be released from custody. Chapter 22—Appeals > Note: Summary of Chapter 22 > Note: Chapter 22 sets out the procedures to appeal an order including where leave to appeal is required. > 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 22.1—Introduction #### 22.01 Application of Chapter 22 (1) This Chapter applies to the following appeals: (a) an appeal to the Full Court from an order of a Judge or Judges of the Family Court, a Family Court of a State or a Supreme Court of a State or Territory; (b) an appeal to the Family Court from an order of the Federal Circuit Court (whether heard by the Full Court or a single Judge); (c) an appeal to the Family Court from an order of a Family Law Magistrate of Western Australia (whether heard by the Full Court or a single Judge); (d) an appeal to a single Judge of the Family Court from an order of a court of summary jurisdiction. (2) This Chapter does not apply to an application to a Judge of a Family Court for a review of an order of a Judicial Registrar or Registrar (see Chapter 18). ## Part 22.2—Starting an appeal > Note: A person needs the court’s permission to appeal from: > Note: (a) an interlocutory order, other than an interlocutory order relating to a child welfare matter, of a Family Court, the Federal Circuit Court or a Family Law Magistrate of Western Australia (see subsection 94AA(1) of the Act and regulation 15A of the Regulations); or > Note: (b) an order, made by a court, mentioned in section 102, 102A or 105 of the Assessment Act or section 107, 107A or 110 of the Registration Act. #### 22.02 Starting an appeal (1) A person may start an appeal by filing a Notice of Appeal: (a) for an appeal from a court of summary jurisdiction other than a Family Law Magistrate of Western Australia—in the registry of a Family Court that is closest to the court of summary jurisdiction that made the order appealed from; and (b) in any other case—in the Regional Appeal Registry. (2) If an appeal cannot be started without the leave of the court, leave must be sought in the Notice of Appeal. > Note 1: A filing fee may be payable (see regulation 16 of the Regulations). > Note 2: At the hearing of the appeal, only the grounds stated in the Notice of Appeal may be argued except with the court’s permission. A Notice of Appeal may be amended only in accordance with rule 22.09. > Note 3: Chapter 24 sets out the requirements for documents and filing. > Note 4: A document that is filed must be served on each party to be served (see subrule 7.04 (1)). #### 22.03 Time for appeal A Notice of Appeal, including a Notice of Appeal in which leave to appeal is sought, must be filed within 28 days after the date the order appealed from was made. > Note 1: Rule 17.01 sets out when an order is made. > Note 2: A person may apply for an extension of time to appeal or to make an application for leave to appeal (see rule 1.14). #### 22.04 Parties to an appeal Each person who is directly affected by the orders sought in the Notice of Appeal, or who is likely to be interested in maintaining the order under appeal, must be made a respondent to the appeal or the application for leave to appeal. > Note: An application may be made to have a person added or removed as a party to an appeal (see paragraphs 94(2B)(a) and 94AAA(8)(a) of the Act, paragraphs 102(6)(a) and 102A(7)(a) of the Assessment Act and paragraphs 107(5)(a) and 107A(7)(a) of the Registration Act). See Division 22.7.1 for how to make an application relating to an appeal. #### 22.05 Service A copy of a Notice of Appeal must be served on each party to the appeal, in accordance with rule 22.04, within 14 days after it is filed. > Note: A party may apply for an extension of time to serve a copy of a Notice of Appeal (see rule 1.14). #### 22.06 Notice about appeal to other courts (1) If an appeal is from an order of a court other than a Family Court, the appellant must give a copy of the Notice of Appeal to the Registrar of that court within 14 days after filing the Notice of Appeal. (2) A party seeking leave to appeal from an order of another court must give a copy of the Notice of Appeal in which leave to appeal is sought to: (a) the Registrar of the other court; and (b) for an appeal from a court exercising jurisdiction under the child support legislation—the Child Support Registrar. #### 22.07 Cross‑appeal A respondent to an appeal or an independent children’s lawyer who intends to argue that an order under appeal should be varied or set aside must cross‑appeal by filing a Notice of Appeal endorsed as a cross‑appeal. > Note: A party who does not want to contest the relief sought in the Notice of Appeal may file a submitting notice under rule 8.07. #### 22.08 Time for cross‑appeal A Notice of Appeal for a cross‑appeal must be filed within the later of: (a) 14 days after the Notice of Appeal for the appeal is served on the cross‑appellant; or (b) 28 days after the date the order appealed from was made. > Note 1: A document that is filed must also be served on each person to be served (see subrule 7.04(1)). > Note 2: A person may apply for an extension of time to cross‑appeal (see rule 1.14). #### 22.08A Notice of contention If a respondent to an appeal does not want to cross‑appeal from any part of an order, but contends that the order should be affirmed on grounds other than those relied on by the court appealed from, the respondent must, within 14 days after the Notice of Appeal was served on the respondent, file a notice of contention in the approved form. > Note: A document that is filed must be served on each person to be served (see rule 7.04). #### 22.09 Amendment of Notice of Appeal (1) The grounds of appeal and the orders sought in a Notice of Appeal may be amended without permission, at any time up to and including the date fixed for filing of the summary of argument by the appellant. (2) If a Notice of Appeal is amended, the grounds of appeal and the orders sought in a Notice of Appeal endorsed as a cross‑appeal may be amended without permission, at any time within 7 days after service of the amended Notice of Appeal. > Note 1: A party may apply for permission to amend a Notice of Appeal at a later time. See Division 22.7.1 for how to apply for permission to amend grounds of appeal. > Note 2: Rule 11.12 provides for how to amend a document. #### 22.10 Documents filed in a current appeal If an appeal has been started, a document filed in the appeal must be filed in the same Registry in which the appeal was filed. #### 22.11 Stay (1) The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision. (2) If an appeal has been started, or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates. (3) An application for a stay must be filed in the Registry in which the order under appeal was made and be heard by the Judge of the Family Court, Judge of the Federal Circuit Court or Magistrate who made the order under appeal. > Note 1: Under subsection 55(3) of the Act, a divorce order is stayed until after an appeal against it is determined or discontinued. > Note 2: An application for a stay may be listed before another judicial officer if the judicial officer who made the order under appeal is unavailable (see rule 1.13). #### 22.12 Application for leave to appeal In considering an application for leave to appeal from an order, a Judge, a Regional Appeal Registrar or other Registrar may make procedural orders, including: (a) an order requiring the applicant to file a written undertaking to pay any filing fee; (b) an order that the proposed appeal be argued at the same time as the application for leave to appeal; or (c) an order that the application be dealt with by the court without an oral hearing and orders in relation to the conduct of the application, including the filing of written submissions. > Note: The court has the power to determine some applications relating to an appeal without an oral hearing (see subsections 94(2C) and (2E), 94AAA(9) and (11), and 94AA(3) of the Act, subsections 102(7) and (9), and 102A(8) and (10) of the Assessment Act and subsections 107(6) and (8), and 107A(8) and (10) of the Registration Act). The court may decide to deal with an application without an oral hearing on its own initiative or on application. #### 22.13 Filing draft index to appeal books (1) This rule applies to an appeal that is not an appeal from a court of summary jurisdiction other than a Family Law Magistrate of Western Australia. (2) The appellant must file a draft index to the appeal book within: (a) 28 days after: (i) filing the Notice of Appeal; or (ii) the date when the reasons for judgment that relate to the order the subject of the appeal are issued (being the date of the certificate of the Associate to the Judicial Officer that appears on the published reasons for judgment); or (b) if the court extends the period mentioned in paragraph (a)—the period ordered by the court. (3) If the appellant fails to comply with subrule (2), the appeal is taken to be abandoned. > Note 1: A party may apply for an extension of time (see rule 1.14). > Note 2: See rules 22.19 and 22.20 for what must be included in the appeal books. > Note 3: A document that is filed must also be served on each party to the appeal (see rule 22.04). ## Part 22.3—Appeal to Full Court #### 22.14 Application of Part 22.3 This Part applies to the following appeals: (a) an appeal to the Full Court: (i) from an order of a Judge or Judges of a Family Court exercising the original jurisdiction of the court; or (ii) under subsection 94(1AA) of the Act; (b) an appeal to the Full Court from an order of the Federal Circuit Court or a Family Law Magistrate of Western Australia, when the jurisdiction of the court in relation to the appeal is to be exercised by the Full Court; (c) an appeal to the Full Court from a single Judge of a Supreme Court of a State or Territory. > Note: On the filing of an appeal from an order of the Federal Circuit Court or a Family Law Magistrate of Western Australia, the Chief Justice must decide whether the jurisdiction of the Family Court is to be exercised by the Full Court or a single Judge. There is no right to an appeal against this decision. > Note: If the appeal is to be heard by: (a) a Full Court—Part 22.3 applies; and (b) a single Judge—Part 22.4 applies. > Note: The Regional Appeal Registrar will give the parties to the appeal written notice of which Part of these Rules apply. #### 22.15 Procedural hearing As soon as reasonably practical after the filing of a draft index the Regional Appeal Registrar must: (a) fix a date for a procedural hearing for the appeal before a Regional Appeal Registrar or other Registrar or, if the Regional Appeal Registrar considers it appropriate, a Judge of the Appeal Division or other Judge (if a Judge of the Appeal Division is unavailable); and (b) give the parties to the appeal written notice of the date fixed for the procedural hearing. > Note: An application or appeal will usually be listed before a Regional Appeal Registrar, but may be listed before a Judge of the Appeal Division or another Judge if there is no Judge of the Appeal Division available (see rule 1.13). #### 22.16 Attendance at first procedural hearing (1) The appellant or the appellant’s lawyer must attend on the first procedural hearing for the appellant’s appeal. (2) Any of the following persons may also attend on the first procedural hearing: (a) a respondent in the appeal; (b) a lawyer for a respondent in the appeal; (c) an independent children’s lawyer in the appeal. > Note: A party may request permission to attend the procedural hearing by electronic communication (see rule 22.31) or be excused from attending the procedural hearing (see rule 1.12). #### 22.17 Orders to be made at procedural hearing (1) A Regional Appeal Registrar or Registrar conducting a procedural hearing may, if the Registrar considers it appropriate, adjourn the hearing to a Judge at any time. (2) Orders about the following matters may be made at a procedural hearing: (a) the documents that are to be included in the appeal books; (b) the part or parts of the transcript of the hearing relevant to the appeal that are to be included in the appeal books; (c) the preparation of the appeal books and the number of copies; (d) the date by which the appeal books must be filed and served; (e) the conduct of the appeal (including the likely duration of the appeal); (f) any other matter which the Registrar or Judge considers necessary. #### 22.18 Preparation of appeal books (1) The appellant or, if so ordered, the cross‑appellant is responsible for preparing and filing the appeal books, including arranging to obtain any transcript required to be included in the appeal books. (2) If a Judge or Regional Appeal Registrar is satisfied that preparing the appeal books would impose exceptional hardship on the appellant, the Judge or Regional Appeal Registrar may order either of the following to prepare and file the appeal books: (a) a respondent; (b) the Regional Appeal Registrar. > Note: If the Regional Appeal Registrar prepares the appeal books, the appellant or cross‑appellant (if so ordered) is still responsible for obtaining the transcript (see rule 22.27). (3) When making an order under subrule (2), the court may order the appellant to pay the costs of preparing the appeal books. > Note 1: The party filing the appeal books must file and serve the number of copies ordered to be filed (see paragraph 22.17(2)(c)). The number to be filed will include enough copies for each member of the Full Court. In addition, the number required to be served will be 2 copies for each other party. > Note 2: A party may apply for an extension of time (see rule 1.14). > Note 3: If a party fails to comply with the requirements for filing and serving the appeal books, the appeal is taken to be abandoned (see rule 22.21). #### 22.19 Contents of appeal books (1) Unless otherwise ordered under paragraph 22.17(2)(a), the appeal books must contain only the following documents: (a) documents put in evidence at the hearing or trial to which the appeal relates and which are relevant to the grounds of appeal and necessary to enable the court hearing the appeal to reach its decision; (b) if the appeal involves a challenge to the exclusion of evidence, the document: (i) that is the subject of the challenge; and (ii) that was tendered, but not admitted as evidence, at the hearing or trial to which the appeal relates. (2) The appeal books must not mention any offer to settle that has been made or the terms of the offer unless the terms of the offer are relevant to the appeal. #### 22.20 Form of appeal books (1) Each volume of the appeal books must have: (a) a title page stating: (i) the names of the parties to the appeal; (ii) the court where the order appealed from was made; and (iii) the address for service of each party; and (b) an index stating the documents included in the appeal books, and the date and page number of each document. (2) The appeal books must include a certificate signed by the person who prepared them, certifying that the books have been prepared in accordance with these Rules and the orders made at the procedural hearing. (3) The documents in the appeal books must be arranged in the following order: (a) the Notice of Appeal; (b) the order appealed from; (c) reasons for judgment; (d) any relevant previous or subsequent order; (e) each relevant application; (f) any relevant response; (fa) any notice of contention; (fb) any submitting notice; (g) relevant affidavits; (h) any family or expert report received in evidence in the case that is relevant to the appeal; (i) a list of exhibits and each relevant exhibit (if practicable); (j) the relevant parts of the transcript; (k) if the appeal involves a challenge to the exclusion of evidence—the document that is the subject of the challenge. (4) The pages of the appeal books, including the transcript, must be numbered consecutively. (5) The appeal books must be securely fastened to make 1 or more volumes, each of which is no more than 25 mm thick. (6) Each page in an appeal book must comply with the requirements for documents mentioned in subrule 24.01(1). > Note: The Regional Appeal Registrar may refuse to accept the books for filing if they do not comply with these Rules or an order. #### 22.21 Failure to file appeal books by due date If the appellant fails to file the appeal books by the date ordered, the appeal is taken to be abandoned. > Note: A party may apply for an extension of time to file the appeal books (see rule 1.14). #### 22.22 Summary of argument and list of authorities (1) Each party must file and serve a summary of argument and a list of authorities to be relied on: (a) for the appellant—at least 28 days before the first day of the sittings in which the appeal is listed for hearing; and (b) for the respondent and any independent children’s lawyer—at least 7 days before the first day of the sittings in which the appeal is listed for hearing. > Note: The Court may shorten or extend the time for compliance with a rule (see rule 1.14). (2) For subrule (1), a summary of argument must: (a) set out each ground of appeal and, for each ground of appeal, a statement of the arguments setting out the points of law or fact and the authorities relied on; (b) set out the orders sought; (c) not exceed 10 pages; (d) have all paragraphs numbered consecutively; (e) be signed by the lawyer who prepared the summary or by the party; and (f) include the signatory’s name, telephone number, facsimile number and email address (if any) or document exchange number (if any) at which the signatory may be contacted. ## Part 22.4—Appeal from Federal Circuit Court or a Family Law Magistrate of Western Australia heard by single Judge #### 22.23 Application of Part 22.4 This Part applies to an appeal from an order of the Federal Circuit Court or a Family Law Magistrate of Western Australia for which the Chief Justice has determined that the jurisdiction of the court is to be exercised by a single Judge. > Note: On the filing of an appeal from an order of the Federal Circuit Court or a Family Law Magistrate of Western Australia, the Chief Justice must decide whether it is appropriate for the jurisdiction of the Full Court to be exercised by a single Judge. There is no right to appeal against this decision. > Note: If the appeal is to be heard by: (a) a Full Court—Part 22.3 applies; and (b) a single Judge—Part 22.4 applies. > Note: The Regional Appeal Registrar will give the parties to the appeal written notice of which Part of these Rules applies. #### 22.24 Procedural hearing (1) The single Judge who is to hear the appeal may direct that the appeal be listed before that Judge, or another Judge or Regional Appeal Registrar, for a procedural hearing (2) The Judge or Regional Appeal Registrar may make procedural orders in chambers, in the absence of the parties, on the documents filed. #### 22.25 Attendance at procedural hearing (1) The appellant or the appellant’s lawyer must attend on the first procedural hearing for the appellant’s appeal. (2) Any of the following persons may also attend on the first procedural hearing: (a) a respondent in the appeal; (b) a lawyer for a respondent in the appeal; (c) an independent children’s lawyer in the appeal. > Note: A party may request permission to attend the procedural hearing by electronic communication (see rule 22.31) or be excused from attending the procedural hearing (see rule 1.12). #### 22.26 Procedural orders for conduct of appeal (1) The procedural orders made by a Judge or Regional Appeal Registrar in chambers under subrule 22.24(2) or at a procedural hearing may include orders about the following: (a) whether an appeal book is required for the hearing of the appeal and, if so, whether rules 22.18, 22.19 and 22.20 are to apply with or without any variation; (b) if an appeal book is not required, the arrangements for ensuring that the documents mentioned in rule 22.27 are before the court at the hearing of the appeal; (c) a timetable for the party responsible to file and serve: (i) the reasons for judgment of the Judge of the Federal Circuit Court or of the Family Law Magistrate of Western Australia and those parts of the transcript of the hearing likely to be relevant to the appeal; (ii) a list of documents to be relied on, or an appeal book; (iii) a summary of argument; and (iv) a list of authorities to be relied on; (d) a date for the hearing of the appeal. (2) A summary of argument filed by a party as required by an order made under subparagraph (1)(c)(iii) must comply with subrule 22.22(2). #### 22.27 Documents for appeal hearing if appeal book not required (1) The documents that must be before the Judge on the hearing of the appeal are: (a) the Notice of Appeal; (b) the order of the Judge of the Federal Circuit Court or of the Family Law Magistrate of Western Australia; (c) reasons for judgment of the Judge of the Federal Circuit Court or of the Family Law Magistrate of Western Australia; (d) any relevant previous or subsequent order; (e) the application relied on before the Judge of the Federal Circuit Court or the Family Law Magistrate of Western Australia; (f) any response relied on before the Judge of the Federal Circuit Court or the Family Law Magistrate of Western Australia; (g) relevant affidavits relied on before the Judge of the Federal Circuit Court or the Family Law Magistrate of Western Australia; (h) any family report received in evidence; (i) relevant exhibits tendered before the Judge of the Federal Circuit Court or the Family Law Magistrate of Western Australia; (j) the relevant part or parts of the transcript of the hearing before the Judge of the Federal Circuit Court or the Family Law Magistrate of Western Australia; and (k) if the appeal involves a challenge to the exclusion of evidence—the document that is the subject of the challenge. (2) The documents to be relied on in the appeal must not mention any offer to settle that has been made or the terms of the offer unless the terms of the offer are relevant to the appeal. ## Part 22.5—Appeal from court of summary jurisdiction other than a Family Law Magistrate of Western Australia #### 22.28 Application of Part 22.5 This Part applies to an appeal from an order of a court of summary jurisdiction other than a Family Law Magistrate of Western Australia. #### 22.29 Fixing of hearing date On the filing of a Notice of Appeal, the Registry Manager must fix a date for the hearing of the appeal that is as near as practicable to 56 days after the Notice of Appeal was filed. > Note: The appellant must give a copy of the Notice of Appeal to the Registrar of the court of summary jurisdiction within 14 days after filing the Notice of Appeal (see rule 22.06). ## Part 22.6—Powers of appeal courts and conduct of appeal > Note 1: The following provisions set out the powers of the appeal court: > Note: (a) subsections 93A(2), 94(2) and 94AAA(6) and section 96 of the Act; > Note: (b) subsections 102(4), 102A(5) and 105(6) of the Assessment Act; > Note: (c) subsections 107(3), 107A(5) and 110(8) of the Registration Act. > Note 2: Oral argument will ordinarily be restricted to issues raised by the Notice of Appeal and the summary of argument. The appeal court may restrict the time allowed for oral argument. #### 22.30 Non‑attendance by party If a party does not attend, in person or by lawyer, when an appeal is called on for the hearing of the appeal, the court may: (a) if the appellant does not attend—dismiss the appeal; or (b) if the respondent does not attend—proceed with the appeal. #### 22.31 Attendance by electronic communication (1) A party may request permission from the court to attend the hearing of an appeal or an application for leave to appeal or an application in relation to an appeal or a procedural hearing by electronic communication. (2) The request must: (a) be in writing; (b) for an application in relation to an appeal or a procedural hearing—be made at least 14 days before the date fixed for the hearing of the application or the procedural hearing; (c) for an application for leave to appeal or an appeal—be made at least 14 days before the date fixed for the sitting of the Full Court during which application for leave to appeal or the appeal will be heard; (d) address all of the matters mentioned in subrule 16.05(3), if applicable; and (e) set out the notice given of the request to any other party and whether there is any objection to the request. (3) The request may be determined, in chambers, in the absence of the parties by: (a) for an appeal or application to be heard by the Full Court—a Judge of the Appeal Division; (b) for an appeal or application to be heard by a single Judge—the Judge hearing the appeal or application; or (c) for a procedural hearing—the Registrar or Judge who is to conduct the procedural hearing. (4) The court may take the following matters into account when considering the request: (a) the party’s distance from the place where the event is to be held; (b) any physical difficulty the party has in attending because of illness, disability or concerns about security. (5) The court may order a party to pay the expenses of attending by electronic communication, apportion the expenses between the parties, or make no order about the expenses. (6) This rule does not apply if the court of its own motion decides to hear an appeal, or an application for leave to an appeal or procedural hearing, by electronic communication. #### 22.32 Attendance of party in prison (1) A party who is in prison must attend a procedural hearing, the hearing of an appeal, an application in relation to an appeal or an application for leave to appeal, by electronic communication, if practicable. (2) A party may seek permission from the court to attend a procedural hearing, the hearing of an appeal, an application for leave to appeal or an application in relation to an appeal, in person. (3) A request under subrule (2) must: (a) be in writing; (b) be made at least 14 days before the date fixed for the procedural hearing or the hearing of the appeal, the application for leave to appeal or the application in relation to the appeal; (c) set out the reasons why permission should be granted; and (d) set out the notice given of the request to any other party and whether there is any objection to the request. #### 22.34 Subpoenas (1) A subpoena may be issued in an appeal only if leave to issue the subpoena has been given by: (a) the Full Court; or (b) for an appeal heard by a single Judge—that Judge. (2) A document produced in compliance with a subpoena issued in accordance with subrule (1) may be inspected only with the leave of the Full Court or the Judge mentioned in paragraph (1)(b). ## Part 22.7—Applications in relation to appeals ### Division 22.7.1—How to make an application #### 22.35 Application of Part 22.7 This Part applies if a party seeks to make an application in relation to an appeal (other than an application for leave to appeal). #### 22.36 Application in relation to appeal A party may make an application in relation to an appeal by filing an Application in an Appeal together with an affidavit stating the facts relied on in support of the application. > Note 1: See rule 22.10 for where to file an application. > Note 2: A document that is filed must be served (see subrule 7.04(1)). If a time limit is given for an action, service must also be effected within that time. #### 22.37 Hearing date for application On the filing of an Application in an Appeal, the Regional Appeal Registrar must: (a) fix a date for a hearing of the application; or (b) refer the application to a Judge in chambers if: (i) the applicant has asked the court, in the application, to determine it without an oral hearing and the respondent has not objected to the request (see Part 5.4); or (ii) the Regional Appeal Registrar considers it appropriate. #### 22.38 Decision without an oral hearing (1) Part 5.4 applies to an application in relation to an appeal as if a reference in that Part: (a) to an application for an interim or procedural order were a reference to an application in relation to an appeal; and (b) to ‘in the absence of the parties’ were a reference to ‘without an oral hearing’. (2) If an application is referred to a Judge in chambers in accordance with paragraph 22.37(b), the Judge may: (a) order that the application be dealt with by the court without an oral hearing and: (i) make procedural orders in relation to the conduct of the application, including the filing of written submissions; or (ii) determine the application; or (b) direct that a date for hearing be fixed for the application and require the parties to attend. > Note 1: The court has the power to determine some applications relating to an appeal without an oral hearing (see subsections 94(2C) and (2E), 94AAA(9) and (11), and 94AA(3) of the Act, subsections 102(7) and (9), and 102A(8) and (10) of the Assessment Act and subsections 107(6) and (8), and 107A(8) and (10) of the Registration Act). The court may decide to deal with an application without an oral hearing on its own initiative or on application. > Note 2: For the requirements for withdrawing or discontinuing an application, see Part 10.2. ### Division 22.7.2—Specific applications relating to appeals #### 22.39 Further evidence on appeal (1) A party to an appeal, other than an appeal that is a hearing de novo, who seeks to apply for an order that the court receive further evidence on the hearing of the appeal, must file the application at least 14 days before the date of commencement of the sittings in which the appeal is listed for hearing. (2) The affidavit filed with the application must either describe the nature of the further evidence or include the further evidence that the applicant wants the court to admit at the hearing of the appeal. (3) Any other party to the appeal may file an affidavit in response to the application at least 7 days before the date of commencement of the sittings in which the appeal is listed for hearing. (4) The hearing date for an application to adduce further evidence will be the same as the date fixed for hearing of the appeal or application for leave to appeal. > Note 1: For the rules on how to make an application, the procedure and by whom the application will be heard, see Division 22.7.1. > Note 2: Documents relating to further evidence should not be included in the appeal books. #### 22.40 Review of Regional Appeal Registrar’s order A party may apply for a review of a Regional Appeal Registrar’s order relating to the conduct of an appeal by filing an Application in an Appeal in the Regional Appeal Registry, within 14 days after the order is made. > Note 1: The Regional Appeal Registrar must list the application for review for hearing by a Judge of the Appeal Division (or, if no Judge of the Appeal Division is available, another Judge). > Note 2: The court may shorten or extend the time for compliance with a rule (see rule 1.14). ## Part 22.8—Concluding an appeal, an application for leave to appeal or an application in relation to an appeal #### 22.41 Consent orders on appeal (1) This rule applies if the parties to an appeal agree about the orders the court will be asked to make on appeal. (2) The parties may file a draft consent order, setting out the terms of their agreement. (3) If the parties: (a) agree about the orders the court will be asked to make on appeal; and (b) disagree about the order for costs; the Regional Appeal Registrar may fix a date for hearing for the argument about costs, without requiring appeal books to be prepared or a procedural hearing to be held. #### 22.42 Discontinuance of appeal or application (1) A party may discontinue an appeal, an application for leave to appeal or an application in relation to an appeal by filing a notice of discontinuance. (2) The party may be ordered to pay the costs of all other parties. (3) An application for costs must be filed within 28 days after the filing of the notice of discontinuance. #### 22.43 Abandoning an appeal (1) If the appeal is taken to be abandoned, the appellant may be ordered to pay the costs of all other parties. (2) An application for costs of an abandoned appeal must be filed within 28 days after the date the appeal became abandoned. #### 22.44 Application for reinstatement of appeal A party may apply to have an appeal taken to be abandoned under this Chapter reinstated. #### 22.45 Dismissal of appeal and applications for non‑compliance or delay (1) This rule applies if: (a) the appeal is not taken to have been abandoned; and (b) a party (the defaulting party) has not: (i) met a requirement under these Rules or the Regulations; (ii) complied with an order in relation to the appeal (including an application for leave to appeal or application in relation to an appeal); or (iii) shown reasonable diligence in proceeding with an appeal or application. (2) A court having jurisdiction in the appeal or application may: (a) if the defaulting party is the appellant or the applicant: (i) dismiss the appeal or application; or (ii) fix a time by which a requirement is to be met and order that the appeal or application will be dismissed if the order imposing the requirement is not complied with; or (b) if the defaulting party is the respondent: (i) fix a time by which a requirement is to be met and order that the appeal or application will proceed if the order imposing the requirement is not complied with; or (ii) proceed to hear the appeal or application. (3) The court may make an order under subrule (2) on its own initiative if, at least 14 days before making the order, written notice has been given to the parties about the date and time when the court will consider whether to make the order. (4) An application for costs in relation to an appeal or application dismissed under this rule must be made within 28 days after the dismissal. ## Part 22.9—Case stated #### 22.46 Application of Part 22.9 This Part applies to a case (a case stated) under the Act, the Assessment Act or the Registration Act in relation to which the court and a party want a Full Court to determine a question of law arising in the case. #### 22.47 Case stated (1) If a Judge orders a party to prepare a case stated to the Full Court, the party must: (a) confer with each other party about the terms of a draft case stated; and (b) prepare the draft case stated based on the agreed terms. (2) The draft case stated must concisely state the facts and the question of law to be determined. (3) When the draft of the case stated is completed, the party who prepared it must: (a) ask the Regional Appeal Registrar to list the case for a procedural hearing to have the draft case stated settled by the Judge; and (b) serve a copy of the draft case stated and a notice of the date fixed for the procedural hearing on each other party and any other person the Judge directs. #### 22.48 Objection to draft case stated (1) A party served with a copy of a draft case stated under paragraph 22.47(3)(b) may object to its terms, or seek an amendment of it, by giving written notice to the party who prepared the draft of: (a) any objections; or (b) any amendments sought to be made when the draft is settled by the Judge. (2) The party must give the notice within 7 days after the copy of the draft case stated was served on the party. #### 22.49 Settlement and signing (1) The party who prepared the draft case stated must lodge: (a) the draft case stated; (b) any objections or amendments sought by the other party; and (c) a request that the Judge settle the draft case stated. (2) The party who prepared the draft case stated must, within 3 days after it has been settled, file a copy of the case stated, as settled, for signature by the Judge. #### 22.50 Filing of copies of case stated A party who prepares a draft case stated must, within 7 days after it has been signed under rule 22.49: (a) file 5 copies of the case stated in the Regional Appeal Registry; and (b) serve 2 copies of the case stated on each other party and any other person the Judge directs. #### 22.51 Fixing of hearing date On the filing of copies of the signed case stated under rule 22.50, the Regional Appeal Registrar must: (a) fix a date for the hearing of the case stated during a sitting of the Full Court; and (b) give each party written notice about the hearing. #### 22.52 Summary of argument and list of authorities (1) A summary of argument to be presented and a list of cases to be relied on at the hearing of a case stated must be filed and served: (a) by the party who prepares the draft case stated—at least 21 days before the commencement of the sittings at which the case stated is listed for hearing; (b) by each other party—at least 14 days before the commencement of the sittings at which the case stated is listed for hearing; and (c) by a child representative (if any)—at least 7 days before the commencement of the sittings at which the case stated is listed for hearing. (2) The summary of argument must be in accordance with subrule 22.22(2). ## Part 22.10—Costs orders #### 22.53 Order for costs (1) A party to an appeal or an application for leave to appeal may apply for an order that another person pay costs. (2) An application for costs may be made: (a) at any stage during an appeal or an application for leave to appeal; or (b) by filing an application in relation to an appeal within 28 days after the court makes an order disposing of the appeal or an application for leave to appeal. (3) A party applying for an order for costs on an indemnity basis must inform the court if the party is bound by a costs agreement in relation to those costs and, if so, the terms of the costs agreement. > Note 1: The court may make an order for costs on its own initiative (see rule 1.10). > Note 2: A party may apply for an order for costs within 28 days after: (a) the filing of a notice of discontinuance by the other party (see rule 22.42); or (b) the abandonment of an appeal (see rule 22.43); or (c) the dismissal of an appeal (see rule 22.45); or (d) the dismissal of an application in relation to an appeal (see rule 22.45). > Note 3: A party may apply for an extension of time to make an application (see rule 1.14). (4) In making an order for costs, the court may set a time for payment of the costs that may be before the appeal is finished. Chapter 23—Registration of documents > Note: Summary of Chapter 23 > Note: Chapter 23 sets out the procedure for: > Note:  registration of agreements, orders and child support debts; > Note:  registration of maintenance agreements; and > Note:  revoking registered parenting plans. > 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 23.1—Registration of agreements, orders and child support debts #### 23.01 Registration of agreements (1) This rule applies to an agreement that: (a) may be registered in a court having jurisdiction under the Act; and (b) is not a parenting plan or an agreement revoking a parenting plan. > Note: Paragraph (1)(a) includes provisions of a child support agreement that may be registered in the court under the Assessment Act. (2) A party to an agreement mentioned in subrule (1) may register the agreement by filing an affidavit to which a copy of the agreement is attached. > Note 1: An agreement made under section 86 or 87 of the Act after 27 December 2000 cannot be registered (see subsections 86(1A) and 87(1A) of the Act). > Note 2: For requirements relating to the registration of orders (other than in divorce or validity of marriage cases), see regulation 17 of the Regulations. #### 23.01A Registration of State child orders under section 70C or 70D of the Act (1) For section 70C of the Act, a State child order made under a law of a prescribed State may be registered in a court having jurisdiction under Part VII of the Act by filing a sealed copy of the order in a registry of the court. (2) For section 70D of the Act, a State child order made by a court of a State may be registered in another State, in a court having jurisdiction under the Act, by filing a sealed copy of the order in a registry of the court of the other State. (3) In this rule: > State includes a Territory. #### 23.01B Registration of de facto maintenance orders under section 90SI of the Act For subsection 90SI(1) of the Act, an order with respect to the maintenance of a party to a de facto relationship may be registered in a court exercising jurisdiction under the Act by filing a sealed copy of the order in a registry of the court. #### 23.02 Registration of debt due to the Commonwealth under child support legislation A debt due to the Commonwealth under section 30 of the Registration Act may be registered in a court by filing a certificate issued under subsection 116(2) of that Act. ## Part 23.2—Parenting plans #### 23.03 Requirements for registration of an agreement revoking a registered parenting plan (1) This rule applies to an agreement to revoke a registered parenting plan (a revocation agreement). (2) A revocation agreement must: (a) be signed by each party to the parenting plan; and (b) be a single document that complies with rule 24.01. (3) A party may register a revocation agreement by filing: (a) an affidavit, to which a copy of the revocation agreement is attached; and (b) a written statement, by each party to the revocation agreement: (i) specifying that the party has been given independent legal advice about the meaning and effect of the agreement; and (ii) counter‑signed by the lawyer who gave the advice. > Note: See subparagraph 63E(2)(b)(i) of the Act. (4) The affidavit must state: (a) the name, age and place of residence of each child to whom the revocation agreement relates; and (b) why the parties propose to revoke the registered parenting plan. #### 23.04 Court may require service or additional information Before deciding whether to register a revocation agreement, the court may: (a) order that a copy of the affidavit filed under subrule 23.03(3) be served on a specified person; or (b) require a party to file additional information. #### 23.05 Application may be dealt with in chambers An application for registration of a revocation agreement may be dealt with in chambers, in the absence of the parties and their lawyers (if any). > Note: Section 63E of the Act provides that the court may register an agreement revoking a registered parenting plan if it considers it appropriate to do so, having regard to the best interests of the child to which the plan relates. Chapter 24—Documents, filing, registry > Note: Summary of Chapter 24 > Note: Chapter 24 sets out: > Note:  the general requirements for documents and their filing; and > Note:  procedures relating to registry records, including the removal of a document from a registry, and searching, inspecting and copying court documents. > 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 24.1—Requirements for documents #### 24.01 General requirements (1) A document for filing must: (a) appear on one or both sides of white A4 paper; (b) be legibly printed: (i) by machine; or (ii) if it is not an affidavit—in ink, by hand; (c) have left and right margins: (i) sufficient to enable the page to be read when bound; and (ii) no wider than 2.5 cm; (d) have line spacing not exceeding 1.5 lines; (e) have each page consecutively numbered; (f) have all pages securely fastened; (g) for a document other than a Notice of Child Abuse, Family Violence or Risk—have a coversheet, in a form approved by the Chief Executive Officer, that includes the following: (i) on the right side of the page—a space that is at least 5 cm wide and 5 cm long, containing the following information: (A) the full name of the court and registry where the document will be filed; (B) the court file number; (C) the client identification number; (D) a blank space for the court’s use only to insert the date of filing; (ii) the name of the document and the rule number under which the document is filed; (iii) the full name of each party to the case and of any independent children’s lawyer appointed; (iv) if not already provided, the full name, address for service, telephone number, facsimile number and e‑mail address (if any) of the person filing the document. (2) Subrule (1) does not need to be strictly complied with if the nature of the document, or the manner of filing, means that strict compliance would be impracticable. (3) A document that is filed electronically has the same status as a document in paper form. (4) A document filed or served under these Rules (other than an affidavit) may be signed or given by a party or by the lawyer for the party. > Note: The rules relating to filing by electronic communication apply only if the court has the facility to accept documents by electronic communication. #### 24.02 Corporation as a party If a document (including an application for permission to intervene) names a corporation as a party, the document must include the corporation’s full name, registered office and Australian Business Number (ABN). #### 24.03 Change of name of party (1) If a party’s name is changed after the start of a case, the party must give written notice of the change of name to the court and each other party. (2) The new name must be used in all documents later filed. #### 24.04 Forms (1) The Chief Justice, in consultation with the other judges, may approve a form for the purposes of these Rules. (2) A reference in these Rules to a Notice of Child Abuse, Family Violence or Risk is a reference to the form in Schedule 2, with any variations that are necessary or as the Chief Justice directs. (3) Strict compliance with an approved form or the form in Schedule 2 is not required, and substantial compliance is sufficient. > Note: A form must be completed in accordance with any directions specified in the form, but the directions may be omitted from the completed document. (4) A document in a form approved for the Federal Circuit Court is taken to be in substantial compliance with the form approved for the same purpose under these Rules. ## Part 24.2—Filing documents #### 24.05 How a document is filed (1) A document is filed if: (a) the document is: (i) delivered to and received by the registry; (ii) posted to and received by the registry; (iii) sent to the court by electronic communication under rule 24.06 (facsimile) and received by the registry; (iv) sent to the court by electronic communication under rule 24.07 (e‑mail and Internet) and received by the court; or (v) accepted for filing by a judicial officer in court during a court event; and (b) the filing fee (if any) is paid. (2) A document that is sent for filing by electronic communication after 4.30 pm according to legal time in the Australian Capital Territory is taken to have been received by the filing registry on the next day when the filing registry is open. (3) Except as otherwise required by these Rules or an order, a document to be relied on in a court event must be filed at least 1 day before the date fixed for that event. > Note 1: For information about filing fees, see regulation 11 of the Regulations. > Note 2: A person sending a document by electronic communication is responsible for ensuring that the document is received by the court. The Court’s procedures and facilities for electronic filing through the Internet are set out on the Commonwealth Courts Portal: see http://www.familycourt.gov.au. > Note 3: A judicial officer may require a party to give an undertaking to pay a filing fee before accepting a document for filing. > Note 4: The rules relating to filing by electronic communication apply only if the court has the facility to accept documents by electronic communication: see http://www.familycourt.gov.au. #### 24.06 Filing a document by facsimile (1) A document may be filed by facsimile if: (a) the matter is urgent; (b) the total number of pages, including the cover page, is not more than 25; and (c) it is not practicable to lodge the document in the filing registry in any other way because: (i) the filing party is unrepresented, and lives more than 20 kilometres from the registry; or (ii) the filing party is represented by a lawyer whose principal office is more than 20 kilometres from the registry. (2) The document must be: (a) sent to an approved facsimile number; and (b) accompanied by: (i) a letter to the Registry Manager, setting out the facts relied on under subrule (1) for filing the document by facsimile; and (ii) a cover page in accordance with subrule 7.16(2). > Note: For service by facsimile and restrictions relating to the number of pages that may be faxed, see rule 7.16. #### 24.07 Filing by e‑mail and Internet (1) If a document is sent for filing by e‑mail, the sender must: (a) send the document: (i) to an approved e‑mail address; (ii) in the approved electronic format; and (iii) in a current case, to the filing registry; and (b) include a cover page in accordance with subrule 7.16(2). (2) If a document is sent for filing through the Internet, the sender must comply with the court’s electronic filing procedures. (3) If a document (other than an Acknowledgement of Service): (a) is filed by electronic communication; and (b) is required to be signed, but not sworn; the document is taken to be signed, before it is transmitted, by the party or lawyer who filed it. (4) If a document that is required to be sworn is filed by electronic communication, the document: (a) is taken to have been sworn by the deponent before it is transmitted; and (b) must bear the name of the deponent, witness and date of swearing. (5) If a party or a party’s lawyer files a sworn document by electronic communication, the party or lawyer must: (a) keep the printed form of the document bearing the original signature until the end of the case or appeal; and (b) make the document available for inspection on request. (6) When receiving a document for filing by email or through the Internet, the Registry Manager may send to the person filing the document an electronic communication recording the date of receipt or the date and time of receipt. > Note 1: The rules relating to filing by electronic communication apply only if the court has the facility to accept documents by electronic communication: see http://www.familycourt.gov.au. > Note 2: An Acknowledgment of Service must be signed by the person served with the documents if the party serving the documents wants to prove service by affidavit in accordance with rule 7.13. If the affidavit is filed by electronic communication, the party who served it must keep, and make available if necessary, the original of the affidavit and the Acknowledgment of Service. > Note: If an Acknowledgement of Service is required to be signed to prove service, the person served will need to sign the acknowledgment and return it so that the other party can identify the signature. #### 24.09 Documents filed during a case (1) A document filed in a case that has started, other than a document filed by electronic communication through the Internet, must be filed in the filing registry. (2) A document filed by electronic communication through the Internet in a case that has started must bear the file number of the case. > Note 1: In urgent circumstances, the court may order that an application be listed for hearing in another registry, or that a hearing or conference take place by electronic communication. > Note 2: For where to file documents in an appeal, see rule 22.10. #### 24.10 Rejection of documents (1) A Registrar or judicial officer may reject a document filed or received for filing if the document: (a) is not in the proper form in accordance with these Rules; (b) is not executed in the way required by these Rules; (c) does not otherwise comply with a requirement of these Rules; (d) is tendered for filing after the time specified in these Rules or an order for filing the document; (e) on its face, appears to the Registrar to be an abuse of process, frivolous, scandalous or vexatious; (f) is tendered for filing in connection with a current case in a registry that is not the filing registry (see rules 22.10 and 24.09); or (g) is sent for filing through the Internet and the person sending the document has not complied with the court’s electronic filing procedures. (2) If a judicial officer rejects a document filed or received for filing under subrule (1), the judicial officer may give directions about any step already taken on the document, including a direction about costs. (3) A person may apply for review of a Registrar’s decision under subrule (1) or directions given by a judicial officer under subrule (2) by filing an Application in a Case without notice. > Note: When a document sent for filing by electronic communication through the Internet is rejected, the court may notify each party to the case and each person to whom the document is directed. #### 24.11 Filing a notice of payment into court A person who pays money into court must file a Notice of Payment into Court, stating the amount and purpose for which the money is paid into court. > Note: See paragraphs 66P(1)(f), 67D(2)(e) and 80(1)(f) of the Act. ## Part 24.3—Registry records #### 24.12 Removal of document from registry A document may be removed from a registry only if: (a) it is necessary to transmit the document between registries; or (b) the court permits the removal. #### 24.13 Searching court record and copying documents (1) The following persons may search the court record relating to a case, and inspect and copy a document forming part of the court record: (a) the Attorney‑General; (b) a party, a lawyer for a party, or an independent children’s lawyer, in the case; (ba) if the case affects, or may affect, the welfare of a child—a child welfare officer of a State or Territory; (c) with the permission of the court, a person with a proper interest: (i) in the case; or (ii) in information obtainable from the court record in the case; (d) with the permission of the court, a person researching the court record relating to the case. (1A) An arbitrator conducting an arbitration relating to a case may search the court record relating to the case, and inspect and copy a document forming part of the court record. (2) The parts of the court record that may be searched, inspected and copied in accordance with subrule (1) or (1A) are: (a) court documents; and (b) with the permission of the court—any other part of the court record. (2A) A permission: (a) for paragraphs (1)(c) and (d) and (2)(b)—may include conditions, including a requirement for consent from a person, or a person in a class of persons, mentioned in the court record; and (b) for paragraph (1)(d)—must specify the research to which it applies. (3) In considering whether to give permission under this rule, the court must consider the following matters: (a) the purpose for which access is sought; (b) whether the access sought is reasonable for that purpose; (c) the need for security of court personnel, parties, children and witnesses; (d) any limits or conditions that should be imposed on access to, or use of, the court record. (4) In this rule: > court document includes a document filed in a case, but does not include correspondence or a transcript forming part of the court record. > Note 1: Section 121 of the Act restricts the publication of court proceedings. > Note 2: Access to court records may be affected by the National Security Information (Criminal and Civil Proceedings) Act 2004. #### 24.14 Exhibits (1) The Registry Manager must take charge of every exhibit. (2) The list of exhibits is part of the court record. (3) A court may direct that an exhibit be: (a) kept in the court; (b) returned to the person who produced it; or (c) disposed of in an appropriate manner. (4) A party who tenders an exhibit into evidence must collect the exhibit from the Registry Manager at least 28 days, and no later than 42 days, after the final determination of the application or appeal (if any). (5) Subrule (4) does not apply to a document produced by a person as required by a subpoena for production. > Note: For the return of a document produced in compliance with a subpoena, see rule 15.35. Chapter 25—Applications under the Corporations Act 2001 and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 > Note: Summary of Chapter 25 > Note: Chapter 25 sets out the procedure for a case started in or transferred to a Family Court under the Corporations Act 2001 or the Corporations (Aboriginal and Torres Strait Islander) Act 2006. > 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. #### 25.01 Application of Chapter 25 This Chapter applies to a case started in, or transferred to, a Family Court under the Corporations Act 2001 or the Corporations (Aboriginal and Torres Strait Islander) Act 2006. #### 25.02 Application of Corporations Rules The Corporations Rules, as modified by rule 25.03 or an order, apply to an application under the Corporations Act 2001 or the Corporations (Aboriginal and Torres Strait Islander) Act 2006 in a Family Court as if those rules were provisions of these Rules. #### 25.03 Modification of Corporations Rules The Corporations Rules, in their application under rule 25.02, are modified in accordance with Table 25.1. Table 25.1 Modification of Corporations Rules | Provision | omit each mention of | insert | | -------------------------------------------- | --------------------------------------------------------------- | --------------------------------------------------------- | | Rule 5.9 | the Registrar | the Registrar or Judicial Registrar | | Rule 15.1 | Order 50 | Part 22.10 of the Family Law Rules 2004 | | Division 16, heading, and rule 16.1, heading | Registrars | Registrars and Judicial Registrars | | Rule 16.1 | paragraph 35A(1)(h) of the Federal Court of Australia Act 1976, | subsections 26B(1) and 37A(1) of the Family Law Act 1975, | | Rules 16.1 and 16.2 | a Registrar | a Registrar or Judicial Registrar | | Schedule 2, heading | Registrar | Registrar or Judicial Registrar | #### 25.04 Application under Corporations Act 2001 or Corporations (Aboriginal and Torres Strait Islander) Act 2006 An application under the Corporations Act 2001 or the Corporations (Aboriginal and Torres Strait Islander) Act 2006 must not be dismissed only because it has been made in the wrong form. #### 25.05 Transfer of cases under Corporations Act 2001 or Corporations (Aboriginal and Torres Strait Islander) Act 2006 A person seeking: (a) to have a case under the Corporations Act 2001 or the Corporations (Aboriginal and Torres Strait Islander) Act 2006 transferred from a Family Court to another court; or (b) procedural orders under subsection 1337P (1) of the Corporations Act 2001 or the Corporations (Aboriginal and Torres Strait Islander) Act 2006; must do so by filing an Application in a Case and an affidavit. > Note: Rule 11.20 sets out the procedure to be followed if a case is transferred to another court. #### 25.06 Fixing a date for hearing On the filing of an Application in a Case under rule 25.05, the Registry Manager must fix a date for hearing that is as near as practicable to 28 days after the date of filing or the date fixed for the hearing of the application starting the case, if possible. Chapter 26—Cases to which the Bankruptcy Act 1966 applies > Note: Summary of Chapter 26 > Note: Chapter 26 sets out the rules about a case in which a Family Court has jurisdiction in bankruptcy under section 35, 35A or 35B of the Bankruptcy Act 1966. Delegation of the Family Court’s power in such cases is set out in Chapter 18 of these Rules. > 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 26.1—Introduction #### 26.01 Application of Chapter 26 (1) In a bankruptcy case, the rules in Chapter 1 apply to the case and override all other provisions in these Rules. (2) To the extent to which a rule in this Chapter applies to a bankruptcy case, and does not conflict with a rule in Chapter 1, the rule in this Chapter applies to the case and overrides all other provisions in these Rules. (3) A rule in Chapter 25 of these Rules does not apply to a bankruptcy case. #### 26.02 Expressions used in the Bankruptcy Act Unless the contrary intention appears, an expression used in this Chapter and in the Bankruptcy Act has the same meaning in this Chapter as it has in the Bankruptcy Act. > Note: The following expressions are used in this Chapter and defined in section 5 of the Bankruptcy Act:  bankrupt  books  creditor  District  examinable affairs  examinable person  Official Receiver  property  the trustee. ## Part 26.2—General #### 26.04 Bankruptcy Application and Bankruptcy Application in a Case (1) Unless this Chapter otherwise provides, a person must make an application required or permitted by the Bankruptcy Act to be made to the court: (a) if the application is not made in a bankruptcy case already commenced—by filing a Bankruptcy Application in the form Bankruptcy—Application; and (b) otherwise—by filing a Bankruptcy Application in a Case in the form Bankruptcy—Application in a Case. (2) A person may make an application to the court in relation to a bankruptcy case in respect of which final relief has been granted by filing a Bankruptcy Application in a Case in the form Bankruptcy—Application in a Case. (3) The form Bankruptcy—Application must state: (a) each section of the Bankruptcy Act, or each regulation of the Bankruptcy Regulations 1996, under which the case is brought; and (b) the relief sought. (4) The form Bankruptcy—Application in a Case must state: (a) if appropriate, each section of the Bankruptcy Act, or each regulation of the Bankruptcy Regulations 1996, or each rule of court under which the application is made; and (b) the relief sought. > Note: Each application and appeal mentioned below must be commenced by filing the form Bankruptcy—Application. The list is not exhaustive: (a) an application, under section 78 of the Bankruptcy Act, for the issue of a warrant for the arrest of a debtor or bankrupt; (b) an appeal, under subsection 82(5) of the Bankruptcy Act, against an estimate by the trustee of the value of a debt or liability provable in a bankruptcy; (c) an application, under section 153B of the Bankruptcy Act, for the annulment of a bankruptcy; (e) an application, under section 180 of the Bankruptcy Act, for acceptance of a trustee’s resignation from the office of trustee of an estate; (f) an application, under section 183 of the Bankruptcy Act, for release of a trustee from the trusteeship of an estate. #### 26.05 Leave to be heard (1) The court may grant leave to be heard in a bankruptcy case to a person who is not a party to the case. (2) The court may grant the leave on conditions and may revoke the leave at any time. (3) The court may order the person to pay costs if: (a) the granting of leave to the person causes additional costs for a party to the case; and (b) the court considers that the costs should be paid by the person. (4) The court may also order that the person is not to be further heard in the case until the costs are paid or secured to the court’s satisfaction. (5) The court may grant leave or make an order under this rule on the court’s own initiative or on the application of a party or another person having an interest in the case. (6) An application for leave or for an order must be made by filing the form Bankruptcy—Application in a Case. #### 26.06 Appearance at application or examination A person who intends to appear at the hearing of an application, or take part in an examination, must file the form Bankruptcy—Notice of Appearance. #### 26.07 Opposition to Bankruptcy Application or a Bankruptcy Application in a Case (1) In this rule: > application includes the forms Bankruptcy—Application and Bankruptcy—Application in a Case. (2) A person who intends to oppose an application must, at least 3 days before the date fixed for the hearing of the application: (a) file the form Bankruptcy—Notice of Appearance; (b) file the form Bankruptcy—Notice stating grounds of opposition to an Application or Application in a Case; (c) file an affidavit in support of the grounds of opposition; and (d) serve the notices and supporting affidavit on the applicant. ## Part 26.3—Examinations ### Division 26.3.1—Interpretation #### 26.08 Definition for Part 26.3 In this Part: > relevant person means a relevant person within the meaning of section 81 of the Bankruptcy Act. > Note: Examinable person is defined in subsection 5(1) of the Bankruptcy Act. ### Division 26.3.2—Examination of relevant person #### 26.09 Application for summons (Bankruptcy Act s 81) (1) An application to the court for a relevant person to be summoned for examination in relation to the person’s bankruptcy must be in accordance with the form Bankruptcy—Application for summons to examine relevant person or examinable person. (2) The application must be accompanied by: (a) a draft of each summons applied for; and (b) an affidavit identifying: (i) each relevant person to be summoned; and (ii) if the summons is to require the relevant person to produce books at the examination, the books that are to be produced. > Note: A relevant person may be required to produce books at an examination that are in the possession of the person and relate to the person or to any of the person’s examinable affairs—see subsection 81(1B) of the Bankruptcy Act. #### 26.10 Hearing of application The application may be heard in the absence of a party or in chambers. #### 26.11 Requirements of summons (1) A summons must be in accordance with the form Bankruptcy—Summons for Examination. (2) A Registry Manager must: (a) sign and seal the summons; and (b) give it to the applicant for service on the relevant person. (3) If the summons requires the relevant person to produce books at the examination, the summons must identify the books that are to be produced. #### 26.12 Service of summons At least 8 days before the date fixed for the examination, the applicant must: (a) serve the summons on the relevant person by special service, or in another way directed by the court; and (b) give written notice of the date, time and place fixed for the examination to each creditor of the relevant person of whom the applicant has knowledge. > Note: Part 7.2 of the Rules deals with special service. #### 26.13 Failure to attend examination If the relevant person does not attend the examination in accordance with the summons, the court may: (a) adjourn the examination generally or to another day, time or place; or (b) discharge the summons. #### 26.14 Application for discharge of summons (1) A relevant person who is served with a summons and wishes to apply for an order to discharge the summons may do so by filing: (a) the form Bankruptcy—Application in a Case in the proceeding in which the summons was issued; and (b) an affidavit setting out the grounds in support of the application. (2) As soon as possible after filing the form Bankruptcy—Application in a Case and supporting affidavit, the relevant person must serve a copy of each document: (a) on the person who applied for the summons; and (b) if the person who applied for the summons is not the Official Receiver, on the Official Receiver. ### Division 26.3.3—Examination of examinable person #### 26.15 Application for summons (Bankruptcy Act s 81) (1) An application to the court for an examinable person to be summoned for examination in relation to the bankruptcy of a relevant person must be in accordance with the form Bankruptcy—Application for summons to examine relevant person or examinable person. (2) A single application may be made for the summons of 2 or more examinable persons in relation to a relevant person’s bankruptcy. (3) The application must be accompanied by: (a) a draft of each summons applied for; and (b) an affidavit (the supporting affidavit) that complies with subrule (4). (4) The supporting affidavit must: (a) state whether the applicant is: (i) a creditor who has a debt provable in the bankruptcy; (ii) the trustee of the relevant person’s estate; or (iii) the Official Receiver; (b) state the facts relied on by the applicant to establish that each person to be summoned is an examinable person; and (c) if the summons is to require an examinable person to produce books at the examination: (i) identify the books that are to be produced; and (ii) give details of: (A) any inquiry by the applicant about the books to be produced; and (B) any refusal by the examinable person to cooperate with the inquiry. > Note: An examinable person may be required to produce books at an examination that are in the possession of the person and relate to the relevant person or to any of the relevant person’s examinable affairs—see subsection 81(1B) of the Bankruptcy Act. (5) The supporting affidavit may be filed in a sealed envelope marked ‘Affidavit supporting application for summons for examination under subsection 81(1) of the Bankruptcy Act 1966’. (6) If the supporting affidavit is filed in a sealed envelope in accordance with subrule (5), the Registry Manager must not make it available for public inspection. #### 26.16 Hearing of application The application may be heard in the absence of a party or in chambers. #### 26.17 Requirements of summons (1) A summons must be in accordance with the form Bankruptcy—Summons for Examination. (2) A Registry Manager must: (a) sign and seal the summons; and (b) send it to the applicant for service on each examinable person to be summoned for examination. (3) If the summons requires an examinable person to produce books at the examination, the summons must identify the books that are to be produced. #### 26.18 Service of summons At least 8 days before the date fixed for the examination, the applicant must: (a) serve the summons on each examinable person by special service or in another way directed by the court; and (b) give written notice of the date, time and place fixed for the examination to each creditor of the relevant person of whom the applicant has knowledge. > Note: Part 7.2 of the Rules deals with special service. #### 26.19 Application for discharge of summons (1) An examinable person who is served with a summons and wishes to apply for an order to discharge the summons may do so by filing: (a) the form Bankruptcy—Application in a Case in the case in which the summons was issued; and (b) an affidavit setting out the grounds in support of the application. (2) As soon as possible after filing the form Bankruptcy—Application in a Case and supporting affidavit, the examinable person must serve a copy of each document: (a) on the person who applied for the summons; and (b) if the person who applied for the summons is not the Official Receiver, on the Official Receiver. #### 26.20 Conduct money and witnesses expenses (1) A person (other than a relevant person) who, in accordance with a summons, attends an examination to give evidence or produce documents is entitled to be paid: (a) enough conduct money to cover the reasonable expenses of travelling from and to the place where the person lives, and any reasonable accommodation expenses; and (b) reasonable expenses for the person’s attendance as a witness. (2) The expenses must be paid by the applicant for the summons. (3) The expenses mentioned in paragraph (1)(a) must be paid a reasonable time before the person is to attend the examination. (4) In this rule: > conduct money means a sum of money or its equivalent, such as pre‑paid travel, sufficient to meet a person’s reasonable expenses of attending an examination and returning after so attending. ## Part 26.4—Annulment of bankruptcy #### 26.21 Application of Part 26.4 This Part applies to an application under section 153B of the Bankruptcy Act for the annulment of a bankruptcy. #### 26.22 Requirements of application (1) The application must be accompanied by an affidavit (the supporting affidavit) setting out the grounds on which the annulment is sought. (2) The application and the supporting affidavit must be served on the trustee at least 7 days before the date fixed for the procedural hearing of the application. #### 26.23 Notice to creditors (1) The applicant must give notice of the application to each person known to the applicant to be a creditor of the bankrupt. (2) The notice must be in accordance with the form Bankruptcy—Notice to creditors of annulment application. (3) The applicant must serve the notice on each creditor at least 7 days before the date fixed for the procedural hearing of the application. #### 26.24 Procedural hearing—report by trustee (1) When the application and the supporting affidavit are filed, the Registry Manager must fix a date for a procedural hearing. (2) At the procedural hearing, the court may make: (a) an order requiring the trustee to prepare a report for the periods before and after the bankruptcy; (b) orders for the future conduct of the case; and (c) an order allocating a date or dates for the hearing of the case. (3) A report required under paragraph (2)(a) must include information about: (a) the bankrupt’s conduct; (b) the bankrupt’s examinable affairs; and (c) the administration of the bankrupt’s estate. (4) The report must: (a) be in the form of an affidavit; and (b) be filed at least 5 days before the first date allocated under paragraph (2)(c). #### 26.25 Service of annulment order If the court orders an annulment, the applicant must serve a sealed copy of the order on the trustee and the Official Receiver for the District in which the order was made, within 2 days after the applicant receives the sealed order. ## Part 26.5—Trustees #### 26.26 Applications in relation to the appointment of a trustee (1) This rule applies to an application under section 90‑20 of Schedule 2 to the Bankruptcy Act for either of the following orders: (a) an order that a person cease to be the trustee of an estate; (b) an order that another person be appointed as the trustee of an estate. (2) The application must be accompanied by an affidavit stating the grounds in support of the application. (3) At least 28 days before the date fixed for the hearing of the application, the applicant must serve the application and supporting affidavit on the trustee and any petitioning creditor. (4) At least 14 days before the date fixed for the hearing of the application, the applicant must serve the application and supporting affidavit on each person known to the applicant to be a creditor of the estate. (5) If the court makes the order sought, the applicant must, as soon as practicable, serve a copy of the order on the Official Receiver. #### 26.27 Resignation or release of trustee (Bankruptcy Act ss 180 and 183) (1) An application for acceptance of a trustee’s resignation from the office of trustee of an estate, or release of a trustee from the trusteeship of an estate, must be accompanied by: (a) an affidavit stating the grounds in support of the application; and (b) if the application is for release of a trustee from the trusteeship of an estate: (i) a statement giving details of the realisation of the bankrupt’s property and the distribution of the estate by the trustee; and (ii) a copy of the books referred to in section 70‑10 of Schedule 2 to the Bankruptcy Act in relation to the estate. (2) The application and supporting documents must be served on: (a) the Official Receiver; (b) the bankrupt; and (c) anyone else (including a creditor) as ordered by the court. (3) If the court makes the order sought, the applicant must serve a copy of the sealed order on the Official Receiver for the District in which the order was made, within 2 days after the applicant receives the sealed order. ## Part 26.6—Warrants #### 26.28 Arrest of bankrupt (Bankruptcy Act s 78) (1) An application for the issue of a warrant for the arrest of a bankrupt must state the grounds for the issue of the warrant. (2) The application must be accompanied by an affidavit stating the facts in support of the application. (3) The warrant must be in accordance with the form Bankruptcy—Arrest Warrant. (4) If a bankrupt is arrested under the warrant, the person who carried out the arrest must immediately give notice of the arrest to the Registry Manager in the Registry from which the warrant was issued. #### 26.29 Apprehension of person failing to attend Court (Bankruptcy Act s 264B(1)) (1) A warrant for the apprehension of a person who fails to comply with a summons must be in accordance with the form Bankruptcy—Apprehension Warrant. (2) The court may order that the warrant be kept in the Registry: (a) for a stated time; and (b) on any conditions that the court considers appropriate. (3) If a person is arrested under the warrant, the person who carried out the arrest must immediately give notice of the arrest to a Registry Manager in the Registry from which the warrant was issued. > Note: For the procedure to be followed if a person is apprehended under a warrant and it is not practicable to bring the person before the Court or a Registrar on the day the person is apprehended, see Part 14 of the Bankruptcy Regulations. ## Part 26.7—Costs #### 26.30 Order for costs (1) Unless the court otherwise orders, a person who is entitled to costs in a case to which the Bankruptcy Act applies is entitled to costs in accordance with Part 40 of the Federal Court Rules 2011. (2) In making an order for costs, the court may fix the amount of the costs. (3) If the court fixes the amount of the costs, Part 40 of the Federal Court Rules 2011 does not apply to a bill of costs submitted for the costs, except for the issue of a certificate of taxation. #### 26.31 Application of Part 40 of Federal Court Rules 2011 (1) For the purposes of applying a provision of Part 40 of the Federal Court Rules 2011 to this Part, a reference in those Rules to: (a) ‘the Court’ or ‘Court’ is taken to be a reference to a Family Court; (b) ‘application’ is taken to include a reference to an application in a Family Court started by the form Bankruptcy—Application or transferred to a Family Court under section 35A of the Bankruptcy Act; (ba) ‘interlocutory application’ is taken to include a reference to an application in a Family Court started by the form Bankruptcy—Application in a Case; (c) a Registrar, Deputy Registrar, District Registrar, Deputy District Registrar or taxing officer is taken to be a reference to a Registrar of a Family Court; and (d) the entry of orders is taken to be: (i) if the reference relates to a party seeking to enter an order—a reference to the application of the party for an order in relation to costs in a Family Court; and (ii) if the reference relates to a judicial officer who signs and seals an order to authenticate the order—a reference to the making of an order by a judicial officer in relation to costs in a Family Court. Chapter 26A—Cases to which the Trans‑Tasman Proceedings Act 2010 applies Summary of Chapter 26A Chapter 26A sets out the rules about a case in a Family Court to which the Trans‑Tasman Proceedings Act 2010 applies. Delegation of the Family Court’s power in such cases is set out in Chapter 18 of these Rules. The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules. A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules. #### 26A.01 Application of Division 34.4 of the Federal Court Rules 2011 Division 34.4 of the Federal Court Rules 2011, as modified by rule 26A.02 or an order, applies to a proceeding in a Family Court as if the rules in that Division were provisions of these Rules. #### 26A.02 Modification of the Federal Court Rules 2011 (1) For the purposes of rule 26A.01, Division 34.4 of the Federal Court Rules 2011 is modified as follows: (a) a reference to an originating application is taken to be a reference to an Initiating Application (Family Law); (b) a reference to an interlocutory application is taken to be a reference to an Application in a Case; (c) a reference to an application, a certificate of non‑compliance or a subpoena being in accordance with a Form is to be disregarded. (2) For the purposes of rule 26A.01, Division 34.4 of the Federal Court Rules 2011 is also modified in accordance with Table 26A.1. ```html <table cellspacing="0" cellpadding="0" style="width:100%; border-collapse:collapse"><thead><tr><td colspan="4" style="border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Table 26A.1—Additional modifications of the </span><span style="font-style:italic">Federal Court Rules</span><span style="font-style:italic"> </span><span style="font-style:italic">2011</span></p></td></tr><tr><td style="width:11.9%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Item</span></p></td><td style="width:35.68%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Provision</span></p></td><td style="width:33.32%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Omit</span></p></td><td style="width:19.1%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Substitute</span></p></td></tr></thead><tbody><tr><td style="width:11.9%; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>1A</span></p></td><td style="width:35.68%; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Paragraph</span><span> </span><span>34.62(b)</span></p></td><td style="width:33.32%; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>other of these Rules</span></p></td><td style="width:19.1%; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>provisions of the </span><span style="font-style:italic">Family Law Rules</span><span style="font-style:italic"> </span><span style="font-style:italic">2004</span></p></td></tr><tr><td style="width:11.9%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>1</span></p></td><td style="width:35.68%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Paragraph</span><span> </span><span>34.63(1)(b)</span></p></td><td style="width:33.32%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>rules</span><span> </span><span>8.01 and 8.03</span></p></td><td style="width:19.1%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>rule</span><span> </span><span>2.01 of the </span><span style="font-style:italic">Family Law Rules</span><span style="font-style:italic"> </span><span style="font-style:italic">2004</span></p></td></tr><tr><td style="width:11.9%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>2</span></p></td><td style="width:35.68%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Subparagraph</span><span> </span><span>34.64(a)(ii)</span></p></td><td style="width:33.32%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>rule</span><span> </span><span>17.01</span></p></td><td style="width:19.1%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>rule</span><span> </span><span>5.01 of the </span><span style="font-style:italic">Family Law Rules</span><span style="font-style:italic"> </span><span style="font-style:italic">2004</span></p></td></tr><tr><td style="width:11.9%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>3</span></p></td><td style="width:35.68%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>Subrule</span><span> </span><span>34.68(2)</span></p></td><td style="width:33.32%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>the whole of the subrule</span></p></td><td style="width:19.1%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span></span></p></td></tr></tbody></table> ``` #### 26A.03 Service of subpoena A subpoena to which Division 2 of Part 5 of the Trans‑Tasman Proceedings Act 2010 applies must also be accompanied by an information sheet in a form approved by the Chief Executive Officer. > Note 1: Subsection 32(2) of the Trans‑Tasman Proceedings Act 2010 requires the subpoena to be accompanied by a copy of the order giving leave for service and a notice in the prescribed form. > Note 2: Section 33 of the Trans‑Tasman Proceedings Act 2010 requires the reasonable expenses of complying with the subpoena to be paid at the time of service of the subpoena or at some other reasonable time before compliance with the subpoena is required. Chapter 26B—Arbitration Summary of Chapter 26B Chapter 26B sets out rules relating to arbitration. In particular, the Chapter contains rules about disclosure (Part 26B.1) and subpoenas (Part 26B.2) in arbitrations. See also Part 5 of the Regulations for additional requirements relating to arbitration. Delegation of the Family Court’s powers in relation to arbitration is set out in Chapter 18 of these Rules. The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules. A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules. ## Part 26B.1—Disclosure relating to arbitration #### 26B.01 General duty of disclosure (1) Each party to an arbitration has a duty to the arbitrator and each other party to the arbitration to give full and frank disclosure of all information relevant to the arbitration, in a timely manner. (2) Without limiting subrule (1), a party to an arbitration must make full and frank disclosure of the party’s financial circumstances, including the following: (a) the party’s earnings, including income that is paid or assigned to another party, person or legal entity; (b) any vested or contingent interest in property; (c) any vested or contingent interest in property owned by a legal entity that is fully or partially owned or controlled by a party; (d) any income earned by a legal entity fully or partially owned or controlled by a party, including income that is paid or assigned to any other party, person or legal entity; (e) the party’s other financial resources; (f) any trust: (i) of which the party is the appointor or trustee; or (ii) of which the party, or the party’s child, spouse or de facto spouse, is an eligible beneficiary as to capital or income; or (iii) of which a corporation is an eligible beneficiary as to capital or income if the party, or the party’s child, spouse or de facto spouse, is a shareholder or director of the corporation; or (iv) over which the party has any direct or indirect power or control; or (v) of which the party has the direct or indirect power to remove or appoint a trustee; or (vi) of which the party has the power (whether subject to the concurrence of another person or not) to amend the terms; or (vii) of which the party has the power to disapprove a proposed amendment of the terms or the appointment or removal of a trustee; or (viii) over which a corporation has a power mentioned in any of subparagraphs (iv) to (vii), if the party, or the party’s child, spouse or de facto spouse, is a director or shareholder of the corporation; (g) any disposal of property (whether by sale, transfer, assignment or gift) made by the party, a legal entity mentioned in paragraph (c), a corporation, or a trust mentioned in paragraph (f), that may affect, defeat or deplete a claim: (i) in the 12 months immediately before the separation of the parties; or (ii) since the final separation of the parties; (h) liabilities and contingent liabilities. (3) Paragraph (2)(g) does not apply to a disposal of property made with the consent or knowledge of the other party or in the ordinary course of business. (4) In this rule: > legal entity means a corporation (other than a public company), trust, partnership, joint venture business or other commercial activity. #### 26B.02 Duty of disclosure—documents (1) The duty of disclosure, under subrule 26B.01(1), of a party to an arbitration applies to each document that: (a) is or has been in the possession, or under the control, of the party; and (b) is relevant to an issue in dispute between the parties to the arbitration. (2) This Part does not affect: (a) the right of a party to an arbitration to inspect a document, if the party has a common interest in the document with the party who has possession or control of the document; or (b) another right of access to a document other than under this Part; or (c) an agreement between parties to an arbitration for disclosure by a procedure that is not described in this Part. #### 26B.03 Use of documents A person who inspects or copies a document produced under this Chapter in relation to an arbitration: (a) must use the document for the purposes of the arbitration only; and (b) must not otherwise disclose the contents of the document, or give a copy of it, to any other person without the court’s permission. #### 26B.04 Party may require production of documents (1) A party to an arbitration may, by written notice, require another party to the arbitration to provide a copy of, or produce for inspection, a document referred to: (a) in a document provided by a party to the arbitration to another party to the arbitration; or (b) in correspondence prepared and sent by or to another party to the arbitration. (2) Subject to rule 26B.08, a party required to provide a copy of a document must provide the copy within 14 days after receiving the written notice. #### 26B.05 Documents that need not be produced (1) A party to an arbitration must disclose, but need not produce: (a) a document for which there is a claim of privilege from production; or (b) a document a copy of which has already been provided, if the copy contains no change, obliteration or other mark or feature that may affect the outcome of the arbitration. > Note: Rule 26B.06 sets out the requirements for challenging a claim of privilege from disclosure. (2) Subrule (1) has effect despite rules 26B.04, 26B.07 and 26B.08. #### 26B.06 Objection to production (1) This rule applies if: (a) a party to an arbitration (the disclosing party) claims: (i) privilege from production of a document under this Part; or (ii) that the disclosing party is unable to produce a document required to be produced under this Part; and (b) another party to the arbitration, by written notice to the disclosing party, challenges the claim. (2) The disclosing party must, within 7 days after receiving the notice, give a statement setting out the basis of the claim to: (a) the other party; and (b) the arbitrator. (3) If a statement is given to the arbitrator under subrule (2) in relation to a claim and the arbitrator considers that determining the claim would not involve determining a question of law, the arbitrator must determine the claim or terminate the arbitration. (4) If a statement is given to the arbitrator under subrule (2) in relation to a claim and the arbitrator considers that determining the claim would involve determining a question of law, the arbitrator must notify the parties. > Note: See also rule 26B.09 (applications for orders relating to disclosure). (5) If the arbitrator terminates a section 13E arbitration under subrule (3), the arbitrator must, within 7 days, inform the court. #### 26B.07 Disclosure by giving a list of documents (1) This rule applies if: (a) the parties to an arbitration have made an arbitration agreement in relation to the arbitration; or (b) the parties to an arbitration have been given a notice under regulation 67G of the Regulations. (2) A party to the arbitration (the requiring party) may, by written notice, require another party to the arbitration (the disclosing party) to give the requiring party a list of documents to which the duty of disclosure under subrule 26B.01(1) applies. > Note: An arbitrator may require a person to produce documents: see regulation 67N of the Regulations. (3) The disclosing party must, within 21 days after receiving the notice, give the requiring party a list of the documents to which the disclosing party’s duty of disclosure under subrule 26B.01(1) applies. > Note: Rule 26B.02 sets out the documents to which the duty of disclosure under subrule 26B.01(1) applies. (4) The list must identify: (a) the documents (if any) that are no longer in the possession, or under the control, of the disclosing party (with a brief statement about the circumstances in which the documents left the party’s possession or ceased to be under the party’s control); and (b) the documents (if any) for which privilege from production is claimed. (5) The requiring party may, by written notice, require the disclosing party to do either of the following in relation to a document included in a list in accordance with subrule (3): (a) produce the document for inspection; (b) provide a copy of the document. (6) If the disclosing party receives a notice under paragraph (5)(b) in relation to a document, the disclosing party must, within 14 days after receiving the notice, give the requiring party a copy of the document at the requiring party’s expense. (7) Subrule (6) has effect subject to subrule (8) and rule 26B.08. (8) Subrule (6) does not apply to a document: (a) in relation to which privilege from production is claimed; or (b) that is no longer in the disclosing party’s possession or control. (9) If: (a) the disclosing party gives the requiring party a list in accordance with subrule (3); and (b) after doing so, a document identified in the list in accordance with paragraph (4)(a) is located by, or comes into the possession or under the control of, the disclosing party; the disclosing party must, within 7 days, notify the requiring party of that fact. #### 26B.08 Disclosure by inspection of documents (1) This rule applies if a party to an arbitration (the disclosing party) receives a notice from another party to the arbitration (the requiring party) under subrule 26B.04(1) or paragraph 26B.07(5)(a) requiring the disclosing party to produce a document for inspection. (2) This rule also applies if: (a) a party to an arbitration (the disclosing party) receives a notice from another party to the arbitration (the requiring party) under subrule 26B.04(1) or paragraph 26B.07(5)(b) requiring the disclosing party to provide a copy of a document; and (b) it is not convenient for the disclosing party to provide a copy of a document required by the notice because of the number and size of the documents specified in the notice. (3) The disclosing party must, within 14 days after receiving the notice: (a) notify the requiring party, in writing, of a convenient place and time at which the document may be inspected; and (b) produce the document for inspection at that place and time; and (c) allow copies of the document to be made, at the requiring party’s expense. (4) Unless the parties agree otherwise, the time notified under paragraph (3)(a) must not be more than 21 days after the day on which the notice referred to in subrule (1) or (2) was given. > Note: The court may shorten or extend the time for compliance with a rule (see rule 1.14). (5) If the requiring party fails to inspect the document at the time notified under paragraph (3)(a), the requiring party is not entitled to inspect the document at a later time unless the requiring party tenders an amount to the disclosing party for the reasonable costs of providing another opportunity for inspection. > Note: The court may dispense with the obligation to tender an amount (see rule 1.12). #### 26B.09 Applications for orders relating to disclosure Applications by a party to an arbitration (1) A party to an arbitration may apply for an order that the party be partly or fully relieved of the duty of disclosure under subrule 26B.01(1). (2) If: (a) a party to an arbitration (the requiring party) gives another party to the arbitration (the disclosing party) a notice under subrule 26B.04(1), 26B.07(2) or 26B.07(5); and (b) the disclosing party fails to comply with the notice; and (c) either: (i) the disclosing party has not made a claim under rule 26B.06 in relation to a document to which the notice relates; or (ii) the disclosing party has made such a claim, and the arbitrator has determined the claim under subrule 26B.06(3) or has notified the parties under subrule 26B.06(4) in relation to the claim; the requiring party may apply for an order under subrule (3). (3) For subrule (2), the requiring party may apply for an order that the disclosing party: (a) comply with a notice given by the requiring party to the disclosing party under subrule 26B.04(1), 26B.07(2) or 26B.07(5); or (b) disclose a document or class of documents to the requiring party by providing a copy of the document or documents or producing the document or documents for inspection; or (c) give the requiring party and the arbitrator a written statement: (i) that a specified document, or class of documents, does not exist or has never existed; or (ii) setting out the circumstances in which a specified document or class of documents ceased to exist or passed out of the possession or control of the disclosing party. Applications by an arbitrator (4) An arbitrator may apply for an order that: (a) a party to the arbitration comply with a notice given to the party under subrule 26B.04(1), 26B.07(2) or 26B.07(5); or (b) a party to the arbitration comply with a determination by the arbitrator under subrule 26B.06(3); or (c) a party to the arbitration give the arbitrator and each other party to the arbitration a written statement: (i) that a specified document, or class of documents, does not exist or has never existed; or (ii) setting out the circumstances in which a specified document or class of documents ceased to exist or passed out of the possession or control of that party. > Note: For additional powers of the arbitrator, see subregulation 67N(1) of the Regulations. All applications (5) An application under this rule must be made by filing: (a) an application in accordance with the approved form; and (b) an affidavit stating the facts relied on in support of the application. (6) A person making an application under this rule must satisfy the court that the order is necessary to facilitate the effective conduct of the arbitration. > Note: Before making an application under this Chapter, a party must make a reasonable and genuine attempt to settle the issue to which the application relates (see rule 5.03). (7) In making an order under this rule, the court may consider the following: (a) whether the disclosure sought is relevant to an issue in dispute between the parties to the arbitration; (b) the relative importance of the issue to which the document or class of documents relates; (c) the likely time, cost and inconvenience involved in disclosing a document or class of documents, taking into account the amount of the property, or complexity of the corporate, trust or partnership interests (if any), involved in the arbitration; (d) the likely effect on the outcome of the arbitration of disclosing, or not disclosing, the document or class of documents. (8) If a party to an arbitration objects to the production, in accordance with an order under this rule, of a document for inspection or copying, the court may inspect the document to decide the objection. #### 26B.10 Costs of compliance If the cost of complying with the duty of disclosure under subrule 26B.01(1) would be oppressive to a party to an arbitration, the court may order another party to the arbitration to: (a) pay the costs; or (b) contribute to the costs; or (c) give security for costs. #### 26B.11 Electronic disclosure The court may make an order directing that documents be disclosed for the purposes of this Part by electronic communication. > Note: This rule does not limit the power of an arbitrator to require the production of documents under paragraph 67N(1)(b) of the Regulations. ## Part 26B.2—Subpoenas ### Division 26B.2.1—General #### 26B.12 Application of this Part This Part applies in relation to subpoenas issued, or to be issued, in relation to an arbitration. #### 26B.13 Interpretation (1) In this Part: > interested person, in relation to a subpoena, means a person who has a sufficient interest in the subpoena. > issuing party means the party for whom a subpoena is issued in accordance with this Part. > named person means a person required by a subpoena issued in accordance with this Part to give evidence or produce documents. > subpoena for production means a subpoena mentioned in paragraph 26B.14(1)(b). > subpoena for production and to give evidence means a subpoena mentioned in paragraph 26B.14(1)(c). > subpoena to give evidence means a subpoena mentioned in paragraph 26B.14(1)(a). (2) In this Part, a reference to a document includes a reference to an object. > Note: For the definition of document, see the Acts Interpretation Act 1901. #### 26B.14 Issuing a subpoena (1) The court may, on application, issue a subpoena requiring a person: (a) to attend an arbitration to give evidence; or (b) to produce documents to the court in relation to an arbitration; or (c) to produce documents to the court in relation to an arbitration and attend the arbitration to give evidence. (2) A subpoena mentioned in subrule (1) must be in the approved form. (3) An application, under subregulation 67N(2) of the Regulations, by a party to an arbitration for the issue of a subpoena: (a) may be made orally or in writing; and (b) may be made without giving notice to any other party to the arbitration; and (c) may be determined in chambers in the absence of the other parties to the arbitration. (4) A party to an arbitration must not request the issue of a subpoena for production and to give evidence if production would be sufficient in the circumstances. (5) A subpoena must identify the person to whom it is directed by name or description of office. (6) A subpoena may be directed to 2 or more persons if: (a) the subpoena is to give evidence only; or (b) the subpoena requires each named person to produce the same document (rather than the same class of documents). (7) A subpoena for production: (a) must identify the document to be produced and the time and place for production; and (b) may require the named person to produce the document before the day the arbitration is to start. (8) A subpoena to give evidence must specify the time and place at which the person must attend the arbitration to give evidence. (9) A subpoena for production and to give evidence must: (a) identify the document to be produced; and (b) specify the time and place at which the person must attend the arbitration to produce the document and give evidence. #### 26B.15 Subpoena not to issue in certain circumstances The court must not issue a subpoena: (a) on application by a self‑represented party, unless the party has first obtained the Registrar’s permission to make the application; or (b) for production of a document in the custody of the court or another court. > Note: Rule 26B.27 sets out the procedure to be followed when a party seeks to produce to the court a document from another court. #### 26B.16 Amendment of subpoena A subpoena that has been issued, but not served, may be amended by the issuing party filing the amended subpoena with the amendments clearly marked. #### 26B.17 Service (1) The issuing party for a subpoena must serve the named person, in accordance with subrule (1A), with: (a) the subpoena; and (b) the brochure, approved by the Chief Executive Officer, containing information about subpoenas. (1A) A document required to be served under subrule (1) must be served: (a) in relation to a subpoena for production—either: (i) by ordinary service; or (ii) by a manner of service agreed between the issuing party and the named person; and (b) in relation to a subpoena to give evidence, or a subpoena for production and to give evidence—by hand. (2) The issuing party for a subpoena must serve a copy of the subpoena, in accordance with subrule (2A), on: (a) each other party to the arbitration; and (b) each interested person in relation to the subpoena. (2A) A document required to be served under subrule (2) must be served: (a) by ordinary service; or (b) by a manner of service agreed between the issuing party and the person to be served. (3) Unless the court directs otherwise, a document required to be served under subrule (1) or (2) must be served: (a) in relation to a subpoena for production—at least 10 days before the day on which production in accordance with the subpoena is required; and (b) in relation to a subpoena to give evidence—at least 7 days before the day on which attendance in accordance with the subpoena is required; and (c) in relation to a subpoena for production and to give evidence—at least 10 days before the day on which production and attendance in accordance with the subpoena is required. (4) A subpoena must not be served on a child without the court’s permission. > Note: Chapter 7 also contains other requirements relating to service. #### 26B.18 Conduct money and witness fees (1) A named person is entitled to be paid conduct money by the issuing party at the time of service of the subpoena, of an amount that is: (a) sufficient to meet the reasonable expenses of complying with the subpoena; and (b) at least equal to the minimum amount mentioned in item 101 of the table in Part 1 of Schedule 4. (2) A named person served with a subpoena to give evidence, or a subpoena for production and to give evidence, is entitled to be paid a witness fee by the issuing party, in accordance with Part 2 of Schedule 4, immediately after attending the arbitration in compliance with the subpoena. (3) A named person may apply to the court to be reimbursed if the named person incurs a substantial loss or expense that is greater than the amount of the conduct money or witness fee payable under this rule. #### 26B.19 When compliance is not required (1) A named person does not have to comply with a subpoena if: (a) the named person was not served in accordance with these Rules; or (b) conduct money was not tendered to the person: (i) at the time of service; or (ii) at a reasonable time before the day on which attendance or production in accordance with the subpoena is required. (2) If a named person is not to be called to give evidence at the arbitration, or to produce a document to the court, in compliance with the subpoena, the issuing party may release the named person from the obligation to comply with the subpoena. #### 26B.20 Duration of subpoena A subpoena remains in force until whichever of the following first occurs: (a) the subpoena is complied with; (b) the issuing party or the court releases the named person from the obligation to comply with the subpoena; (c) the arbitration ends. #### 26B.21 Objection to subpoena (1) If a named person, or an interested person, in relation to a subpoena: (a) seeks an order that the subpoena be set aside in whole or in part; or (b) seeks any other relief in relation to the subpoena; the person must, before the day on which attendance or production in accordance with the subpoena is required, apply to the court, in writing, for the relevant order. (2) If a person makes an application under subrule (1), the subpoena must be referred to the court for the hearing and determination of the application. (3) The court may compel a person to produce a document to the court for the purpose of determining an application under subrule (1). ### Division 26B.2.2—Production of documents and access by parties #### 26B.22 Application of Division 26B.2.2 This Division applies to a subpoena for production. #### 26B.23 Compliance with subpoena (1) A named person may comply with a subpoena for production by providing the required documents, or copies of the required documents, and a copy of the subpoena to the court: (a) at the place specified in the subpoena; and (b) on or before the day on which production in accordance with the subpoena is required. (2) The named person, when complying with the subpoena for production, must inform the Registry Manager in writing whether: (a) the documents referred to in the subpoena are to be returned to the named person; or (b) the Registry Manager is authorised to destroy the documents when they are no longer required by the court. (3) In this rule: > copy includes: (a) a photocopy; and (b) a copy in an electronic format that is approved by the Registry Manager, and is capable of being printed in the form in which it was created without any loss of content. #### 26B.24 Right to inspect and copy documents (1) This rule applies if: (a) the court issues a subpoena for production; and (b) at least 10 days before the day (the production day) on which production in accordance with the subpoena is required, the issuing party: (i) serves the named person with the subpoena and the brochure in accordance with subrule 26B.17(1); and (ii) serves each person mentioned in subrule 26B.17(2) with a copy of the subpoena in accordance with that subrule; and (c) no objection under rule 26B.25 to production of a document required in accordance with the subpoena is made by the production day; and (d) the named person complies with the subpoena; and (e) on or after the production day, the issuing party files a notice of request to inspect in an approved form. (2) Each party to the proceedings may: (a) inspect a document produced in accordance with the subpoena; and (b) take copies of a document (other than a child welfare record, criminal record, medical record or police record) produced in accordance with the subpoena. (3) Subrule (2) has effect subject to paragraph 26B.25(4)(c) (inspection of medical records). (4) Unless the court orders otherwise, an inspection under paragraph (2)(a): (a) must be by appointment; and (b) may be made without an order of the court. #### 26B.25 Objections relating to production of documents Objection to producing, or to inspection or copying of, a document (1) Subrule (2) applies if a subpoena for production is issued in relation to an arbitration, and: (a) the named person objects to producing a document in accordance with the subpoena; or (b) the named person or an interested person in relation to the subpoena, or another party to the arbitration, objects to the inspection or copying of a document identified in the subpoena. (2) The person or party (the objector) must, before the day on which production in accordance with the subpoena is required, give written notice of the objection and the grounds for the objection, to: (a) the Registry Manager; and (b) if the objector is not the named person—the named person; and (c) each party, or other party, to the arbitration; and (d) the arbitrator. Objection relating to inspection or copying of medical records (3) If a subpoena for production requires the production of a person’s medical records, the person may, before the day (the production day) on which production under the subpoena is required, notify the Registry Manager in writing that the person wishes to inspect the medical records for the purpose of determining whether to object to the inspection or copying of the records. (4) If a person (the potential objector) gives notice under subrule (3): (a) the potential objector may inspect the medical records; and (b) if the potential objector wishes to object to the inspection or copying of the records—the potential objector must, within 7 days of the production day, give written notice of the objection and the grounds for the objection, to the Registry Manager; and (c) unless the court orders otherwise, no other person may inspect the medical records until the later of: (i) 7 days after the production day; and (ii) if the potential objector makes an objection under paragraph (b)—the end of the hearing and determination of the objection. Referral of subpoena to the court (5) If a person makes an objection under subrule (2) or paragraph (4)(b), the subpoena must be referred to the court for the hearing and determination of the objection. (6) The court may compel a person to produce a document to the court for the purpose of ruling on an objection under subrule (2) or paragraph (4)(b). #### 26B.26 Court permission to inspect documents A person may not inspect or copy a document produced in compliance with a subpoena for production unless: (a) rule 26B.24 applies; or (b) the court gives permission. #### 26B.27 Production of document from a court (1) A party to an arbitration who seeks to produce to the court a document in the possession of the court or another court must give the Registry Manager a written notice setting out the following: (a) the name and address of the court having possession of the document; (b) a description of the document to be produced; (c) the date when the document is to be produced; (d) the reason for seeking production. (2) If the Registry Manager receives a notice under subrule (1) in relation to a document in the possession of another court, a Registrar may ask the other court, in writing, to send the document to the Registry Manager of the filing registry by a specified date. (3) A party may apply for permission to inspect and copy a document produced to the court under this rule. #### 26B.28 Return or destruction of documents produced (1) If: (a) a named person has informed the Registry Manager under paragraph 26B.23(2)(a) that a document produced by the person in compliance with a subpoena is to be returned to the named person; and (b) the document is in the possession of the Registry Manager at the end of the arbitration; the Registry Manager must return the document to the named person at least 28 days, and no later than 42 days, after the end of the arbitration. (2) If: (a) a named person has informed the Registry Manager under paragraph 26B.23(2)(b) that a document produced by the person in compliance with a subpoena may be destroyed; and (b) the document is in the possession of the Registry Manager at the end of the arbitration; the Registry Manager may destroy the document, in an appropriate way, not earlier than 42 days after the end of the arbitration. ### Division 26B.2.3—Non‑compliance with subpoena #### 26B.29 Non‑compliance with subpoena If: (a) a named person does not comply with a subpoena; and (b) the court is satisfied that the named person was served, and given conduct money, in accordance with these Rules; the court may issue a warrant for the named person’s arrest and order the person to pay any costs caused by the non‑compliance. > Note: A person who does not comply with a subpoena may be guilty of contempt (see section 112AP of the Act). ## Part 26B.3—Other rules relating to arbitration #### 26B.30 Referral of question of law by an arbitrator (1) A referral of a question of law by an arbitrator under section 13G of the Act must be made by application in accordance with the approved form. (2) The arbitrator must give each party to the arbitration a copy of the application within 7 days after making the application. #### 26B.31 Referral of other matters to the court by the arbitrator (1) A referral by an arbitrator of a matter to the court under paragraph 67H(3)(b), 67K(b) or 67L(1)(b) of the Regulations must be made by written notice to the Registry Manager. > Note: Regulation 67H is about costs of arbitrations. Regulation 67K is about suspension of arbitrations for failure to comply with directions. Regulation 67L is about termination of arbitrations for lack of capacity. (2) A referral by an arbitrator of a matter to the court under paragraph 67L(1)(b) of the Regulations must be made within 7 days after the arbitration is terminated. #### 26B.32 Informing the court about awards made in arbitration An arbitrator must inform the court of the matters referred to in paragraph 67P(4)(b) of the Regulations, by written notice to the Registry Manager, within 7 days after the award is made. #### 26B.33 Registration of awards made in arbitration (1) A copy of an application to register an arbitration award required to be served under subregulation 67Q(2) of the Regulations must be served within 14 days of the day on which the application is filed. (2) The applicant must file an Affidavit of Service within 7 days of the day on which a copy of the application is so served. #### 26B.34 Response to applications in relation to arbitration (1) This rule applies if: (a) an application is made to the court in relation to an arbitration (whether the application is made under this Chapter, the Regulations, or the Act); and (b) a respondent to the application: (i) seeks to oppose the application; or (ii) seeks different orders to those sought in the application. (2) The respondent must file: (a) a response in accordance with the approved form; and (b) an affidavit stating the facts relied on in support of the response. (3) The response and affidavit must be filed and served within 7 days after the day on which the application was served. #### 26B.35 Arbitrator to notify court when certain arbitrations end If one or more subpoenas are issued in relation to a relevant property or financial arbitration, the arbitrator must inform the court if the arbitration is suspended, terminated or otherwise ends. > Note: See regulation 67P of the Regulations for the duty of the arbitrator to notify the court when a section 13E arbitration ends. Chapter 27—Transitional provisions ## Part 27.1—Transitional provisions relating to the Family Law Amendment (Costs) Rules 2018 #### 27.01 Application of Schedule 3 (itemised scale of costs) Schedule 3, as substituted by the Family Law Amendment (Costs) Rules 2018, applies to work done on or after 1 January 2019. ## Part 27.2—Transitional provisions relating to the Family Law Amendment (Insolvency Law Reform) Rules 2017 #### 27.03 Transitional—release of trustee (1) This rule applies if: (a) an application referred to in paragraph 26.27(1)(b) is made after 1 September 2017 for the release of a trustee from the trusteeship of an estate; and (b) because of item 143 of Schedule 1 to the Insolvency Law Reform Act 2016, the trustee is required to keep accounts and records (the old accounts) in relation to the estate in accordance with section 173 of the Bankruptcy Act (as that section was in force immediately before it was repealed by Schedule 1 to the Insolvency Law Reform Act 2016). (2) In addition to the books referred to in subparagraph 26.27(1)(b)(ii), a copy of the old accounts must accompany the application. ## Part 27.3—Transitional provisions relating to the Family Law Amendment (2018 Measures No. 1) Rules 2018 #### 27.04 Application—submitting notices Rule 8.07, as inserted by Schedule 2 to the Family Law Amendment (2018 Measures No. 1) Rules 2018, applies in relation to an application that is served on or after 1 March 2018. #### 27.05 Application—notices of contention Rule 22.08A, as inserted by Schedule 2 to the Family Law Amendment (2018 Measures No. 1) Rules 2018, applies in relation to a Notice of Appeal that is served on or after 1 March 2018. #### 27.06 Application—documents to be used in conjunction with an affidavit Rule 15.08, as amended by Schedule 3 to the Family Law Amendment (2018 Measures No. 1) Rules 2018, applies in relation to an affidavit that is to be filed on or after 1 March 2018. #### 27.07 Application—compliance with subpoena Rules 15.29 and 26B.23, as amended by Schedule 3 to the Family Law Amendment (2018 Measures No. 1) Rules 2018, apply in relation to a subpoena for production that is issued on or after 1 March 2018. #### 27.08 Application—undertakings Rule 17.06, as inserted by Schedule 3 to the Family Law Amendment (2018 Measures No. 1) Rules 2018, applies in relation to an undertaking that is given on or after 1 March 2018. ## Part 27.4—Transitional provisions relating to the Family Law Amendment (Notice of Child Abuse, Family Violence or Risk) Rules 2020 #### 27.09 Definitions In this Part: > amending Rules means the Family Law Amendment (Notice of Child Abuse, Family Violence or Risk) Rules 2020. > commencement day means the day the amending Rules commence. > old format notice of risk means: (a) a Notice of Child Abuse, Family Violence or Risk of Family Violence (Current Case); or (b) a Notice of Child Abuse, Family Violence or Risk of Family Violence (Application for Consent Orders); both within the meaning of these Rules as in force immediately before the commencement day. #### 27.10 Application—documents to be filed with applications Rule 2.02, as amended by Schedule 1 to the amending Rules, applies in relation to: (a) an application that is filed on or after the commencement day; and (b) a response that is filed on or after the commencement day, even if it is a response to an application that was filed before the commencement day. #### 27.11 Application—amendment of Notice of Child Abuse, Family Violence or Risk (1) Rule 2.04B, as inserted by Schedule 1 to the amending Rules, applies in relation to: (a) a proceeding that is instituted on or after the commencement day; and (b) a proceeding that was instituted, but not concluded, before the commencement day. (2) For the purposes of a proceeding that was instituted, but not concluded, before the commencement day, if: (a) before the commencement day, a person who is a party to the proceeding, or an interested person in the proceeding, had filed an old format notice of risk in the proceeding; and (b) on or after the commencement day, the person becomes aware of new facts or circumstances as mentioned in paragraph 2.04B(b) as inserted by Schedule 1 to the amending Rules; then rule 2.04B, as inserted by Schedule 1 to the amending Rules, applies as if the reference in paragraph 2.04B(a) to a Notice of Child Abuse, Family Violence or Risk were a reference to the old format notice of risk. #### 27.12 Application—prescribed form Subrule 2.04D(1), as amended by Schedule 1 to the amending Rules, applies in relation to an allegation that is made on or after the commencement day, even if the proceeding in which the allegation is made was instituted before the commencement day. ## Part 27.5—Transitional provisions relating to the Family Law Amendment (Powers Delegated to Registrars) Rules 2020 #### 27.13 Application—powers delegated to Registrars Rules 18.05, 18.06 and 18.08, as amended by Schedule 1 to the Family Law Amendment (Powers Delegated to Registrars) Rules 2020 (the amending Rules), apply in relation to the exercise of a power on or after the commencement of the amending Rules (whether or not the exercise of the power relates to a proceeding instituted before, on or after that commencement).