Division 6.—Filing Petitions and Notices of Petitions.
Marriage certificate to be filed with petition.
54.—(1.) At the time when a petition for a decree of—
(a) dissolution of marriage;
(b) nullity of marriage;
(c) judicial separation; or
(d) restitution of conjugal rights,
is filed, the petitioner shall, unless he is unable to do so, also file a marriage certificate in respect of the marriage to which the petition relates.
(2.) If the marriage certificate filed in accordance with the last preceding sub-rule is not written in the English language, a translation, in the English language, of the marriage certificate shall also be filed at the same time.
(3.) A translation of a marriage certificate filed under the last preceding sub-rule shall be verified as a translation by the person who made the translation by an affidavit in which he also states that he is competent to make a translation of the marriage certificate.
(4.) Where a petitioner is unable, for any reason, to comply with sub-rule (1.) of this rule, the petitioner shall state in the affidavit verifying the petition the circumstances by reason of which he is unable so to comply.
(5.) In this rule, “marriage certificate”, in relation to a marriage, whether solemnized in Australia or elsewhere, means—
(a) an original certificate or record of the marriage; or
(b) a copy or photographic representation of an original certificate or record or of an entry of the marriage in an official register of marriages, being a true copy or representation certified as a true copy or photographic representation by a person having the custody of the certificate or record, or of the register containing the entry, of which it purports to be a true copy or photographic representation.
Notice of petition or of proceedings.
55.—(1.) A notice of petition or notice of proceedings which, under these Rules, a petitioner or respondent is required to serve on another person shall be a notice signed by the registrar of the court and sealed with the seal of the court and shall be in accordance with Form 8, Form 9 or Form 10 (whichever is appropriate).
(2.) Where a form of notice is properly presented to the registrar of the court by or on behalf of the petitioner or respondent and a copy of the form of notice is filed, the registrar shall sign and seal the form of notice for the purposes of this rule.
Time for answer or reply to be specified in notice of petition or notice of proceedings.
The time to be specified in a notice of petition or notice of proceedings as the time limited for the filing of an answer or reply, as the case requires, by a person entitled so to do is—
(a) where the place of service of the notice is in Australia—twenty-eight days; or
(b) in any other case—such reasonable time as is determined by the registrar, having regard to the place at which the notice is to be served and to the availability of air-mail services.
Notice of petition or of proceedings in force for twelve months.
57.—(1.) Subject to this rule, a notice of petition or a notice of proceedings, in relation to a petition or answer, remains in force, for the purposes of service, until the expiration of twelve months from the day on which the petition or answer was filed.
(2.) The registrar of the court may, upon being satisfied that it is reasonable so to do, grant an extension of the time within which the notice may be served until a date twelve months after the expiration of that period, or of that period as previously extended.
(3.) A registrar may grant an extension of the time within which a notice may be served notwithstanding that the notice has ceased to be in force and notwithstanding that the time has previously been extended.
(4.) Where a registrar grants an extension of the time within which a notice may be served, he shall write on the notice, and on the copy of the notice that was filed in pursuance of sub-rule (2.) of rule 55 of these Rules, particulars of the extension, sign his name under those particulars and seal the particulars with the seal of the court.
Lost notice.
58.—(1.) Where a notice of petition or notice of proceedings addressed to a person and signed by a registrar has been lost without having been served, the registrar of the court may, upon being satisfied of the loss, sign and seal another notice in lieu of the lost notice.
(2.) A notice of petition or notice of proceedings signed in pursuance of the last preceding sub-rule shall state the last day of the period for which it remains in force.
Concurrent notices.
59.—(1.) A petitioner or respondent may, at the time of, or at any time within twelve months after, the filing of a petition or answer, procure the issue of a concurrent notice of petition or a concurrent notice of proceedings, or of more than one such concurrent notices, addressed to a person to whom an original notice of petition or notice of proceedings was addressed.
(2.) A concurrent notice of petition or notice of proceedings shall bear teste of the same day as the original notice of petition or notice of proceedings and shall be stamped with a stamp bearing the word “concurrent” and the date of issuing the concurrent notice.
(3.) The provisions of rules 56, 57 and 58 of these Rules apply to and in relation to concurrent notices in like manner as they apply to and in relation to original notices.
PART VI.—SERVICE.
Division 1.—General Provisions relating to Service of Documents.
Manner of service.
Where service of a document is required by these Rules to be effected on a person, service may, subject to the provisions of these Rules that limit the methods of service of particular classes of documents, be effected, either in or outside Australia—
(a) by delivering the document to the person personally;
(b) by serving the document on the person by post in accordance with rule 62 of these Rules;
(c) if the person has an address for service for the purpose of the proceedings—by delivering the document at that address or by posting the document (under prepaid postage) as a letter to the person, or his solicitor, as the case may be, at that address; or
(d) by delivering the document at, or by properly addressing and posting (under prepaid postage) the document as a letter to the person at, the last address of the person known to the person on whose behalf the document is being served.
Personal service.
61.—(1.) Subject to the next succeeding sub-rule, service of a document on a person by delivering it to him personally shall not be effected by the party to proceedings on whose behalf the document is being served but may be effected by another person in the presence of that party.
(2.) Where it is impracticable for service of a document on a person by delivering it to him personally to be effected by a person other than the party to the proceedings on whose behalf the document is being served, that party may effect service of the document on the person in that manner but, in such a case, he shall state in any affidavit of the service of the document sworn by him the circumstances that rendered it impracticable for another person to effect the service.
(3.) Where service of a document on a person by delivering it to him personally is effected by the party on whose behalf the document is being served, that party shall obtain from the person a receipt for the document signed by the person unless the person refuses to sign and give a receipt for the document, and that party shall, in any affidavit of the service of the document sworn by him, state whether the person signed or refused to sign a receipt for the document.
Service by post.
62.—(1.) For the purpose of paragraph (b) of rule 60 of these Rules, service of a document on a person shall be effected by properly addressing and posting (under prepaid postage) the document, together with—
(a) a form in accordance with Form 11 for acknowledging service of the document; and
(b) an envelope, being, in the case of service effected in Australia, a stamped envelope, having written on it the name of the person on whose behalf the document is being served, or the name of his solicitor, and the address for service of that person,
as a letter, to the person at the last address of the person known to the person on whose behalf the document is being served.
(2.) Subject to the next succeeding sub-rule, where a document has been posted to a person in accordance with the provisions of the last preceding sub-rule, service of the document on the person shall be deemed not to have been effected unless the person signs and returns to the person on whose behalf the document is being served or to his solicitor an acknowledgment of the service in accordance with Form 11.
(3.) Where a document instituting proceedings has been posted to a person in accordance with the provisions of sub-rule (1.) of this rule, service of the document shall be deemed to have been duly effected on the person if, after the time when the document would in the ordinary course of post have been received by the person, the person files a document giving an address for service for the purpose of the proceedings.
(4.) Where service of a document has been effected by posting the document to a person in accordance with the provisions of sub-rule (1.) of this rule, the date on which the person received the document shall be taken to be the date on which the service was effected.
When service effected if posted to address for service, &c.
Where service of a document is effected on a person in accordance with paragraph (c) or (d) of rule 60 of these Rules by posting the document to the person or to his solicitor, service of the document shall, unless the contrary is proved, be deemed to have been effected on the person at the time when the letter containing the document would, in the ordinary course of post, be delivered at the address to which it is posted.
Service in Convention countries.
64.—(1.) This rule applies, subject to the provisions of the relevant Convention, in relation to service of a document in a country that is a party to a Convention, extending to the Commonwealth, regarding Legal Proceedings in Civil and Commercial Matters.
(2.) Where, under a Convention referred to in the last preceding sub-rule, service of a document relating to proceedings is not to be effected in the country otherwise than in accordance with the Convention, service of such a document in the country shall not be effected otherwise than in accordance with this rule.
(3.) Where a party to proceedings who desires to effect service of a document relating to the proceedings on a person in a country referred to in sub-rule (1.) of this rule files a request for service of the document, in accordance with Form 12, and deposits with the registrar of the court in which the proceedings are pending the documents required by the next succeeding sub-rule to be deposited, the registrar shall forward the documents so deposited direct to the Secretary for transmission to that country for service.
(4.) Subject to the next succeeding sub-rule, the documents to be deposited under the last preceding sub-rule are—
(a) the document to be served;
(b) a translation of the document into the language of the country in which the service is to be effected, being a translation bearing a certificate, in that language, of the person who made the translation certifying that it is a translation of the document of which it purports to be a translation;
(c) a copy of the document to be served and of the translation;
and
(d) such further copies (if any) of the document and translation as are required by the Convention.
(5.) Where the request indicates that the document is to be forwarded to a diplomatic or consular representative of Australia or a diplomatic or consular representative of the United Kingdom for service on a British subject, it is not necessary, unless the Convention provides otherwise, for a translation and a copy of the translation to be deposited under sub-rule (3.) of this rule.
(6.) Subject to the next succeeding sub-rule, a request referred to in sub-rule (3.) of this rule shall state whether the party on whose behalf the request is filed desires the document to be forwarded, for service, to—
(a) a judicial authority in the country; or
(b) a diplomatic or consular representative of Australia in the country, or, if there is no such representative in the country, a diplomatic or consular representative of the United Kingdom in the country.
(7.) A document, a translation of a document or a copy of a document shall, before being forwarded to the Secretary in accordance with sub-rule (3.) of this rule, be sealed with the seal of the court.
(8.) Where a registrar has received a certificate, transmitted through diplomatic channels, by a diplomatic or consular representative of Australia, a diplomatic or consular representative of the United Kingdom or a judicial authority in a country referred to in sub-rule (1.) of this rule certifying that a document has been served on a person on a date specified in the certificate, the certificate may be filed and, subject to the next succeeding sub-rule, is then evidence of the matters stated in the certificate.
(9.) A certificate referred to in the last preceding sub-rule is not evidence that a document has been served on a person personally unless it also certifies the means by which the person who served the document identified the person served.
(10.) In this rule—
“diplomatic or consular office” means any of the following offices—
(a) Ambassador;
(b) Minister;
(c) Head of a Mission;
(d) Chargé d’Affaires;
(e) Counsellor, Secretary or Attaché of an Embassy, Legation or other post;
(f) Consul-General;
(g) Consul;
(h) Vice-Consul;
(i) Pro-Consul; and
(j) Consular Agent;
“diplomatic or consular representative of Australia” means a person appointed to hold or act in a diplomatic or consular office of the Commonwealth in a country or place outside Australia;
“diplomatic or consular representative of the United Kingdom” means a person appointed to hold or act in a diplomatic or consular office of the United Kingdom in a country or place outside the United Kingdom.
Substituted service.
65.—(1.) Where a registrar, upon application made ex parte by a party to proceedings for an order under this rule, is satisfied—
(a) that it is not reasonably practicable for the party to effect service of a document in a manner specified in any of paragraphs (a) to (d), inclusive, of rule 60 of these Rules that is applicable; and
(b) that there is a reasonable likelihood that the document will come to the notice of the person to be served if the document is served in some other manner or if the giving of notice of the document in some manner is substituted for service of the document,
the registrar may order that service of the document be effected in a manner specified in the order or that the giving of notice of the document and of its effect by advertisement or otherwise, as specified in the order, be substituted for service of the document.
(2.) Where an order has been made by the court or by a registrar authorizing the giving of notice of a document by advertisement, the form of the advertisement shall be approved by a registrar.
(3.) Where an order of a kind referred to in sub-rule (1.) of this rule has been made by the court or by a registrar in relation to service of a document on a person, compliance with the order shall, notwithstanding any other provision of these Rules, be deemed to be due service of the document on the person.
Division 2.—Service of Petitions and Answers.
Service of petitions.
66.—(1.) Subject to these Rules, a petitioner shall cause service of the petition to be effected on—
(a) each other party to any proceedings instituted by the petition; and
(b) any person specified in the petition as a person on or with whom the respondent is alleged to have committed rape or sodomy.
(2.) Service of a petition shall be effected on a person—
(a) by serving on the person, in the manner referred to in paragraph
(a) of rule 60 of these Rules—
(i) a sealed copy of the petition; and
(ii) if the person served is the respondent, a notice of petition or, if the person served is not the respondent, a notice of proceedings; or
(b) by serving on the person, in the manner referred to in paragraph (b) of rule 60 of these Rules—
(i) a sealed copy of the petition;
(ii) if the person served is the respondent, a notice of petition or, if the person served is not the respondent, a notice of proceedings;
(iii) a form, in accordance with Form 11, for acknowledging service of the petition; and
(iv) an envelope, being, in the case of service effected in Australia, a stamped envelope, having written on it the name of the petitioner or his solicitor and the address for service of the petitioner.
Service of answer.
67.—(1.) Subject to these Rules, a person on whose behalf an answer to a petition is filed shall cause service of the answer to be effected on—
(a) each other party to any proceedings instituted by the petition who has an address for service for the purpose of the proceedings; and
(b) any person specified in the answer as a person with or on whom the petitioner is alleged to have committed adultery, rape or sodomy.
(2.) Service of an answer to a petition shall be effected on a party to proceedings referred to in paragraph (a) of the last preceding sub-rule by serving, on the day on which the answer is filed or on the next following day, a copy of the answer on the person in a manner referred to in paragraph (c) of rule 60 of these Rules.
(3.) Service of an answer to a petition shall be effected on a person referred to in paragraph (b) of sub-rule (1.) of this rule—
(a) by serving on the person, in the manner referred to in paragraph (a) of rule 60 of these Rules—
(i) a sealed copy of the answer; and
(ii) a notice of proceedings; or
(b) by serving on the person, in the manner referred to in paragraph (b) of rule 60 of these Rules—
(i) a sealed copy of the answer;
(ii) a notice of proceedings;
(iii) a form, in accordance with Form 11, for acknowledging service of the answer; and
(iv) an envelope, being, in the case of service effected in Australia, a stamped envelope, having written on it the name of the respondent or his solicitor and the address for service of the respondent.
(4.) Where a party to proceedings instituted by a petition files an address for service for the purpose of the proceedings on or after the day on which an answer to the petition is filed by another party to the proceedings, the party who filed the answer shall, upon request made by the first-mentioned party, cause service of a copy of the answer to be effected, in a manner referred to in paragraph (c) of rule 60 of these Rules, on the first-mentioned party on the day on which the request is made or on the next following day.
Stale petitions and answers.
68.—(1.) Service of a petition on a person is of no force and effect unless the notice of petition or notice of proceedings addressed to the person was in force, for the purposes of service, on the day on which service of the petition was effected.
(2.) Where, under these Rules, service of an answer on a person is required to be effected by serving on the person a notice of proceedings addressed to the person in addition to a sealed copy of the answer, service of the answer on the person is of no force and effect unless the notice of proceedings addressed to the person was in force, for the purposes of service, on the day on which service of the answer was effected.
Division 3.—Service on Infants and Persons of Unsound Mind.
Service of petition, &c., on infant.
69.—(1.) Subject to this rule, service of a petition on an infant shall be effected by—
(a) serving a sealed copy of the petition and a notice of petition or notice of proceedings, as the case requires, on the infant in a manner referred to in paragraph (a) or (b) of rule 60 of these Rules; and
(b) serving a sealed copy of the petition and a notice of proceedings, in a manner referred to in paragraph (a) or (b) of rule 60 of these Rules, on a parent of the infant, a person with whom the infant is residing or such other person as a registrar specifies in an order made under sub-rule (3.) of this rule.
(2.) Service of a sealed copy of a petition—
(a) if a parent of the infant is a party—on a parent of the infant;
(b) if a parent of the infant is not a party and service can be duly effected in Australia on a parent of the infant—on a person with whom the infant is residing (not being his parent); or
(c) if a person with whom the infant is residing is under the age of twenty-one years or is not a kinsman of the infant—on that person,
is not sufficient compliance with paragraph (b) of the last preceding sub-rule.
(3.) Where a registrar is satisfied that, for any reason, a petitioner would otherwise be unable to comply with paragraph (b) of sub-rule (1.) of this rule, the registrar may, by order, specify a person who, in the opinion of the registrar, is a proper person to advise the infant in connexion with the proceedings instituted by the petition as the person on whom a sealed copy of the petition may be served for the purpose of complying with that paragraph.
(4.) Where a registrar is satisfied that, having regard to the age and understanding of the infant, it is proper so to do, the registrar may, by order, dispense with compliance with paragraph (b) of sub-rule (1.) of this rule.
(5.) An application for an order under sub-rule (3.) or (4.) of this rule may be made ex parte.
(6.) The preceding sub-rules of this rule apply in relation to service of an answer on an infant who is specified in the answer as a person with or on whom the petitioner is alleged to have committed adultery, rape or sodomy as if—
(b) references to a petitioner were references to a party on whose behalf an answer is filed;
(c) references to a notice of petition or notice of proceedings, as the case requires, were references to a notice of proceedings; and
(d) the reference in sub-rule (3.) to proceedings instituted by the petition was a reference to the proceedings in answer to which the answer is filed and to any other proceedings instituted by the answer.
(7.) In this rule—
Service of petition, &c., on person of unsound mind.
70.—(1.) Unless the court or registrar otherwise orders, service of a petition shall be effected on a person of unsound mind by serving, in a manner referred to in paragraph (a) or (b) of rule 60 of these Rules, a sealed copy of the petition and a notice of petition or notice of proceedings, as the case requires—
(a) if there is a committee of the person of the person of unsound mind—on that committee;
(b) if there is no such committee but there is a committee of the estate of the person of unsound mind—on that committee;
(c) if there is no committee of the person, or committee of the estate, of the person of unsound mind but the Attorney-General or an authorized person has signed a consent under rule 124 of these Rules to act as the guardian ad litem of the person of unsound mind—on the Attorney-General; or
(d) in any other case—on a person with whom the person of unsound mind is residing or the person under whose care he is.
(2.) Service of a petition shall be deemed not to have been effected on a person of unsound mind in accordance with the last preceding sub-rule—
(a) unless the sealed copy of the petition so served had written on it a notice directing the person on whom it is actually served to bring the contents of the petition to the notice of the person of unsound mind if, after consultation with the medical practitioner responsible for the treatment of the person of unsound mind, he is satisfied that it would not be detrimental to the health of the person of unsound mind to do so; and
(b) unless the court is satisfied, by affidavit of the person on whom the petition is actually served or otherwise, that the contents of the petition were brought to the notice of the person of unsound mind or that the medical practitioner referred to in the last preceding paragraph has expressed the opinion that it would be detrimental to the health of the person of unsound mind to do so.
(3.) For the purposes of sub-rule (1.) of this rule, a person of unsound mind who is a patient in an institution shall be deemed to be in the care of the superintendent or other person in direct charge of the institution.
(4.) The preceding sub-rules of this rule apply to the service of an answer on a person of unsound mind who is specified in the answer as a person with or on whom the petitioner is alleged to have committed adultery, rape or sodomy as if—
(a) references to a petition were references to an answer; and
(b) references to a notice of petition or notice of proceedings, as the case requires, were references to a notice of proceedings.
Division 4.—Proof of Service.
Proof of personal service of document.
71.—(1.) Subject to the next succeeding sub-rule, where service of a document is effected on a person in the manner referred to in paragraph (a) of rule 60 of these Rules, the due service of the document shall be deemed not to have been proved by affidavit unless the person who delivered the document to the person to be served states in an affidavit—
(a) the date on which and place at which the document was so delivered; and
(b) the means by which he established that the person to whom the document was delivered was the person required to be served with the document.
(2.) Where service of a document, being a petition or answer, is effected on a person, being the respondent or the petitioner, as the case may be, in the manner referred to in paragraph (a) of rule 60 of these Rules and proof of the due service of the document is required at the trial of proceedings of a kind referred to in paragraph (a) of the definition of “matrimonial cause”, the due service of the document shall be deemed not to have been proved by affidavit unless—
(a) the last preceding sub-rule has been complied with; and
(b) a person other than the person who delivered the document has, in an affidavit or in evidence given orally at the trial, verified the signature on a receipt given by the person to whom the document was delivered or, in some other manner, corroborated the fact that the person to whom, the document was delivered is the person required to be served with the document.
(3.) An affidavit of service of a document on a person personally shall be in accordance with Form 13.
Proof of service of document by post.
72.—(1.) Subject to the next succeeding sub-rule, where service of a document is effected on a person in the manner referred to in paragraph (b) of rule 60 of these Rules, the due service of the document shall be deemed not to have been proved by affidavit unless a person to whom an acknowledgment of service of the document was returned, being an acknowledgment that purports to be signed by the person to be served with the document, has deposed, in an affidavit to which the acknowledgment is annexed, to the manner in which the acknowledgment was returned to him.
(2.) Where service of a document, being a petition or answer, is effected on a person, being the respondent or the petitioner, as the case may be, in the manner referred to in paragraph (b) of rule 60 of these Rules and proof of the due service of the document is required at the trial of proceedings of a kind referred to in paragraph (a) of the definition of “matrimonial cause”, the due service of the document shall be deemed not to have been proved by affidavit unless—
(a) the last preceding sub-rule has been complied with; and
(b) the signature appearing on the acknowledgment of service of the document is verified as the signature of the person to be served with the document by the affidavit of, or by evidence given orally at the trial by, a person conversant with that signature.
(3.) The signature appearing on an acknowledgment shall not, for the purposes of paragraph (b) of the last preceding sub-rule, be verified by the party to proceedings on whose behalf the document was served unless—
(a) it is not reasonably practicable for the signature to be verified by some other person; and
(b) the party states in his affidavit or in his evidence, as the case may be, the circumstances by reason of which it is not so reasonably practicable.
Proof of service by posting document to an address.
Where service of a document is effected on a person in accordance with paragraph (c) or (d) of rule 60 of these Rules by posting the document to the person or to his solicitor, the due service of the document shall be deemed not to have been proved by affidavit unless—
(a) the person who posted the document has stated in an affidavit the manner in which the envelope containing the document was addressed, the day on which, and the time of the day and place at which, the document was posted and that the document was posted as a letter and postage was prepaid; and
(b) in a case where the document was posted to a person at an address other than the address for service of the person— the person on whose behalf the document was served has stated in an affidavit the last address of the person to be served that was known to him at the time of the posting.
Proof of service of document by advertisement.
74.—(1.) Where, in pursuance of an order of the court or of a registrar under these Rules, an advertisement is published in the Gazette, in the government gazette of a State or Territory or in a newspaper, the person who obtained the order may deposit, in the proper office of the court, a copy of the page of the Gazette, government gazette or newspaper containing the advertisement.
(2.) Where the page of a copy of the Gazette, government gazette or newspaper containing the advertisement is deposited under the last preceding sub-rule, the registrar of the court shall cause the advertisement to be cut out of the page and annexed to a memorandum, in accordance with Form 14, referring to, and giving the date of publication of, the advertisement.
4515/60.—2
(3.) A memorandum referred to in the last preceding sub-rule shall be filed by the registrar and is evidence that the advertisement, a copy of which is annexed to the memorandum, was published in the Gazette, government gazette or newspaper specified in the memorandum on the date specified in the memorandum.
Affidavits of service.
Where a person states in an affidavit that he delivered or posted a copy of an application or a notice of hearing to a person, another copy of the application or notice shall be annexed to the affidavit.
PART VII.—PLEADINGS.
Division 1.—Answers.
Answer.
76.—(1.) The respondent or a co-respondent in proceedings instituted by petition, or a person named in a petition, may, by filing an answer—
(a) deny a fact alleged in the petition;
(b) state that he does not know and cannot admit the truth of a fact alleged in the petition;
(c) allege a fact; or
(d) admit the truth of a fact,
being a fact material to proceedings, instituted by the petition, to which he is a party or in which he is entitled to intervene under sub-section (2.) of section 45 of the Act or under Part IX. of these Rules.
(2.) Where the respondent or a co-respondent in proceedings instituted by petition, or a person named in a petition, desires to submit to the court that it should dismiss the proceedings, he shall, in an answer filed for the purpose, ask the court to dismiss the proceedings.
(3.) Where the respondent or a co-respondent in proceedings instituted by petition, or a person named in a petition, desires to submit to the court that, if it makes an order in favour of the petitioner, that order should be different from the order sought by the petitioner, he shall, in an answer filed for the purpose, set out particulars of the order that, in his submission, the court should make if it makes an order in favour of the petitioner.
(4.) An answer shall be in accordance with Form 15 and shall be filed within the time limited by the notice of petition or notice of proceedings addressed to the person filing the answer.
(5.) Where an answer to a petition contains an allegation that the petitioner has committed adultery, rape or sodomy with or on a specified person, the answer shall state the address and occupation, so far as known to the respondent, of that person.
(6.) Where the address, at the date of the answer, of a person referred to in the last preceding sub-rule is not known to the party filing the answer, the answer shall state that the address is not known to that party and also state the last address (if any) of the person known to that party.
Answer seeking dissolution, &c., of marriage.
77.—(1.) This rule applies to an answer by which a respondent to a petition institutes proceedings for a decree of a kind referred to in paragraph (a) of the definition of “matrimonial cause”.
(2.) An answer to which this rule applies shall state that the respondent is, within the meaning of the Act, domiciled or resident, as the case may be, in Australia, and, if the respondent relies, for the purpose of establishing his domicile or residence in Australia, on any facts other than facts included in the petition, the answer, shall state those other facts.
(3.) The facts, but not the evidence by which the facts are to be proved, upon which the court will be asked to make the decree sought in proceedings instituted by an answer to which this rule applies shall be stated in the answer in as concise a form as the nature of the case allows.
(4.) An answer instituting proceedings for a decree of dissolution of marriage or of judicial separation upon a ground specified in paragraphs (a) to (k), inclusive, of section 28 of the Act shall contain—
(a) a statement that the respondent 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.
(5.) An answer instituting proceedings for a decree of dissolution of marriage or of judicial separation shall contain a statement that, in bringing the proceedings, the respondent has not been guilty of collusion with intent to cause a perversion of justice.
(6.) The provision of rules 36, 40, 41, 42, 44 and 53 of these Rules, in so far as they are applicable to the circumstances of the particular case, apply to and in relation to an answer to which this rule applies, being an answer by which the respondent to a petition is seeking a decree of dissolution of marriage or of restitution of conjugal rights, as if—
(b) references to a petitioner were references to the respondent to a petition; and
(7.) The provisions of rules 36, 41, 46, 47 and 48 of these Rules, in so far as they are applicable to the circumstances of the particular case, apply to and in relation to an answer to which this rule applies, being an answer by which the respondent to a petition is seeking a decree of nullity of marriage, as if—
(b) references to a petitioner were references to the respondent to a petition;
(c) references to the respondent were references to the petitioner;
and
(d) references to a petition for a decree of dissolution of marriage were references to a petition for a decree of nullity of a voidable marriage.
(8.) The provisions of rules 36, 40 and 44 of these Rules, in so far as they are applicable to the circumstances of the particular case, apply to and in relation to an answer to which this rule applies, being an answer by
which the respondent to a petition is seeking a decree of judicial separation, as if—
(b) references to a petitioner were references to the respondent to a petition;
(c) references to the respondent were references to the petitioner; and
(d) references to a petition for a decree of dissolution of marriage were references to an answer by which the respondent to a petition is seeking a decree of judicial separation.
Answer under protest.
78.—(1.) A respondent or co-respondent to a petition who desires to have the jurisdiction of the court to which the petition is addressed determined shall file an answer under protest, in accordance with Form 16, objecting to the jurisdiction of that court.
(2.) An answer under protest shall state the grounds on which the respondent or co-respondent objects to the jurisdiction of the court.
(3.) Where an answer under protest has been duly served, the party filing the answer may, within fourteen days after the day on which the answer is filed, file an application to the court for directions as to the time and place at which the objection is to be determined by the court.
(4.) It is not necessary for an application referred to in the last preceding sub-rule to be supported by an affidavit.
(5.) Upon the hearing of an application referred to in sub-rule (3.) of this rule, the court may also give directions as to whether disputed questions of fact are to be determined upon evidence given orally or upon evidence given by affidavit.
(6.) Where the party filing an answer under protest does not file the application referred to in sub-rule (3.) of this rule within the time limited by that sub-rule, the party shall be deemed to have waived the objection.
(7.) A petitioner in proceedings shall not, after an answer under protest has been filed and service of the answer has been effected on him, continue the proceedings against the party who filed the answer unless the court has overruled the objection to its jurisdiction or the party filing the answer under protest has waived the objection.
(8.) Where a court has overruled an objection to its jurisdiction, the party who filed the answer under protest may, within such time as the court allows, file a further answer to the petition.
Division 2.—Replies and Rejoinders.
Reply.
79.—(1.) Where an answer to a petition contains any allegation of fact, the petitioner may, by filing a reply—
(a) deny a fact alleged in the answer;
(b) state that he does not know and cannot admit the truth of a fact alleged in the answer;
(c) allege an additional fact that has become relevant to proceedings to which the reply relates by reason of some fact alleged in the answer; or
(d) admit the truth of a fact alleged in the answer.
(2.) A party cited or a person named in an answer may, by filing a reply—
(a) deny a fact alleged in the answer;
(b) state that he does not know and cannot admit the truth of a fact alleged in the answer;
(c) allege a fact; or
(d) admit the truth of a fact alleged in the answer,
being a fact material to proceedings, instituted by the answer, to which he is a party or in which he is entitled to intervene under sub-section (2.) of section 45 of the Act or under Part IX. of these Rules.
(3.) Where proceedings have been instituted by an answer to a petition and the petitioner, a party cited or a person named in the answer desires to submit to the court that it should dismiss the proceedings, he shall, in a reply filed for the purpose, ask the court to dismiss the proceedings.
(4.) Where proceedings have been instituted by an answer to a petition and the petitioner, a party cited or a person named in the answer desires to submit to the court that, if it makes an order in favour of the party who filed the answer, that order should be different from the order sought by that party, he shall, in a reply filed for the purpose, set out particulars of the order that, in his submission, the court should make if it makes an order in favour of that party.
(5.) A reply shall be in accordance with Form 17.
(6.) The time limited for filing a reply to an answer is—
(a) in the case of a reply by the petitioner—fourteen days after service of the answer on the petitioner; and
(b) in the case of a reply by a party cited or a person named in the answer—the time so limited in the notice of proceedings served on the party cited or person named in relation to the answer.
Reply under protest.
80.—(1.) A petitioner who desires to have the jurisdiction of the court to hear any proceedings instituted by an answer to the petition determined, or a party cited in an answer to a petition who desires to have the jurisdiction of the court to which the petition is addressed determined, shall file a reply under protest, in accordance with Form 18, objecting to the jurisdiction of that court.
(2.) A reply under protest shall set forth the grounds on which the petitioner or party cited objects to the jurisdiction of the court.
(3.) Sub-rules (3.) to (8.), inclusive, of rule 78 of these Rules apply in relation to a reply under protest as if—
(a) references to an answer under protest were references to a reply under protest;
(b) the reference in sub-rule (7.) of that rule to a petitioner in proceedings was a reference to a petitioner or respondent in proceedings; and
(c) the reference in sub-rule (8.) of that rule to a further answer to the petition was a reference to a further reply to the answer.
Rejoinder.
81.—(1.) Where a reply contains any allegation of fact, the party who filed the answer in relation to which the reply was pleaded may, by filing a rejoinder—
(a) deny a fact alleged in the reply;
(b) state that he does not know and cannot admit the truth of a fact alleged in the reply;
(c) allege an additional fact that has become relevant to proceedings to which the rejoinder relates by reason of some fact alleged in the reply; or
(d) admit the truth of a fact alleged in the reply.
(2.) The time limited for filing a rejoinder by a party is fourteen days after service of the reply on the party.
Farther rejoinder.
82.—(1.) Where a rejoinder or further rejoinder (in this rule called “the pleading”) contains any allegation of fact, the party who filed the reply, rejoinder or further rejoinder in relation to which the pleading was pleaded may, by filing a further rejoinder—
(a) deny a fact alleged in the pleading;
(b) state that he does not know and cannot admit the truth of a fact alleged in the pleading;
(c) allege an additional fact that has become relevant to proceedings to which the further rejoinder relates by reason of some fact alleged in the pleading; or
(d) admit the truth of a fact alleged in the pleading.
(2.) The time limited for filing a further rejoinder by a party is fourteen days after service on the party of the pleading to which it is pleaded.
Division 3.—Pleadings Generally.
Definition.
In this Division, unless the contrary intention appears, “pleading” means an answer, reply, rejoinder or further rejoinder.
When allegations in pleadings deemed to be admitted.
Where a person who is entitled to deny a fact alleged in a pleading filed in proceedings does not, in a pleading filed by him—
(a) deny the fact, either expressly or by necessary implication;
(b) state that he does not know and cannot admit the truth of the fact; or
(c) admit the truth of the fact,
the person shall be deemed to have admitted the truth of the fact for the purpose of the proceedings.
Date and signature of pleading.
85.—(1.) A pleading shall bear date the day on which it is filed.
(2.) Where a pleading is settled by counsel, the name of the counsel shall be written on the pleading.
(3.) A pleading shall be signed—
(a) if the party filing the pleading is represented by a solicitor— by the solicitor personally; or
(b) if the party filing the pleading is not represented by a solicitor— by the party.
Affidavit verifying pleading.
86.—(1.) The party filing a pleading shall, by an affidavit written on his pleading and sworn within twenty-one days before his pleading is filed—
(a) verify the facts stated in his pleading of which he has personal knowledge; and
(b) depose as to his belief in the truth of every other fact stated in his pleading.
(2.) Sub-rules (2.) and (3.) of rule 38 of these Rules apply in relation to an affidavit verifying a pleading as if references to a petition and a petitioner were references to a pleading and a party filing a pleading, respectively.
(3.) Where the party filing a pleading states in the pleading that he does not know and cannot admit the truth of a particular fact, the party shall, in his affidavit verifying the pleading, state that he does not know and cannot admit the truth of the fact.
Service of pleading.
87.—(1.) A party who files a pleading for the purpose of proceedings shall cause service of a copy of the pleading to be effected, in a manner referred to in paragraph (c) of rule 60 of these Rules, on each other party to the proceedings who has, at the day on which the pleading is filed, an address for service for the purpose of the proceedings.
(2.) For the purpose of the last preceding sub-rule, a copy of a pleading shall be so served on the day on which the pleading is filed or on the next following day.
(3.) Where a party files an address for service for the purpose of proceedings on or after the day on which a pleading is filed, the party who filed the pleading shall, upon request made by that first-mentioned party, cause service of a copy of the pleading to be effected in a manner referred to in paragraph (c) of rule 60 of these Rules on that first-mentioned party on the day on which the request is made or on the next following day.
(4.) This rule does not apply in relation to service of an answer to a petition.
Division 4.—Discontinuance.
Withdrawal of pleading.
88.—(1.) Subject to the next succeeding sub-rule, a party to proceedings on whose behalf a pleading has been filed may withdraw the pleading by filing a notice in accordance with Form 19 and causing service of a copy of the notice to be effected, in a manner referred to in paragraph (c) of rule 60 of these Rules, on each other party to the proceedings who has an address for service for the purpose of the proceedings.
(2.) Where an order pending the disposal of proceedings instituted by a petition is in force, the petition shall not be withdrawn under the last preceding sub-rule except by leave of the court.
(3.) Where a petitioner withdraws his petition, the proceedings instituted by the petition, and any proceedings instituted in relation to those proceedings, are discontinued but the discontinuance of those proceedings does not affect the continuance of—
(a) any proceedings for a decree of a kind referred to in paragraph (a) of the definition of “matrimonial cause” instituted by the respondent to the petition by answer to the petition; or
(b) any proceedings of a kind referred to in paragraph (c) or (d) of that definition that are in relation to proceedings instituted by that answer.
(4.) Where a party to proceedings withdraws a pleading other than a petition, the proceedings, other than any proceedings instituted by that pleading, may be continued as if the party had never filed the pleading.
(5.) Where a party to proceedings withdraws a pleading, any other party to the proceedings who has filed a pleading for the purpose of the proceedings may make application to the court in which the proceedings are or were pending for an order as to the costs occasioned by the pleading and the withdrawal.
PART VIII.—AMENDMENT OF PLEADINGS, SUPPLEMENTARY PETITIONS AND SUPPLEMENTARY ANSWERS.
Division 1.—Amendment of Pleadings.
Amendments that may be made.
89.—(1.) Subject to this rule, all such amendments may be made to a pleading as are made in accordance with the succeeding provisions of this Division and are necessary for the purpose of determining the real questions in controversy between the parties.
(2.) An amendment shall not be made to a petition or answer if the amendment would have the effect of instituting proceedings of a kind referred to in paragraph (c) of the definition of “matrimonial cause”.
(3.) A party to a marriage shall not, by amending a pleading filed by him in connexion with proceedings, seek a decree of a kind referred to in paragraph (a) of the definition of “matrimonial cause” upon a ground arising after the date on which the pleading was filed.
Amendment before service.
A petition may be amended by the petitioner if it has not been served on a party to the proceedings or on a person named in the petition.
Amendment after service.
91.—(1.) Subject to the next succeeding sub-rule, where a pleading filed on behalf of a party to proceedings has been served on another party to the proceedings, or on a person on whom service of the pleading is required by these Rules to be effected although the person is not a party to the proceedings, the pleading may be amended by the party who filed it—
(a) if it has not been amended after having been so served—without the leave of the court or a registrar; or
(b) if it has been amended on a previous occasion after having been so served—by leave of the court or a registrar.
(2.) Except by leave of the court, a pleading in any proceedings shall not be amended after—
(a) a compulsory conference relating to the proceedings has been held for the purpose of Division 6 of Part XI. of these Rules;
or
(b) the proceedings have been set down for trial.
(3.) Where a court or registrar gives leave to amend a pleading, the court or registrar may also, by order—
(a) dispense with service of the amended pleading on a person, whether or not the person is a party to the proceedings;
(b) specify the manner in which service of the amended pleading may be effected on a person; and
(c) specify the time, after service of the amended pleading on a person, within which the person may, if the person so desires—
(i) amend a pleading already filed by him in reply to the pleading; or
(ii) file a pleading in reply to the amended pleading,
as the case requires.
(4.) Where the court or registrar gives a party leave to amend a pleading, the party may cause the pleading to be amended accordingly within seven days after the leave was given.
(5.) Where service of an amended pleading is to be effected on a party who has an address for service for the purpose of the proceedings, the service shall be effected on the day on which the pleading is amended or on the next following day.
Verification of amendment.
92.—(1). An amendment shall not be made to a pleading so as to alter a fact alleged in the pleading or to include an additional fact in the pleading unless the party on whose behalf the pleading was filed has filed an affidavit—
(a) verifying the altered fact or additional fact, as the case may be; or
(b) deposing as to his belief in the truth of the altered fact or additional fact, as the case may be.
(2.) An amendment shall not be made to a petition or answer so as to allege additional facts that constitute a ground for a decree of dissolution of marriage or of judicial separation specified in any of paragraphs (a) to (k), inclusive, of section 28 of the Act and to seek such a decree on that ground, unless the party who filed the petition or answer has filed an affidavit in which the party—
(a) denies that he has connived at that ground;
(b) denies that he has condoned that ground or states 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; and
(c) states that, in bringing the proceedings for the decree on that ground, he has not been guilty of collusion with intent to cause a perversion of justice.
(3.) A party shall be deemed to have complied with the requirements of the preceding provisions of this rule if the matters required by those provisions to be included in an affidavit are included in an affidavit by the party in support of an application for leave to amend the pleading.
Notice of application for leave to amend.
93.—(1.) Subject to this rule, where application is made for leave to amend a pleading filed for the purpose of proceedings, the applicant shall cause service of the application to be effected on each other party to the proceedings who has an address for service for the purpose of the proceedings.
(2.) The last preceding sub-rule does not apply to an application that is made to the court upon the trial of the proceedings for the purpose of which the pleading was filed.
(3.) An application to amend a pleading may be made ex parte if no party, other than the party who filed the pleading, has an address for service.
Method of amending pleading.
94.—(1.) A pleading shall be amended by writing the alterations or additions on the pleading in red ink or in such other manner as will distinguish the alterations or additions from the original pleading or from any previous amendment.
(2.) Where a pleading is amended by a party by leave of a court or registrar, the solicitor for the party or, if the party is not represented by a solicitor, the party shall write at the top of the front page of the pleading, in red ink, particulars of the date on which leave to amend the pleading was given and the date on which the amendment is made to the pleading, in accordance with the following form:—
(3.) Where a pleading is amended by a party without the leave of a court or registrar, the solicitor for the party or, if the party is not represented by a solicitor, the party shall write at the top of the front page of the pleading, in red ink, particulars of the date on which the amendment is made to the pleading, in accordance with the following form:—
“Amended this day of , 19 ,
in pursuance of rule 90 (or 91 (1.) (a)).”.
(4.) A solicitor or party writing on a pleading the particulars required by either of the last two preceding sub-rules shall sign his name immediately under those particulars and shall forthwith inform the registrar of the nature of the amendments made by him to the pleading.
(5.) Where the amendments made to a pleading are so numerous or of such a nature that the pleading is difficult or inconvenient to read or where the making of amendments to a pleading in the manner provided by sub-rule (1.) of this rule would make the pleading difficult or inconvenient to read, the party making the amendments—
(a) if the registrar so requests—shall; or
(b) in any other case—may,
file a copy of the pleading as amended.
(6.) Compliance with sub-rule (1.) of this rule is not necessary if, before a party writes the alterations or additions on the pleading in accordance with that sub-rule, the party files a copy of the pleading as amended, but every copy of the pleading as amended shall bear the notation referred to in sub-rule (2.) or (3.), as the case may be, of this rule.
Amendment not effective until served.
95.—(1.) Where a pleading is amended before service of the pleading has been effected on a person on whom service of the pleading is, by these Rules, required to be effected, service on the person of the pleading otherwise than as so amended is not due service for the purpose of these Rules.
(2.) Subject to these Rules and to any order made under sub-rule (3.) of rule 91 of these Rules, where a pleading is amended after service of the pleading has been effected on a person, service of the amended pleading on the person shall be effected—
(a) if the person has an address for service—by serving, in the manner referred to in paragraph (c) of rule 60 of these Rules, a copy of the amended pleading on the person on the day on which the pleading is amended or on the next following day; or
(b) in any other case—by serving, in a manner referred to in paragraph (a) or (b) of rule 60 of these Rules, a copy of the amended pleading on the person as soon as practicable after the amendment is made.
(3.) Where a petition is amended by adding an allegation that the respondent has committed adultery, rape or sodomy with or on a specified person, not being a person on whom service of the petition has been effected, or where an answer is amended by adding an allegation that the petitioner has committed adultery, rape or sodomy with or on a specified person, not being a person on whom service of the answer has been effected, service of a sealed copy of the amended petition or amended answer shall be effected on the person in a manner referred to in paragraph (a) or (b) of rule 60 of these Rules.
(4.) These Rules apply in relation to service of a sealed copy of an amended petition or an amended answer on a person referred to in the last preceding sub-rule in like manner as they apply in relation to service of a sealed copy of a petition or answer on the person.
Pleading to amended pleading.
Where a pleading has been amended, a person on whom service of a copy of the amended pleading has been effected shall not file a pleading in reply to the first-mentioned pleading but may file a pleading in reply to the amended pleading and, for the purposes of these Rules, the time limited for filing a pleading in reply to the amended pleading commences from the day on which service of the amended pleading was effected on the person.
Consequential amendment of subsequent pleading.
97.—(1.) Where a pleading is amended after a pleading (in this rule called “the subsequent pleading”) has been filed in reply to that pleading, the party who filed the subsequent pleading may, within ten days after the day on which service of the amended pleading was effected on him or within such other time as is specified in an order under sub-rule (3.) of rule 91 of these Rules, amend the subsequent pleading in such manner as he considers desirable.
(2.) An amendment of the subsequent pleading in accordance with the last preceding sub-rule may be made without the leave of the court or a registrar and does not count as an amendment for the purposes of sub-rule (1.) of rule 91 of these Rules but the other provisions of this Division apply to and in relation to the amendment.
Division 2.—Supplementary Petitions and Supplementary Answers.
Supplementary petitions and supplementary answers.
98.—(1.) Where a ground upon which a petitioner or respondent may seek a decree of dissolution of marriage or judicial separation arises after the petition was filed by the petitioner or an answer was filed by the respondent, as the case may be, the petitioner may, by filing a supplementary petition, or the respondent may, by filing a supplementary answer, as the case may be, seek appropriate relief of a kind referred to in paragraph (a) of the definition of “matrimonial cause”.
(2.) A supplementary petition shall be in accordance with Form 20.
(3.) A supplementary answer shall be in accordance with Form 21.
Contents of supplementary petition.
99.—(1.) In a supplementary petition, the facts, but not the evidence by which the facts are to be proved, upon which the court will be asked to make the decree sought by the supplementary petition shall be stated in as concise a form as the nature of the case allows.
(2.) A supplementary petition shall state the address and occupation, so far as known to the petitioner, of any person specified in the supplementary petition as a person with or on whom the respondent is alleged to have committed adultery, rape or sodomy.
(3.) Where the address, at the date of the supplementary petition, of a person referred to in the last preceding sub-rule is not known to the petitioner, the supplementary petition shall state that the address is not known to the petitioner and also state the last address (if any) of the person known to the petitioner.
(4.) Subject to sub-rule (6.) of this rule, the provisions of sub-rules (2.) and (3.) of rule 31 and of rules 37, 38, 40, 41, 42 and 44 of these Rules, in so far as they are applicable to the circumstances of the particular case, apply to and in relation to a supplementary petition for a decree of dissolution of marriage as if references in those provisions to a petition were references to a supplementary petition.
(5.) Subject to the next succeeding sub-rule, the provisions of sub-rules (2.) and (3.) of rule 31 and of rules 37, 38, 40 and 44 of these Rules, in so far as they are applicable to the circumstances of the particular case, apply to and in relation to a supplementary petition for a decree of judicial separation as if, in those provisions, references to a petition were references to a supplementary petition and references to a petition for a decree of dissolution of marriage were references to a supplementary petition for a decree of judicial separation.
(6.) It is not necessary to include in a supplementary petition any matter that is included in the petition.
(7.) In this rule, “the petition” means the petition instituting the proceedings in relation to which the supplementary petition is filed.
Contents of supplementary answer.
100.—(1.) In a supplementary answer, the facts, but not the evidence by which the facts are to be proved, upon which the court will be asked to make the decree sought by the supplementary answer shall be stated in as concise a form as the nature of the case allows.
(2.) A supplementary answer shall state the address and occupation, so far as known to the respondent, of any person specified in the supplementary answer as a person with or on whom the petitioner is alleged to have committed adultery, rape or sodomy.
(3.) Where the address, at the date of the supplementary answer, of a person referred to in the last preceding sub-rule is not known to the respondent, the supplementary answer shall state that the address is not known to the respondent and also state the last address (if any) of the person known to the respondent.
(4.) Subject to sub-rule (6.) of this rule, the provisions of sub-rules (2.) and (3.) of rule 31 and of rules 37, 38, 40, 41, 42 and 44 of these Rules, in so far as they are applicable to the circumstances of the particular case, apply to and in relation to a supplementary answer by which the respondent is seeking a decree of dissolution of marriage as if—
(a) references to a petition were references to a supplementary answer;
(b) references to a petitioner were references to the respondent to the petition; and
(5.) Subject to the next succeeding sub-rule, the provisions of sub-rules (2.) and (3.) of rule 31 and of rules 37, 38, 40 and 44 of these Rules, in so far as they are applicable to the circumstances of the particular case, apply to and in relation to a supplementary answer by which the respondent to a petition is seeking a decree of judicial separation as if—
(a) references to a petition were references to a supplementary answer;
(b) references to a petitioner were references to the respondent to the petition;
(c) references to the respondent were references to the petitioner; and
(d) references to a petition for a decree of dissolution of marriage were references to a supplementary answer by which the respondent to a petition is seeking a decree of judicial separation.
(6.) It is not necessary to include in a supplementary answer any matter that is included in the answer or the petition.
(7.) In this rule, “the answer” means the answer in the proceedings in relation to which the supplementary answer is filed and “the petition” means the petition in relation to which the answer is filed.
Condonation, connivance and collusion.
101.—(1.) A supplementary 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 or alleging facts relied on as constituting such a ground 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 supplementary petition instituting proceedings for a decree of dissolution of marriage or of judicial separation or alleging facts relied on as constituting a ground for the making of such a decree shall contain a statement that, in bringing the proceedings or alleging the facts, the petitioner has not been guilty of collusion with intent to cause a perversion of justice.
(3.) The preceding sub-rules of this rule apply in relation to a supplementary answer in like manner as they apply in relation to a supplementary petition and as if—
(a) references to the petitioner were references to the respondent; and
(b) references to a supplementary petition were references to a supplementary answer.
Particulars of other orders sought.
102.—(1.) Where a petitioner seeks—
(a) an award of damages under section 44 of the Act against a person specified in a supplementary petition as a person with whom the respondent is alleged to have committed adultery; or
(b) an order as to costs related to proceedings for the decree sought by a supplementary petition,
the supplementary petition shall set out particulars of the award (including the amount of damages) or order sought.
(2.) Where a respondent seeks—
(a) an award of damages under section 44 of the Act against a person with whom the petitioner is alleged to have committed adultery; or
(b) an order as to costs related to proceedings for the decree sought by a supplementary answer,
the supplementary answer shall set out particulars of the award (including the amount of damages) or order sought.
Service of supplementary petitions and supplementary answers.
103.—(1.) Subject to sub-section (2.) of section 121 of the Act, service of a supplementary petition shall be effected on—
(a) the respondent;
(b) each person (if any) specified in the supplementary petition as a person with or on whom the respondent is alleged to have committed adultery, rape or sodomy; and
(c) any other person who, being a party to the proceedings instituted by the petition, has an address for service for the purpose of those proceedings.
(2.) Service of a supplementary petition shall be effected on a person who has an address for service by serving a sealed copy of the supplementary petition on the person in the manner referred to in paragraph (c) of rule 60 of these Rules.
(3.) Service of a supplementary petition shall be effected on a person who does not have an address for service—
(a) by serving on the person, in the manner referred to in paragraph (a) of rule 60 of these Rules—
(i) a sealed copy of the supplementary petition; and
(ii) a notice of petition or a notice of proceedings, as the case requires, in relation to the supplementary petition; or
(b) by serving on the person in the manner referred to in paragraph (b) of rule 60 of these Rules—
(i) a sealed copy of the supplementary petition;
(ii) a notice of petition or a notice of proceedings, as the case requires, in relation to the supplementary petition;
(iii) a form, in accordance with Form 11, for acknowledging service of the supplementary petition; and
(iv) an envelope, being, in the case of service effected in Australia, a stamped envelope, having written on it the name of the petitioner or his solicitor and the address for service of the petitioner.
(4.) The preceding provisions of this rule apply in relation to a supplementary answer as if—
(a) references to a supplementary petition were references to a supplementary answer;
(b) references to the respondent were references to the petitioner;
(c) references to the petitioner were references to the respondent; and
(d) references to a notice of petition or a notice of proceedings, as the case requires, were references to a notice of proceedings.
Time for filing an answer to a supplementary petition or reply to a supplementary answer.
104.—(1.) The time limited for the filing of an answer to a supplementary petition is—
(a) in the case of a person on whom a notice of petition or notice of proceedings is served with the sealed copy of the supplementary petition—the time specified in that notice for the filing of an answer; and
(b) in the case of any other person on whom service of a supplementary petition is effected—fourteen days after service of the supplementary petition on the person.
(2.) The time limited for the filing of a reply to a supplementary answer is—
(a) in the case of a person on whom a notice of proceedings is served with the sealed copy of the supplementary answer— the time specified in that notice for the filing of a reply; and
(b) in the case of any other person on whom service of a supplementary answer is effected—fourteen days after service of the supplementary answer on the person.
Pleading to supplementary petition or supplementary answer.
For the purpose of Part VII., a supplementary petition shall be deemed to be a petition, and a supplementary answer shall be deemed to be an answer to a petition.
PART IX.—PARTIES.
Certain persons not parties to proceedings.
Subject to me Act, to these Rules and to any order made by a court upon the trial of proceedings or by a registrar upon the hearing of an application to a registrar, a person named in the title to a document instituting procedings, or making an application to a registrar, is not a party to the proceedings or application unless he is affected by the proceedings or application notwithstanding that he may be a party to related proceedings by reason of which he is so named.
How certain persons named become parties.
Where a person is entitled to intervene in proceedings under sub-section (2.) of section 45 of the Act, the person may intervene in the proceedings by filing, within the time limited for doing so—
(a) if the allegation by reason of which he is entitled to intervene is contained in a petition or supplementary petition—an answer to the petition or supplementary petition; or
(b) if that allegation is contained in an answer or a supplementary answer—a reply to the answer or supplementary answer.
Allegation of adultery or sodomy with person unknown.
108.—(1.) Where the petitioner alleges, in a petition for a decree of dissolution of marriage or of judicial separation, that the respondent has committed adultery or sodomy with or on a person whose name is unknown to the petitioner at the time of filing the petition, the suit shall not be set down for trial unless the court has made an order dispensing with the naming of the person.
(2.) The petitioner shall make application for an order under the last preceding sub-rule after service of the petition has been effected on the respondent or after such service has been dispensed with under sub-section (2.) of section 121 of the Act.
(3.) The affidavit in support of an application for an order under sub-rule (1.) of this rule shall state particulars of any enquiries made by the petitioner for the purpose of ascertaining the name of the person.
(4.) Service of an application for an order under sub-rule (1.) of this rule shall be effected on the respondent unless the court has dispensed with service of the petition on the respondent.
(5.) In this rule, “suit” has the same meaning as in Part XI. of these Rules.
(6.) The preceding sub-rules of this rule apply to and in relation to proceedings in which the respondent alleges, in an answer to a petition, that the petitioner has committed adultery or sodomy with or on a person whose name is unknown to the respondent at the time of filing the answer as if—
(a) references to the petitioner were references to the respondent;
(b) references to the petition were references to the answer; and
Amendment when name of adulterer, &c., becomes known.
109.—(1.) Where a petitioner who has, in a petition for a decree of dissolution of marriage or of judicial separation, alleged that the respondent has committed adultery or sodomy with or on a person whose name is unknown to the petitioner at the time of filing the petition becomes aware of the name of the person at any time before the making of the decree in the proceedings, the petitioner shall amend the petition accordingly.
(2.) Where a petition is amended in pursuance of the last preceding sub-rule—
(a) service of the amended petition shall be effected on the respondent and on the person to whom the amendment relates; and
(b) if the petitioner alleges in the petition that the respondent committed adultery with that person, that person becomes, subject to this Part, a party to the proceedings for a decree of dissolution of marriage or of judicial separation.
(3.) Where a respondent who has, in an answer to a petition, alleged that the petitioner has committed adultery or sodomy with or on a person whose name is unknown to the respondent at the time of filing the answer becomes aware of the name of the person at any time before the making of the decree in the proceedings in relation to which the answer was filed, the respondent shall amend the answer accordingly.
(4.) Where an answer is amended in pursuance of the last preceding sub-rule—
(a) service of the amended answer shall be effected on the petitioner and on the person to whom the amendment relates; and
(b) if the respondent alleges in the answer that the petitioner committed adultery with that person, that person becomes, subject to this Part, a party to any proceedings for a decree of dissolution of marriage or of judicial separation instituted by the petition or answer.
(5.) These Rules apply in relation to the service of an amended petition or an amended answer on the person to whom the amendment relates in like manner as they apply to the service of a petition or answer on a person.
(6.) An amendment of a petition or answer in pursuance of this rule—
(a) may be made without the leave of a court or registrar; and
(b) does not count as an amendment for the purpose of sub-rule (1.) of rule 91 of these Rules.
(7.) Where a petition or answer is amended in pursuance of this rule, service of the amended petition or amended answer shall be effected on the respondent or petitioner, as the case may be, but need not be effected on any other person on whom service of the petition or answer, as the case may be, has been effected before it was so amended.
(8.) Subject to this rule, the provisions of Division 1 of Part VIII. apply to and in relation to an amendment made in pursuance of this rule.
Death of adulterer.
110.—(1.) Nothing in sub-section (1.) of section 45 of the Act requires a deceased person to be made a party to proceedings.
(2.) Where, in proceedings for a decree of dissolution of marriage or of judicial separation, a co-respondent, party cited or party named dies after the institution of the proceedings or the filing of the answer, as the case may be, but before the making of a decree in the proceedings, the petitioner shall
amend the petition, or the respondent shall amend the answer, by alleging in the petition or answer the death of the person and the date on which he died.
(3.) Where a petition or answer is amended in pursuance of the last preceding sub-rule to allege the death of a person who is, at the date of the amendment, a party to the proceedings, the person alleged to have died ceases to be a party to the proceedings and the title to the proceedings and record of the proceedings shall be deemed to have been amended accordingly.
(4.) An amendment of a petition or answer in pursuance of this rule—
(a) may be made without the leave of the court or a registrar; and
(b) does not count as an amendment for the purposes of sub-rule (1.) of rule 91 of these Rules,
and the provisions of Division 1 of Part VIII. do not apply to or in relation to the amendment.
(5.) A petitioner who amends a petition, or a respondent who amends an answer, in accordance with the provisions of this rule shall, as soon as possible after the amendment is made, inform the registrar of the nature of the amendment made by him to the petition or answer and also give notice of the amendment, including a copy of each amended paragraph or new paragraph in the petition or answer, to each party to the proceedings who has an address for service for the purpose of the proceedings.
(6.) Proceedings do not abate upon the death of a co-respondent, party cited or party named but the court shall not make a finding of adultery or sodomy, as the case may be, against such a party who has died.
Certain infants are not parties to proceedings.
111.—(1.) Where—
(a) in a petition for a decree of dissolution of marriage or of judicial separation—the respondent; or
(b) in an answer to such a petition or in an answer by which proceedings for such a decree are instituted—the petitioner,
is alleged to have committed adultery with a specified person who, at the date of the petition or answer, is under the age of fourteen years, whether or not such a decree is sought on the ground of the adultery, the person shall not be made a party to the proceedings except in accordance with the next succeeding sub-rule, but service of the petition or answer, as the case may be, shall be duly effected on the infant.
(2.) A person under the age of fourteen years with whom a petitioner or respondent is alleged to have committed adultery may intervene in the proceedings by filing, within the time limited for doing so—
(a) if the allegation is contained in a petition—an answer to the petition; or
(b) if the allegation is contained in an answer—a reply to the answer,
and shall then be deemed to have become a party to the proceedings.
(3.) In this rule—
Incest with infant.
112.—(1.) Where—
(a) in a petition instituting proceedings for a decree of dissolution of marriage or of judicial separation—the respondent;
(b) in an answer to a petition instituting proceedings for such a decree—the petitioner; or
(c) in an answer instituting proceedings for such a decree—the petitioner,
is alleged to have committed adultery, whether or not such a decree is sought on the ground of the adultery, with a person (in this rule referred to as “the infant”) who, at the date of the petition or answer, as the case may be, is under the age of twenty-one years and is, if the respondent or petitioner is a male person, a descendant or sister of, or a female child adopted by, the respondent or petitioner, as the case may be, or, if the respondent or petitioner is a female person, a descendant or brother of, or a male child adopted by, the respondent or petitioner, as the case may be, this rule applies to those proceedings.
(2.) Where this rule applies to proceedings, the infant shall not be made a party to the proceedings except in accordance with this rule, but service of the petition or answer, as the case may be, shall be duly effected on the infant.
(3.) Where this rule applies to proceedings by reason of the fact that an allegation referred to in sub-rule (1.) of this rule is included in a petition, the petitioner shall, before service of the petition on any person, make application to the court for leave to serve the petition notwithstanding that the infant is not a party to the proceedings.
(4.) Where this rule applies to proceedings by reason of the fact that an allegation referred to in sub-rule (1.) of this rule is included in an answer, the respondent shall, before service of the answer on any person, make application to the court for leave to serve the answer notwithstanding that the infant is not a party to the proceedings.
(5.) An application referred to in either of the last two preceding sub-rules may be made ex parte.
(6.) Upon application made to a court under sub-rule (3.) or (4.) of this rule, the court shall—
(a) if it is satisfied that it is in the interest of the infant that he should not be a party to the proceedings—by order, grant to the petitioner leave to serve the petition, or grant to the respondent leave to serve the answer, as the case may be, notwithstanding that the infant is not a party to the proceedings; or
(b) if it is not so satisfied—by order, direct that the infant shall be made a party to the proceedings.
(7.) Where a court makes an order under the last preceding sub-rule, the court may also, by order, specify an adult person on whom service of the petition or answer may be effected, and, for the purpose of sub-rule (1.) of rule 69 of these Rules, service of the petition or answer on the person so specified shall be deemed to be service on a person referred to in paragraph (b) of that sub-rule.
(8.) Where, in proceedings to which this rule applies, a court has granted leave to serve a petition or answer notwithstanding that the infant is not a party to the proceedings, the infant may intervene in the proceedings by filing, within the time limited for doing so after service of the petition or answer on the infant, an answer to the petition or a reply to the answer, as the case requires.
(9.) Where a court has directed that the infant shall become a party to the proceedings, the petitioner shall amend the title of the petition or the respondent shall amend the title of the answer, accordingly, and the infant shall then be deemed to have been made a party to the proceedings.
(10.) For the purpose of sub-rule (1.) of this rule, it is immaterial whether the relationship is of the whole blood or half-blood, or whether it is traced through or to any person of illegitimate birth.
(11.) In this rule—
Division 2.—Infants.
Institution of proceedings by infants.
113.—(1.) Where an infant desires to institute proceedings in a matrimonial cause, a person may, on behalf of the infant, institute the proceedings.
(2.) Proceedings referred to in the last preceding sub-rule shall, unless the court otherwise orders, be deemed to be void and of no effect unless the person instituting them has been elected or appointed to be the guardian ad litem of the infant for the purpose of the proceedings—
(a) in the case of proceedings for a decree of a kind referred to in paragraph (a) of the definition of “matrimonial cause” —before service of the petition has been effected on any person;
(b) in the case of proceedings, being an application for leave to institute proceedings for such a decree—before the hearing of that application; or
(c) in any other case—before service of the application instituting the proceedings has been effected on any person.
Infant respondents, &c.
114.—(1.) Subject to sub-rule (4.) of this rule, where the respondent or a co-respondent in proceedings instituted by a petition, or a person named in a petition, is an infant, a guardian ad litem may, on behalf of the infant, file an answer to the petition or, if he does not desire to file an answer but desires to take any other action in the proceedings on behalf of the infant, file a notice of address for service.
(2.) Subject to sub-rule (4.) of this rule, where a party cited in proceedings, or a person named in an answer, is an infant, a guardian ad litem may, on behalf of the infant, file a reply to the answer or, if he does not desire to file a reply but desires to take any other action in the proceedings on behalf of the infant, file a notice of address for service.
(3.) A guardian ad litem of an infant who has an address for service for the purpose of proceedings may take such further action in and in relation to the proceedings on behalf of the infant as the guardian thinks fit and the infant might have taken if he had been of full age.
(4.) Where a co-respondent, party cited or person named is an infant, it is not necessary for a guardian ad litem to be elected or appointed in order that the infant may file an answer or reply or take any other action in relation to the proceedings, but the infant may file the answer or take the action either by his solicitor or in person.
Intervention by infant.
A guardian ad litem may apply for leave to intervene, and may intervene, under Part VII. of the Act, in proceedings on behalf of an infant.
Application of these Rules to infants.
116.—(1.) Where an infant is a party to proceedings, references in these Rules to an affidavit of the party shall, notwithstanding that a guardian ad litem of the infant has been elected or appointed, be read as references to an affidavit sworn by the infant,
(2.) The court may, in a particular case, order that an affidavit required by or under these Rules to be sworn by a party to proceedings who is an infant be sworn by the guardian ad litem of the infant.
Division 3.—Persons of Unsound Mind.
Definition.
In this Division, “committee” means committee of the person.
Institution of proceedings by persons of unsound mind.
118.—(1.) Proceedings in a matrimonial cause may be instituted on behalf of a person of unsound mind—
(a) if there is a committee of the person of unsound mind who is able and willing to act for the person of unsound mind in connexion with the proceedings—by that committee;
(b) if the Attorney-General or an authorized person files a consent under rule 124 of these Rules—by the Attorney-General or the authorized person; or
(c) in any other case—by a person intending to apply for appointment as guardian ad litem.
(2.) Where proceedings referred to in the last preceding sub-rule are instituted by a committee of a person of unsound mind, the committee shall be deemed, for the purpose of this Part, to be the guardian ad litem of the person of unsound mind for the purpose of the proceedings.
(3.) Where proceedings referred to in sub-rule (1.) of this rule are instituted by a person referred to in paragraph (c) of that sub-rule, the proceedings shall, unless the court otherwise orders, be deemed to be void and of no effect unless the person has been appointed to be the guardian ad litem of the person of unsound mind for the purpose of the proceedings—
(a) in the case of proceedings for a decree of a kind referred to in paragraph (a) of the definition of “matrimonial cause”— before service of the petition has been effected on any person;
(b) in the case of proceedings, being an application for leave to institute proceedings for such a decree—before the hearing of that application; or
(c) in any other case—before service of the application instituting the proceedings has been effected on any person.
Respondents, &c, who are persons of unsound mind.
119.—(1.) Where the respondent or a co-respondent in proceedings instituted by a petition, or a person named in a petition, is a person of unsound mind, a committee of the person of unsound mind or a guardian ad litem may, on behalf of the person of unsound mind, file an answer to
the petition or, if he does not desire to file an answer but desires to take other action in the proceedings on behalf of the person of unsound mind, file a notice of address for service.
(2.) Where a party cited in proceedings, or a person named in an answer, is a person of unsound mind, a committee of the person of unsound mind or a guardian ad litem may, on behalf of the person of unsound mind, file a reply to the answer or, if he does not desire to file a reply but desires to take other action in the proceedings on behalf of the person of unsound mind, file a notice of address for service.
(3.) A committee of a person of unsound mind or a guardian ad litem of a person of unsound mind who has an address for service for the purpose of proceedings may take such further action in and in relation to the proceedings on behalf of the person as the committee or guardian thinks fit and the person might have taken if he had not been of unsound mind.
Intervention by person of unsound mind.
A committee or guardian ad litem of a person of unsound mind may apply for leave to intervene, and may intervene, under Part VII. of the Act in proceedings on behalf of the person of unsound mind.
Application of these Rules to persons of unsound mind.
121.—(1.) Where a person of unsound mind is a party to proceedings, references in these Rules to an affidavit of the party shall be read as references to an affidavit sworn by the guardian ad litem of the party, or by the person who is deemed, for the purpose of this Part, to be the guardian ad litem of the party, as the case may be.
(2.) The court may, in a particular case, order that an affidavit required by or under these Rules to be sworn by the guardian ad litem of a party to proceedings who is a person of unsound mind be sworn by the party.
Division 4.—Guardians ad litem.
Election of guardian by infant.
122.—(1.) Subject to the next succeeding sub-rule, an infant may, by signing an election in accordance with Form 22, elect his father, mother or legal guardian to be his guardian ad litem for the purpose of proceedings.
(2.) An election referred to in the last preceding sub-rule is not effective until it is filed.
(3.) An election referred to in sub-rule (1.) of this rule shall have written on it the consent of the father, mother or legal guardian, as the case may be, to act as guardian ad litem of the infant for the purpose of the proceedings.
Appointment of friend of infant as guardian ad litem.
123.—(1.) Where an infant desires some person other than his father, mother or legal guardian to be his guardian ad litem for the purpose of proceedings—
(a) the infant may consent, in writing, to the person being appointed to be his guardian ad litem for the purpose of the proceedings; and
(b) when the infant has done so, that person may make application to a registrar to be appointed the guardian ad litem of the infant for that purpose.
(2.) There shall be filed in support of an application for appointment as guardian ad litem of an infant—
(a) an affidavit by the applicant setting forth the reasons why the infant did not elect his father, mother or legal guardian to be his guardian ad litem; and
(b) an affidavit by a credible person deposing to the fitness of the applicant to act as guardian ad litem of the infant.
(3.) The consent referred to in paragraph (a) of sub-rule (1.) of this rule shall be annexed to the affidavit of the applicant in support of the application, and the signature appearing on that consent shall be verified as the signature of the infant by the affidavit of a person (who may be the applicant) conversant with the signature of the infant.
(4.) An application under this rule may be made ex parte.
(5.) Where, upon application made under this rule, the registrar is satisfied that the applicant is a fit and proper person to act as the guardian ad litem of the infant in the proceedings or proposed proceedings and that it is desirable that he be appointed so to act, the registrar shall appoint the applicant accordingly.
Attorney-General may act as guardian of person of unsound mind.
124.—(1.) Where the Attorney-General or an authorized person signs a consent, in accordance with Form 23, to act as the guardian ad litem of a party to proceedings or proposed proceedings who is detained in an institution where persons may be confined for unsoundness of mind in accordance with law or who is receiving treatment as a voluntary patient in such an institution, the consent may be filed and the Attorney-General or authorized person, as the case may be, then becomes the guardian ad litem of the person for the purpose of the proceedings or proposed proceedings.
(2.) A person desiring to intervene in proceedings shall be deemed, for the purpose of the last preceding sub-rule, to be a party to the proceedings notwithstanding that the person has not intervened in the proceedings.
(3.) The Governor-General may make arrangements with the Governor of a State for the performance of the functions of an authorized person under this rule by any of the persons who from time to time hold an office of the State specified in an arrangement.
(4.) The Attorney-General may, by writing under his hand, appoint a person (including a corporation sole) to be an authorized person for the purposes of this rule either generally or in respect of a particular person of unsound mind.
(5.) Notice—
(a) of an arrangement under sub-rule (3.) of this rule; or
(b) of an appointment, not being an appointment in respect of a particular person of unsound mind, under the last preceding sub-rule,
shall be published in the Gazette.
Appointment of friend as guardian of person of unsound mind.
125.—(1.) Where—
(a) a party to proceedings is a person of unsound mind;
(b) the Attorney-General or an authorized person has not filed a consent under the last preceding rule to act as the guardian ad litem of the party for the purpose of the proceedings; and
(c) there is no committee of the party who is able and willing to act for the party,
a fit and proper person may apply to a registrar to be appointed the guardian ad litem of the party for that purpose.
(2.) In the last preceding sub-rule, a reference to a party to proceedings shall be read as including a reference to a person desiring to intervene in the proceedings.
(3.) There shall be filed in support of an application under this rule an affidavit by a credible person deposing to the fitness of the applicant to act as guardian ad litem of the person of unsound mind.
(4.) An application under this rule may be made ex parte.
(5.) Where, upon application made under this rule, the registrar is satisfied that the applicant is a fit and proper person to be appointed to be the guardian ad litem of the person of unsound mind for the purpose of the proceedings and that it is desirable that he be appointed so to act, the registrar shall appoint the applicant accordingly.
(6.) In this rule, “committee” means committee of the person.
Appointment of guardian in other circumstances.
126.—(1.) Where a person who is a party to proceedings or who desires to intervene in proceedings is an infant or a person of unsound mind, the court may, at any stage of the proceedings, if it considers it advisable so to do, appoint a fit and proper person to be the guardian ad litem of the person for that purpose.
(2.) An appointment under this rule may be made by the court upon application by another party to the proceedings, by a person willing and able to act as the guardian ad litem of the person or by the court of its own motion.
Appointment of Public Trustee to be guardian of persons of unsound mind.
A corporation sole authorized under the law of a State to be appointed, or to act as, the guardian ad litem or next friend of a person of unsound mind may make application under either of the last two preceding rules to be appointed, and may be appointed, to be the guardian ad litem of a person of unsound mind for the purpose of proceedings.
Removal of guardian ad litem.
The court may, subject to such conditions as the court thinks fit, remove a person from the office of guardian ad litem of an infant or person of unsound mind if—
(a) the person makes application to retire from the office; or
(b) the court considers that it is desirable that the person should be removed from the office.
Notice of appointment of guardian ad litem.
129.—(1.) Subject to sub-rule (4.) of this rule, a person who becomes the guardian ad litem of the respondent or a co-respondent in proceedings instituted by a petition, or of a person named in a petition, shall serve notice of the fact on the petitioner.
(2.) Subject to sub-rule (4.) of this rule, a person who becomes the guardian ad litem of a party cited in proceedings, or of a person named in an answer, shall serve notice of the fact on the petitioner and the respondent.
(3.) Notice that a person has become a guardian ad litem shall be served on the day on which the person becomes the guardian ad litem or on the next following day.
(4.) Where an order appointing a person to be a guardian ad litem is made upon the application of a party to proceedings, it is not necessary for the notice required by sub-rule (1.) or (2.) of this rule to be served on that party.
Solicitor acting as guardian.
Where a solicitor is the guardian ad litem of a party to proceedings, neither that solicitor nor a partner of that solicitor shall act in the proceedings as the solicitor for the party.
PART X.—DEFAULT IN PLEADING.
Effect of failure to file pleading within due time.
131.—(1.) Where a pleading is filed on behalf of a party to proceedings after the time limited for the filing of the pleading has expired, any other party to the proceedings may, subject to these Rules, continue the proceedings as if the pleading had not been filed unless—
(a) the party filing the pleading in answer to which the first-mentioned pleading was filed consented to, or waived objection to, the late filing of the pleading; or
(b) a court otherwise orders.
(2.) Consent to the filing of a pleading after the expiration of the time limited for the filing of the pleading shall be endorsed on the pleading and signed—
(a) if the party on whose behalf the pleading is being filed is represented by a solicitor—by that solicitor; or
(b) if the party is not so represented—by the party.
Default of pleading by infant or person of unsound mind.
132.—(1.) Where—
(a) the respondent to a petition is an infant or person of unsound mind;
(b) service of the petition has been duly effected on the respondent; and
(c) an answer has not been duly filed by or on behalf of the respondent,
the petitioner shall not continue the proceedings instituted by the petition, or institute in relation to those proceedings any proceedings of a kind referred to in paragraph (c) or (d) of the definition of “matrimonial cause”, unless—
(d) a person has become the guardian ad litem of the respondent for the purpose of the proceedings; and
(e) the time limited for the filing of an answer by the guardian ad litem has expired.
(a) an infant or person of unsound mind is specified in a petition as a person with or on whom the respondent has committed adultery, rape or sodomy;
(b) service of the petition has been duly effected on the person so specified; and
(c) an answer has not been duly filed by or on behalf of the person so specified,
the petitioner shall not continue the proceedings for a decree of a kind referred to in paragraph (a) of the definition of “matrimonial cause” instituted by the petition unless—
(d) a person has become the guardian ad litem of the person so specified for the purpose of the proceedings; and
(e) the time limited for the filing of an answer by the guardian ad litem has expired.
(3.) Where—
(a) an infant or person of unsound mind is specified in an answer to a petition as a person with or on whom the petitioner has committed adultery, rape or sodomy;
(b) service of the answer has been duly effected on the person so specified; and
(c) a reply has not been duly filed by or on behalf of the person so specified,
neither the petitioner nor the respondent shall continue the proceedings for a decree of a kind referred to in paragraph (a) of the definition of “matrimonial cause” instituted by the petition, or proceedings (if any) for such a decree instituted by the answer, unless—
(d) a person has become the guardian ad litem of the person for the purpose of the proceedings; and
(e) the time limited for the filing of a reply by the guardian ad litem has expired.
(4.) A petitioner or respondent shall not be deemed to continue proceedings for the purpose of any of the preceding sub-rules of this rule by reason of his—
(a) making application for the appointment of a person to be the guardian ad litem of the infant or person of unsound mind for the purpose of those proceedings; or
(b) amending or making application for leave to amend the petition or answer by omitting the allegations contained in the petition or answer relating to the infant or person of unsound mind.
Time for filing answer or reply by guardian.
Where a person becomes the guardian ad litem of an infant or person of unsound mind who is the respondent, a co-respondent or a party cited in proceedings, or desires to intervene in proceedings, the guardian ad litem has the like time, after he becomes the guardian ad litem, for filing an answer or reply, as the case requires, for the purpose of the proceedings as the infant or person of unsound mind had after service on him of the petition or answer in the proceedings.
PART XI.—PREPARATION FOR TRIAL.
Division 1.—Preliminary.
In this Part—
“defended suit” means—
(a) a suit for the purposes of which an answer has been duly filed; or
(b) a suit that includes proceedings instituted by application to the court under sub-rule (2.) or (3.) of rule 16 of these Rules, if a party has duly filed an affidavit in reply to the affidavit filed in support of that application;
“suit” means the proceedings instituted by a petition and includes any proceedings—
(a) instituted by a supplementary petition filed in relation to that petition;
(b) instituted by an answer or supplementary answer to that petition or to a supplementary petition so filed; or
(c) ordered by the court under rule 170 of these Rules, or deemed by rule 198 or 218 of these Rules, to have been consolidated with any proceedings so instituted,
but does not include proceedings for an order pending the disposal of other proceedings;
“undefended suit” means a suit other than a defended suit.
Application to persons of unsound mind.
Where a person of unsound mind is a party to proceedings, this Part applies as if references to the party were references to the guardian ad litem of the party.
Time when pleadings in a defended suit complete.
136.—(1.) Where the respondent or a co-respondent in a defended suit has filed an answer to the petition, the pleadings shall not be deemed to be complete for the purposes of this Part unless the pleadings between the petitioner and the respondent are complete and, in addition, the pleadings between the petitioner and each co-respondent (if any) are complete.
(2.) Where the respondent in a defended suit alleges, in an answer or supplementary answer to the petition, that the petitioner has committed adultery, rape or sodomy with or on a specified person, whether or not a decree of dissolution of marriage or of judicial separation is sought on the ground of the adultery, rape or sodomy, the pleadings shall not be deemed to be complete for the purposes of this Part unless the pleadings between the respondent and each such person are complete.
(3.) Where the petitioner in a defended suit has filed a supplementary petition, the pleadings shall not be deemed to be complete for the purposes of this Part unless the pleadings in relation to the petition are complete and, in addition, the pleadings in relation to the supplementary petition are complete.
(4.) For the purposes of this rule, the pleadings between two parties are complete—
(a) if a pleading filed on behalf of one of those parties in reply to a pleading filed on behalf of the other party does not contain any allegations of fact;
(b) if the time limited for the filing, on behalf of one of those parties, of a pleading in reply to a pleading filed on behalf of the other party has expired and the pleading in reply has not been filed; or
(c) if a court has, under sub-section (2.) of section 121 of the Act, dispensed with service of a pleading, being the petition or answer in the proceedings, on one of those parties.
Division 2.—Particulars, Discovery and Inspection of Documents.
Particulars.
137.—(1.) A person on whom service of a pleading has been effected, being a person who is a party to the proceedings for the purpose of which the pleading was filed or who is entitled to intervene in the proceedings under sub-section (2.) of section 45 of the Act or under rule 111 or 112 of these Rules, may serve on the party on whose behalf the pleading was filed a request to give further particulars of an allegation in the pleading.
(2.) A party on whom a request under the last preceding sub-rule is served shall, within ten days after service of the request on him, give to the person who served the request—
(a) the further particulars of the allegation requested or the grounds on which he objects to giving, or is unable to give, the further particulars; or
(b) such further particulars of the allegation as he is willing and able to give and the grounds on which he objects to giving, or is unable to give, any other particulars of the allegation.
(3.) The court may, upon application made by a person who has served a request under sub-rule (1.) of this rule for further particulars of an allegation in a pleading or who is entitled to serve such a request, order the party on whose behalf the pleading was filed to give further particulars of an allegation in the pleading within a time specified in the order, and may further order—
(a) that the party shall not continue the proceedings until the further particulars are given or the court otherwise orders; or
(b) that, if further particulars of the allegation are not given within the time so specified, the allegation be struck out of the pleading.
(4.) Further particulars of an allegation in a pleading shall be given by a party, whether in pursuance of a request or of an order, by filing an affidavit to which a document containing the further particulars is annexed, being an affidavit by which the party—
(a) verifies the facts contained in the further particulars of which he has personal knowledge; and
(b) deposes as to his belief in the truth of every other fact contained in the further particulars,
and by serving a copy of that affidavit on the person who requested the particulars or to whom the particulars were ordered to be given, as the case may be.
(5.) Where further particulars are given in pursuance of a request, a copy of the request shall be annexed to the affidavit filed in pursuance of the last preceding sub-rule.
(6.) Where the court makes an order under sub-rule (3.) of this rule, the court shall not make an order with respect to the costs of the application in favour of the applicant unless the court is satisfied—
(a) that the application was made in a case of urgency; or
(b) that the applicant had served on the party on whose behalf the pleading was filed a request under sub-rule (1.) of this rule and that that party—
(i) failed to comply with the provisions of sub-rule (2.) of this rule; or
(ii) complied with those provisions by stating that he objected to giving, or was unable to give, some or all of the further particulars requested.
Discovery.
138.—(1.) A party to proceedings who has filed a pleading for the purpose of the proceedings may, after the pleadings in the proceedings have been completed and before the proceedings have been set down for trial, serve on another party to the proceedings a request to make discovery on oath of the documents that are or have been in his possession, custody or power relating to any matter in question in the proceedings.
(2.) For the purposes of the last preceding sub-rule, a person who has intervened in proceedings under Part VII. of the Act shall be deemed to be a party to the proceedings who has filed a pleading for the purpose of the proceedings.
(3.) A request under this rule shall be in accordance with Form 24.
(4.) A party to proceedings on whom a request under this rule has been served shall make discovery of documents by filing an affidavit of discovery, and serving a copy of the affidavit on the party who made the request, within ten days after service of the request on him.
(5.) Upon application made to a court by a party to proceedings who has duly served a request under this rule or is entitled to serve such a request, the court may make such order for the filing of an affidavit of discovery as the court considers necessary in order to dispose fairly of the matters in question or to save costs in the proceedings.
(6.) Where the court makes an order under the last preceding sub-rule, the court shall not make an order with respect to the costs of the application in favour of the applicant unless the court is satisfied—
(a) that the application was made in a case of urgency; or
(b) that the applicant had served a request under this rule on the party ordered to make discovery and that that party refused or failed to comply with the provisions of sub-rule (4.) of this rule.
(7.) Where an order has been made requiring a person to file an affidavit of discovery, the person shall, within ten days of the date of the order or within such other time as the court orders, file the affidavit and serve a copy of the affidavit on the applicant for the order.
Affidavit of discovery.
139.—(1.) Subject to any order made under the last preceding rule in a particular case, a party’s affidavit of discovery shall—
(a) specify the documents relating to matters in question in the proceedings that are in the possession, custody or power of the party;
(b) specify the documents relating to matters in question in the proceedings that are not but have been in the possession, custody or power of the party and state, to the best of the knowledge and belief of the party, whether they are still in existence and, if so, who has possession of them;
(c) specify the documents that he objects to produce upon the ground that the documents are—
(i) professional communications of a confidential character made to the party by his counsel or solicitor, or made by the party to his counsel or solicitor, for the purpose of giving him legal advice;
(ii) cases for the opinion of counsel, instructions to counsel or opinions of counsel prepared and given in anticipation of or during the progress of the proceedings;
(iii) letters or copies of letters from the party to his solicitor, from the solicitor to the party or from his solicitor to another person in anticipation of or during the progress of the proceedings; or
(iv) drafts or memoranda made by the counsel or solicitor to the party for the purpose of the proceedings;
(d) specify the documents that he objects to produce on any other ground and the ground on which he so objects; and
(e) state that he has not at the time of swearing the affidavit and has never had in his possession, custody or power, or in the possession, custody or power of a solicitor, agent or other person on his behalf—
(i) any deed, account, book of account, voucher, receipt, letter, memorandum, paper or writing that relates to matters in question in the proceedings or in which an entry relating to such a matter has been made; or
(ii) a copy of or extract from any such deed, account, book of account, voucher, receipt, letter, memorandum, paper or writing,
that is not specified in the affidavit.
(2.) In an affidavit of discovery it is not necessary to specify each letter from a person to another person, but it is sufficient to specify the number of letters from the person to the other person and the dates of the first such letter and last such letter, respectively.
(3.) Where the specifying in an affidavit of discovery of documents in respect of which privilege is claimed would derogate from the privilege attaching to documents, it is not necessary to specify each of the documents in the affidavit but it is sufficient if—
(a) the documents are tied in a bundle that is marked as an exhibit to the affidavit and are referred to in the affidavit as the documents in that bundle;
(b) the number of documents in that bundle is stated in the affidavit; and
(c) the documents in that bundle are numbered consecutively and each of those documents is initialled by the person before whom the affidavit is sworn.
(4.) An affidavit of discovery shall be in accordance with Form 25.
Discovery of particular document.
140.—(1.) The court may, upon application made by a party to proceedings, order another party to make discovery, on oath, whether a document, or a document included in a class of documents, specified in the order is or has been in the possession, custody or power of the party and, if the document is not but has been in the possession, custody or power of the party, when the party parted with the document and to whom he gave the document.
(2.) An order shall not be made under the last preceding sub-rule unless the applicant for the order has, in an affidavit filed in support of the application, deposed that he believes that the party has, or has had, the document, or a document included in the class of documents, in his possession, custody or power and that the document relates to a matter in question in the proceedings, and has set forth in the affidavit the grounds on which he so believes.
(3.) An order may be made under sub-rule (1.) of this rule whether or not an affidavit of discovery has been filed by the party to whom the order is directed and whether or not that party has been requested or ordered under rule 138 of these Rules to file such an affidavit.
Failure to discover document.
Where—
(a) a party to proceedings has filed an affidavit of discovery;
(b) a document relating to matters in question in the proceedings was, at the time the party swore the affidavit, in the possession, custody or power of the party or such a document was not at that time, but had been, in the possession, custody or power of the party; and
(c) the document was not specified or referred to in that affidavit of discovery or in another affidavit of discovery filed by the party in pursuance of an order of the court,
the party is not entitled, except by leave of the court, to put the document or a copy of the document in evidence, or to furnish or cause to be furnished evidence of the document, at the trial of the proceedings.
Inspection of documents.
142.—(1.) Subject to the next succeeding sub-rule, a party to proceedings may, by notice in writing to another party, request the other party to produce, for inspection by the party giving the notice, a document specified in the notice, being a document that is referred to in a pleading or affidavit filed on behalf of that other party or in further particulars given by that party in pursuance of a request or order under rule 137 of these Rules.
(2.) A document referred to in an affidavit of discovery filed on behalf of a party shall not be specified in a notice given to the party under the last preceding sub-rule if, in the affidavit, the party—
(a) objected to producing the document on a ground stated in the affidavit; or
(b) stated that the document was not in his possession, custody or power.
(3.) A party to whom a notice under the last preceding rule has been given shall, within four days after receipt of the notice, specify, in writing to the party who gave the notice—
(a) the ground on which he objects to the production of a document specified in the notice; or
(b) the time and place at which he will produce the document for inspection.
(4.) A document produced for inspection in pursuance of a notice under sub-rule (1.) of this rule may be inspected and copied by the party to whom it is produced or by his solicitor.
(5.) Where a party to proceedings to whom a notice to produce a document has been given under sub-rule (1.) of this rule fails to produce the document for inspection and copying, the party is not entitled, except by leave of the court, to put the document or a copy of the document in evidence, or to furnish or cause to be furnished evidence of the document, at the trial of the proceedings.
Order for production of documents generally.
143.—(1.) The court may, upon application made by a party to proceedings who has duly served a request under the last preceding rule or who is entitled to serve such a request, order another party to the proceedings to produce, at such time and place as the court thinks fit and specifies in the order, a document that was specified or could be specified in such a request.
(2.) Where the court makes an order for the production of a document by a party under the last preceding sub-rule, the court shall not make an order with respect to the costs of the application in favour of the applicant unless the court is satisfied that—
(a) the application was made in a case of urgency; or
(b) the applicant had requested the party to produce the document under the last preceding sub-rule and the party—
(i) did not comply with sub-rule (3.) of that rule;
(ii) objected to produce the document;
(iii) specified a time for the production of the document that was more than ten days after the making of the request;
(iv) did not specify a place at which he would produce the document—
(a) that, in the case of a document, being a book in constant use for the purposes of trade or business, is the place at which the book is usually kept; or
(b) that, in the case of any other document, is the office of the solicitor (if any) representing the applicant or is a place that is not more than five miles from the office of the court; or
(v) did not produce the document at the time and place specified.
Order for production of particular documents.
144.—(1.) Where a court is satisfied that a document relevant to a matter in question in proceedings is in the possession, custody or power of a party to the proceedings and that the party is not excused by law from producing the document for inspection by another party, the court may order the first-mentioned party to produce the document, at a time and place specified in the order, for inspection by that other party.
(2.) An order under the last preceding sub-rule shall not be made in respect of a document that could be specified in a notice under rule 142 of these Rules.
Copies of certain books.
145.—(1.) Instead of ordering a party to proceedings to produce a book used for the purposes of trade or business, a court may order the party to furnish a copy of an entry in the book verified as a true copy of the entry by the affidavit of a person who has compared the copy with the entry of which it purports to be a copy.
(2.) Where an entry in a book contains an erasure, alteration or interlineation and a copy of the entry is furnished in pursuance of an order referred to in the last preceding sub-rule, the copy shall be deemed not to have been verified as a true copy of the entry unless particulars of the erasure, alteration or interlineation are clearly shown in the copy or set forth in the affidavit of the person who compared the copy with the entry of which it purports to be a copy.
(3.) An order for the production of a book may be made by a court notwithstanding that a copy of an entry in the book has been furnished in pursuance of an order of the court.
Privilege.
146.—(1.) A party to proceedings who is requested or ordered under these Rules to make discovery of documents or to produce documents is not excused from making discovery of or producing a particular document by reason only of the fact—
(a) that the document relates solely to, and does not tend to impeach, the case of the party and that the document does not relate to, or tend to support, the case of the party to whom the discovery of documents is to be made or documents are to be produced, as the case may be;
(b) that there is, in the document, an admission by the party that he has committed adultery proof of which would be material to the decision in the suit; or
(c) that there is, in the document, any statement or other matter tending to show that the party has committed adultery proof of which would be material to the decision in the suit.
(2.) Where, upon application for an order for the production of documents, a respondent to the application claims that he is excused, by reason of privilege, from producing a particular document, the court may require the respondent to produce that document to the court, and the court may inspect the document for the purpose of determining whether the respondent is so excused.
Non-compliance with order for discovery, &c.
Where a party to proceedings fails to comply with an order to give particulars, to file an affidavit of discovery, to make discovery or to produce documents, the court may order that—
(a) if the party is the petitioner—the proceedings instituted by the petition be stayed or dismissed for want of prosecution;
(b) if the party is the respondent—any proceedings instituted by him by an answer to the petition, and any other proceedings instituted by him in relation to proceedings instituted by the petition, be stayed or dismissed for want of prosecution; or
(c) if the party is any other party—his answer or reply, as the case may be, be struck out.
Interrogatories.
An order shall not be made by a court or a registrar authorizing the delivery of interrogatories in writing for the examination of a person.
Division 3.—Admissions and Notices to Produce.
Admission of facts.
149.—(1.) A party to proceedings may file an admission of the truth of a fact alleged in the proceedings by another party.
(2.) Where a party files an admission under the last preceding sub-rule, a copy of the admission shall be served on each other party to the proceedings who has filed a pleading for the purpose of the proceedings.
Notice to admit documents.
150.—(1.) A party to proceedings may at any time not later than ten days before the trial of the proceedings, by notice, in accordance with Form 26, served on another party to the proceedings, call upon that other party to make the admissions with respect to a document that are indicated in that form, and that other party may, by notice served on the first-mentioned party, make such of those admissions as he is willing to make.
(2.) If the other party desires to challenge the authenticity of the document, the party shall, within seven days after service on him of the notice to admit, serve on the party giving the notice a notice that he does not admit the document and requires it to be proved at the trial.
(3.) If the other party refuses or fails to serve notice under the last preceding sub-rule within the time prescribed by that sub-rule and fails to serve, before the trial of the proceedings, a notice under sub-rule (1.) of this rule, the party shall be deemed to have made the admissions indicated in the notice served on him, unless the court otherwise orders.
(4.) Where a party to proceedings does not admit a document after service on him of a notice under sub-rule (1.) of this rule, the costs of proving the document shall, unless the court certifies that the refusal to admit was reasonable, be payable by the party.
(5.) Where a notice to admit a document has not been given by a party to proceedings, the party is not entitled to the costs of proving the document unless the taxing officer is of the opinion that the omission to give the notice saved expense.
(6.) An admission made or deemed to have been made under this rule with respect to a document does not prevent the party who made or is deemed to have made the admission from objecting to the admission of the document in evidence on a ground that is not inconsistent with his admission.
Notice to admit facts.
151.—(1.) Subject to sub-rule (5.) of this rule, a party to proceedings may at any time not later than ten days before the trial of the proceedings, by notice in writing served on another party to the proceedings, call upon the other party to admit, for the purpose of the proceedings, any specific fact or facts mentioned in the notice, and that other party may, by notice in writing, admit the fact or any of those facts.
(2.) If the party on whom a notice to admit has been served refuses or fails to admit in writing a fact mentioned in the notice within seven days after service of the notice on the party, or within such further time as is allowed by the court, the court may order that party to pay the costs of proving the fact.
(3.) An admission made by a party to proceedings in pursuance of a notice to admit served under sub-rule (1.) of this rule shall be deemed to be made only for the purpose of the proceedings and shall not be used—
(a) against the party in any other proceedings; or
(b) in favour of any person other than the party giving the notice.
(4.) A court may at any time allow the party to amend or withdraw an admission made under this rule upon such terms as the court thinks fit.
(5.) Nothing in this rule shall be deemed to authorize a party to proceedings to call upon another party to admit a fact which that other party has denied in a pleading filed for the purpose of the proceedings.
(6.) A notice referred to in sub-rule (1.) of this rule shall be in accordance with Form 27, and an admission of a fact in answer to such a notice shall be in writing and in accordance with Form 28.
(7.) An admission made under this rule with respect to a fact does not prevent the party who made the admission from objecting to the admission of the fact in evidence on a ground that is not inconsistent with his admission.
Affidavit of signature to admissions.
An affidavit by the solicitor representing a party, or by a clerk of that solicitor, of the due signature of admissions made by that party in pursuance of a notice to admit documents or facts is sufficient evidence of those admissions, if that evidence is required.
Notice to produce documents.
153.—(1.) A party to proceedings may, by notice in writing served on another party to the proceedings, require the other party to produce, at the trial of the proceedings, a document specified in the notice, being a document that is in the possession, custody or power of that other party.
(2.) A notice referred to in the last preceding sub-rule shall be in accordance with Form 29.
Division 4.—Medical Examination of Parties.
Medical examination in nullity proceedings.
154.—(1.) This rule applies to proceedings for a decree of nullity of marriage on the ground that a party to the marriage is incapable of consummating the marriage.
(2.) In proceedings to which this rule applies, the petitioner or respondent may make application to a registrar for an order under sub-rule (4.) of this rule.
(3.) An application referred to in the last preceding sub-rule shall not be made to a registrar—
(a) if the petitioner in the proceedings is seeking the decree of nullity of marriage—before the time limited for the filing of an answer by the respondent has expired or, if the respondent files an answer before the expiration of that time, before the filing of an answer by the respondent; or
(b) if the respondent in the proceedings is seeking the decree— before the time limited for the filing of a reply by the petitioner has expired or, if the petitioner files a reply before the expiration of that time, before the filing of a reply by the petitioner.
(4.) Where, in proceedings to which this rule applies, application is made to a registrar for an order under this sub-rule, the registrar may, by order—
(a) appoint a medical inspector or two medical inspectors to examine the petitioner and respondent;
(b) appoint a medical inspector or two medical inspectors to examine the petitioner, and another medical inspector or two other medical inspectors to examine the respondent;
(c) appoint a medical inspector or two medical inspectors to examine either the petitioner or the respondent and dispense with the examination of the other of those parties; or
(d) dispense with the examination of the petitioner and respondent by a medical inspector appointed by a registrar.
Appointment of medical inspector upon the trial of proceedings.
Notwithstanding that a registrar has dispensed with the examination of the petitioner or respondent by a medical inspector appointed under the last preceding rule, where the court, upon the trial of proceedings to which the last preceding rule applies, thinks it desirable that the petitioner or respondent in the proceedings be examined or re-examined by a medical inspector or two medical inspectors appointed by the court, the court may appoint a medical inspector or two medical inspectors to examine or re-examine the petitioner or respondent, as the case may be.
Medical examination in divorce proceedings.
In proceedings for a decree of dissolution of marriage on the ground that a party to the marriage has wilfully and persistently refused to consummate the marriage, a registrar may, upon application made by either party to the marriage—
(a) appoint a medical inspector or two medical inspectors to examine the parties, or a party, to the marriage; or
(b) appoint a medical inspector or two medical inspectors to examine one of those parties and another medical inspector or two other medical inspectors to examine the other party.
Service of notice of appointment of medical inspector.
157.—(1.) Where, under rule 154, 155 or 156 of these Rules, an order has been made, upon application by the petitioner in proceedings, for the appointment of a medical inspector to examine the respondent in the proceedings, the petitioner shall cause a copy of the order to be served on the respondent.
(2.) Where, under rule 154, 155 or 156 of these Rules, an order has been made, upon application by the respondent in proceedings, for the appointment of a medical inspector to examine the petitioner in the proceedings, the respondent shall cause a copy of the order to be served on the petitioner.
(3.) Where, upon the trial of proceedings, a court has of its own motion made an order under rule 155 of these Rules for the appointment of a medical inspector to examine a party, being the petitioner or the respondent, to the proceedings and the party was not before the court at the time when the order was made, another party, being the respondent or petitioner, to the proceedings who was before the court either in person or by his counsel or solicitor at that time shall cause a copy of the order to be served on the first-mentioned party.
(4.) Service of a copy of an order referred to in any of the preceding sub-rules of this rule shall be deemed not to have been duly effected on a party on whom it is required to be served, unless—
(a) a notice specifying the time, day and place appointed by the medical inspector for the examination of the party is served on the party at the same time as the copy of the order is served; and
(b) there are at least seven clear days between service of the notice and the day specified in the notice for the examination of the party.
(5.) Unless the court or registrar, as the case may be, otherwise orders, service of a copy of an order referred to in this rule and of a notice referred to in the last preceding sub-rule shall not be effected otherwise than in a manner specified in paragraph (a), (b) or (c) of rule 60 of these Rules.
Medical inspector’s oath and identification of person to be examined.
158.—(1.) A medical inspector appointed under this Division to examine a person shall not carry out the examination unless the medical inspector has made and subscribed, before the registrar of the Supreme Court of a State or Territory or before a person authorized by the registrar of such a court for the purpose, an oath, in accordance with a form approved by the registrar, that he will well and truly examine the person, or each person who submits himself for examination in accordance with an order made under this Division, and will make to the appropriate court a correct report of the examination or of each such examination.
(2.) Before a person is examined by a medical inspector appointed under these Rules—
(a) the person shall satisfy the medical inspector as to his identity by being identified by a solicitor, or, if he is not represented by a solicitor, by some other credible person; and
(b) the person, and the solicitor or credible person by whom he is identified, shall each write his address and sign his name on a paper in the presence of the medical inspector who shall also sign his name on the paper and annex it to the report of the result of the examination.
Report on medical examination.
159.—(1.) When a medical inspector appointed under these Rules to examine a person has examined the person, the medical inspector shall report the result of the examination to the court.
(2.) When a party to proceedings has failed to submit to examination by the medical inspector appointed under these Rules to examine him or has failed to comply with the last preceding rule, the medical inspector shall report to the court accordingly.
(3.) A report referred to in either of the last two preceding sub-rules shall be forwarded by the medical inspector to the registrar of the court.
(4.) A report referred to in sub-rule (1.) or (2.) of this rule shall be filed—
(a) if the order appointing the medical inspector was made on the application of a party to proceedings—by that party; or
(b) if the order appointing the medical inspector was made by the court of its own motion—by the petitioner in the proceedings or, if the petitioner was not before the court, either in person or by his counsel or solicitor, when the order was made, by the respondent in the proceedings.
(5.) Each party to the proceedings is, upon request to the registrar, entitled to be furnished with a copy of the report.
Failure to comply with provisions of this Division.
160.—(1.) Proceedings to which rule 154 of these Rules applies shall not be set down for trial unless—
(a) application has been made to a registrar under that rule; and
(b) except in a case where the examination of the petitioner and respondent by a medical practitioner appointed under that rule has been dispensed with—the provisions of rules 157 and 159 of these Rules have been complied with.
(2.) Where, in proceedings to which rule 156 of these Rules applies, the court has, under that rule, appointed a medical inspector or two medical inspectors to examine the parties or a party, the proceedings shall not be set down for trial unless the provisions of rules 157 and 159 of these Rules have been complied with.
(3.) Where, in proceedings referred to in either of the last two preceding sub-rules, a copy of an order appointing a medical inspector to examine a party to the proceedings is required, under rule 157 of these Rules, to be served on the party, the proceedings shall not be set down for trial unless—
(a) a report of the result of the medical examination of the party has been filed; or
(b) proof, by affidavit, of the due service of a copy of the order on the party has been filed.
Division 5.—Discretion Statements.
Discretion statements to be deposited.
161.—(1.) This rule applies in relation to a petitioner or respondent in proceedings—
(a) who is seeking a decree of dissolution of marriage on a ground specified in any of paragraphs (a) to (m), inclusive, of section 28 of the Act or a decree of judicial separation on a ground specified in any of paragraphs (a) to (l), inclusive, of that section; and
(b) who has committed adultery since the marriage.
(2.) A petitioner or respondent to whom this rule applies shall deposit a discretion statement with the registrar of the court—
(a) in the case of a petitioner who has committed adultery before the filing of his petition—at the time when the petition is filed;
(b) in the case of a petitioner who has committed adultery after the filing of his petition but before the trial of the proceedings—as soon as practicable after committing the adultery;
(c) in the case of a respondent who has committed adultery before the filing of the answer seeking the decree—at the time when the answer is filed; or
(d) in the case of a respondent who has committed adultery after the filing of the answer but before the trial of the proceedings—as soon as practicable after committing the adultery.
Form, contents and destruction of discretion statements.
162.—(1.) A discretion statement, which shall be in accordance with Form 30, shall state particulars of the acts of adultery committed by the petitioner or respondent, as the case may be, since his marriage, the circumstances giving rise to the commission of the acts of adultery and the grounds upon which the court will be asked to make a decree of dissolution of marriage or judicial separation notwithstanding the adultery.
(2.) Where a petitioner or respondent alleges that an act of adultery set forth in his discretion statement has-been condoned, he shall state in the discretion statement particulars of the facts that are alleged to constitute condonation of the adultery.
(3.) Where a petitioner or respondent who has deposited a discretion statement in accordance with the last preceding rule commits a further act of adultery after depositing the discretion statement, a further discretion statement deposited by him shall be deemed to comply with sub-rule (1.) of this rule if it relates only to that further act of adultery.
(4.) Where, in a discretion statement deposited by a petitioner or respondent in accordance with the last preceding rule, the petitioner or respondent states that he has committed adultery and that he and the person with whom he has committed adultery are living together as if they were husband and wife, it is not necessary for a further discretion statement to be deposited setting forth particulars of any further acts of adultery committed by the petitioner or respondent, as the case may be, with that person.
(5.) A party to proceedings shall not deposit a discretion statement with a registrar unless—
(a) the statement is signed by the party;
(b) the matters set forth in the statement are verified by the affidavit of the party written on the statement; and
(c) the statement is enclosed in a sealed envelope having written on it the words “discretion statement”, the number of the proceedings and a certificate—
(i) if the party is represented by a solicitor—signed by the solicitor; or
(ii) if the party is not so represented—signed by the party, certifying that the statement is duly signed and verified, and that it bears the date on which it was signed.
(6.) When a party deposits a discretion statement with the registrar of the court, the registrar shall write the date of the depositing on the envelope in which the discretion statement is enclosed and shall give to the party an acknowledgment of the depositing of the discretion statement.
(7.) When a decree nisi of dissolution of marriage has become absolute, the registrar of the court may cause any discretion statement deposited for the purpose of the proceedings to be destroyed.
Service of notice of allegation on spouse.
163.—(1.) Where a discretion statement of a party to proceedings contains an allegation that the party’s spouse has committed adultery or another matrimonial offence, not being adultery or an offence particulars of which have been included in a pleading filed, on behalf of the party, for the purpose of the proceedings, the party shall, subject to the next succeeding sub-rule, cause service of notice of the allegation to be effected on his spouse before the proceedings are set down for trial.
(2.) The court may, on the hearing of proceedings, excuse a party who has failed to serve notice of an allegation on his spouse in accordance with the last preceding sub-rule if the court is satisfied that the failure has not prejudiced the spouse in connexion with the proceedings.
Disclosing discretion statement.
164.—(1.) A person, other than the Attorney-General or a person authorized in writing by the Attorney-General, is not entitled, by searching at the office of a court, by inspecting any records of a court or by making any other enquiries, to be informed whether or not a petitioner or respondent in proceedings has deposited a discretion statement in accordance with rule 161 of these Rules.
(2.) A discretion statement deposited by a party to proceedings in accordance with rule 161 of these Rules is not, without the leave of the court, open to inspection by a person other than the Attorney-General.
(3.) The last preceding sub-rule does not prevent the court from requiring a discretion statement to be tendered in evidence or read out in open court at any stage of the trial of the suit to which it relates if the court considers it proper so to require.
(4.) Where a party to a suit has deposited a discretion statement under rule 161 of these Rules, the registrar of the court shall cause that fact to be brought to the notice of the court at the commencement of the trial of the suit.
(5.) A discretion statement is not, without the leave of the court, open to inspection by the Attorney-General before the trial of the suit unless the Attorney-General furnishes to the registrar of the court having custody of the discretion statement a certificate certifying that, in the opinion of the Attorney-General, inspection of the discretion statement is necessary for the purpose of determining whether the Attorney-General should intervene in the suit under Part VII. of the Act.
(6.) Where the Attorney-General furnishes a certificate referred to in the last preceding sub-rule, the discretion statement may be inspected by the Attorney-General or by a person authorized in writing by the Attorney-General to inspect the discretion statement.
(7.) In this rule, a reference to the Attorney-General shall be read as including a reference to a person to whom the Attorney-General has, by a delegation that is in force, delegated all or any of his powers and functions under Part VII. of the Act.
Division 6.—Compulsory Conferences.
Application of Division.
Where—
(a) a defended suit includes proceedings with respect to—
(i) the maintenance of a party to the proceedings;
(ii) settlements;
(iii) the custody or guardianship of an infant child of the marriage to which the proceedings relate; or
(iv) the maintenance, welfare, advancement or education of a child of that marriage,
and the petitioner and respondent are not in agreement as to the order that should be made by the court upon the trial of those proceedings in the event that the court does not make an order dismissing those proceedings; or
(b) a defended suit includes proceedings for a decree of dissolution of marriage or of nullity of a voidable marriage in a case where there are children of the marriage—
(i) who are not likely to have attained the age of sixteen years before the decree is made; or
(ii) in relation to whom the petitioner or respondent has obtained or is seeking an order under sub-section (3.) of section 71 of the Act,
and the petitioner and respondent are not in agreement concerning the arrangements that, in the event of a decree of dissolution or of nullity of marriage being made, should be made for the welfare, advancement and education of those children,
this Division applies to the suit.
Conference to be held before certain suits set down for trial.
166.—(1.) Subject to the next succeeding sub-rule, a suit to which this Division applies shall not, except by leave of the court, be set down for trial upon application made by a party to the suit, being the petitioner or respondent, unless—
(a) a conference for the purpose of this Division has been held; or
(b) that party attended, on the day and at the time and place fixed under this Division for the holding of such a conference, for the purpose of discussing, and making a bona fide endeavour to reach agreement on, any matters referred to in sub-rule (1.) of the next succeeding rule, but the petitioner or respondent, as the case may be, failed to attend or to take part in the conference.
(2.) Where a registrar is satisfied—
(a) that, by reason of—
(i) the respective places of residence of the petitioner and respondent; and
(ii) the respective places of business of the solicitor for the petitioner and the solicitor for the respondent,
it would be unreasonable in the circumstances of the particular case to require a conference for the purpose of this Division to be held before the suit is set down for trial;
(b) that the holding of such a conference before the suit is set down for trial would involve the petitioner or respondent, or the petitioner and the respondent, in undue expense; or
(c) that for any reason it would be impracticable for such a conference to be held before the suit is set down for trial,
the registrar may set the suit down for trial notwithstanding that the requirements of the last preceding sub-rule have not been complied with.
(3.) Where a registrar sets a suit to which this Division applies down for trial in accordance with the last preceding sub-rule, a conference for the purpose of this Division shall, unless the court otherwise orders, be held before the commencement of the trial of the suit.
Conference.
167.—(1.) A conference for the purpose of this Division is a conference at which the petitioner and respondent discuss, and make a bona fide endeavour to reach agreement on, any matters in question—
(a) in proceedings pending between them with respect to a matter referred to in any of sub-paragraphs (i) to (iv), inclusive, of paragraph (a) of rule 165 of these Rules; or
(b) concerning arrangements of a kind referred to in paragraph (a) of sub-section (1.) of section 71 of the Act.
(2.) A petitioner or respondent may attend a conference for the purpose of this Division in person, either with or without counsel or a solicitor, or may be represented by counsel or a solicitor.
(3.) A conference for the purpose of this Division may be adjourned from time to time and from place to place.
(4.) Subject to the next succeeding sub-rule, evidence of anything said, or of any admission made, in the course of a conference for the purpose of this Division is not admissible in any court (whether exercising federal jurisdiction or not) or in proceedings before a person authorized by a law of the Commonwealth or of a State or Territory of the Commonwealth, or by consent of the parties, to hear, receive and examine evidence.
(5.) The last preceding sub-rule does not prevent evidence of anything said, or of any admission made, in the course of such a conference being admitted in evidence in a court upon the trial of a person for an offence committed at the conference.
Conference relating to custody, &c., where both parties represented by solicitor.
168.—(1.) Where the petitioner and respondent in a suit to which this Division applies are each represented by a solicitor, this rule applies to the suit.
(2.) Where, in a suit to which this rule applies, the pleadings are complete, the solicitor for the petitioner may give to the solicitor for the respondent a notice in writing specifying a day, time and place for the holding of a conference for the purpose of this Division.
(3.) Where the solicitor for the petitioner has not given a notice under the last preceding sub-rule and a period of not less than fourteen days has elapsed since the pleadings were completed, the solicitor for the respondent may give to the solicitor for the petitioner a notice in writing specifying a day, time and place for the holding of a conference for the purpose of this Division.
(4.) When the solicitor for a respondent has duly given a notice under the last preceding sub-rule, the solicitor for the petitioner ceases to be entitled to give a notice under sub-rule (2.) of this rule.
(5.) In a notice given under sub-rule (2.) or (3.) of this rule, unless the solicitor for the petitioner and the solicitor for the respondent otherwise agree—
(a) the day specified in the notice shall be a day that is not less than seven clear days, and not more than twenty-one clear days, after the day on which the notice is given; and
(b) the place so specified shall be—
(i) a place within five miles from the office of the court in which documents may be filed for the purpose of the suit; or
(ii) a place in a city or town (not being the city or town in which that office is situated) in which the solicitor for the petitioner and the solicitor for the respondent each has a place of business.
Conference relating to custody, &c., where a party not represented by solicitor.
169.—(1.) Where the petitioner or respondent in a suit to which this Division applies is not represented by a solicitor, this rule applies to the suit.
(2.) Where, in a suit to which this rule applies, the pleadings are complete, the petitioner and respondent may agree as to the day, time and place for the holding of a conference for the purpose of this Division.
(3.) Subject to the next succeeding sub-rule, where the petitioner and respondent fail so to agree within fourteen days after either has approached the other for that purpose, the registrar shall, at the request of either party, fix a reasonable day, time and place for the holding of a conference for the purpose of this Division.
(4.) A registrar may refuse to comply with a request under the last preceding sub-rule if he is satisfied that, under sub-rule (2.) of rule 166 of these Rules, he would be entitled to set the suit down for trial notwithstanding that the requirements of sub-rule (1.) of that rule have not been complied with.
(5.) On the day on which the registrar fixes a day, time and place for the holding of a conference for the purpose of this Division, or on the next following day, the party at whose request the day, time and place were fixed shall serve on the petitioner or respondent, as the case may be, notice of the day, time and place so fixed.
(6.) The petitioner and respondent may agree to appoint a particular person, being a person willing so to act, to act as chairman at the conference held for the purpose of this Division.
(7.) Where the petitioner or respondent is represented by a solicitor, references in this rule to the petitioner or respondent, as the case may be, shall be read as references to that solicitor.
Division Div 6 - Matrimonial Causes Rules - Filing Petitions and Notices of Petitions. | Zoe