Division 3.6.1Death of party

## Part 3.1—Necessary parties #### 3.01 Necessary parties A person whose rights may be directly affected by an issue in a proceeding, and whose participation as a party is necessary for the court to determine all issues in dispute in the proceeding, must be included as a party to the proceeding. > Note: Example: If a party seeks an order of a kind referred to in section 90AE or 90AF of the Family Law Act, a third party who will be bound by the order must be joined as a respondent to the proceeding. #### 3.02 Necessary parties to applications for parenting orders (1) If an application is made for a parenting order in relation to a child, the following must be parties to the proceeding: (a) the parents of the child; (b) any other person in whose favour a parenting order is currently in force in relation to the child; (c) any other person with whom the child lives and who is responsible for the care, welfare and development of the child; (d) if a State child order is currently in place in relation to the child—the prescribed child welfare authority. (2) If a person referred to in subrule (1) is not an applicant in a proceeding involving the child, the person must be joined as a respondent to the application. ## Part 3.2—Adding and removing a party #### 3.03 Adding a party (1) A party to a proceeding may include any person as a party by: (a) naming the person as a party in the application, response or reply; and (b) serving on the person a copy of the application, response or reply and all other relevant documents filed in the proceeding. (2) A party may add another party after a proceeding has started by amending the application or response to add the name of the party. (3) A party who relies on subrule (2) must: (a) file an affidavit setting out the facts relied on to support the addition of the new party, including a statement of the new party’s relationship (if any) to the other parties; and (b) serve on the new party: (i) a copy of the application, amended application, response or amended response; and (ii) the affidavit referred to in paragraph (a); and (iii) any other relevant document filed in the proceeding; and (c) serve on the other parties: (i) a copy of the application, amended application, response or amended response; and (ii) the affidavit referred to in paragraph (a). (4) A party may only add another party after the first court date with the leave of the court. (5) A party who relies on subrule (4) must: (a) file: (i) an Application in a Proceeding; and (ii) an affidavit setting out the facts relied on to support the addition of the proposed new party, including a statement of the proposed new party’s relationship (if any) to the other parties; and (b) serve on the proposed new party: (i) a copy of the Application in a Proceeding; and (ii) the affidavit referred to in subparagraph (a)(ii); and (iii) any other relevant document filed in the proceeding; and (c) serve on the other parties: (i) a copy of the Application in a Proceeding; and (ii) the affidavit referred to in subparagraph (a)(ii). #### 3.04 Person may apply to be included (1) A person may apply to the court to be included as a party to a proceeding by filing an Application in a Proceeding. (2) Unless the court otherwise orders, the application must be supported by an affidavit stating: (a) the person’s interest in the proceeding or any matter in dispute between the person and a party to the proceeding; and (b) the orders (if any) that the person will seek if included as a party. (3) The person must serve a copy of the application and affidavit on each party to the proceeding. (4) An order for inclusion of the party may be on limited terms. > Note: Part IX of the Family Law Act deals with intervention in a proceeding. If a person has, by order or under rule 3.07 of these Rules, intervened in a proceeding, the person becomes a party with all the rights and obligations of a party (see subsections 91(2) and 91A(4), paragraph 91B(2)(b) and subsections 92(3) and 92A(3) of the Family Law Act). #### 3.05 Party may apply to be removed (1) A party to a proceeding may apply to the court to be removed as a party by filing an Application in a Proceeding. (2) The party must file an affidavit stating: (a) the relationship (if any) of the applicant to each other party; and (b) the evidence in support of the application. (3) The party must serve a copy of the application and affidavit on each other party to the proceeding. #### 3.06 Court may order notice to be given The court may at any time order a party, or a person applying to be included as a party, to notify any other person of: (a) the proceeding; or (b) the application of the person to be included as a party. #### 3.07 Intervention by a person entitled to intervene (1) This rule applies if either of the following intervenes in a proceeding: (a) the Attorney‑General; (b) any other person who is entitled under the Family Law Act to intervene in the proceeding without the court’s permission. (2) The person intervening must file: (a) a Notice of Intervention by Person Entitled to Intervene; and (b) an affidavit: (i) stating the facts relied on in support of the intervention; and (ii) attaching a schedule setting out the orders sought. > Note: The following are examples of when a person is entitled under the Family Law Act to intervene in a proceeding without the court’s permission: (a) subsection 79AA(10) authorises a creditor of a party to a proceeding who may not be able to recover a debt if an order is made under section 79, and a person whose interests would be affected by an order under section 79, to become a party to the proceeding; (b) subsection 90SMA(10) authorises a creditor of a party to a proceeding who would not be able to recover a debt if an order is made under section 90SM of the Family Law Act, a party to a de facto relationship or marriage with a party to a proceeding, a party to certain financial agreements and a person whose interests would be affected by the making of an order to become parties to the proceeding; (c) section 91 of the Family Law Act and section 78A of the Judiciary Act 1903 authorise the Attorney‑General to intervene in a proceeding; (d) section 92A of the Family Law Act authorises the persons referred to in subsection 92A(2) of that Act to intervene in a proceeding without the court’s permission; (e) section 145 of the Assessment Act authorises the Child Support Registrar to intervene in a proceeding. (3) On the filing of a Notice of Intervention by Person Entitled to Intervene, the Registry Manager must fix a date for a procedural hearing. (4) The person intervening must give each other party written notice of the procedural hearing. ## Part 3.3—Legal representation #### 3.08 Right to be heard and representation (1) A person (other than a corporation or authority) who is entitled to be heard in a proceeding may conduct the proceeding on the person’s own behalf or be represented by a lawyer. > Note: For the right of a lawyer to appear in a court exercising jurisdiction under the Family Law Act, see Part VIIIA of the Judiciary Act 1903. See also sections 57 and 175 of the Federal Circuit and Family Court Act. (2) Subject to section 57 of the Federal Circuit and Family Court Act, a party is not entitled to be represented by a person who is not a lawyer unless the court otherwise orders. The court will give permission for representation by a person other than a lawyer only in special circumstances. #### 3.09 Corporation must be represented Except as provided by or under an Act or regulations made under an Act, or with the leave of the court, a corporation must not start or carry on a proceeding otherwise than by a lawyer. #### 3.10 Lawyer—ceasing to act (1) A lawyer may cease to act for a party: (a) by: (i) serving on the party a Notice of Ceasing to Act and a blank Notice of Address for Service; and (ii) no sooner than 7 days after serving the notices, filing a copy of the Notice of Ceasing to Act; or (b) with the leave of the court. (1A) A lawyer must not file a Notice under subrule (1) within 14 days before the day fixed for a final hearing except with the leave of the court, which must be sought in writing. (2) If: (a) a party’s address for service is the party’s lawyer’s address; and (b) the lawyer ceases to act for the party; then, until the party files a Notice of Address for Service, the party’s address for service is: (c) the party’s last known email address; and (d) the party’s last known residential address, unless disclosing this address would compromise the party’s safety. (3) If, in a parenting proceeding, a lawyer ceasing to act for a party does not disclose the party’s last known residential address to another party or parties, the lawyer must provide the address to the court by email and the address must not be disclosed other than in accordance with an order of the court. ## Part 3.4—Independent children’s lawyer #### 3.11 Independent children’s lawyer (1) A party may apply for the appointment or removal of an independent children’s lawyer by filing an Application in a Proceeding. (2) If the court makes an order for the appointment of an independent children’s lawyer, the court may: (a) request that the representation be arranged by a legal aid body; and (b) order that the costs of the independent children’s lawyer be met by one or more of the parties. (3) A person appointed as an independent children’s lawyer: (a) must file a Notice of Address for Service; and (b) must comply with these Rules and do anything required to be done by a party; and (c) may do anything permitted by these Rules to be done by a party. (4) If an independent children’s lawyer is appointed, the parties must conduct the proceeding as if the independent children’s lawyer were a party. (5) The appointment of an independent children’s lawyer ceases: (a) when the Initiating Application (Family Law) is determined or withdrawn; or (b) if there is an appeal—when the appeal is determined or withdrawn; or (c) as otherwise ordered. > Note 1: Section 68L of the Family Law Act provides for the independent representation of children and section 68LA of that Act sets out the role of an independent children’s lawyer. > Note 2: The duty of disclosure applies to an independent children’s lawyer (see rule 6.01). > Note 3: If a document or notice is served on or given to a party under these Rules, the document or notice must also be served on any independent children’s lawyer (see paragraph 2.27(3)(b)). ## Part 3.5—Litigation guardians #### 3.12 Person who needs a litigation guardian (1) For these Rules, a person needs a litigation guardian in relation to a proceeding if the person: (a) does not understand the nature and possible consequences of the proceeding; or (b) is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding. (2) Unless the court otherwise orders, a minor in a proceeding is taken to need a litigation guardian in relation to the proceeding. #### 3.13 Starting, continuing, defending or inclusion in proceeding (1) A person who needs a litigation guardian may start, continue, respond to or seek to be included as a party to a proceeding only by the person’s litigation guardian. (2) The litigation guardian of a party to a proceeding: (a) must do anything required by these Rules to be done by the party; and (b) may, for the benefit of the party, do anything permitted by these Rules to be done by the party. > Note 1: A person may apply for an interlocutory order to be appointed as a litigation guardian in relation to a prospective proceeding (see rule 5.02(2)(b)). > Note 2: Rule 6.01(3) applies the duty of disclosure to a litigation guardian appointed under this Part to the extent they are capable of complying with the duty. > Note 3: Subrules 5.28(3) and 10.04(3) require a litigation guardian seeking a consent order to file an affidavit setting out the facts relied on to satisfy the court that the order is in the party’s best interests. #### 3.14 Who may be a litigation guardian A person may be a litigation guardian in a proceeding if the person: (a) in the case of an individual—is an adult; and (b) in any case: (i) has no interest in the proceeding adverse to the interest of the person needing the litigation guardian; and (ii) can fairly and competently conduct the proceeding for the person needing the litigation guardian. > Note: A reference to a person includes a body politic or corporate as well as an individual (see subsection 2C(1) of the Acts Interpretation Act 1901). #### 3.15 Appointment of litigation guardian (1) A person may apply for the appointment, replacement or removal of a person as the litigation guardian of a party. (2) The court may, at the request of a party or on its own initiative, appoint or remove a litigation guardian, or substitute another person as litigation guardian, in a proceeding in the interests of a person who needs a litigation guardian. (3) A person becomes a litigation guardian if the person consents to the appointment by filing an affidavit of consent in the proceeding. (4) The court may, on the filing of an affidavit, remove a litigation guardian at the written request of the litigation guardian. #### 3.16 Manager of the affairs of a party (1) In this rule: > manager of the affairs of a party includes a person who is authorised by or under a Commonwealth, State or Territory law to conduct legal proceedings in the name of, or for, a person who needs a litigation guardian. (2) A person who is a manager of the affairs of a party is entitled to be the litigation guardian in any proceeding to which the person’s authority extends. (3) If, in the opinion of the court, a suitable person is not available for appointment as a litigation guardian for a person who needs a litigation guardian, the court may request that the Attorney‑General appoint a person to be a manager of the affairs of the party. (4) The Attorney‑General may appoint, in writing, a person to be a manager of the affairs of a party for the purposes of this rule, either generally or for a particular person. (5) A manager of the affairs of a party becomes the litigation guardian of a person who needs a litigation guardian in a proceeding if the manager of the affairs of the party files an affidavit of consent in relation to the person. #### 3.17 Notice of becoming litigation guardian A person appointed as the litigation guardian of a party to a proceeding must, as soon as practicable after the appointment, give notice of the appointment to each other party and any independent children’s lawyer in the proceeding. #### 3.18 Costs and expenses of litigation guardian The court may make orders for the payment of the costs and expenses of a litigation guardian (including the costs of an application for the appointment of the litigation guardian): (a) by a party; or (b) from the income or assets of the person for whom the litigation guardian is appointed. ## Part 3.6—Death or bankruptcy of a party ### Division 3.6.1—Death of party #### 3.19 Death of party (1) This rule applies to a financial or property proceeding or an application for the enforcement of a financial obligation. (2) If a party dies, the other party or the legal personal representative of the deceased person must ask the court for procedural orders in relation to the future conduct of the proceeding. (3) The court may order that the legal personal representative of the deceased person be substituted for the deceased person as a party. > Note 1: The court may make other procedural orders, including that a person has permission to intervene in the proceeding (see rules 1.31 and 3.04). > Note 2: For the effect of the death of a party in certain proceedings, see subsections 79AA(1A), 79AA(8), 79A(1C), 90SMA(2), 90SMA(8), 90SN(5), 90UM(8) and 105(3) of the Family Law Act. ### Division 3.6.2—Bankruptcy or insolvency of party #### 3.20 Definitions for Division 3.6.2 In this Division: > bankruptcy proceedings means proceedings under the Bankruptcy Act, in the Federal Court or the Federal Circuit and Family Court (Division 2), in relation to: (a) the bankruptcy of a relevant party; or (b) a relevant party’s capacity as a debtor subject to a personal insolvency agreement. > relevant party means a person who is: (a) a party to a marriage or de facto relationship; or (b) a party to a relevant proceeding in relation to that marriage or de facto relationship. > relevant proceeding means any of the following: (a) a pending proceeding under section 66G, 66S, 74, 78, 79, 79A, 79AA, 83, 90SE, 90SL, 90SM, 90SMA or 90SN of the Family Law Act; (b) a pending proceeding under Division 4 or 5 of Part 7 of the Assessment Act; (c) a pending proceeding for enforcement of an order made under a provision referred to in paragraph (a) or (b). > Note: The following terms are defined in the Family Law Act: (a) bankruptcy trustee (see subsection 4(1)); (b) debtor subject to a personal insolvency agreement (see section 5); (c) trustee, in relation to a personal insolvency agreement (see subsection 4(1)). #### 3.21 Notice of bankruptcy or personal insolvency agreement (1) If a relevant party is also a bankrupt or a debtor subject to a personal insolvency agreement, that party must notify: (a) all other parties to the relevant proceeding, in writing, about the bankruptcy or personal insolvency agreement; and (b) the bankruptcy trustee or the trustee of the personal insolvency agreement, as the case may be, about the relevant proceeding in accordance with rule 3.22; and (c) the court in which the relevant proceeding is pending, in accordance with rule 3.23. (2) A party may apply for procedural orders for the future conduct of the proceeding. #### 3.22 Notice under paragraph 3.21(1)(b) For the purposes of paragraph 3.21(1)(b), notice to a bankruptcy trustee or a trustee of a personal insolvency agreement must: (a) be in writing; and (b) be given within 7 days, or as soon as practicable, after the date on which the party becomes both: (i) a relevant party; and (ii) a bankrupt or debtor; and (c) attach a copy of the application starting the relevant proceeding, response (if any), and any other relevant documents; and (d) state the date and place of the next court event in the relevant proceeding. #### 3.23 Notice under paragraph 3.21(1)(c) For the purposes of paragraph 3.21(1)(c), notice to the court must: (a) be in writing; and (b) be given within 7 days, or as soon as practicable, after the date on which the party becomes both: (i) a relevant party; and (ii) a bankrupt or debtor; and (c) attach a copy of the notices given in accordance with paragraphs 3.21(1)(a) and (b). #### 3.24 Notice of bankruptcy proceedings (1) If a relevant party is a party to bankruptcy proceedings, the party must give notice of the bankruptcy proceedings, in accordance with subrule (2), to: (a) the court in which the relevant proceeding is pending; and (b) the other party (or parties) to the proceeding. (2) The notice must: (a) be in writing; and (b) be given within 7 days, or as soon as practicable, after the date on which the party becomes a party to bankruptcy proceedings; and (c) state the date and place of the next court event in the bankruptcy proceedings. #### 3.25 Notice of application under section 139A of the Bankruptcy Act (1) If the bankruptcy trustee of a bankrupt party to a marriage or de facto relationship has applied under section 139A of the Bankruptcy Act for an order under Division 4A of Part VI of that Act, and the trustee knows that a relevant proceeding in relation to the bankrupt party is pending in a court exercising jurisdiction under the Family Law Act, the trustee must notify: (a) the court exercising jurisdiction under the Family Law Act in the relevant proceeding, in accordance with subrule (2); and (b) if the bankruptcy trustee’s application relates to an entity other than the other party to the marriage or de facto relationship—the other party to the marriage or de facto relationship, in accordance with subrule (3). (2) For the purposes of paragraph (1)(a), notice to the court must: (a) be in writing; and (b) be given within 7 days, or as soon as practicable, after the bankruptcy trustee makes the application under section 139A of the Bankruptcy Act; and (c) state the date and place of the next court event in the proceedings under section 139A of the Bankruptcy Act. (3) For the purposes of paragraph (1)(b), notice to the other party to the marriage or de facto relationship must: (a) be in writing; and (b) be given within 7 days, or as soon as practicable, after the bankruptcy trustee makes the application under section 139A of the Bankruptcy Act; and (c) attach a copy of the application, other initiating process and any other relevant documents in the application under section 139A of the Bankruptcy Act; and (d) state the date and place of the next court event in the proceedings under section 139A of the Bankruptcy Act. #### 3.26 Official name of trustee (1) If a bankruptcy trustee or a trustee of a personal insolvency agreement is added as a party to a relevant proceeding, the trustee must be added using the prescribed official name of the trustee. (2) In subrule (1): > prescribed official name of the trustee has the meaning given by: (a) for a bankruptcy trustee—subsection 161(2) of the Bankruptcy Act; or (b) for a trustee of a personal insolvency agreement—subsection 219(2) of the Bankruptcy Act.