Matrimonial Causes Rules

Division 1.—Commencement of Proceedings (Rules 16-18).

Division 2.—Applications to the Court or to a Registrar (Rules 19-23).

Part IV.—Applications for Leave to Institute Proceedings for Dissolution of Marriage or Judicial Separation (Rules 24-26).

Part V.—Petitions.

Division 1.—General (Rules 27-38).

Division 2.—Petitions for Dissolution of Marriage (Rules 39-44).

Division 3.—Petitions for Nullity of Marriage (Rules 45-49).

Division 4.—Petitions for Judicial Separation (Rules 50-51).

Division 5.—Petitions for Restitution of Conjugal Rights (Rules 52-53).

Division 6.—Filing Petitions and Notices of Petitions (Rules 54-59).

View image in the official source

*Notified in the Commonwealth Gazette on 1st December, 1960.

4515/60.—PRICE 16/14.11.1960.

Part VI.—Service.

Division 1.—General Provisions relating to Service of Documents (Rules 60-65).

Division 2.—Service of Petitions and Answers (Rules 66-68).

Division 3.—Service on Infants and Persons of Unsound Mind (Rules 69-70).

Division 4—Proof of Service (Rules 71-75).

Part VII.—Pleadings.

Division 1.—Answers (Rules 76-78).

Division 2.—Replies and Rejoinders (Rules 79-82).

Division 3.—Pleadings Generally (Rules 83-87).

Division 4.—Discontinuance (Rule 88).

Part VIII.—Amendment of Pleadings, Supplementary Petitions and Supplementary Answers.

Division 1.—Amendment of Pleadings (Rules 89-97).

Division 2.—Supplementary Petitions and Supplementary Answers (Rules 98-105).

Part IX.—Parties.

Division 1.—General (Rules 106-112).

Division 2.—Infants (Rules 113-116).

Division 3.—Persons of Unsound Mind (Rules 117-121).

Division 4—Guardians ad Litem (Rules 122-130).

Part X.—Default in Pleading (Rules 131-133).

Part XI.—Preparation for Trial.

Division 1.—Preliminary (Rules 134-136).

Division 2.—Particulars, Discovery and Inspection of Documents (Rules 137-148).

Division 3.—Admissions and Notices to Produce (Rules 149-153).

Division 4.—Medical Examination of Parties (Rules 154-160).

Division 5.—Discretion Statements (Rules 161-164).

Division 6.—Compulsory Conferences (Rules 165-169).

Division 7.—Consolidation of Proceedings (Rule 170).

Division 8.—Setting Suits down for Trial (Rules 171-181).

Part XII.—Decrees (Rules 182-191).

Part XIII.—Intervention by Persons not Parties to Proceedings (Rules 192-194).

Part XIV.—Proceedings for Ancillary Relief.

Division 1.—Preliminary (Rules 195-201).

Division 2.—Maintenance pending Suit (Rules 202-210).

Division 3.—Certificates of Means (Rules 211-213).

Division 4.—Custody (Rules 214-217).

Division 5.—Proceedings for Ancillary Relief instituted by a Person not a Party to the Marriage (Rule 218).

Division 6.—Variation of Orders (Rule 219).

Part XV.—Appeals (Rules 220-223).

Part XVI.—Evidence.

Division 1.—General (Rules 224-228).

Division 2.—Affidavits (Rules 229-244).

Part XVII.—Enforcement of Decrees.

Division 1.—General (Rules 245-247).

Division 2.—Attachment and Sequestration (Rules 248-250).

Division 3.—Attachment of Earnings Orders (Rules 251-258).

Division 4.—Other Means of Enforcing Decrees (Rule 259).

Division 5.—Execution of Warrants and Writs in other States or Territories (Rules 260-264).

Division 6.—Registration of Decrees in other Supreme Courts (Rules 265-270).

Division 7.—Registration of Maintenance Orders in Courts of Summary Jurisdiction (Rules 271-275).

Part XVIII.—Proceedings Consequent on Decrees of Restitution of Conjugal Rights (Rules 276-282).

Part XIX.—Registrars and Registries.

Division 1.—Powers of Registrars (Rules 283-291).

Division 2.—Appeals from Registrars (Rule 292).

Division 3.—Registries (Rules 293-299).

Part XX.—Fees (Rules 300-304).

Part XXI.—Effect of Non-compliance with these Rules or with an Order (Rules 305-308).

Part XXII.—Proceedings for Jactitation of Marriage, Declarations, &c.

Division 1.—Application (Rule 309).

Division 2.—Petitions for Jactitation of Marriage (Rules 310-311).

Division 3.—Petitions for Declarations, &c. (Rules 312-315).

Part XXIII.—Miscellaneous (Rules 316-328).

Part XXIV.—Transitional Provisions (Rule 329).

Interpretation.

4.—(1.) In these Rules, unless the contrary intention appears—

“address for service”, in relation to a party to proceedings, means an address for service given in accordance with rule 12 of these Rules;

“application” means an application to a court for the purpose of instituting proceedings of a kind referred to in sub-rule (2.) or (3.) of rule 16 of these Rules or an application to a registrar made under these Rules;

“certificate of means” means a certificate granted by a registrar under rule 212 of these Rules;

“co-respondent” means a party to proceedings who is specified in the petition instituting the proceedings as a person with whom the respondent is alleged to have committed adultery;

“court” means the Supreme Court of a State or Territory;

“court town” means, in relation to a State or Territory, a town in that State or Territory designated as a court town for the purpose of these Rules by the judge or any judges authorized under the law of that State or Territory to make rules of court or other provision in relation to the practice and procedure of the Supreme Court of that State or Territory;

“filed” means filed in the appropriate office of a court;

“infant” means a person who has not attained the age of twenty-one years;

“intervener” means, in relation to proceedings, a person who becomes or has become a party to the proceedings by intervening under Part VII. of the Act or under rule 111, 112 or 218 of these Rules;

“party cited” means a person specified in an answer to a petition as a person with whom the petitioner is alleged to have committed adultery;

“party named” means—

(a) in relation to a petition—a person named in the petition who has intervened, under sub-section (2.) of section 45 of the Act, in proceedings instituted by the petition; and

(b) in relation to an answer to a petition—a person named in the answer who has intervened, under sub-section (2.) of section 45 of the Act, in proceedings instituted by either the answer or the petition;

“petitioner” means the party who institutes or has instituted proceedings by petition;

“person named” means—

(a) in relation to a petition—a person specified in the petition as a person on or with whom the respondent is alleged to have committed rape or sodomy; and

(b) in relation to an answer to a petition—a person specified in the answer as a person on or with whom the petitioner is alleged to have committed rape or sodomy;

“proceedings” means proceedings constituting a matrimonial cause;

“pleading” means a petition, supplementary petition, answer, supplementary answer, reply or rejoinder;

“respondent” means, in relation to proceedings for a decree of dissolution of marriage, nullity of marriage, judicial separation or restitution of conjugal rights, whether instituted by petition or by an answer to a petition, or in relation to proceedings that relate to such proceedings—the spouse of the petitioner;

“sealed” means sealed with the seal of the court;

“stamped envelope” means an envelope having impressed on it or affixed to it postage stamps that are valid in the Commonwealth for the correspondence of private individuals and the value of which is not less than the postage payable for the transmission of a letter, weighing not more than one ounce, posted in the Commonwealth to an address in the Commonwealth;

“Territory” means Territory of the Commonwealth in which the Act applies;

“the Act” means the Matrimonial Causes Act 1959;

“the definition of ‘matrimonial cause’ ” means the definition of “matrimonial cause” in sub-section (1.) of section 5 of the Act;

“the Secretary” means the Secretary to the Attorney-General’s Department.

(2.) In these Rules, references to a marriage shall be read as including references to a purported marriage and references to the spouse of a person shall be read as including references to the purported spouse of a person.

(3.) In these Rules, a reference to a court sitting in public chambers shall be read as including a reference to a court sitting in court as in chambers.

Exercise of powers and functions of registrar.

5.—(1.) In relation to a power or function that by these Rules is expressed to be conferred on a registrar, the judge or judges authorized under the law of a State or Territory to make rules of court or other provision in relation to the practice and procedure of the Supreme Court of that State or Territory may designate from time to time an office or offices in or in connexion with that Supreme Court as the office the holder of which may, or as the offices the holders of which each may, exercise or perform that power or function in relation to proceedings in that Supreme Court, and that power or function may be so exercised or performed accordingly and not otherwise.

(2.) Where a registrar is required by any of these Rules to do an act of a merely ministerial nature, not being the hearing and determination of an application under these Rules to a registrar, it is sufficient if the act is done on behalf of the registrar by another officer of the court or by a clerk in the registrar’s office.

Designation of parties to proceedings.

6.—(1.) In the title of a document filed in, or issued out of, the office of a court in connexion with proceedings instituted by petition, a party to the proceedings who is the petitioner or respondent or a co-respondent, a party cited, a party named or an intervener within the meaning of these Rules shall be designated by whichever of those expressions is applicable.

(2.) For the purpose of the last preceding sub-rule, a document filed or issued for the purpose of proceedings that are instituted by application to a court and are in relation to proceedings instituted by a petition shall be deemed to have been filed or issued in connexion with the proceedings instituted by that petition.

(3.) In the title of a document filed in or issued out of the office of a court in connexion with proceedings of a kind referred to in paragraph (e) of the definition of “matrimonial cause”, the party to the proceedings who institutes or instituted the proceedings shall be designated as the applicant and any other party to the proceedings shall be designated as a respondent.

(4.) In any part (not being the title) of a document filed in or issued out of the office of a court in connexion with proceedings—

(a) a party to the proceedings may be referred to by the designation by which the party is required by the preceding provisions of this rule to be designated in the title to the document; and

(b) a person, not being a party to the proceedings, who is a person named within the meaning of these Rules may be referred to by that designation.

Filing of documents.

7.—(1.) Subject to this rule, where a document relating to proceedings is required by these Rules to be filed, the document shall, unless the contrary intention appears, be filed in the office of the court in which the petition or application instituting the proceedings was filed.

(2.) Where proceedings have been transferred from a court to another court under section 26 of the Act, a document relating to the proceedings shall be filed in the appropriate office of the court to which the proceedings have been transferred.

(3.) Where a decree has been registered in a court under section 103 or section 105 of the Act, a document relating to the enforcement of the decree by that court shall be filed in the appropriate office of that court.

(4.) During the trial of proceedings by a court, a document relating to the proceedings may, by leave of the court, be filed in court.

(5.) During the hearing of an application by a registrar, a document relating to the application may, by leave of the registrar, be filed with the registrar.

Computation of time.

8.—(1.) Where a period of time dating from a given day, act or event is prescribed by or allowed under these Rules for doing an act or taking a proceeding, the time shall, unless the contrary intention appears, be reckoned exclusive of the day, or of the day of the act or event, from which the time dates.

(2.) Where the time for doing an act or taking a proceeding expires on a Saturday or Sunday or on a day that is a public holiday or court holiday in the place at which the act is to be or may be done, or the proceeding is to be or may be taken, the act may be done or the proceeding may be taken on the first day following that is not a Saturday, Sunday, public holiday or court holiday.

(3.) Except as otherwise provided in relation to the Supreme Court of a State or Territory of the Commonwealth by a rule made by virtue of sub-section (4.) of section 127 of the Act, time runs, in connexion with any proceedings in such a court, during any vacation of that court.

(4.) Where a period of time dating from a given day, act or event, being a less period than five days, is prescribed by or allowed under these Rules for doing an act or taking a proceeding, a Saturday or Sunday or a day that is a public holiday or court holiday in the place at which the act is to be or may be done, or the proceeding is to be or may be taken, shall not be reckoned in computing the period.

(5.) In reckoning a period of clear days in relation to the doing of an act in connexion with proceedings or the taking of a proceeding in a court, any day on which the office of the court is not open shall be excluded.

Chambers.

9.—(1.) Proceedings of a kind referred to in paragraph (c) or (e) of the definition of “matrimonial cause” may be heard by the court sitting in public chambers.

(2.) Proceedings of a kind referred to in paragraph (d) of the definition of “matrimonial cause” may be heard by the court sitting in public chambers or in private chambers.

(3.) A court sitting in open court may—

(a) adjourn proceedings of a kind referred to in sub-rule (1.) of this rule for consideration by the court sitting in public chambers; or

(b) adjourn proceedings of a kind referred to in the last preceding sub-rule for consideration by the court sitting in public or private chambers.

(4.) A court sitting in public chambers may—

(a) adjourn proceedings for hearing in open court; or

(b) adjourn proceedings of a kind referred to in sub-rule (2.) of this rule for consideration by the court sitting in private chambers.

(5.) A court sitting in private chambers may adjourn proceedings for consideration by the court sitting in public chambers or for hearing in open court.

(6.) This rule does not authorize a court sitting either in public or private chambers to hear proceedings that relate to proceedings for a decree of a kind referred to in paragraph (a) of the definition of “matrimonial cause” where it is practicable for the court to hear those proceedings at the same time as the proceedings for such a decree.

Directions as to practice and procedure.

10.—(1.) Where a court is satisfied that—

(a) the provisions of the Act relating to practice and procedure (including sub-section (6.) of section 127 of the Act) and the rules made under the Act do not make provision with respect to the practice and procedure applicable in the circumstances of a particular case; or

(b) difficulty arises or doubt exists as to the practice or procedure applicable in the circumstances of a particular case,

the court may give such directions with respect to the practice and procedure to be followed in the case as the court considers necessary.

(2.) Subject to any order made by a court on appeal, an act done or proceeding taken in accordance with a direction in force under the last preceding sub-rule shall be deemed to have been duly done or taken.

(3.) Where a direction given by a court under sub-rule (1.) of this rule is varied by a court on appeal, any act done or proceeding taken in accordance with the direction as so varied shall be deemed to have been duly done or taken.

On hearing of ancillary proceedings, further applications may be made.

11.—(1.) Subject to this rule, where proceedings that are in relation to proceedings for a decree of a kind referred to in paragraph (a) of the definition of “matrimonial cause” (in this rule referred to as “the principal proceedings”) are heard by a court before the trial of the principal

proceedings, the court may, in addition to determining the first-mentioned proceedings—

(a) permit a party to the principal proceedings, whether or not he is a party to the first-mentioned proceedings, to make application for any order, required for the purpose of preparing the principal proceedings for trial, that could be made upon the hearing of proceedings instituted for the purpose of seeking such an order;

(b) hear and determine the application in accordance with the provisions of this rule; and

(c) make, upon the determination of the application, the order sought by the application or such other order as to the court seems meet.

(2.) An application for an order referred to in the last preceding sub-rule—

(a) may be made orally to a court without the filing of any affidavit in support of the application; and

(b) may be so made to a court notwithstanding the fact that proceedings seeking the order have been instituted but have not been heard and determined by a court.

(3.) Where an application for an order referred to in sub-rule (1.) of this rule is made to a court in a case where proceedings seeking that order have been instituted but not heard by a court—

(a) any affidavit filed for the purpose of those proceedings may, by leave of the court, be admitted in evidence upon the hearing of the application; and

(b) the order made by the court upon the determination of the application shall, unless the court otherwise orders, be deemed to be the order of the court upon the determination of those proceedings.

(4.) Without limiting the generality of sub-rule (1.) of this rule, application may be made to a court under this rule for an order with respect to—

(a) service of documents and dispensing with the service of documents;

(b) discovery and inspection of documents;

(c) admissions of fact or of documents;

(d) medical inspection of the petitioner and respondent in the principal proceedings;

(e) the day, time and place for the holding of a conference for the purpose of Division 6 of Part XI. of these Rules;

(f) the place, time and mode of trial;

(g) the furnishing of evidence of facts by affidavit at the trial of the principal proceedings; and

(h) the consolidation of the principal proceedings with other proceedings.

(5.) An application under sub-rule (1.) of this rule may be heard by a court notwithstanding that any facts relied on in support of, or in opposition to, the application are not verified by affidavit or by evidence given orally upon the hearing of the application.

(6.) Nothing in the preceding sub-rules of this rule shall be taken to prevent the court—

(a) from requiring service of an application, or of notice of an application, under sub-rule (1.) of this rule to be effected on a party to the application; or

(b) from requiring the facts, or any of the facts, relied on in support of, or in opposition to, such an application to be verified by affidavit or by evidence given orally upon the hearing of the application.

Address for service.

12.—(1.) Unless the court otherwise orders—

(a) a person is not entitled to file a document for the purpose of proceedings unless by that document, or by a document previously filed by him, he gives or has given an address for service that is, under this rule, his address for service for the purpose of those proceedings; and

(b) a person is not entitled to be heard upon the trial of any proceedings, or upon the hearing of an application to a registrar in relation to any proceedings, unless he has previously given an address for service that is, under this rule, his address for service for the purpose of those proceedings.

(2.) A person may give an address as his address for service for the purpose of any proceedings by stating that address as his address for service—

(a) in the first document filed by him in those proceedings;

(b) in a notice of address for service, in accordance with Form 1, filed for the purpose; or

(c) in a notice of change of address for service, in accordance with Form 2, filed for the purpose,

and, in the case of a notice referred to in paragraph (b) or (c) of this sub-rule, serving a copy of the notice on each other party to the proceedings who has an address for service for the purpose of the proceedings.

(3.) The address given as a person’s address for service shall be not more than five miles from the office of the court in which the document stating the address is filed, and, subject to that requirement, shall, in the case of a person who is represented by a solicitor, be the address of the solicitor for that person, or of a solicitor acting as the agent of that solicitor.

(4.) The address for service given, or last given, by a person in accordance with this rule in relation to any proceedings is his address for service for the purpose of those proceedings and also for the purpose of any other proceedings that constitute a matrimonial cause and are related to those proceedings, or to which those proceedings are related.

Schedules and Forms.

13. In these Rules, a reference to a Schedule by number shall be read as a reference to the Schedule so numbered to these Rules and a reference to a Form by number shall be read as a reference to the Form so numbered in the First Schedule to these Rules.

Compliance with Forms.

14.—(1.) Strict compliance with the Forms in the First Schedule is not necessary and substantial compliance, or such compliance as the circumstances of a particular case allow, is sufficient.

(2.) Where a person referred to in a Form in the First Schedule is not represented by a solicitor, a reference in the Form to the solicitor for the person shall be read as a reference to the person.

(3.) Where the word “Title” appears on a Form in the First Schedule, it shall be taken to indicate that a document required to be in accordance with that Form shall—

(a) if it is a document to which rule 17 of these Rules applies— be intituled in accordance with that rule; or

(b) in any other case—bear an appropriate title.

PART II.—RECONCILIATION.

Petitioners and certain applicants and respondents to be informed of facilities available to assist reconciliation.

15.—(1.) In this rule, “a document to which this rule applies” means—

(a) a petition instituting proceedings for a decree of dissolution of marriage, judicial separation or restitution of conjugal rights;

(b) an answer to such a petition, or an answer to any other petition if proceedings for a decree of such a kind are instituted by the answer; or

(c) an application for leave under section 43 of the Act to institute proceedings for a decree of dissolution of marriage or judicial separation,

but does not include a petition instituting, by leave of the court under section 43 of the Act, proceedings for a decree of a kind referred to in paragraph (a) of this sub-rule, a supplementary petition or a supplementary answer.

(2.) Where a document to which this rule applies is filed on behalf of a party who is represented by a solicitor, the document is not effective for the purposes of proceedings under the Act unless the solicitor has, by a certificate, in accordance with Form 3, under his hand and written on the document, certified that—

(a) he has brought to the attention of that party the provisions of the Act relating to reconciliation of the parties to a marriage and the approved marriage guidance organizations reasonably available to assist in effecting a reconciliation between that party and his spouse; and

(b) he has discussed with that party the possibility of a reconciliation between that party and his spouse being effected either with or without the assistance of such an organization.

(3.) Where a document to which this rule applies is filed in the office of the Supreme Court of a State or Territory and, at the date when the document is filed, the party on whose behalf it is filed is outside that State or Territory, it is sufficient compliance with the last preceding sub-rule if the solicitor filing the document has, by a certificate under his hand and written on the document, certified that the party is outside that State or Territory at that date and that he has been informed by a specified legal practitioner that that practitioner has, whether within or outside Australia, brought to the attention of the party the matters referred to in paragraph (a) of that sub-rule arid discussed with the party the matter referred to in paragraph (b) of that sub-rule.

PART III.—PROCEEDINGS.

Division 1.—Commencement of Proceedings.

Institution of proceedings.

16.—(1.) Proceedings required by sub-section (1.) of section 68 of the Act to be instituted by petition shall be instituted by filing a petition, addressed to a court having jurisdiction under the Act, in a proper office of that court.

(2.) Where leave has been granted under sub-section (3.) of section 68 of the Act for the institution of proceedings of a kind to which that sub-section applies otherwise than in the relevant petition or answer, the proceedings shall be instituted by filing an application to the court.

(3.) Subject to the last two preceding sub-rules, proceedings in a matrimonial cause shall, except as otherwise provided in these Rules, be instituted by filing an application to a court having jurisdiction under the Act in the proper office of that court.

(4.) Where proceedings to which the last preceding sub-rule applies are instituted in relation to pending proceedings, the proceedings shall be instituted in the court in which those proceedings are pending.

(5.) Subject to the Act and to these Rules, where proceedings to which sub-rule (3.) of this rule applies are instituted in relation to completed proceedings, the proceedings shall be instituted in the court in which the completed proceedings were heard and determined or in a court in which the decree of that court has been registered.

(6.) Where an application relating to proceedings is, under these Rules, required or permitted to be made to a registrar of a court, the application shall be made by filing—

(a) in the proper office of the court in which the proceedings are pending; or

(b) if the application relates to the enforcement of a decree by a court in which the decree has been registered, in the proper office of that court,

an application to a registrar of that court.

(7.) For the purposes of this rule, proceedings determined in the High Court shall be deemed to have been determined in the court from which the proceedings were taken on appeal, or removed, to the High Court.

(8.) Nothing in sub-rule (3.) of this rule shall be taken to authorize the institution of proceedings without the leave of the court in a case where such leave would be otherwise required.

How proceedings intituled.

17.—(1.) A document filed in, or issued out of, the office of a court in relation to proceedings instituted by petition shall be intituled in accordance with Form 4.

(2.) Subject to these Rules, the title to a document referred to in the last preceding sub-rule shall include the full name and the designation of every party to the proceedings instituted by the petition (including any person who, upon the filing of that document, will become a party).

(3.) Where proceedings are or have been instituted under the Act for a decree of nullity of marriage on the ground that a marriage is void, the title to a document filed in, or issued out of, the office of a court in relation to the proceedings shall contain the surname, at the date of the institution of the proceedings, of the female party to the purported marriage followed by the word “otherwise” and followed then by the name that was that party’s surname immediately before the solemnization of the purported marriage.

(4.) Where a person intervenes in proceedings under sub-section (2.) of section 45 of the Act or under these Rules, the person becomes a party to the proceedings, and the title to the proceedings shall be deemed to have been amended accordingly.

(5.) Subject to Part IX. of these Rules, where, after the institution of proceedings in a matrimonial cause, a pleading is filed, or an amendment to a pleading is made, by which the petitioner or respondent is alleged to have committed adultery with a specified person, whether or not a decree is sought on the ground of the adultery, that person becomes a party to those proceedings, and the title of those proceedings shall be deemed to have been amended accordingly.

(6.) Where a party to proceedings is dismissed from the proceedings, the title to the proceedings shall be deemed to have been amended by omitting the name and designation of the party.

Proceedings to be numbered.

18.—(1.) Subject to sub-rule (3.) of this rule, the registrar of the court in which proceedings are instituted, or to which proceedings are transferred, shall cause a distinguishing number to be allotted to the proceedings.

(2.) Where proceedings that constitute a matrimonial cause had been instituted in the Supreme Court of a State or Territory before the commencement of the Act, the distinguishing number applicable to those proceedings immediately before the commencement of the Act shall be deemed to have been allotted to those proceedings by the registrar of that Supreme Court under this rule.

(3.) Where, after the commencement of the Act, proceedings are instituted in a court in relation to concurrent, pending or completed proceedings to which a number has been allotted or is deemed to have been allotted under this rule, that number shall be deemed to have been allotted to those first-mentioned proceedings.

(4.) Where a decree made by a court is registered in another court under section 103 or section 105 of the Act, the registrar or other proper officer of that other court shall cause a distinguishing number to be allotted to the decree.

(5.) A document filed in, or issued out of, the office of a court in connexion with proceedings or in connexion with a decree in respect of which a distinguishing number has been allotted, or is deemed to have been allotted, under this rule shall have that number endorsed on the document.

Division 2.—Applications to the Court or to a Registrar.

How applications instituted.

19.—(1.) Subject to these Rules—

(a) an application to a court referred to in sub-rule (2.) or (3.) of rule 16 of these Rules, and an application to a registrar referred to in sub-rule (6.) of that rule shall be in accordance with Form 5; and

(b) the affidavits intended to be used in support of the application shall be filed at the same time as the application is filed.

(2.) Subject to these Rules, an application—

(a) shall specify the date on which it is proposed that the application will be heard by the court or registrar or, if the registrar is unable to fix that date at the time when the application is filed, shall state that the application will be so heard on a date to be fixed by a registrar;

(b) shall specify the place at which it is proposed that the application will be heard by the court or registrar;

(c) shall specify the order that the court or registrar will, on the hearing of the application, be asked to make; and

(d) shall be signed by the solicitor representing the applicant in connexion with the application, or if the applicant is not so represented by a solicitor, by the applicant.

(3.) An application shall bear date the day on which it is filed.

(4.) Notwithstanding sub-rule (1.) of this rule, the court or registrar may permit the use, in support of an application, of an affidavit that was filed subsequently to the filing of the application.

Parties to application.

20. Where an application to a court or registrar relates to pending or completed proceedings, the applicant and each other party to those pending or completed proceedings who is affected by the application are parties to the application.

Service of copy of application.

21.—(1.) Subject to the next two succeeding sub-rules, when an application to a court or registrar has been filed, the applicant shall cause service of the application to be effected on each other party to the application.

(2.) It is not necessary for service of an application to be effected on a party to the application—

(a) in a case where the application is of a kind that is permitted by these Rules to be made ex parte; or

(b) in a case where service of the application on the party is dispensed with.

(3.) Subject to any provisions of these Rules that expressly require service of an application to be effected on a party to the application, it is not necessary for service of the application to be effected on a party to the application unless that party has an address for service.

(4.) Service of an application on a party shall be effected by serving a copy of the application on the party.

(5.) Unless a judge or registrar, as the case may be, otherwise directs, there shall be at least three clear days between the service of the application and the day named in the application for the hearing of the application or the day fixed by the registrar for the hearing of the application, as the case may be.

Affidavits in support of application.

22.—(1.) The grounds on which a court or registrar, as the case may be, will be asked to make the order specified in an application, and the facts on which the applicant proposes to rely in support of the application for that order, shall be stated in the affidavits filed in support of the application.

(2.) Where service of an application is effected on a party to the application, a copy of each affidavit filed in support of the application shall be served on the party at the time of the service of the application or within a reasonable time before the hearing of the application.

Affidavit in answer and in reply.

23.—(1.) A party to an application other than the applicant may, before the hearing of the application or, by leave of the court or registrar by whom the application is heard, during the hearing of the application, file an affidavit in answer to an affidavit in support of the application.

(2.) A party filing an affidavit in answer shall cause a copy of the affidavit in answer to be served on each other party to the application who has an address for service as soon as practicable after the affidavit in answer has been filed.

(3.) A party on whom a copy of an affidavit in answer is served may, before the hearing of the application or, by leave of the court or registrar by whom the application is heard, during the hearing of the application, file an affidavit in reply to that affidavit.

(4.) A party filing an affidavit in reply to an affidavit filed by another party to the application shall cause a copy of the affidavit in reply to be served on each other party who has an address for service as soon as possible after the affidavit in reply has been filed.

PART IV.—APPLICATIONS FOR LEAVE TO INSTITUTE PROCEEDINGS FOR DISSOLUTION OF MARRIAGE OR JUDICIAL SEPARATION.

Application may be made ex parte.

24. An application under section 43 of the Act for leave to institute proceedings may be made ex parte.

Affidavit in support of application.

25. The affidavit in support of an application under section 43 of the Act for leave to institute proceedings for a decree of dissolution of marriage or of judicial separation shall—

(a) include particulars of the exceptional hardship that would be imposed on the applicant by the refusal to grant the leave or particulars of the exceptional depravity on the part of the other party to the marriage that is alleged, as the case may be;

(b) state the ground upon which, if leave is granted, the applicant intends to petition for the decree;

(c) state whether or not the applicant has made a previous application for leave, under section 43 of the Act, to institute proceedings for such a decree, and, if he has made a previous application, also state the date and grounds on which, and the court to which, the previous application was made and whether that application was granted;

(d) state whether or not a child of the marriage is living, and, if a child of the marriage is living, also state—

(i) the name of the child;

(ii) the date of birth of the child; and

(iii) the place at which, and persons with whom, the child is residing;

(e) state whether an attempt has been made to effect a reconciliation between the parties to the marriage and, if such an attempt has been made, state particulars of the attempt; and

(f) state particulars of any other circumstance that may assist the court in determining whether there is a reasonable probability of a reconciliation between the parties before the expiration of the period of three years after the date of the marriage.

Service of copy of order.

26. A petitioner who institutes proceedings for dissolution of marriage or of judicial separation by leave of the court under section 43 of the Act shall cause service of a copy of the order of the court granting the leave to be effected on his spouse at the same time as service of the petition is effected on his spouse.

PART V.—PETITIONS.

Particulars of parties, &c., to be included in petition.

27.—(1.) A petition shall state the full name of each party to the proceedings and, in addition—

(a) the address and occupation of the petitioner;

(b) the address and occupation, so far as known to the petitioner, of each other party to the proceedings;

(c) the name of the wife immediately before the marriage, or alleged marriage, as the case may be; and

(d) the address and occupation, so far as known to the petitioner, of any person, not being a party to the proceedings, specified in the petition as a person with whom or on whom the respondent is alleged to have committed adultery, rape or sodomy.

(2.) Where the address, at the date of the petition, of a party or person referred to in the last preceding sub-rule is not known to the petitioner, the petition shall state that the address is not known to the petitioner and also state the last address (if any) of the party or person known to the petitioner.

28. A petition shall state—

(a) particulars of the marriage or purported marriage to which the petition relates;

(b) particulars relating to the birth of the parties to the marriage or purported marriage;

(c) particulars relating to the domicile or residence of the petitioner in Australia;

(d) particulars of the cohabitation of the parties to the marriage;

(e) particulars relating to the children of the marriage who are infants;

(f) particulars of previous proceedings between the parties to the marriage;

(g) the facts, but not the evidence by which the facts are to be proved, relied on as constituting the ground or each ground specified in the petition, stating, if more than one ground is so specified, the facts relating to each ground, as far as practicable, separately;

(h) in the case of a petition for a decree of dissolution of marriage or judicial separation—the matters required by rule 35 of these Rules;

(i) in the case of a petition for a decree of dissolution of marriage or of nullity of a voidable marriage—particulars concerning the arrangements referred to in rule 41 or 42 of these Rules; and

(j) in the case of a petition instituting proceedings of a kind referred to in paragraph (c) of the definition of “matrimonial cause”—the matters required by rule 199 of these Rules.

Particulars relating to marriage.

29.—(1.) For the purpose of paragraph (a) of the last preceding rule, the particulars of the marriage or purported marriage that are required to be stated in a petition are—

(a) the place at which and date on which the marriage or purported marriage was solemnized;

(b) the nature of the ceremony by virtue of which the marriage or purported marriage was solemnized;

(c) if that ceremony was a religious ceremony—the religious denomination according to the rites of which the marriage or purported marriage was solemnized; and

(d) the conjugal status of the petitioner and respondent, respectively, immediately before the solemnization of the marriage or purported marriage.

(2.) Where a petitioner has been previously married, his petition shall state—

(a) the date of the previous marriage or of each previous marriage, as the case may be;

(b) the means by which the previous marriage or each previous marriage was dissolved; and

(c) if a previous marriage was dissolved by a court—the name of the court by which that marriage was dissolved.

(3.) Where the respondent to a petition has been previously married, the petition shall, so far as those facts are known to the petitioner, state—

(a) the date of the previous marriage or of each previous marriage, as the case may be;

(b) the means by which the previous marriage or each previous marriage was dissolved; and

(c) if a previous marriage was dissolved by a court—the name of the court by which that marriage was dissolved.

Particulars of date and place of birth of parties.

30.—(1.) For the purpose of paragraph (b) of rule 28 of these Rules, the particulars relating to the birth of the parties to the marriage that are required to be stated in a petition are the date and place of birth of each party to the marriage.

(2.) Where a party to the marriage was not born in Australia, particulars of the date on which the party entered Australia or, if the party has re-entered Australia after having left Australia, the date on which the party first entered Australia shall be stated in a petition in addition to the particulars referred to in the last preceding sub-rule.

Domicile or residence.

31.—(1.) This rule relates to the particulars relating to the domicile or residence of a petitioner in Australia that are required to be stated in a petition for the purpose of paragraph (c) of rule 28 of these Rules.

(2.) The petition shall state that the petitioner is, within the meaning of the Act, domiciled or resident, as the case may be, in Australia.

(3.) The facts, but not the evidence by which the facts are to be proved, upon which the court will be asked to find that the petitioner is, within the meaning of the Act, domiciled or resident, as the case may be, in Australia shall be stated in the petition in as concise a form as the nature of the case allows.

(4.) A petition instituting proceedings in a court of a Territory shall state that—

(a) a specified party to the proceedings is, at the date of the institution of the proceedings, ordinarily resident in the Territory; or

(b) a specified party to the proceedings has been resident in the Territory for a period of not less than six months immediately preceding that date,

Particulars of cohabitation.

32.—(1.) For the purpose of paragraph (d) of rule 28 of these Rules, the particulars of the cohabitation of the parties that are required to be included in a petition, subject to the next succeeding sub-rule, are—

(a) particulars, to the best of the recollection of the petitioner, of the places at which and periods during which the parties to the marriage have cohabited; and

(b) the date on which, and circumstances in which, cohabitation between the parties ceased or last ceased, as the case may be.

(2.) Where the parties to the marriage have never cohabited at a place of residence, the petition shall include a statement to that effect.

Particulars of children.

33.—(1.) This rule relates to the particulars of the children of the marriage who are infants that are required to be stated in a petition for the purpose of paragraph (e) of rule 28 of these Rules.

(2.) The petition shall state whether, at the date of the petition, any children of the marriage to which the petition relates are living and, if at that date children of the marriage are living, shall state the full name and date of birth of each child of the marriage who is living and the name of the person with whom the child is living.

(3.) Where the petitioner disputes the parentage of a child born, since the solemnization of the marriage to which the petition relates, to the female party to the marriage, the petition shall also state that the parentage of the child is in dispute and the grounds on which the parentage of the child is disputed.

(4.) Where a person who is deemed, by virtue of section 6 of the Act, to be a child of the marriage to which the petition relates is living at the date of the petition, the petition shall also state the circumstances that result in the person being so deemed to be a child of the marriage.

Particulars of previous proceedings.

34.—(1.) This rule relates to the particulars of previous proceedings that are required to be stated in a petition for the purpose of paragraph (f) of rule 28 of these Rules.

(2.) Subject to the next succeeding sub-rule, the petition shall state particulars of—

(a) any proceedings that have, since the marriage to which the petition relates, been instituted in any court between the parties to the marriage; and

(b) any proceedings concerning the custody, guardianship, welfare, advancement or education of a child of that marriage that have been instituted in any court otherwise than between those parties.

(3.) Where no proceedings referred to in the last preceding sub-rule have been instituted, the petition shall include a statement to that effect.

(4.) Where the petition includes particulars of any proceedings referred to in sub-rule (2.) of this rule, being proceedings that have been heard and determined by a court—

(a) particulars of the decree made in the proceedings, and the date on which and court by which the decree was made, shall be stated in the petition; and

(b) the petition shall also state whether the parties to the marriage have cohabited since the making of that decree.

(5.) Where a decree of a court, or an agreement, making provision for the payment of maintenance in respect of a party to a marriage or a child of a marriage is in force, a petition relating to the marriage shall state the amount of maintenance payable under the decree or agreement and the total amount of the maintenance paid under the decree or agreement during the period of twelve months immediately preceding the date of the petition.

Condonation, connivance and collusion.

35.—(1.) A petition instituting proceedings for a decree of dissolution of marriage or of judicial separation upon a ground specified in any of paragraphs (a) to (k), inclusive, of section 28 of the Act shall contain—

(a) a statement that the petitioner has not connived at that ground; and

(b) a denial that he has condoned that ground, or a statement of all facts relevant to the question whether he has condoned that ground, including any facts relevant to the question whether that ground has been revived.

(2.) A petition instituting proceedings for a decree of dissolution of marriage or of judicial separation shall contain a statement that, in bringing the proceedings, the petitioner has not been guilty of collusion with intent to cause a perversion of justice.

Particulars of other orders sought.

36.—(1.) Where a petitioner—

(a) institutes, by his petition, proceedings with respect to the maintenance of the petitioner, settlements, damages in respect of adultery, the custody or guardianship of infant children of the marriage or the maintenance, welfare, advancement or education of children of the marriage; or

(b) is seeking an order as to the costs of any proceedings instituted by his petition,

the petition shall set out particulars of the order sought in the proceedings or of the order sought as to costs, as the case may be.

(2.) Where a petitioner is, by his petition, seeking an award of damages under section 44 of the Act, the petition shall specify the amount of damages sought.

Date and signature.

37.—(1.) A petition shall bear date the day on which it is filed.

(2.) Where a petition is settled by counsel, the name of the counsel shall be written on the petition.

(3.) A petition shall be signed—

(a) if the petitioner is represented by a solicitor—by the solicitor personally; or

(b) if the petitioner is not represented by a solicitor—by the petitioner.

Petition to be verified.

38.—(1.) A petitioner shall, by an affidavit written on his petition and sworn within twenty-one days before his petition is filed—

(a) verify the facts stated in his petition of which he has personal knowledge; and

(b) depose as to his belief in the truth of every other fact stated in his petition.

(2.) Where, for the purpose of complying with the last preceding sub-rule, it is necessary for a petitioner to verify the doing of, or the failure to do, an act within, throughout or for a period ending on the day immediately preceding the date of his petition, it is sufficient compliance with that sub-rule if the petitioner verifies the doing of, or the failure to do, the act within, throughout or for, as the case may be, a period ending on the day immediately before the swearing of his affidavit.

(3.) Where, for the purpose of complying with sub-rule (1.) of this rule, it is necessary for a petitioner to verify that a certain circumstance existed at the date of his petition, it is sufficient compliance with that sub-rule if the petitioner verifies the existence of the circumstance at the date of swearing his affidavit.

Division 2.—Petitions for Dissolution of Marriage.

Form of petition for dissolution of marriage.

39. A petition for a decree of dissolution of marriage shall be in accordance with Form 6.

Ground for relief to be stated in petition.

40.—(1.) A petition for a decree of dissolution of marriage shall state the ground on which the decree is sought.

(2.) For the purpose of these Rules, a ground specified in a paragraph of section 28 of the Act specified in the first column of the following table may be stated in a pleading or affidavit in the terms set, out in the second column of that table opposite the paragraph:—

Arrangements for welfare of children.

41.—(1.) Where, at the date of a petition for a decree of dissolution of marriage, children of the marriage to which the petition relates are living, the petition shall state—

(a) the arrangements proposed by the petitioner concerning the welfare, and, where appropriate, the advancement and education, of the children who are then living; or

(b) the petitioner’s reasons for not stating in the petition the arrangements so proposed.

(2.) In the last preceding sub-rule, “children of the marriage” means—

(a) children of the marriage who are not likely to have attained the age of sixteen years before the decree of dissolution of marriage is made; and

(b) any children of the marriage in relation to whom the petitioner seeks an order under sub-section (3.) of section 71 of the Act.

Petition for dissolution of marriage on ground of separation.

42. A petition for a decree of dissolution of marriage on the ground specified in paragraph (m) of section 28 of the Act may state the arrangements made or proposed by the petitioner for the provision of maintenance or other benefits referred to in sub-section (2.) of section 37 of the Act for the respondent upon the decree becoming absolute.

Petition for dissolution of marriage on ground of presumption of death.

43. A petition for a decree of dissolution of marriage on the ground specified in paragraph (n) of section 28 of the Act shall, in addition to the facts stated in pursuance of paragraph (g) of rule 28 of these Rules, state—

(a) the latest date on which the petitioner has reason to believe the respondent to have been alive and the circumstances in which the petitioner has reason so to believe; and

(b) particulars of any inquiries made by the petitioner for the purpose of locating the respondent.

Death of person specified in petition.

44. Where a person specified in a petition for a decree of dissolution of marriage as a person with or on whom the respondent has committed adultery, rape or sodomy has, to the knowledge of the petitioner, died before the date of the petition, the petition shall state that the person so specified is dead and the date of his death.

Division 3.—Petitions for Nullity of Marriage.

45. A petition for a decree of nullity of a marriage shall be in accordance with Form 6.

Ground for relief to be stated in petition.

46. A petition for a decree of nullity of marriage shall indicate whether the decree is sought on the ground that the marriage is void or on the ground that the marriage is voidable, and shall state the nature of the defect in the marriage.

Petition to state domicile at time of marriage.

47. In a petition for a decree of nullity of marriage, if the domicile of either of the parties immediately before the marriage is relevant to the determination of the proceedings, the petition shall state that domicile.

Petition for nullity— voidable marriage.

48.—(1.) In a petition for a decree of nullity of marriage on the ground that a marriage is voidable by virtue of paragraph (b), (c) or (d) of sub-section (1.) of section 21 of the Act, the date on which the petitioner discovered the existence of the facts constituting the ground and the date on which marital intercourse last took place with the consent of the petitioner shall be stated in addition to any other facts stated in pursuance of paragraph (g) of rule 28 of these Rules.

(2.) A petition instituting proceedings for a decree of nullity of marriage on a ground referred to in the last preceding sub-rule shall contain a statement that the petitioner was, at the time of the marriage, ignorant of the facts constituting the ground.

Arrangements for welfare of children.

49. Rule 41 of these Rules applies in relation to a petition for a decree of nullity of a voidable marriage as if the references in that rule to a decree of dissolution of marriage were references to a decree of nullity of a voidable marriage.

Division 4.—Petitions for Judicial Separation.

50. A petition for a decree of judicial separation shall be in accordance with Form 6.

Application of certain rules to petition for judicial separation.

51. Rules 40 and 44 of these Rules apply in relation to a petition for a decree of judicial separation as if the references to a petition for a decree of dissolution of marriage were references to a petition for a decree of judicial separation.

Division 5.—Petitions for Restitution of Conjugal Rights.

52. A petition for a decree of restitution of conjugal rights shall be in accordance with Form 7.

Petition for restitution of conjugal rights.

53.—(1.) In a petition for a decree of restitution of conjugal rights—

(a) the date on which the petitioner and respondent last cohabited, and the circumstances in which cohabitation between the petitioner and respondent ceased or last ceased, as the case may be; and

(b) the date on which and the manner in which the written request for cohabitation was made to the respondent in accordance with paragraph (b) of section 62 of the Act or, if no such written request was made, particulars of the special circumstances that are alleged to justify the making of the decree notwithstanding that such a request was not made,

shall be stated in the petition in addition to any other facts that are stated in the petition in pursuance of paragraph (g) of rule 28 of these Rules.

(2.) A petition for a decree of restitution of conjugal rights shall state—

(a) that the respondent still refuses, at the date of filing the petition, to cohabit with, and render conjugal rights to, the petitioner; and

(b) that the petitioner sincerely desires conjugal rights to be rendered by the respondent and is willing to render conjugal rights to the respondent.