171.—(1.) Subject to rules 108 and 160 of these Rules and to this rule, the registrar of the court in which an undefended suit is pending may, upon request made by the petitioner, set the suit down for trial.
(2.) A request referred to in the last preceding sub-rule shall be in accordance with Form 31 and shall state the court town at which the petitioner desires the suit to be tried.
(3.) Subject to rule 175 of these Rules, a registrar shall not set an undefended suit down for trial unless—
(a) proof, by affidavit, of the due service of the petition on the respondent, and on each named person (if any) with or on whom the respondent is alleged to have committed adultery, rape or sodomy, has been filed;
(b) the time limited for the filing of an answer by each person on whom service of the petition has been effected has expired and no answer has been filed by such a person;
(c) in the opinion of the registrar, the particulars of the marriage stated in the petition are consistent with the particulars shown in the marriage certificate (if any) filed in pursuance of rule 54 of these Rules;
(d) the facts alleged in the petition would, if true, establish, in the opinion of the registrar, the domicile or residence, as the case may be, of the petitioner in Australia, within the meaning of the Act, at the time of the institution of the suit;
(e) the solicitor for the petitioner has filed a certificate, in accordance with Form 32, signed by that solicitor personally, certifying that the suit is ready for trial or, if the petitioner is not represented by a solicitor, the petitioner has made and filed an affidavit stating that the suit is ready for trial; and
(f) in a case where the petitioner is seeking permanent maintenance or an order relating to the settlement of property—the petitioner has made application for, and has been granted, a certificate of means or, if the petitioner has not made application for such a certificate, the certificate or affidavit filed in pursuance of the last preceding paragraph states the reasons why application has not been made for a certificate of means.
(4.) Paragraph (a) of the last preceding sub-rule does not require a registrar to be satisfied as to the due service of a petition—
(a) on a respondent, if service of the petition on the respondent has been dispensed with under sub-section (2.) of section 121 of the Act; or
(b) on any other person if—
(i) the person is dead; or
(ii) service of the petition on the person has been dispensed with under sub-section (2.) of section 121 of the Act.
(5.) Subject to rule 175 of these Rules, where service of a petition on a person, whether or not that person is the respondent, has been dispensed with subject to compliance with a condition, a registrar shall not set the suit down for trial unless proof, by affidavit, of the due compliance with the condition has been filed.
(6.) A suit is not ready for trial for the purpose of paragraph (e) of sub-rule (3.) of this rule unless—
(a) any request for discovery or inspection of documents that the petitioner desires to make for the purpose of preparing for the trial has been made;
(b) any interlocutory application that the petitioner desires to make for the purpose of preparing for the trial has been made, heard and determined; and
(c) so far as practicable, a proof of the evidence of each person to be called by the petitioner as a witness upon the trial of the proceedings has been obtained.
(7.) This rule applies to an undefended suit that consists only of proceedings instituted by the respondent to a petition as if—
(a) references to the petitioner were read as references to the respondent;
(b) references to the petition were read as references to the respondent’s answer to the petition;
(c) references to the respondent were read as references to the petitioner;
(d) references to an answer were read as references to a reply; and
(e) references to the petition in paragraph (c) or (d) of sub-rule (3.) of this rule were read as references to the petition and the answer.
Request to set defended suit down for trial.
172.—(1.) Where—
(a) in the case of a defended suit to which Division 6 of this Part applies, being a suit in relation to which—
(i) a compulsory conference for the purpose of that Division has been held; or
(ii) a date for the holding of such a conference has been fixed,
a period of less than fourteen days has elapsed since the date on which that conference was concluded or the date that was fixed for the holding of the conference, as the case may be;
(b) in the case of any other defended suit to which that Division applies—a period of less than twenty-eight days has elapsed since the pleadings were completed; or
(c) in the case of a defended suit to which that Division does not apply—a period of less than fourteen days has elapsed since the pleadings were completed,
a request to set the suit down for trial shall not be made by a party other than the petitioner.
(a) in the case of a defended suit to which Division 6 of this Part applies—a period of less than fifty-six days; or
(b) in the case of any other defended suit—a period of less than twenty-eight days,
has elapsed since the pleadings were completed, a request to set the suit down for trial shall not be made by a party other than the petitioner or the respondent.
(3.) Where a request to set a defended suit down for trial has been duly made by a party, another party shall not make a request to set the suit down for trial unless the first-mentioned request has been withdrawn by the party by whom it was made or has been refused.
Setting defended suit down for trial.
173.—(1.) Subject to rules 108, 160 and 166 of these Rules and to this rule, the registrar off the court in which a defended suit is pending may, upon request made by a party who has filed a pleading, set the suit down for trial.
(2.) A request referred to in the last preceding sub-rule shall be in accordance with Form 31 and shall state the court town at which the party making the request desires the suit to be tried and an estimate of the length of the trial.
(3.) A registrar shall not set a defended suit down for trial upon the request of a party unless—
(a) the pleadings are complete;
(b) in the opinion of the registrar, the allegations in the petition relating to the marriage are consistent with the particulars shown in the marriage certificate (if any) filed in pursuance of rule 54 of these Rules;
(c) the facts alleged in the petition would, if true, establish, in the opinion of the registrar, the domicile or residence, as the case may be, of the petitioner in Australia, within the meaning of the Act, at the time of the institution of the suit;
(d) in a case where the respondent has, in an answer, sought a decree of a kind referred to in paragraph (a) of the definition of “matrimonial cause”—the facts alleged in the petition and answer would, if true, establish, in the opinion of the registrar, the domicile or residence, as the case may be, of the respondent in Australia, within the meaning of the Act, at the time of the institution of the proceedings for that decree; and
(e) the solicitor for the party has filed a certificate in accordance with Form 32, signed by the solicitor personally, certifying that the suit is ready for trial or, if the party is not represented by a solicitor, the party has made and filed an affidavit stating that the suit is ready for trial.
(4.) A suit is not ready for trial for the purpose of paragraph (e) of the last preceding sub-rule unless—
(a) any request or order for the furnishing of particulars by or to the party, for the making of discovery by or to the party or for the inspection of documents has been complied with;
(b) the party has instituted all such interlocutory applications, and made all such requests for particulars, discovery or inspection of documents, as the party desires to make for the purpose of preparing for the trial of the suit;
(c) so far as practicable, a proof of the evidence of each person to be called by the party as a witness upon the trial of the suit has been obtained; and
(d) if, upon the trial of the suit, the party proposes to call an expert witness to give evidence in relation to any proceedings included in the suit—the party has furnished a copy of a proof of the witness’s evidence to each other party to those proceedings who has filed a pleading.
(5.) For the purpose of paragraph (a) of the last preceding sub-rule, a party shall be deemed to have complied with a request or order referred to in that paragraph if the party who made the request or was the applicant for the order, as the case may be, has waived compliance with the request or order.
(6.) A suit which includes defended proceedings in which there is a claim with respect to permanent maintenance or the settlement of property shall not be set down for trial upon request made by a party to the proceedings, being the petitioner or respondent, unless—
(a) application has been made for a certificate of means; or
(b) the certificate or affidavit filed in pursuance of paragraph (e) of sub-rule (3.) of this rule states the reasons why the party has not made application for a certificate of means.
(7.) Where the petitioner or respondent makes application to set down for trial a defended suit in relation to which Division 6 of this Part applies, the certificate or affidavit filed in pursuance of paragraph (e) of sub-rule (3.) of this rule—
(a) shall state the facts by virtue of which the party is entitled, having regard to sub-rule (1.) of rule 166 of these Rules, to make the application; or
(b) shall request the registrar to set the suit down for trial notwithstanding that the requirements of that sub-rule have not been complied with and state the facts relied on in support of that request,
(8.) Where the certificate or affidavit states that a conference for the purpose of Division 6 of this Part has been held, the certificate or affidavit shall also state whether any agreement was reached at the conference, and, if agreement was so reached, brief particulars of that agreement.
Service of request to set suit down for trial.
A party who makes a request to set a defended suit down for trial shall, on the day on which the request is filed or on the next following day, cause a copy of the request to be served on each other party who has an address for service.
Request to set suit down for trial.
175.—(1.) Where a request to set a suit down for trial has been made to a registrar but the registrar is not satisfied that the suit is in order for trial, the registrar shall inform the party who made the request of the matters that, in his opinion, are not in order and, if such a matter relates to a pleading filed, or an application made or required to be made, by a party other than that first-mentioned party, shall also inform that party of the matter.
(2.) Where, under the last preceding sub-rule, a registrar has informed the party who made the request that he is not satisfied that the suit is in order for setting down for trial, that party may request the registrar, in writing, to set the suit down for trial notwithstanding that the registrar is not so satisfied, and the registrar shall, on receipt of the request, set the suit down for trial.
(3.) Where a period of not less than twenty-eight days has elapsed after a registrar informed the party who made the request that he is not satisfied that a suit is in order for setting down for trial and the suit has not been set down for trial, any other party entitled to make a request to set the suit down for trial may request the registrar, in writing, to set the suit down for trial, and the registrar shall, on receipt of the request, set the suit down for trial.
(4.) Where a registrar sets a suit down for trial in pursuance of a request under either of the last two preceding sub-rules, the registrar shall state on the certificate filed in pursuance of rule 178 of these Rules the matters that in his opinion are not in order.
Place at which suit may be set down for trial.
176.—(1.) A suit pending before the Supreme Court of a State or Territory may be set down for trial at a court town in that State or Territory.
(2.) An undefended suit shall be set down for trial at the court town specified in the request to set the suit down for trial.
(3.) A defended suit shall, except in a case where an order under rule 179 of these Rules has been made before the suit is set down for trial, be set down for trial at the court town specified in the request to set the suit down for trial.
Date of trial.
177.—(1.) When a registrar sets a suit down for trial at a court town, the registrar shall, if it is in accordance with the practice of the court so to do, set the suit down for trial on a particular date or at a sittings of the court at the court town commencing on a particular date.
(2.) Unless the court or registrar otherwise orders under rule 180 of these Rules, a defended suit shall not be—
(a) set down for trial on a date;
(b) set down for trial at a sittings of the court commencing on a date; or
(c) tried by the court on a date,
that is less than fourteen clear days after the date on which the suit is set down for trial by a registrar.
Notice of trial.
178.—(1.) Subject to the next succeeding sub-rule, a party who requests a registrar to set a suit down for trial shall deposit with the registrar a form of notice, in accordance with Form 33, for signature by the registrar, and a copy of that form of notice for each party to the suit.
(2.) The last preceding sub-rule does not require the deposit of a copy of a form of notice for a party—
(a) if the court dispensed with service of the petition or answer on the party; or
(b) if service of the petition or answer was effected on the party by advertising notice of the petition or answer but in no other manner,
unless the party has an address for service, unless the party making the request is aware of an address of the party or unless the court, as a condition of dispensing with the service, required a copy of the petition or answer to be sent to or served on some other person.
(3.) A copy of a form of notice for a party to proceedings—
(a) shall be capable of being folded, and of being sealed with adhesive material provided on the form, for transmission through the post as a letter;
(b) shall have the name and address of the party so endorsed on it that, when the form is folded and sealed, the form can, without being enclosed in an envelope and without any further addition to it, be posted as a letter to the party at that address; and
(c) shall have a notation, in accordance with the form set out in sub-rule (7.) of this rule, so endorsed on it that, when it is folded and sealed, the notation will remain legible.
(4.) For the purpose of the last preceding sub-rule—the address of a party that is to be written on a copy of a form of notice is—
(a) if the party has an address for service—that address; or
(b) in any other case—the address of the place at which the party is residing or working or, if the person on whose behalf the copy is deposited with a registrar does not know where the party is residing or working, any other address of the party known to the person, the address of the place at which service of the petition or answer, as the case may be, was effected on the party or the address of the person to or on whom a copy of the petition or answer was sent or served as a condition of dispensing with service on the party.
(5.) Where a registrar sets a suit down for trial, he shall—
(a) insert in each copy of the form of notice deposited under sub-rule (1.) of this rule the name of the court town at which the suit has been set down for trial, and, if he has, in accordance with the practice of the court, set the proceedings down for trial on a particular day or for a sittings of the court commencing on a particular day, also insert particulars of that day or sittings;
(b) post each copy of the notice to the party whose address appears on it at that address (postage being prepaid); and
(c) certify, in accordance with Form 34, that—
(i) the suit is ready for trial or has been set down for trial in pursuance of a request under sub-rule (2.) or (3.), as the case may be, of rule 175 of these Rules; and
(ii) that he has complied with the preceding paragraphs of this sub-rule,
and file that certificate.
(6.) In proceedings in a court, a certificate under the last preceding sub-rule, relating to a suit and under the hand of a registrar of the court, is evidence that the provisions of paragraphs (a) and (b) of that sub-rule have been duly complied with in relation to the suit.
(7.) The form of the notation required by paragraph (c) of sub-rule (3.) of this rule to be endorsed on a form of notice deposited by a party is as follows:—
“If not delivered within 7 days, return to (name of the solicitor for that party or name of that party, as the case may be, and address for service of that party).”.
Change of venue.
179.—(1.) At any time after a request has been made to a registrar to set a suit down for trial at a court town in a State or Territory, a party who has filed a pleading may, whether or not the suit has been set down for trial, make application to the court or to a registrar of the court for an order that the trial of the suit take place at a court town in that State or Territory specified in the application.
(2.) Where the court or a registrar is, upon the hearing of an application under the last preceding sub-rule, satisfied that it is proper so to do, the court or registrar shall order that the trial of the suit take place at a court town specified in the order.
(3.) Where an order has been made by the court or by a registrar under the last preceding sub-rule, the registrar shall set the suit down for trial at the court town specified in the order.
Expediting trial of suit.
180.—(1.) Where the court, or a registrar of the court, in which a suit is pending is satisfied that it is, by reason of special circumstances, proper so to do, the court or registrar may, by order—
(a) set the suit down for hearing on, or for hearing at a sittings of the court commencing on, a date that is less than fourteen days after the day on which the suit was set down for trial: or
(b) fix a specified day (which may be more or less than fourteen days after the day on which the suit was set down for trial) as the day on which the trial of the suit shall take place.
(2.) An application for an order under the last preceding sub-rule may be made by any party who has filed a pleading.
Time of trial.
Subject to any order made by the court or a registrar under the last preceding rule, a suit shall be listed for trial at a court town in the order in which the suit is set down for trial at the court town.
PART XII.—DECREES.
Decree of dissolution of marriage.
A decree of dissolution of marriage shall be in accordance with Form 35.
Decree of nullity.
A decree of nullity of marriage shall be in accordance with Form 36 or Form 37 (whichever is appropriate).
Decree of judicial separation.
A decree of judicial separation shall be in accordance with Form 38.
Decree of restitution of conjugal rights.
A decree of restitution of conjugal rights shall be in accordance with Form 39.
Order approving arrangements for welfare of children.
Where a court makes an order under sub-section (1.) of section 71 of the Act declaring that it is satisfied that proper arrangements in all the circumstances have been made for the welfare and, where appropriate, the advancement and education of children, the court shall include in the order particulars of the arrangements that have been made for the welfare and, where appropriate, the advancement and education of the children to whom the order relates.
Adultery of party who has established ground for dissolution or judicial separation.
Where, upon the trial of proceedings for a decree of dissolution of marriage or of judicial separation, the court is satisfied of the existence of—
(a) a ground (not being the ground specified in paragraph (n) of section 28 of the Act) in respect of which the decree may be granted; and
(b) a ground on which the court may, under sub-section (3.) of section 37 of the Act or under section 41 of the Act, refuse to make the decree,
the court shall state accordingly in its decree and shall also state that a decree of dissolution of marriage or of judicial separation—
(c) was refused by the court in the exercise of its discretion under sub-section (3.) of section 37 of the Act or under section 41 of the Act, as the case may be; or
(d) was granted by the court notwithstanding that last-mentioned ground,
Death of party after decree nisi but before decree becomes absolute.
188.—(1.) Where, after a decree of dissolution of marriage or a decree of nullity of a voidable marriage has been made but before the decree has become absolute—
(a) it comes to the notice of a party to the proceedings who has an address for service that a party to the marriage died before, or has died after, the making of the decree; or
(b) it comes to the notice of the solicitor representing a party to the marriage that the party died before, or has died after, the making of the decree,
the party or solicitor, as the case may be, shall make and file an affidavit stating such particulars of the date and place of the death as are known to him.
(2.) Where the registrar is satisfied that the party is dead, he shall file a memorandum to that effect.
Decree absolute.
189.—(1.) A memorandum referred to in sub-section (1.) of section 73 of the Act shall be in accordance with Form 40.
(2.) A certificate referred to in sub-section (2.) of section 73 of the Act—
(a) shall be in accordance with Form 41; or
(b) shall be a certificate, endorsed on a copy of the decree nisi, in accordance with the following form:—
“I certify that the decree nisi of which this decree is a
copy became absolute on the day
of , 19 .
Registrar.”.
Rescission where parties reconciled.
190.—(1.) An application under section 74 of the Act by a party to a marriage to rescind a decree nisi on the ground that the parties to the marriage have become reconciled may be made ex parte if the parties to the marriage have, by a joint affidavit or by their respective affidavits filed in support of the application, verified the grounds of the application.
(2.) Subject to the last preceding sub-rule, service of an application referred to in that sub-rule shall be effected on the other party to the marriage in a manner referred to in paragraph (a) or (b) of rule 60 of these Rules.
Rescission on ground of miscarriage of justice.
191.—(1.) A party to proceedings who makes application for the rescission, under section 75 of the Act, of a decree nisi shall cause service of the application to be effected on each other party to the proceedings, except a party service on whom of the application is dispensed with under subsection (2.) of section 121 of the Act.
(2.) Service of an application referred to in the last preceding sub-rule shall be effected in a manner referred to in paragraph (a) or (b) of rule 60 of these Rules.
PART XIII.—INTERVENTION BY PERSONS NOT PARTIES TO PROCEEDINGS.
Intervention by Attorney-General.
192.—(1.) Where the Attorney-General is entitled to intervene in proceedings under section 76 or 77 of the Act, the Attorney-General may do so by causing to be filed a notice of intervention, in accordance with Form 42, stating whether he is intervening under section 76 or 77 of the Act.
(2.) Where the Attorney-General intervenes in proceedings under section 77 of the Act, the Attorney-General shall, at the time of intervening or as soon after that time as practicable, file a statement containing particulars of the matters relevant to the proceedings that the Attorney-General has reason to believe have not been, or may not be, but ought to be, made known to the court.
(3.) A copy of a notice of intervention, and a copy of a statement filed in pursuance of the last preceding sub-rule, shall, as soon as possible after it has been filed, be served on each other party to the proceedings who has an address for service.
(4.) The solicitor for the Attorney-General shall state in a notice of intervention the name and place of business of the solicitor, and the place of business so stated is the address for service of the Attorney-General.
(5.) In this rule, a reference to the Attorney-General shall be read as including a reference to a person to whom, by a delegation under section 78 of the Act that is in force, the Attorney-General has delegated a power or function under Part VII. of the Act.
Intervention by Attorney-General after decree nisi.
193.—(1.) Where the Attorney-General intervenes in proceedings after a decree nisi has been made—
(a) the Attorney-General shall, as soon as practicable after intervening, make application to the court for directions with respect to matters arising out of the intervention; and
(b) a party to the proceedings may, in an affidavit filed for the purpose of the proceedings, deny an allegation contained in the statement filed in pursuance of sub-rule (2.) of the last preceding rule or state a fact that has become relevant to the proceedings by reason of some matter alleged in that statement.
(2.) In this rule, a reference to the Attorney-General shall be read as including a reference to a person to whom, by a delegation under section 78 of the Act that is in force, the Attorney-General has delegated a power or function under Part VII. of the Act.
Intervention by other persons.
194.—(1.) Service of an application under section 79 of the Act for leave to intervene in proceedings shall, on the day on which the application is filed or on the next following day, be effected on each party to the proceedings who has an address for service.
(2.) Where the court makes an order under section 79 of the Act entitling a person to intervene in proceedings—
(a) the court shall give such directions as it thinks proper with respect to the service of copies of the order, the filing of affidavits and the hearing or the further hearing of the proceedings as it thinks necessary for the proper determination or review of the proceedings; and
(b) the person shall, on the day on which the order is made or on the next following day, intervene in the proceedings by filing a notice of intervention in accordance with Form 43.
PART XIV.—PROCEEDINGS FOR ANCILLARY RELIEF.
Division 1.—Preliminary.
In this Part, unless the contrary intention appears—
“application for ancillary relief”, in relation to proceedings for ancillary relief, means—
(a) if the proceedings for ancillary relief are instituted by petition—that petition;
(b) if the proceedings for ancillary relief are instituted by an answer to a petition—that answer; or
(c) if the proceedings for ancillary relief are instituted by application to a court—the affidavit in support of that application;
“claimant” means a person who institutes or has instituted proceedings for ancillary relief;
“defence to the proceedings”, in relation to proceedings for ancillary relief, means—
(a) if the proceedings for ancillary relief were instituted by petition—the respondent’s answer to the petition;
(b) if the proceedings for ancillary relief were instituted by an answer to a petition—the petitioner’s reply to the answer; or
(c) if the proceedings for ancillary relief were instituted by application to a court—an affidavit filed in reply to the affidavit in support of the application;
“proceedings for ancillary relief” means proceedings of a kind referred to in paragraph (c) of the definition of “matrimonial cause” that are in relation to proceedings for principal relief;
“proceedings for principal relief” means proceedings of a kind referred to in paragraph (a) of the definition of “matrimonial cause”.
Application of this Part.
This Part does not apply to proceedings for ancillary relief that are pending at the commencement of the Act.
Certain proceedings may be instituted without the leave of the court.
197.—(1.) Where proceedings for principal relief have been instituted by petition, the respondent may, by filing an answer to the petition, institute proceedings for ancillary relief that are in relation to those proceedings for principal relief without the leave of the court.
(2.) Proceedings for ancillary relief may be instituted by application and without the leave of the court if the proceedings relate to—
(a) proceedings of a kind referred to in paragraph (a) of the definition of “matrimonial cause” that were pending at, or were completed before, the commencement of the Act; or
(b) an order made by a court, whether before or after the commencement of the Act, in proceedings of a kind referred to in paragraph (c) of that definition.
Application for leave to institute proceedings for ancillary relief.
198.—(1.) Where a party to proceedings for principal relief makes application to a court for leave, under section 68 of the Act, to institute proceedings for ancillary relief, service of the application shall, unless the court dispenses with the service, be effected on the spouse of the party in a manner referred to in paragraph (a), (b) or (c) of rule 60 of these Rules.
(2.) A party to proceedings for principal relief who makes application for leave to institute proceedings for ancillary relief shall state in the affidavit in support of the application his reasons for not instituting the proceedings for ancillary relief by his petition or answer, as the case may be.
(3.) Where, before the making of the decree in proceedings for principal relief, proceedings for ancillary relief are instituted by leave of the court or under sub-rule (2.) of the last preceding rule, the proceedings for
ancillary relief shall be deemed to have been consolidated with the proceedings for principal relief to which they are related and, as far as is practicable, shall be heard and determined by the court at the same time as the proceedings for principal relief.
(4.) Where proceedings for ancillary relief are instituted by leave of the court, the court shall not make an order with respect to the costs of the proceedings in favour of the claimant unless the court is satisfied that there were good reasons for not instituting the proceedings by the petition by which the proceedings for principal relief to which those, proceedings for ancillary relief relate were instituted or by an answer to that petition, as the case required.
Particulars to be included in application for ancillary relief.
199.—(1.) A claimant shall state in his application for ancillary relief—
(a) the order sought by him; and
(b) the facts upon which the court will be asked to make that order.
(2.) In proceedings for ancillary relief, being proceedings with respect to the maintenance of a party to the proceedings or of a child of the marriage, the claimant shall state in his application for ancillary relief particulars of—
(a) the property, income and financial commitments of the claimant;
(b) the capability of the claimant to earn income;
(c) the property, income and financial commitments of the spouse of the claimant, so far as they are known to the claimant;
(d) the capability of the spouse of the claimant to earn income, so far as that capability is known to the claimant;
(e) any financial arrangements in operation between the claimant and the spouse of the claimant;
(f) any order of a court under which one of the parties to the marriage is liable to make payments to the other; and
(g) the ownership of the home in which the claimant is residing and the terms and conditions upon which the claimant is occupying or otherwise residing in that home.
(3.) Where the pecuniary resources of the parties to the marriage are relevant to the determination of proceedings for ancillary relief, not being proceedings of a kind referred to in the last preceding sub-rule, the claimant shall state in his application for ancillary relief particulars of such of the matters referred to in paragraphs (a) to (g), inclusive, of that sub-rule as are relevant to those proceedings.
(4.) Where any particulars referred to in paragraph (c) or (d) of sub-rule (2.) of this rule are included in a petition or answer, particulars of the claimant’s means of knowing those first-mentioned particulars shall be stated in the petition or answer, as the case may be.
(5.) Where any particulars referred to in paragraph (c) or (d) of sub-rule (2.) of this rule are included in an affidavit, the person swearing the affidavit shall state in the affidavit particulars of his means of knowing those first-mentioned particulars.
Defence to proceedings for ancillary relief.
200.—(1.) Where proceedings for ancillary relief have been instituted, the spouse of the claimant may, in a defence to the proceedings—
(a) admit or deny an allegation in the application for ancillary relief that relates to the proceedings for ancillary relief; or
(b) state any facts relevant to the proceedings for ancillary relief that the spouse wishes to be considered upon the determination of the proceedings.
(2.) Without limiting the generality of the last preceding sub-rule, in proceedings for ancillary relief, being proceedings with respect to the maintenance of a party to the proceedings or of a child of the marriage, the spouse shall, if he wishes to oppose the making of the order sought, state in his defence to the proceedings particulars of—
(a) the property, income and financial commitments of the spouse;
(b) the capability of the spouse to earn income;
(c) the property, income and financial commitments of the claimant, so far as they are known to the spouse;
(d) the capability of the claimant to earn income, so far as that capability is known to the spouse;
(e) any financial arrangements in operation between the spouse and the claimant;
(f) any order of a court under which one of the parties to the marriage is liable to make payments to the other; and
(g) the ownership of the home in which the claimant is residing and the terms and conditions upon which the claimant is occupying or otherwise residing in that home.
(3.) Without limiting the generality of sub-rule (1.) of this rule, where the pecuniary resources of the parties to the marriage are relevant to the determination of proceedings for ancillary relief, not being proceedings of a kind referred to in the last preceding sub-rule, the spouse shall, if he wishes to oppose the making of the order sought, state in his defence to the proceedings particulars of such of the matters referred to in paragraphs (a) to (g), inclusive, of that sub-rule as are relevant to those proceedings.
(4.) Where any particulars referred to in sub-paragraph (c) or (d) of sub-rule (2.) of this rule are included in an answer or reply, particulars of the spouse’s means of knowing those first-mentioned particulars shall be stated in the answer or reply, as the case may be.
(5.) Where any particulars referred to in sub-paragraph (c) or (d) of sub-rule (2.) of this rule are included in an affidavit, the person swearing the affidavit shall state in the affidavit particulars of his means of knowing those first-mentioned particulars.
(6.) Where the spouse of a claimant states in his defence to the proceedings that any particulars of a matter referred to in sub-rule (2.) of this rule that are stated in the claimant’s application for ancillary relief are true and correct, this rule does not require the spouse to state those particulars in his defence to the proceedings.
Forms of application for ancillary relief.
201.—(1.) This rule does not apply to proceedings for ancillary relief that are instituted by petition or by answer to a petition.
(2.) Subject to the next two succeeding sub-rules, an application to a court for the purpose of instituting proceedings for ancillary relief shall be in accordance with Form 44.
(3.) Subject to the next succeeding sub-rule, an application to a court for the purpose of instituting proceedings for ancillary relief—
(a) being proceedings for relief pending the disposal of proceedings; or
(b) being proceedings for relief in relation to completed proceedings for principal relief, including proceedings for principal relief completed before the commencement of the Act,
shall be in accordance with Form 5.
(4.) An application to a court for the purpose of instituting proceedings for maintenance pending the disposal of proceedings shall be in accordance with Form 45.
(5.) Subject to the next succeeding sub-rule, service of an application instituting proceedings for ancillary relief shall be effected on the spouse of the claimant in a manner referred to in paragraph (a), (b) or (c) of rule 60 of these Rules.
(6.) Where proceedings for ancillary relief are instituted in relation to completed proceedings of a kind referred to in paragraph (a) of the definition of “matrimonial cause”, service of the application shall not be effected in the manner referred to in paragraph (c) of rule 60 of these Rules unless the address for service of the spouse of the claimant is the address of a solicitor representing that spouse and that solicitor is, at the time of the service, representing that spouse in connexion with those proceedings for ancillary relief.
Division 2.—Maintenance pending Suit.
Order for maintenance pending suit where summary order in force.
202.—(1.) This rule applies in a case where—
(a) an order made by a court referred to in paragraph (a) of subsection (3.) of section 8 of the Act is in force with respect to the maintenance of a party to a marriage or a child of a marriage (in this rule referred to as “the existing order”);
and
(b) the party institutes proceedings for ancillary relief, being proceedings with respect to the maintenance of the party or the child, as the case may be, pending the disposal of proceedings.
(2.) A court shall not, in a case to which this rule applies, make an order for the maintenance of the party or the child, as the case may be, pending the disposal of proceedings unless the court also orders, under sub-section (5.) of section 8 of the Act, that the existing order shall cease to have effect.
(3.) In a case to which this rule applies—
(a) the application for ancillary relief shall state that the claimant is seeking an order, under sub-section (5.) of section 8 of the Act, that the existing order shall cease to have effect;
(b) the application for ancillary relief shall include particulars of any hardship likely to be suffered by the claimant or the child, as the case may be, if relief sought in the proceedings for ancillary relief is not granted; and
(c) a court shall not make an order with respect to the costs of the proceedings for ancillary relief in favour of the claimant unless the court is satisfied that there were good reasons for not allowing the existing order to continue to have effect.
(4.) In a case to which this rule applies, the claimant may, at any time after the filing of the application for ancillary relief, set the proceedings for ancillary relief down for hearing by filing a request in accordance with Form 46.
(5.) A claimant who files a request under the last preceding sub-rule shall cause service of a notice, in accordance with Form 47, to be effected on the spouse of the claimant in a manner referred to in paragraph (a), (b) or (c) of rule 60 of these Rules unless service of the application for ancillary relief on the spouse is dispensed with.
(6.) Unless a judge otherwise directs, there shall be at least fourteen clear days between the service of the notice and the day named in the notice for the hearing of the proceedings for ancillary relief.
(7.) Where, in a case to which this rule applies, the proceedings for ancillary relief were instituted by a petition or by an answer to a petition, and the respondent had not filed an answer to the petition, or the petitioner had not filed a reply to the answer, before a notice under sub-rule (5.) of this rule was served on him, the respondent or petitioner, as the case may be, may, in an affidavit filed for the purposes of the proceedings—
(a) admit or deny an allegation in the petition or answer that relates to those proceedings; and
(b) state any facts relevant to those proceedings that the respondent or petitioner wishes to be considered by the court upon the determination of those proceedings.
Order for maintenance pending suit not to be made where order of superior court in force.
Where an order with respect to the maintenance of a party to a marriage or of a child of a marriage is in force, being an order made by a court in Australia other than a court referred to in paragraph (a) of sub-section (3.) of section 8 of the Act, a court shall not make an order, under sub-section (2.) of section 84 of the Act, for the maintenance of the party or the child, as the case may be, pending the disposal of proceedings.
Assessment by the registrar.
204.—(1.) This rule applies in a case, not being a case to which rule 202 or 203 of these Rules applies, where proceedings for ancillary relief have been instituted seeking a decree with respect to the maintenance, pending the disposal of proceedings, of the claimant, of a child of the marriage or of the claimant and a child of the marriage.
(2.) Where, in a case to which this rule applies, no defence to the proceedings has been filed although the time for filing a defence has expired, the claimant may, by filing a request in accordance with Form 48, request the registrar of the court to make an assessment for the purpose of this rule, and the registrar shall, as soon as practicable after the filing of the request—
(a) if the particulars included in the application for ancillary relief are sufficient to enable him to do so—make the assessment; or
(b) in any other case—inform the claimant that he is unable to make the assessment until a certificate of means has been issued under rule 212 of these Rules.
(3.) Where, in a case to which this rule applies, a defence to the proceedings has been filed, the claimant may, by filing a request in accordance with Form 48, request the registrar of the court to make an assessment for the purpose of this rule, and the registrar shall, as soon as practicable after the filing of the request—
(a) if the particulars included in the application for ancillary relief and the particulars in the defence to the proceedings are sufficiently consistent and give sufficient information to enable him to do so—make the assessment; or
(b) in any other case—inform the claimant that he is unable to make an assessment until a certificate of means has been issued under rule 212 of these Rules.
(4.) Where, in a case to which this rule applies, a certificate of means is issued after a registrar has informed the claimant that he is unable to make an assessment, the registrar shall, as soon as practicable after the certificate of means is issued, make an assessment for the purpose of this rule having regard to the matters specified in that certificate.
(5.) An assessment made by a registrar for the purpose of this rule shall specify—
(a) the rate (if any) per week at which the registrar considers maintenance should be payable for the claimant or the child, as the case may be, pending the disposal of proceedings;
(b) the date, not being a date earlier than the day on which the petition, answer or application to the court for ancillary relief was filed, as from and including which maintenance at that rate should be payable;
(c) whether the registrar considers maintenance should be paid to the claimant, into court or to a person or public authority on behalf of the claimant; and
(d) the rate per week at which the registrar considers any maintenance for the claimant or the child in respect of the period commencing on the date specified in pursuance of paragraph (b) of this sub-rule and ending on the date of the assessment, less any amount paid as maintenance for the claimant or the child, as the case may be, in respect of that period, should be payable.
(6.) A registrar, in making an assessment for the purpose of this rule, shall not have regard to any allegation concerning the conduct of the claimant or the spouse of the claimant, whether or not that conduct is in question in the proceedings for principal relief unless that conduct is relevant to the means or financial needs of the claimant or his spouse or to the capability of the claimant or his spouse to earn income.
(7.) A registrar shall not, in proceedings for ancillary relief, make an assessment for the purpose of this rule specifying a rate per week for the maintenance of a claimant or a child if an order under rule 209 of these Rules has been made concerning the maintenance to be paid for the claimant or child, as the case may be.
(8.) An assessment for the purpose of this rule shall be in accordance with Form 49.
Service of assessment.
205.—(1.) Subject to the next succeeding sub-rule, a claimant who requests a registrar to make an assessment for the purpose of the last preceding rule in relation to proceedings for ancillary relief shall deposit with the registrar a form of assessment, in accordance with Form 49, for signature by the registrar and two copies of that form for the claimant and the spouse of the claimant, respectively.
(2.) The last preceding sub-rule does not require the deposit of a copy of a form of assessment tor the spouse of the claimant if service of the application for ancillary relief on the spouse—
(a) was dispensed with; or
(b) was effected by publishing notice of the application in a newspaper, but in no other manner,
unless the spouse filed a defence to the proceedings or the court, as a condition of dispensing with the service, required a copy of the application to be sent to or served on some other person.
(3.) A copy of a form of assessment for a person—
(a) shall be capable of being folded, and of being sealed with adhesive material provided on the form, for transmission through the post as a letter;
(b) shall have the name and address of the person so endorsed on it that, when the form is folded and sealed, the form can, without being enclosed in an envelope and without any further addition to it, be posted as a letter to the person at that address; and
(c) shall have a notation, in accordance with the form set out in sub-rule (8.) of this rule, so endorsed on it that, when it is folded and sealed, the notation will remain legible.
(4.) For the purpose of the last preceding sub-rule the address of a person that is to be written on a copy of a form of assessment is—
(a) if the person is the claimant—the address for service of the claimant; or
(b) if the person is the spouse of the claimant—the address for service of the spouse, the last address of the spouse known to the claimant, the address of the place at which the spouse was served with the application for ancillary relief or the address of the person to or on whom a copy of that application was sent or served as a condition of dispensing with service on the spouse,
(5.) As soon as practicable after a registrar makes an assessment under the last preceding rule, the registrar—
(a) shall complete, sign and file the form of assessment deposited under sub-rule (1.) of this rule; and
(b) shall then complete and sign the copies of that form and cause each copy to be served on the person to whom it is addressed by posting it to that person as a letter, postage being prepaid.
(6.) Service of a copy of an assessment shall, unless the contrary is proved, be deemed to have been effected on a person at the time when the letter containing the copy of the assessment would, in the ordinary course of post, be delivered at the address to which it is posted.
(7.) In any proceedings, a certificate, under the hand of a registrar and written on an assessment, stating that a copy of the assessment was posted as a letter (postage being prepaid) at a specified time, on a specified day, at a specified place and addressed to a specified person at a specified address is evidence of the facts stated in the certificate.
(8.) The form of the notation required by paragraph (c) of sub-rule (3.) of this rule to be endorsed on a form of assessment deposited by a claimant is as follows:—
“If not delivered within 7 days, return to (name of the solicitor for that claimant or name of that claimant, as the case may be, and address for service of that claimant).”.
Reference of claim to the court.
206.—(1.) When, in a case to which rule 204 of these Rules applies, the registrar has made an assessment for the purpose of that rule, the petitioner or respondent may, not later than ten days after service of a copy of the assessment on him, by filing a request in accordance with Form 50, request the registrar to refer the proceedings to the court, and the registrar shall refer the proceedings accordingly.
(2.) Where a person on whom a copy of an assessment has been served does not duly file a request under the last preceding sub-rule, the person shall be taken to have consented to the court making, in the proceedings in relation to which the assessment was made, an order in accordance with the terms of the assessment, but that consent shall not be taken to prejudice the person in any other proceedings.
Default in payment of amount assessed.
207.—(1.) Subject to the next succeeding sub-rule, where, in proceedings with respect to maintenance, a claimant and his spouse are taken to have consented to the making of an order by the court in accordance with the terms of an assessment, the claimant may, by filing a request in accordance with Form 50, request the registrar to refer the proceedings to the court under this rule, and the registrar shall refer the proceedings accordingly.
(2.) The last preceding sub-rule does not require the registrar to refer proceedings to the court unless the registrar is satisfied, by affidavit, that the total amount of the payments (including payments in respect of a period preceding the date of the assessment) that would have become due and payable on or before the date on which the request is filed if the assessment had been an order for the payment of maintenance in accordance with its tenor exceeds, by more than the amount of the weekly rate, or the sum of the weekly rates, specified in the assessment in pursuance of paragraph (a) of sub-rule (5.) of rule 204 of these Rules, the total amount paid by the spouse of the claimant for the maintenance of the claimant, of the child or of the claimant and the child, as the case may be, since the date of the assessment (excluding so much of any maintenance so paid as relates to a period preceding the date specified in the assessment in pursuance of paragraph (b) of that sub-rule).
(3.) Where a registrar is required to refer proceedings to a court under sub-rule (1.) of this rule, the registrar shall bring the proceedings before the court which, if it thinks fit, may, without any application being made to it and without a hearing, order the payment of maintenance in accordance with the terms of the assessment less any amounts paid as maintenance in respect of the period covered by the assessment.
(4.) Where a court does not think fit to make an order under the last preceding sub-rule, the registrar of the court shall refer the proceedings to the court for hearing and determination and the spouse of the claimant may withdraw the consent that, under rule 206 of these Rules, he is taken to have given.
(5.) Where, in proceedings for ancillary relief, an order under rule 209 of these Rules has been made for the payment of maintenance for the claimant in the proceedings or for a child of a marriage, an order shall not be made under this rule for the payment of maintenance for the claimant or child, as the case may be, in accordance with the terms of an assessment made under rule 204 of these Rules.
Notice of hearing.
208.—(1.) The party at whose request proceedings for ancillary relief are referred to the court under rule 206 of these Rules, or the claimant in proceedings for ancillary relief that are referred to the court under sub-rule (4.) of the last preceding rule, shall cause to be served on the spouse of the party or claimant, as the case may be, a notice, in accordance with Form 51.
(2.) The last preceding sub-rule does not require service of a notice referred to in that sub-rule to be effected on the spouse if service on the spouse of the application for ancillary relief instituting the proceedings—
(a) was dispensed with; or
(b) was effected by publishing notice of the application in a newspaper,
and the spouse did not file a defence to the proceedings.
Consent orders for maintenance pending the disposal of proceedings.
209.—(1.) Where the parties to proceedings for ancillary relief, being proceedings for an order with respect to the maintenance, pending the disposal of proceedings, of one of those parties or of a child of a marriage, agree as to the maintenance that should be paid for the party or the child pending the disposal of proceedings, a form of order may be deposited with the registrar providing for one or more of the following:—
(a) the payment of maintenance in accordance with the agreement,
(b) the payment of the costs of the proceedings; and
(c) ordering, under sub-section (5.) of section 8 of the Act, that a relevant existing order, within the meaning of rule 202 of these Rules, shall cease to have effect.
(2.) A form of order shall not be deposited under the last preceding sub-rule unless it has endorsed on it the consent, signed by each of the parties either personally or by his solicitor, to the making of an order in the terms of the form.
(3.) Where a form of order is duly deposited with a registrar, the registrar shall bring the proceedings to which the form of order relates before the court which, if it thinks fit, may, without any application being made to it and without a hearing, make an order, or orders, in the terms of the form.
(4.) Where, after a registrar has made an assessment under rule 204 of these Rules specifying the rate per week at which the registrar considers maintenance should be paid for the person pending the disposal of proceedings, an order is made under the last preceding sub-rule with respect to the maintenance payable for the person pending the disposal of those proceedings, the assessment ceases to have effect for the purpose of rule 206 or 207 of these Rules.
Determination of claim for maintenance by the court.
210.—(1.) A court may, in determining proceedings for ancillary relief, being proceedings seeking an order with respect to the maintenance, pending the disposal of proceedings, of a party to a marriage or of a child of a marriage, have regard to the conduct of the parties to the marriage other than conduct that is in question in the proceedings for principal relief.
(2.) Notwithstanding the last preceding sub-rule, a court may take into account allegations concerning the conduct of a party to the marriage that is in question in the proceedings for principal relief if the truth of the allegations has been admitted by the party in a pleading or affidavit filed for the purpose of the proceedings for ancillary relief or in a pleading filed for the purpose of the proceedings for principal relief.
(3.) Where proceedings for ancillary relief are referred to a court in pursuance of a request under rule 206 of these Rules, the court shall not make an order with respect to the costs of the proceedings in favour of the party who made the request unless the court is satisfied that the reference of the proceedings to the court was justified.
Division 3.—Certificates of Means.
Application for certificate of means.
211.—(1.) This rule applies to proceedings for ancillary relief in which—
(a) a party to a marriage is seeking a decree with respect to the maintenance of a party to the marriage, settlements or the maintenance of a child of the marriage; or
(b) a registrar has informed the claimant that the registrar is unable to make an assessment under rule 204 of these Rules until a certificate of means has been granted.
(2.) In proceedings for ancillary relief to which this rule applies, a party to the marriage may make application to a registrar for a certificate of means with respect to the pecuniary resources of the parties to the marriage and the capability of each of those parties to earn income.
(3.) Except by leave of the court, an application referred to in the last preceding sub-rule shall not be made—
(a) after the date on which the proceedings for principal relief have been set down for trial; or
(b) after a certificate of means has been granted in relation to the proceedings for ancillary relief.
(4.) An application for a certificate of means shall be in accordance with Form 52.
(5.) Service of an application under sub-rule (2.) of this rule by a party to a marriage shall be effected on the other party to the marriage in a manner referred to in paragraph (a), (b) or (c) of rule 60 of these Rules.
(6.) On the hearing of an application for a certificate of means in relation to proceedings for ancillary relief, the application for ancillary relief, and the defence to the proceedings (if any), filed for the purpose of those proceedings are each evidence of any facts relevant to that first-mentioned application that are stated in it.
(7.) It is not necessary for a party making application for a certificate of means to file an affidavit in support of his application.
(8.) Notwithstanding the last preceding sub-rule, either party to an application for a certificate of means may file affidavits for the purpose of the application, and sub-rule (2.) of rule 22, and rule 23, of these Rules apply to and in relation to affidavits so filed.
Issue of certificate of means.
212.—(1.) A registrar shall, upon application made under the last preceding rule or at the direction of the court, inquire into the pecuniary resources of the parties to the marriage to which the application relates and into the capability of each of those parties to earn income, and issue a certificate of means, in accordance with Form 53, with respect to those resources and capabilities.
(2.) Where a certificate of means is issued upon an application made after such a certificate has already been issued, the certificate already issued shall be deemed to have been revoked.
(3.) Where a judge directs an inquiry by a registrar into the pecuniary resources of the parties to a marriage and the capability of each of those parties to earn income, the judge may give such directions as he thinks fit with respect to service of notice of the date fixed for the hearing of the inquiry by a registrar and the filing and serving of affidavits for the purpose of that inquiry, and the parties of the marriage shall comply with any such directions.
Certificate of means to be evidence.
A certificate of means is evidence of the matters specified in the certificate.
Division 4.—Custody.
Notice of application for interim order.
214.—(1.) Where proceedings for ancillary relief, being proceedings seeking an order with respect to the custody, guardianship, welfare, advancement or education of a child of a marriage pending the disposal of proceedings, are instituted by a petition or by an answer to a petition, the petitioner or respondent, as the case may be, may, at any time after the filing of the petition or answer, set the proceedings for ancillary relief down for hearing by filing a request in accordance with Form 46.
(2.) A party who files a request referred to in the last preceding sub-rule shall cause service of notice, in accordance with Form 47, of the place, date and time fixed for the hearing of the proceedings to be effected, in a manner referred to in paragraph (a), (b) or (c) of rule 60 of these Rules, on each other party to the proceedings for ancillary relief, other than a party service on whom of the petition or answer instituting the proceedings was dispensed with.
(3.) Unless a judge otherwise directs, there shall be at least fourteen clear days between the service of the notice and the day named in the notice for the hearing of the proceedings for ancillary relief.
(4.) Where a notice referred to in sub-rule (2.) of this rule is served on a respondent who has not filed an answer to the petition, or on a petitioner who has not filed a reply to the answer, the respondent or petitioner, as the case may be, may, in an affidavit filed for the purpose of the proceedings—
(a) deny any allegation in the petition, or answer, that relates to the proceedings for ancillary relief; and
(b) state any facts relevant to the proceedings for ancillary relief that the respondent or petitioner wishes to be considered by the court upon the determination of those proceedings.
Respondent may make application for custody pending disposal of proceedings.
215.—(1.) The respondent to a petition instituting proceedings for principal relief may, at any time before the filing of an answer to the petition on behalf of the respondent but not later than the expiration of the time limited for the filing of such an answer, make application to the court for an order with respect to the custody, guardianship, welfare, advancement or education, as the case may be, of a child of the marriage pending the disposal of the proceedings.
(2.) Unless a judge otherwise directs, there shall be at least fourteen clear days between the service of an application referred to in the last preceding sub-rule and the day named in the application for the hearing of the application or the day fixed by the registrar for the hearing of the application, as the case may be.
Application for custody pending disposal of proceedings.
216.—(1.) Where, after proceedings for principal relief have been instituted, a dispute arises with respect of the custody, guardianship, welfare, advancement or education, as the case may be, of a child pending the disposal of the proceedings, the petitioner or respondent may make application to the court for an order with respect to the custody, guardianship, welfare, advancement or education, as the case may be, of the child pending the disposal of the proceedings.
(2.) Unless a judge otherwise directs, there shall be at least fourteen clear days between the service of an application referred to in the last preceding sub-rule and the day named in the application for the hearing of the application or the day fixed by the registrar for the hearing of the application, as the case may be.
Ex parte application for custody.
217.—(1.) Where proceedings for ancillary relief have been instituted seeking an order with respect to the custody, guardianship, welfare, advancement or education of a child of the marriage pending the disposal of proceedings, the court may, in a case of urgency, hear the proceedings, and make an order in the proceedings, ex parte.
(2.) The petitioner or respondent in proceedings for principal relief may, in a case of urgency, institute, by filing an application or, with the leave of the court, by making application orally to the court, proceedings for ancillary relief seeking an order of a kind referred to in the last preceding sub-rule, and the court may hear the proceedings for ancillary relief, and make an order in those proceedings, ex parte.
(3.) Where the court gives leave under the last preceding sub-rule to make an application orally to the court, the court may give the leave upon condition that the claimant gives to the court an undertaking to file, as soon as practicable, an application and such affidavits and other documents in support of the application as the court thinks fit.
(4.) Where a court makes an order of a kind referred to in sub-rule (1.) of this rule upon an application that was made ex parte, the court shall—
(a) specify in the order the period during which the order shall remain in force;
(b) give directions with respect to the service of copies of the order, the application and such other documents as it thinks fit on the spouse of the claimant and, if a person other than the claimant or the spouse of the claimant has the custody, or the care and control, of the child, on that person; and
(c) give directions with respect to the further hearing of the proceedings for ancillary relief.
Division 5.—Proceedings for Ancillary Relief instituted by a Person not a Party to the Marriage.
Application for custody of a child by a person other than a parent of the child.
218.—(1.) Where a person who is not the petitioner or respondent in proceedings for principal relief institutes, in relation to those proceedings and by leave of the court, proceedings for ancillary relief, being proceedings with respect to the custody, guardianship, maintenance, welfare, advancement or education of a child of the marriage to which the proceedings for principal relief relate, this rule applies to those proceedings for ancillary relief, but the provisions of Division 2, Division 3 and Division 4 of this Part do not apply to or in relation to those proceedings for ancillary relief.
(2.) Where a person institutes proceedings for ancillary relief to which this rule applies—
(a) the title to the proceedings for principal relief shall be deemed to have been amended by adding the full name and designation of the person;
(b) such of the parties to the marriage as are living on the date of the institution of the proceedings for ancillary relief are parties to the proceedings for ancillary relief;
(c) subject to the next succeeding sub-rule, the person shall cause service of the application instituting the proceedings for ancillary relief to be effected, in a manner referred to in paragraph (a), (b) or (c) of rule 60 of these Rules, on such of the parties to the marriage as are living on that date;
(d) subject to sub-rule (5.) of this rule, it is not necessary for service of a pleading, or of a copy of a document, filed for the purpose of the proceedings for principal relief after the institution of the proceedings for ancillary relief to be effected on the person unless the pleading or document relates to other proceedings with respect to the custody of the child; and
(e) a judge of the court may give such directions with respect to the filing of affidavits and the trial of the proceedings for ancillary relief as he thinks necessary for the proper determination of the proceedings for ancillary relief.
(3.) Where proceedings for ancillary relief to which this rule applies are instituted in relation to completed proceedings for principal relief, service of the application instituting the proceedings for ancillary relief shall not be effected on a party in the manner referred to in paragraph (c) of rule 60 of these Rules unless the address for service of the party is the address of a solicitor representing that party and that solicitor is, at the time of the service, representing the party in connexion with those proceedings for ancillary relief.
(4.) Where proceedings for ancillary relief to which this rule applies are instituted before the trial of the proceedings for principal relief, the proceedings for ancillary relief shall, subject to any directions given under paragraph (e) of the last preceding sub-rule, be deemed to have been consolidated with, and shall, so far as is practicable, be heard and determined by the court at the same time as the proceedings for principal relief.
(5.) Where proceedings for ancillary relief to which this rule applies are instituted before the proceedings for principal relief are set down for trial—
(a) a copy of any request to set the proceedings for principal relief down for trial; and
(b) any application, or any document filed for the purpose of an application, with respect to the date on which or place at which the trial of the proceedings for principal relief shall take place,
shall be served on the person who instituted the proceedings for ancillary relief.
(6.) Subject to this rule and to any directions given under paragraph (e) of the sub-rule (2.) of this rule, the provisions of rules 21, 22 and 23 of these Rules apply to and in relation to proceedings for ancillary relief to which this rule applies.
Division 6.—Variation of Orders.
Variation of orders.
219.—(1.) Where application is made to a court for the variation of an order made in respect of a matter referred to in section 84 of the Act so as to increase or decrease any amount ordered to be paid by the order, the affidavits in support of the application shall state, in addition to any other facts stated in pursuance of rule 22 of these Rules—
(a) the changed circumstances relied on by the applicant;
(b) the material facts that are alleged by the applicant to have been withheld from a court; or
(c) the material evidence previously given before a court that is alleged by the applicant to have been false,
(2.) Where application is made to a court for an order increasing or decreasing—
(a) the security for the payment of a periodic sum ordered to be paid; or
(b) the amount of a lump sum or periodic sum ordered to be secured,
the affidavits in support of the application shall state, in addition to any other facts stated in pursuance of rule 22 of these Rules, the material facts that are alleged by the applicant to have been withheld from a court or the material evidence previously given before a court that is alleged by the applicant to have been false, as the case may be.
(3.) Where a party has made application to the court for the variation of an order, another party to the application may, in an affidavit filed for the purpose and without filing an application to the court, request the court to vary the order in a manner specified in the affidavit, and the court shall then determine the request upon the hearing of the application.
(4.) Where a party makes a request referred to in the last preceding sub-rule, the affidavit of the party shall state whichever of the matters referred to in paragraph (a), (b) or (c) of sub-rule (1.), or in paragraph (a) or (b) of sub-rule (2.), of this rule are relevant to the request.
PART XV.—APPEALS.
Case stated.
220.—(1.) A special case under section 91 of the Act shall be divided into paragraphs numbered consecutively, and shall state concisely the facts and the question of law arising for the consideration of the High Court.
(2.) The judge by whom a special case is to be stated may give directions with respect to the procedure to be followed in and in relation to the preparation of the special case, and the parties shall comply with any such directions.
Time for appealing to State Full Court.
The time within which an appeal may be instituted under subsection (1.) of section 92 of the Act is twenty-one days after the making of the decree concerned
Practice and procedure on appeal to State Full Court.
222.—(1.) Subject to the next succeeding rule, the practice and procedure for the time being of the Supreme Court of a State applies to and in relation to an appeal under section 92 of the Act to the Supreme Court of that State sitting as a Full Court.
(2.) In the last preceding sub-rule, “the practice and procedure of the Supreme Court of a State” means the practice and procedure of the Supreme Court of a State applicable to and in relation to an appeal to that Supreme Court, sitting as a Full Court, from a decision of a judge of that Supreme Court exercising the jurisdiction of that Supreme Court.
Appeal Books.
223.—(1.) This rule applies to appeal books for the purpose of appeals under section 92 of the Act.
(2.) An appeal book shall be printed, or reproduced by a duplicating process, upon white folio foolscap paper.
(3.) The type used in the printing or reproduction of an appeal book shall not be less in size than 11 point type upon a 12 point body.
(4.) A page in an appeal book—
(a) shall not contain more than sixty lines of type;
(b) shall have every line on the page numbered consecutively in the margin; and
(c) shall be so printed as to leave free from writing (other than the numbering of the lines) a margin two and one-quarter inches wide before each line of type commences and a margin one inch wide after each line of type.
(5.) Subject to the preceding sub-rules of this rule, the practice and procedure for the time being of the Supreme Court of a State with respect to the printing of appeal books, or the reproduction of appeal books by a duplicating process, applies to and in relation to an appeal book to which this rule applies.
PART XVI.—EVIDENCE.
Evidence to be given orally.
224.—(1.) Subject to this Division, testimony at the trial of proceedings shall be given orally.
(2.) Nothing in this Division shall be taken to prevent the admission in evidence, in accordance with the practice of the court, at the trial of proceedings—
(a) of evidence taken at a previous trial of the proceedings;
(b) of evidence taken in other proceedings; or
(c) of the depositions of a witness taken by virtue of a commission to examine the witness.
Proof of service of documents.
Unless a court otherwise orders at the trial of proceedings or a registrar otherwise orders at the hearing of an application to the registrar, proof of the due service of a pleading or other document may be given by affidavit.
Evidence of when letter delivered in ordinary course of post.
226.—(1.) In any proceedings, a certificate under the hand of a person occupying, or performing the duties of, an office under the Post and Telegraph Act 1901-1950 of Director, Posts and Telegraphs, or a person authorized in writing by such a person to give certificates under this sub-rule, stating that a letter posted (postage being prepaid) at a specified time, on a specified day, at a specified place and addressed to a specified address would, in the ordinary course of post, have been delivered at that address on a specified day is evidence of the fact stated.
(2.) For the purposes of the last preceding sub-rule, a document purporting to be a certificate referred to in that sub-rule shall, unless the contrary is proved, be deemed to be such a certificate and to have been duly given.
Affidavit evidence on the trial of proceedings.
227.—(1.) This rule applies to proceedings for a decree of a kind referred to in paragraph (a) of the definition of “matrimonial cause” and to any related proceedings that are heard and determined by a court at the same time as the proceedings for such a decree.
(2.) Subject to the next succeeding sub-rule, the court may, by order, grant leave to a party to proceedings to which this rule applies to furnish at the trial evidence of a particular fact by the affidavit of a person, whether a party to the proceedings or not, who has, of his own knowledge, deposed to the fact.
(3.) An order referred to in the last preceding sub-rule may be made by a court—
(a) before the trial of the proceedings—upon application made by a party to the proceedings; or
(b) at the trial of the proceedings—upon oral application made during that trial.
(4.) Where the court makes an order referred to in sub-rule (2.) of this rule before defended proceedings to which this rule applies are set down for trial—
(a) an affidavit proposed to be used on the trial of the proceedings in pursuance of leave granted to the party by the order shall, unless the court otherwise ordered, be filed within eight days after the making of the order, and a copy of the affidavit shall, on the day on which it is filed or on the next following day, be served on each other party to the proceedings who has filed a pleading;
(b) a party on whom a copy of an affidavit is so served may, within eight days after the service, file an affidavit in reply;
(c) the party who obtained the order may, within four days after an affidavit in reply is served on him, file a further affidavit in reply; and
(d) a copy of an affidavit in reply shall, on the day on which it is filed or on the next following day, be served on the party who filed the affidavit in reply to which it is filed.
(5.) Where the court makes an order referred to in sub-rule (2.) of this rule after defended proceedings to which this rule applies have been set down for trial, the order shall specify the time within which an affidavit may be filed and served, and the time within which affidavits in reply may be filed and served.
Affidavit evidence on the hearing of other proceedings.
228.—(1.) Evidence shall be given by affidavit upon the hearing of proceedings of a kind referred to in paragraph (c), (d) or (e) of the definition of “matrimonial cause” (not being proceedings to which the last preceding rule applies), or on the hearing of an application to a registrar, unless the court or registrar, as the case may be, orders otherwise.
(2.) Where an affidavit intended to be used upon the hearing of proceedings or an application to which the last preceding sub-rule applies is filed on behalf of a party to the proceedings or application, the party shall, on the day on which the affidavit is filed or on the next following day, serve a copy of the affidavit on each other party who has an address for service.
(3.) Where a party to proceedings or to an application has served on another party to the proceedings or application a copy of an affidavit intended to be used upon the hearing of the proceedings or application, the party on whom the affidavit was served may, within the time limited for replying to the affidavit or, if no such time is limited, within four days after
service of the affidavit on the party, serve on the party who served the affidavit notice that he desires, upon the hearing of the proceedings, or application, to cross-examine the person who made the affidavit.
(4.) A party who serves a notice that he desires to cross-examine the person who made an affidavit shall, unless that person is or has been the husband of the party, pay or tender reasonable expenses for the attendance of the person at the hearing.
(5.) Where a notice has been served under sub-rule (3.) of this rule and the last preceding sub-rule has been complied with, the affidavit in relation to which the notice was served shall not be admitted in evidence upon the hearing of the proceedings or application unless—
(a) the person who made the affidavit is available at the hearing for cross-examination; or
(b) the court or registrar, as the case may be, is satisfied that there are special circumstances justifying the admission of the affidavit in evidence.
Division 2.—Affidavits.
Contents of affidavit.
229.—(1.) Where an affidavit states facts to which the deponent is unable to depose of his own knowledge—
(a) the affidavit is not admissible as evidence of those facts upon the trial of proceedings to which rule 227 of these Rules applies; and
(b) unless the affidavit states the deponent’s belief in the truth of those facts and particulars of his means of knowing those facts, the affidavit is not admissible as evidence of those facts upon the hearing of any other proceedings or of an application to a registrar.
(2.) The costs of a part of an affidavit that unnecessarily sets forth matters of hearsay, argumentative matter or copies of, or extracts from, documents are payable by the party filing the affidavit.
Document to be produced if extract set forth in affidavit.
Where a document or a portion of a document is set forth in an affidavit, the party filing the affidavit shall produce the document, or cause the document to be produced, upon the trial of the proceedings in connexion with which the affidavit is filed.
Exhibits.
A document, object or thing referred to in an affidavit as an exhibit shall have written on it, or on a paper attached to it, the title and number of the proceedings in connexion with which the affidavit is filed and a certificate signed by the person before whom the affidavit is sworn certifying that the exhibit is the particular exhibit referred to in the affidavit.
Use of figures.
In an affidavit, dates and sums of money shall be written in figures and not in words.
Before whom affidavit may be sworn.
233.—(1.) An affidavit may be sworn at a place in Australia before a person having authority to administer an oath at that place.
(2.) Without limiting the generality of the last preceding sub-rule, an affidavit to be used in proceedings in the Supreme Court of a State or Territory may be sworn at a place that is outside that State or
Territory, whether that place is within or outside Australia, before a person before whom affidavits for use in the Supreme Court of that State or Territory may, by virtue of a law of that State or Territory, be sworn at that place.
(3.) An affidavit may be sworn at a place outside Australia before an Australian Diplomatic Officer or an Australian Consular Officer as defined by section 2 of the Consular Fees Act 1955 or before a judge of a court of that place, a magistrate or justice of the peace of or for that place or a notary public.
(4.) The title of the person before whom an affidavit is sworn, and the date on which and place at which the affidavit is sworn, shall be stated in the jurat to the affidavit.
(5.) Where an affidavit purports to have been sworn at a place before a person before whom an affidavit is permitted to be sworn at that place, the affidavit shall, without proof of the signature of that person or of his title, be deemed, unless the contrary is proved, to have been sworn before such a person.
(6.) Notwithstanding sub-rule (1.) or (2.) of this rule, an affidavit is not admissible in evidence if sworn by the deponent before—
(a) the solicitor acting for the party on whose behalf the affidavit is to be used;
(b) the agent or correspondent of the solicitor so acting;
(c) the party on whose behalf the affidavit is to be used; or
(d) a clerk or partner of that solicitor, agent, correspondent or party.
Form of affidavit.
234.—(1.) An affidavit shall be drawn up in the first person and shall be divided into paragraphs.
(2.) Where an affidavit contains more than one paragraph, the paragraphs shall be numbered consecutively.
(3.) Each paragraph shall, so far as practicable, be confined to a distinct part of the subject.
(4.) An affidavit shall be in accordance with Form 54.
(5.) Costs shall not be allowed for an affidavit departing substantially from this rule.
Affidavit to contain occupation and address of deponent.
An affidavit shall state the address and occupation of the deponent.
Signing affidavits.
An affidavit shall be signed on each page by the deponent and by the person before whom the affidavit is sworn.
Affidavit made by two or more deponents.
237.—(1.) Subject to the next succeeding sub-rule, where an affidavit is sworn by two or more deponents, the full name of each deponent shall be stated in the jurat.
(2.) If all the deponents swear the affidavit at the same time and before the same person, it is sufficient for the jurat to show that the affidavit was sworn or affirmed by all of the “abovenamed” deponents.
Affidavits to be filed before being used.
238.—(1.) An affidavit to be used in proceedings before a court shall, unless the court otherwise directs, be filed before it is so used.
(2.) An affidavit to be used in connexion with an application to a registrar shall, unless the registrar otherwise directs, be filed before it is so used.
Endorsements on affidavit.
239.—(1.) There shall be endorsed on an affidavit the name of the deponent, the date on which the affidavit is sworn and the party on whose behalf the affidavit is filed.
(2.) An affidavit that does not have endorsed on it the particulars referred to in the last preceding sub-rule shall not be used in proceedings, or on the hearing of an application to a registrar, unless the court before which the proceedings are tried, or the registrar, as the case may be, otherwise directs.
Irrelevant matter.
The court may, upon application by a party to proceedings, order that any scandalous or irrelevant matter included in an affidavit filed for the purpose of the proceedings be struck out, and may further order that the costs of the application be paid as between solicitor and client.
Alterations in affidavits.
When an affidavit filed for the purpose of proceedings, or of an application to a registrar, contains, in the jurat or in the body of the affidavit, an interlineation, alteration or erasure, the affidavit shall not be used in the proceedings, or on the hearing of the application, without the leave of the court before whom the proceedings are tried, or the registrar, as the case may be, unless—
(a) in the case of an interlineation or alteration, not being an alteration by erasure—the interlineation or alteration is authenticated by the initials of the person before whom the affidavit is sworn; or
(b) in the case of an erasure—the words or figures appearing at the time the affidavit is sworn to be written on the erasure are written in the margin of the affidavit and initialled by the person before whom the affidavit is sworn.
Affidavits by illiterate or blind persons.
242.—(1.) Where an affidavit is sworn by a deponent who appears to the person before whom it is sworn to be illiterate or blind, that person shall certify, in the jurat to the affidavit, that—
(a) the affidavit was read in his presence to the deponent;
(b) the deponent appeared to understand the matter contained in the affidavit; and
(c) the deponent signed the affidavit (whether by making his mark or otherwise) in the presence of that person.
(2.) Where an affidavit that is sworn by a person who is illiterate or blind does not bear the certificate referred to in the last preceding sub-rule, the affidavit is not admissible in evidence in proceedings, or on the hearing of an application by a registrar, unless the court before whom the proceedings are tried, or the registrar, is satisfied that the affidavit was read over to the deponent and that the deponent appeared to understand the matter contained in the affidavit.
Affirmations.
Where the deponent to an affidavit objects to swearing on oath to the truth of the statements contained in the affidavit, he may solemnly and sincerely declare and affirm that he objects to swearing an oath and that the statements contained in the affidavit are true, and the jurat to the affidavit shall be altered accordingly.
Defective affidavits.
Where, in an affidavit filed for the purpose of proceedings or of an application to a registrar, there is a defect, by misdescription of parties or deponents or otherwise, in the title to, or jurat in, the affidavit, or there is any irregularity in the form of the affidavit, the court by whom the proceedings are tried, or the registrar, may direct that a memorandum be written on the affidavit authorizing the use of the affidavit notwithstanding the defect or irregularity, and the affidavit may then be used in the proceedings, or on the hearing of the application.
PART XVII.—ENFORCEMENT OF DECREES.
Except as expressly provided in this Part, nothing in this Part shall be taken to limit the operation, throughout the States and Territories, of decrees and process made or issued under the Act or these Rules.
Enforcement of decrees.
246.—(1.) Subject to sub-rule (4.) of this rule, a decree made under the Act is not enforceable against a person unless—
(a) service of a copy of the decree has been effected—
(i) on the person—in the manner referred to in paragraph (a) of rule 60 of these Rules or in accordance with the terms of an order for the substituted service of the decree; or
(ii) on the solicitor representing the person in connexion with the enforcement of the decree—in the manner referred to in paragraph (a) of rule 60 of these Rules;
(b) subject to the next succeeding sub-rule, at the time service of a copy of the decree was so effected the decree was shown to the person to whom the copy was delivered;
(c) a notice, in accordance with the form of notice contained in sub-rule (3.) of this rule, addressed to the person is written on the copy of the decree that is served on the person; and
(d) subject to the next succeeding rule, demand, in writing, for compliance with the decree has been made on the person.
(2.) Paragraph (b) of the last preceding sub-rule does not apply to the enforcement of a decree against a person in a case where an order has been made substituting for service of the decree on the person the giving of notice of the decree to the person by advertisement or otherwise.
(3.) The form of notice referred to in paragraph (c) of sub-rule (1.) of this rule is as follows:—
“To
Take notice that if you fail to carry out the acts required of you by the within decree (or order) within the time specified in the decree (or order) for carrying out those acts, further legal proceedings may be taken against you for the purpose of compelling you to carry out those acts.”.
(4.) Sub-rule (1.) of this rule does not apply to the enforcement of a decree against a person if a court has, under sub-section (2.) of section 121 of the Act, dispensed with service of a copy of the decree on the person.
Demand for compliance with decree.
247.—(1.) Where a person is ordered by a decree to pay within a time specified in the decree—
(a) into court; or
(b) to a person, and at a place, specified in the decree,
a sum or sums of money for maintenance, costs or damages, the making of a demand for compliance with the decree is not necessary for the purpose of the last preceding rule.
(2.) Where a person is ordered by a decree to do an act, not being the payment of a sum or sums of money for maintenance, costs or damages, within a time specified in the decree, or to refrain from doing an act, the making of a demand for compliance with the decree is not necessary for the purpose of the last preceding rule.
Division 2.—Attachment and Sequestration.
Leave to enforce decree by attachment or sequestration.
248.—(1.) A decree shall not be enforced by attachment or sequestration without the leave of the court by which the decree was made or of a court in which the decree has been registered under section 103 of the Act.
(2.) Subject to the next succeeding sub-rule, where application is made for leave to enforce, by attachment or sequestration, a decree for the payment of maintenance or costs, the affidavit in support of the application shall, in addition to any other facts stated in pursuance of rule 22 of these Rules, state particulars of the amounts that have become payable under the decree and of any amounts paid in reduction of those amounts, and, as far as practicable, the respective dates on which any amounts so paid were paid.
(3.) An affidavit shall be deemed to have stated the particulars referred to in the last preceding sub-rule if the affidavit—
(a) states that, at a specified date, all amounts that had become payable under the decree on or before that date had been paid; and
(b) states particulars of the amounts that have become payable under the decree after that date and of any amounts paid in reduction of the amounts so payable and, as far as practicable, the respective dates on which any amounts so paid were paid.
(4.) A party to proceedings who makes application for leave to enforce a decree by attachment or sequestration against another party to the proceedings shall cause service of the application to be effected on the other party in a manner referred to in paragraph (a) or (b) of rule 60 of these Rules.
When sequestration may be ordered.
249.—(1.) Where a person who has been arrested in pursuance of a writ of attachment is brought before a court, the court may, with the consent of the person on whose application the person was arrested, order the sequestration of the person’s estate instead of ordering the person to be kept in custody.
(2.) A court may, under section 102 of the Act, enforce a decree by sequestration notwithstanding that an attempt has not been made to enforce the decree by attachment.
Discharge of writ of sequestration.
A court may, upon application made by a person whose estate has been sequestrated in pursuance of a writ of sequestration issued under an order of a court, discharge the writ of sequestration upon such terms and conditions as the court thinks fit.
Division 3.—Attachment of Earnings Orders.
Interpretation.
251.—(1.) Unless the contrary intention appears, expressions used in this Division have the same meanings as in the Third Schedule to the Act.
(2.) In this Division, “the prescribed officer” means—
(a) in relation to a Supreme Court—the registrar of that Supreme Court; and
(b) in relation to a court of summary jurisdiction—the clerk or other proper officer of that court of summary jurisdiction.
Application to Supreme Court for attachment of earnings order.
252.—(1.) An application to the Supreme Court of a State or Territory for an attachment of earnings order may be made ex parte.
(2.) The affidavit in support of an application referred to in the last preceding sub-rule shall, in addition to any other facts stated in pursuance of rule 22 of these Rules, state—
(a) particulars of the maintenance order;
(b) the amount of the arrears due to the applicant under the maintenance order;
(c) particulars of any proceedings taken by or on behalf of the applicant for the enforcement of the maintenance order;
(d) the name and address of the person believed by the applicant to be the employer of the defendant; and
(e) such of the following particulars as are known to the applicant:—
(i) the place at which the defendant resides;
(ii) the age of the defendant;
(iii) the place at which the defendant works; and
(iv) the nature of the work performed by the defendant and the works number (if any) of the defendant.
Form of attachment of earnings order.
An attachment of earnings order, whether made by a Supreme Court or by a court of summary jurisdiction, shall be in accordance with Form 55.
Service of orders.
254.—(1.) Subject to the next succeeding sub-rule, where a Supreme Court or a court of summary jurisdiction makes an attachment of earnings order, or an order varying or discharging an attachment of earnings order, the prescribed officer of the court shall cause service of a sealed copy of the order to be effected on—
(a) the person entitled to receive payments under the maintenance order;
(b) the defendant; and
(c) the person to whom the attachment of earnings order is directed,
by properly addressing and posting, postage being prepaid, the copy, as a letter, to the person at the last place of residence of the person known to the prescribed officer, or, in the case of the person to whom the attachment of earnings order is directed, at a place of business of the person.
(2.) The last preceding sub-rule does not require service of a copy of an order to be effected on the applicant for the order.
(3.) Where the prescribed officer of a court has caused a sealed copy of an order referred to in sub-rule (1.) of this rule to be posted, in accordance with that sub-rule, to the person to whom the attachment of earnings order is directed at a place of business of the person, the copy shall be deemed to have been served on the person on the day on which the copy would, in the ordinary course of post, be delivered at that place.
(4.) Where a Supreme Court makes an order referred to in sub-rule (1.) of this rule, the applicant for the order shall deposit with the registrar of the court a copy of the order for each person on whom service of a copy of the order is required by this rule to be effected, being a copy that has written on it the name of the person and either the place of residence or a place of business of the person.
(5.) In all courts, a certificate under the hand of the prescribed officer of a court stating that a sealed copy of an order a copy of which is attached to the certificate, being an order of a kind referred to in sub-rule (1.) of this rule, was posted as a letter (postage being prepaid) at a specified time, on a specified day, at a specified place and addressed to a specified person at a specified address is evidence of the facts stated and is also evidence that that specified address was, at the time of the posting, the last place of residence of the person known to the prescribed officer or, if the person is the person to whom the attachment of earnings order is directed, was, at the time of the posting, a place of business of the person.
(6.) For the purposes of the last preceding sub-rule, a document purporting to be a certificate referred to in that sub-rule shall, unless the contrary is proved, be deemed to be such a certificate and to have been duly given.
(7.) In this rule, “the person entitled to receive payments under the maintenance order”, in relation to a maintenance order, means—
(a) if the maintenance order requires payments to be made into a court for payment out to a person—that person;
(b) if the maintenance order requires payments to be made to a person for transmission to another person—that first-mentioned person; or
(c) in any other case—the person to whom the payments are required to be made under the maintenance order.
Notice that attachment of earnings order has ceased to have effect.
A notice referred to in paragraph 19 of the Third Schedule to the Act shall be in accordance with Form 56.
Notice that defendant not employed by person.
256.—(1.) Where a person to whom an attachment of earnings order is directed is required by paragraph 24 of the Third Schedule to the Act to give notice of a matter referred to in that paragraph, the person shall furnish to the prescribed officer of the court that made the order a notice, in accordance with Form 57, containing particulars of the matter, together with a copy of that notice, and the attachment of earnings order shall then be deemed to have been discharged.
(2.) The prescribed officer of a court who receives a notice under paragraph 24 of the Third Schedule to the Act, shall cause a copy of the notice to be addressed and posted as a letter, postage being prepaid, to the person entitled to receive payment under the maintenance order to which the attachment of earnings order relates.
(3.) In this rule, “the person entitled to receive payments under the maintenance order” has the same meaning as in rule 254 of these Rules.
Service of application under paragraph 27.
Where application is made to a Supreme Court under paragraph 27 of the Third Schedule to the Act, the applicant shall cause service of the application to be effected on each other person referred to in that paragraph.
Practice and procedure of courts of summary jurisdiction.
258.—(1.) Subject to this Division, the practice and procedure of a court of summary jurisdiction applies to and in relation to an application to that court under the Third Schedule to the Act, and to the service, hearing and determination of such an application to that court.
(2.) Service of a summons or other appropriate document relating to an application under paragraph 27 of the Third Schedule to the Act shall be effected by the applicant on each other person referred to in that paragraph.
Division 4.—Other Means of Enforcing Decrees.
Other means of enforcing decrees.
259.—(1.) Subject to these Rules, the laws of a State or Territory relating to the enforcement of judgments of the Supreme Court of that State or Territory apply to and in relation to the enforcement, by that Supreme Court, of a decree made under the Act.
(2.) In this rule, “the laws of a State or Territory of the Commonwealth” includes the practice and procedure of the Supreme Court of the State or Territory.
Division 5.—Execution of Warrants and Writs in other States or Territories.
In this Division—
“warrant” means a warrant for the arrest of a person for contempt of court or for alleged contempt of court in relation to proceedings or for disobedience of a judgment, decree or order made by a court in proceedings, or a writ of attachment for the enforcement of an order of a kind referred to in section 102 of the Act;
“writ” means a writ of execution against the property of a person issued by the Supreme Court of a State or Territory for the purpose of enforcing a judgment, decree or order made by that Supreme Court in proceedings, or registered in that Supreme Court under section 103 of the Act, but does not include a garnishee order or a charging order.
Application of this Division to warrants and writs.
A warrant or writ that is issued by the Supreme Court of a State or Territory or by a judge of such a court may be executed in another State or Territory in accordance with this Division but not otherwise.
Execution of warrants and writs in other States or Territories.
262.—(1.) Where a warrant or writ has been issued by the Supreme Court of a State or Territory or by a judge of such a court, a copy of the warrant or writ may be deposited in the appropriate office of the Supreme Court of another State or Territory.
(a) a copy of a warrant or writ has been deposited in the appropriate office of a court under the last preceding sub-rule; and
(b) there is produced to the registrar of the court the original warrant or writ having written on it a notation in accordance with Form 58,
the registrar shall sign his name under that notation and return the warrant or writ to the person by whom it was so produced.
(3.) Subject to the next succeeding sub-rule, where a warrant or writ bears a notation signed by the registrar of the Supreme Court of a State or Territory in pursuance of the last preceding sub-rule, the warrant or writ may be executed in that State or Territory as if it had been duly issued by that Supreme Court.
(4.) Where a warrant or writ that bears a notation signed by the registrar of the Supreme Court of a State or Territory in pursuance of sub-rule (2.) of this rule is directed, for the purpose of being executed, to the Sheriff or another officer of the State or Territory in which it was issued, it may be executed in that first-mentioned State or Territory as if it had been directed, for the purpose of being executed, to the Sheriff or other appropriate officer of that first-mentioned State or Territory.
How person arrested in other State or Territory dealt with.
263.—(1.) Where a person is arrested in a State or Territory by virtue of a warrant that bears a notation signed by the registrar of the Supreme Court of that State or Territory in pursuance of the last preceding rule, the Sheriff or other person who effected the arrest shall, as soon as practicable after the arrest—
(a) bring the person before that Supreme Court; or
(b) return the person to the State or Territory in which the warrant was issued and deliver him into the custody of a person having authority to execute the warrant in that State or Territory to be dealt with in accordance with the warrant,
whichever is, in his opinion, the more reasonable course in all the circumstances.
(2.) Where a person is brought before a Supreme Court in pursuance of the last preceding sub-rule, that Supreme Court shall—
(a) deal with the person, or order that the person be dealt with, as if the warrant had been issued by that Supreme Court and any order in connexion with which the warrant was issued had been made by that Supreme Court; or
(b) order that the person be returned, as soon as is practicable, to the State or Territory in which the warrant was issued and be delivered into the custody of a person having authority to execute the warrant in that State or Territory to be dealt with in accordance with the warrant.
How property seized in another State or Territory dealt with.
264.—(1.) The Sheriff or other officer who has power to execute a writ in a State or Territory by virtue of rule 262 of these Rules may execute the writ in that State or Territory as if the writ had been issued by the Supreme Court of that State or Territory for the enforcement of a judgment, decree or order of that Supreme Court.
(2.) Where a claim is made to property in respect of which execution has been levied or is proposed to be levied by the Sheriff or other person in a State or Territory in pursuance of a writ that bears a notation signed by the registrar of the Supreme Court of that State or Territory in pursuance of rule 262 of these Rules, the Sheriff or other person may take in that Supreme Court the same proceedings by way of interpleader as if the writ had been issued out of that Supreme Court and that Supreme Court may deal with the proceedings accordingly.
(3.) A seizure in execution, or attachment, of property situated in a State or Territory in pursuance of a writ that bears a notation signed by the registrar of the Supreme Court of that State or Territory in pursuance of rule 262 of these Rules becomes inoperative when any event occurs that, according to the laws of that State or Territory, would have rendered the seizure or attachment inoperative if the seizure or attachment had been made in pursuance of a like writ issued by that Supreme Court.
Division 6.—Registration of Decrees in Other Supreme Courts.
References to decree.
References in this Division to a decree shall, in a case where the decree, as drawn up, signed or settled, includes more than one order made by the court, be read as references to all or any of the orders so included.
Certificate of decree.
266.—(1.) A person in whose favour a decree has been made in proceedings under the Act may obtain from the registrar of the court by which the decree was made a certificate of the decree, in accordance with Form 59 and containing the particulars set out in that Form.
(2.) A certificate referred to in the last preceding sub-rule shall be signed by the registrar and sealed with the seal of the court by which the decree was made.
Registration of decree in another Supreme Court.
267.—(1.) For the purpose of section 103 of the Act, there shall be kept at each office of the Supreme Court of a State or Territory a Register, to be called the Register of Matrimonial Decrees, in such form as the Attorney-General directs.
(2.) For the purpose of section 103 of the Act, a decree made under the Act by a court may be registered in another court having jurisdiction under the Act by filing, in the proper office of that other court, a certificate of the decree obtained under the last preceding rule.
(3.) When such a certificate of a decree is filed, the registrar of the court in which the certificate is filed shall cause particulars of the decree to be entered in the Register of Matrimonial Decrees.
Costs of proceedings to register decree.
268.—(1.) A judge of the court in which a decree has been registered may, upon being satisfied that the registration of the decree was reasonably justified, order that the costs of the party effecting the registration (including the costs of obtaining that order) be paid by the party against whom proceedings for the enforcement of the decree are taken in that court.
(2.) An amount of costs payable under an order made under the last preceding sub-rule shall be deemed to be payable under the decree.
(3.) A party requesting a judge to make an order referred to in sub-rule (1.) of this rule shall file an affidavit stating, in reasonable detail, particulars of the costs claimed by the party.
(4.) The judge may, upon making an order under sub-rule (1.) of this rule, assess the amount of costs to be paid under the order or direct that the costs to be so paid be taxed by the proper officer of the court.
Decree not to be enforced unless affidavit of liability filed.
269.—(1.) Where a decree has been registered in a court under section 103 of the Act, proceedings to enforce the decree shall not be commenced in a court, and a writ, warrant or other process for the enforcement of the decree shall not be issued by a court, unless an affidavit has been filed stating that no proceedings are pending in another court for the enforcement of the decree, and no writ, warrant or other process issued by another court for the enforcement of the decree is in force, and also stating—
(a) the amount that is due and unpaid under the decree;
(b) the act ordered to be done by the decree that remains undone; or
(c) the act that has been done in disobedience of the decree,
(2.) Proceedings to enforce a decree shall not be commenced in a court in which the decree has been registered under section 103 of the Act and a writ, warrant or other process for the enforcement of a decree shall not be issued by such a court—
(a) unless the affidavit filed in accordance with the last preceding sub-rule states that, since that registration, the decree has not been discharged or varied by a court, the effect of the decree has not been modified by a court and the operation of the decree has not been suspended by a court; and
(b) except within a period of thirty days after the date on which that affidavit was sworn and in relation to an amount or act stated in that affidavit.
Stay of proceedings.
270.—(1.) A court in which a decree is registered under section 103 of the Act may, upon application by a person against whom the decree may be enforced, order that the decree be not enforced in that court during a period specified in the order.
(2.) An order referred to in the last preceding sub-rule may be made upon terms as to the giving of security or as to the making of an application to the court by which the decree was made to set aside the decree, or upon such other terms as the court sees fit.
Division 7.—Registration of Maintenance Orders in Courts of Summary Jurisdiction.
Registration of maintenance orders in courts of summary jurisdiction.
271.—(1.) For the purpose of section 105 of the Act, registration in a court of summary jurisdiction of an order for the payment of maintenance shall be effected by the clerk or other proper officer of the court entering particulars of the order in a register kept for the purpose.
(2.) Particulars of an order for the payment of maintenance shall not be entered in the register by the clerk or other proper officer of a court of summary jurisdiction unless—
(a) a certificate, obtained under rule 266 of these Rules, of the order has been filed in the proper office of the court; and
(b) the clerk or other proper officer is satisfied, by affidavit filed in the proper office of the court—
(i) that a copy of the order has been duly served on the person liable to make payments under the order or that service of a copy of that order on that person has been dispensed with under sub-section (2.) of section 121 of the Act;
(ii) that the order is not registered in any other court of summary jurisdiction; and
(iii) that no proceedings are pending in any court for the enforcement of the order and no writ, warrant or other process issued by a court for the enforcement of the order is in force.
How moneys paid into court to be dealt with.
272.—(1.) Where moneys are paid into a court of summary jurisdiction under an order for the payment of maintenance that has been registered in that court under section 105 of the Act, the clerk or other proper officer of the court shall, in his discretion—
(a) transmit those moneys to the court, public authority or person to which or to whom the moneys are directed to be paid by the order; or
(b) pay those moneys direct to a person who would be entitled to receive the moneys from the court, authority or person referred to in the last preceding paragraph if the moneys were transmitted to that court, authority or person.
(2.) Where, under the last preceding sub-rule, the clerk or other proper officer of a court pays moneys direct to a person in accordance with paragraph (b) of that sub-rule, the clerk or other proper officer shall give notice to the court, public authority or person referred to in paragraph (a) of that sub-rule of the amount or amounts so transmitted.
(3.) Where the clerk or other proper officer of a court has given one notice under the last preceding sub-rule in relation to an order for the payment of maintenance, subsequent notices under that sub-rule in relation to that order may be given by the clerk or other proper officer of that court at such intervals as he thinks fit.
Variation, discharge, &c., of order.
273.—(1.) Where an order for payment of maintenance that is registered in a court of summary jurisdiction is discharged, varied or revived by a court or where the effect of such an order is modified or the operation of such an order is suspended by a court, the registrar of that court shall forthwith cause notice, in writing, of the fact to be given to the clerk or other proper officer of the court of summary jurisdiction.
(2.) On receipt of notice given under the last preceding sub-rule, the clerk or other proper officer shall cause particulars of the discharge, variation, revival, modification or suspension to be entered in the register kept by him in pursuance of rule 271 of these Rules.
Cancellation of registration.
Where no proceedings for the enforcement of an order for payment of maintenance are pending in the court of summary jurisdiction in which the order is registered and no writ, warrant or other process issued by that court for the enforcement of the order is in force, the person who caused the order to be registered in the court may request, in writing, the clerk or other proper officer of the court to cancel the registration of the order, and the clerk or other proper officer shall cancel the registration accordingly.
Notification of registration of maintenance order.
275.—(1.) Where an order for the payment of maintenance is registered, under section 105 of the Act, in a court of summary jurisdiction, or where the registration of such an order in a court of summary jurisdiction is cancelled under the last preceding rule, the clerk or other proper officer of the court shall forthwith cause notice of the registration or cancellation to be given to the registrar of the court by which the order was made.
(2.) A notice referred to in the last preceding sub-rule shall be in writing and shall be signed by the clerk or officer giving the notice.
PART XVIII.—PROCEEDINGS CONSEQUENT ON DECREES OF RESTITUTION
OF CONJUGAL RIGHTS.
In this Part—
“decree” means a decree of restitution of conjugal rights;
“petition” includes an answer by which a respondent institutes proceedings for a decree of restitution of conjugal rights;
“the petitioner”, in relation to a decree, means the party, whether the petitioner or respondent in the proceedings for the decree, in whose favour the decree is made;
“the respondent”, in relation to a decree, means the party, whether the petitioner or respondent in the proceedings for the decree, against whom the decree is made.
Service of copy of decree.
Where the court makes a decree, the petitioner shall, as soon as practicable after the making of the decree, cause service of a copy of the decree to be effected on the respondent in a manner referred to in paragraph (a) or (b) of rule 60 of these Rules.
Notice of home to be given by husband.
278.—(1.) Subject to sub-rule (3.) of this rule, where the court has made a decree upon the petition of a husband, a notice given by the petitioner to the respondent under section 63 of the Act—
(a) shall specify the address of the home to which the respondent is to return to the petitioner in order to comply with the decree;
(b) shall—
(i) state that the petitioner will within a reasonable time, specified in the notice, after the respondent informs him of her intention to return home to the petitioner and of the date on and after which she will be ready so to return, provide a home for the respondent to return to, and give the respondent notice of the address of that home; and
(ii) specify an address where the respondent may communicate with the petitioner by post; or
(c) shall specify—
(i) the address of a home to which the respondent is to return to the petitioner in order to comply with the decree;
(ii) the date on which that home will cease to be the home to which the respondent is to return to the petitioner for that purpose; and
(iii) an address where the respondent may communicate with the petitioner by post,
and also state that, if the respondent does not return home to the petitioner before that date, the petitioner will, within a reasonable time, specified in the notice, after the respondent informs him that she intends to comply with the decree, and of the date on and after which she will be ready so to return, provide a home for the respondent to return to, and give the respondent notice of the address of that home.
(2.) A notice referred to in the last preceding sub-rule shall also state that the petitioner will—
(a) if the respondent informs him of her intention to return home to the petitioner and of the date on and after which she will be ready so to return;
(b) if the respondent’s usual place of residence at that date is more than twenty miles from the home to which she is to return; and
(c) if the respondent so requests him,
pay to the respondent, in advance, a reasonable sum for her expenses of returning home to the petitioner.
(3.) Where the court has, upon the petition of a husband, made a decree by which the respondent is ordered to take back the petitioner and render to the petitioner conjugal rights, a notice given by the petitioner to the respondent under section 63 of the Act shall specify an address where the respondent can communicate with the petitioner by post and shall state that, if the respondent intends to comply with the decree, she should inform him accordingly, and that the petitioner will then return to the matrimonial home.
Notice to be given by wife.
Where the court has made a decree upon the petition of a wife, the petitioner shall, as soon as practicable after the making of the decree, give to the respondent a notice specifying an address where the respondent
can communicate with the petitioner by post and stating that, if the respondent intends to comply with the decree, he should inform her of the manner in which he intends to comply with the decree.
Cancellation and variation of notices.
280.—(1.) A notice under section 63 of the Act or under the last preceding rule that has been served on the respondent remains in force until it is cancelled by a notice in writing served on the respondent.
(2.) A petitioner may, at any time while a notice under section 63 of the Act or under the last preceding rule is in force, serve on the respondent a notice cancelling that notice and shall do so if—
(a) the home, the address of which is specified in that notice, ceases to be the home to which the respondent is to return to the petitioner; or
(b) the address specified in that notice as the address where the respondent may communicate with the petitioner by post ceases to be an appropriate address for that purpose,
(3.) Where a petitioner specifies, in a notice under section 63 of the Act, the date on which a specified home will cease to be the home to which the respondent is to return to the petitioner for the purpose of complying with a decree, the last preceding sub-rule shall not be taken to require the petitioner to cancel that notice upon that home ceasing, on that date, to be the home to which the respondent is to return for that purpose.
(4.) Whenever, within a period of twelve months after service of a copy of a decree is effected on the respondent in pursuance of rule 277 of these Rules, the petitioner cancels a notice under section 63 of the Act or under the last preceding rule, the petitioner shall serve on the respondent, at the same time, a further notice under section 63 of the Act or under the last preceding rule, as the case may be.
(5.) The further notice referred to in the last preceding sub-rule may be included in the notice cancelling the previous notice or may be a separate notice.
Service of notice of home.
A notice under section 63 of the Act or under rule 279 or 280 of these Rules shall be served on the respondent in a manner referred to in paragraph (a) or (b) of rule 60 of these Rules.
Conduct money.
282.—(1.) Where—
(a) the respondent, being the wife, named in a decree informs the petitioner of her intention to return home to him and of the date on and after which she will be ready to return;
(b) the respondent’s usual place of residence at that date is more than twenty miles from the home to which the respondent is to return; and
(c) the respondent so requests the petitioner,
the petitioner shall pay to the respondent, in advance, a reasonable sum of money for her expenses of returning home to the petitioner.
(2.) Where a petitioner has paid moneys to his wife in pursuance of the last preceding sub-rule and his wife fails to comply with the decree within a reasonable time after the payment of the moneys, the moneys are a debt due and payable by the wife to the petitioner and recoverable by action in a court of competent jurisdiction.
PART XIX.—REGISTRARS AND REGISTRIES.
Division 1.—Powers of Registrars.
Power of registrar to send for witnesses and documents.
283.—(1.) A registrar may, at the request of a party to an application to a registrar, summon a person to attend before the registrar at a time and place specified in the summons and then and there to give evidence and to produce any books or documents in his custody or control which he is required by the summons to produce.
(2.) A summons under the last preceding sub-rule shall be in accordance with Form 60.
(3.) Service of a summons under sub-rule (1.) of this rule shall be effected on a person by serving a copy of the summons on the person in the manner referred to in paragraph (a) of rule 60 of these Rules and by showing the summons to the person at the time service of the copy is effected on him.
Duty of witness to continue in attendance.
A person who has been summoned to attend before a registrar as a witness shall appear and report himself at the time and place specified in the summons and then from day to day, unless excused by the registrar.
Arrest of witness failing to attend.
285.—(1.) If a person who has been summoned to attend before a registrar fails to attend before the registrar as required by the last preceding rule, the registrar may, on being satisfied that the summons has been duly served and that reasonable expenses have been paid or tendered to that person, bring the failure to the notice of a judge of the court who, if he thinks fit, may, without any application being made to him, issue a warrant under his hand for the apprehension of that person.
(2.) A warrant so issued authorizes the apprehension of the person and his being brought before the registrar and his detention in custody for that purpose until he is released by order of the court or the registrar.
(3.) A warrant so issued may be executed by a member of the police force of the Commonwealth or a State or Territory, by the Sheriff or an officer of the Sheriff of a State or Territory or by any person to whom it is addressed, and the person executing it has power to break and enter any place, building or vessel for the purpose of executing the warrant.
(4.) The apprehension of a person under this rule does not relieve him from any liability incurred by him by reason of his failure to attend before the registrar.
Witness fees.
286.—(1.) A person who attends in obedience to a summons to attend as a witness before a registrar is entitled to be paid witness fees and travelling allowances according to the scale of fees and allowances payable to witnesses in the Supreme Court of the State or Territory in which
he is required to attend or, in special circumstances, such fees and allowances as the registrar directs (less any amount previously paid to him for his expenses of attendance).
(2.) The fees and allowances are payable by the person at whose request the witness was summoned.
Power to examine on oath or affirmation.
287.—(1.) A registrar may administer an oath to a person appearing as a witness before the registrar, whether the witness has been summoned or appears without being summoned, and the witness may be examined on oath.
(2.) Where a witness conscientiously objects to take an oath, he may make an affirmation that he conscientiously objects to take an oath and that he will state the truth, the whole truth and nothing but the truth to all questions that are asked him.
(3.) An affirmation so made is of the same force and effect, and entails the same liabilities, as an oath.
Failure to answer questions.
288.—(1.) If a person appearing before a registrar as a witness refuses to answer, or fails to answer to the satisfaction of the registrar, any question that the registrar puts, or allows to be put, to the person, the registrar may report the refusal in a summary way to the court and, upon the report being made to the court, the person may be dealt with by the court as if the question had been put to the person by the court and the person had refused to answer the question or had made to the court the answer to the question that he made to the registrar, as the case may be.
(2.) A report of a registrar under the last preceding sub-rule shall be in writing, in accordance with Form 61, and shall state the question put to the witness and the answer, if any, to the question made by the witness, and may refer to any other evidence before the registrar.
(3.) Where a registrar decides to report to the court the refusal or failure of a witness to answer a question, the registrar shall inform the witness, before the conclusion of the examination of the witness, of the day on which, and time and place at which, the report of the registrar will be made to the court.
Representation by counsel, &c.
289.—(1.) At the hearing of an application made under these Rules to a registrar, the parties to the application are each entitled to be represented by a barrister or solicitor.
(2.) A barrister or solicitor appearing before a registrar on behalf of a party may examine or cross-examine witnesses and may address the registrar.
Protection of registrars, barristers and witnesses.
290.—(1.) A registrar has, in the performance of his duties in connexion with the hearing and determination of an application to a registrar under these Rules, the same protection and immunity as a judge of the court.
(2.) A barrister or solicitor appearing before a registrar has the same protection and immunity as a barrister or solicitor, as the case may be, has in appearing for a party in proceedings in the court.
(3.) Where a party who is not represented by a barrister or solicitor appears before a registrar of a court, the party has the same protection and immunity as a party to proceedings in that court has in appearing before that court when not so represented.
(4.) A witness summoned to attend or appearing before a registrar has the same protection as a witness in proceedings in the court.
Submission of doubtful matters to court.
291.—(1.) If, either before or after a registrar has given his decision on an application made to him under these Rules, a matter arises which the registrar and a party to the application wish to have determined by the court, the registrar shall—
(a) state the matter in writing for the opinion of the court; and
(b) refer the matter so stated for hearing and determination by the court.
(2.) Where a matter is referred to a court under the last preceding sub-rule, the registrar may give directions with respect to the giving of notice of the day on which, and time and place at which, the matter will be heard by the court to the parties to the application who have an address for service for the purpose of the proceedings to which the application relates, and the parties shall comply with any such directions.
(3.) Where a matter referred to a court under sub-rule (1.) of this rule is heard and determined by a court, the court may dispose of the matter or refer it back to the registrar with such directions as it may think fit.
Division 2.—Appeals from Registrars.
Review of decision of registrar.
292.—(1.) Where a registrar hears and determines an application made to him under these Rules, a party to the application who is aggrieved by the decision of the registrar may, within ten days after the decision is given, file a request, in accordance with Form 62, for a review of the decision by the court.
(2.) A party to an application who files a request under the last preceding sub-rule shall, unless the application was made to the registrar ex parte, cause service of a notice of hearing, in accordance with Form 63, to be effected, as soon as practicable after the request is filed, on each other party to the application who has an address for service.
(3.) The review, by a court, of a decision of a registrar shall be by way of re-hearing, and the court may, in its discretion, permit evidence other than evidence that was before the registrar to be given on the re-hearing.
(4.) Upon the review of a decision of a registrar, a court may affirm, reverse or vary the decision the subject of the review and may make such order as, in the opinion of the court, ought to be made in all the circumstances.
Division 3.—Registries.
Seal.
293.—(1.) In these Rules, a reference to the seal of a court shall be read as a reference to the seal used by the court in the exercise of its matrimonial causes jurisdiction.
(2.) Where a registrar of a court has in his custody a stamp the design of which is, as nearly as practicable, the same as the design of the seal of the court, a document or copy of a document required, for the purpose of proceedings, to be sealed with the seal of the court may be marked with that stamp.
(3.) A document or copy of a document marked with a stamp referred to in the last preceding sub-rule is as valid and effectual as if it had been sealed with the seal of the court.
(4.) All courts exercising jurisdiction under the Act shall take judicial notice of the mark of a stamp referred to in sub-rule (1.) of this rule affixed on a document or copy of a document relating to proceedings and, in the absence of proof to the contrary, shall presume that it was affixed by proper authority.
Sealing of documents.
294.—(1.) Where a person requires a sealed document or a sealed copy of a document for the purpose of proceedings, the person may prepare the document or a copy of the document and present it, for sealing, to the registrar of the court in which the proceedings are pending or, if the proceedings are completed, by which the proceedings were determined.
(2.) If it appears that the document is in proper form, or that the copy is a true copy of the document, as the case may be, and that the person presenting it for sealing does require the document or copy to be sealed for the purpose of proceedings, the registrar shall cause it to be sealed with the seal of the court.
Date of filing.
The registrar shall cause the date of filing to be written on every pleading or other document that is filed.
Indexes to be kept.
Proper indexes to the files or bundles of documents filed in an office of a court shall be kept so that they may conveniently be referred to when required.
Register of documents to be kept.
297.—(1.) At each office of a court a record, to be called the Divorce Proceedings Book, shall be kept of all matrimonial causes instituted at that office.
(2.) The last preceding sub-rule does not apply to or in relation to—
(a) a matrimonial cause instituted before the commencement of the Act; or
(b) a matrimonial cause instituted after the commencement of the Act in relation to a matrimonial cause instituted before the commencement of the Act.
(3.) When, after a matrimonial cause has been transferred from one court to another court in pursuance of section 26 of the Act, the documents filed of record have been transmitted to the registrar or other proper officer of the court to which the cause has been transferred to be kept as of record at an office of that court, the cause shall, for the purpose of the last preceding sub-rule, be deemed to be a cause instituted at that office and shall be deemed not to be a cause instituted at an office of the court from which the cause was so transferred.
(4.) The Divorce Proceedings Book shall show, in relation to each suit, the date on which—
(a) each pleading is filed for the purpose of the suit;
(b) an application is made to a court or to a registrar in relation to the suit; or
(c) a decree or order is made on the determination of the suit, of any proceedings included in the suit or of such an application.
(5.) In this rule, “suit” has the same meaning as in Part XI.
Records of court.
Every document filed in the office of a court, or transmitted to the registrar or other proper officer of a court in accordance with section 26 of the Act to be kept at the office of a court, is a record of the court and shall not, without the permission of a judge of the court, be removed from that office of the court except for use by the court, a judge or an officer of the court.
Searches.
299.—(1.) Subject to these Rules, a party to proceedings, the Attorney-General and, in special circumstances, a person who satisfies a registrar that he has good reason for doing so or obtains the permission of a judge of the court to do so may, upon furnishing to the registrar sufficient particulars and paying the appropriate fee, cause a search to be made for an entry in the Divorce Proceedings Book or for a document that has been or might have been filed for the purpose of proceedings and to receive a certificate of the result of the search.
(2.) Subject to these Rules, a person who has, under this rule, caused a search to be made for an entry in the Divorce Proceedings Book is entitled to inspect any document filed for the purpose of proceedings to which the entry relates, and a person who has caused a search to be made for a document is, if the document has been filed, entitled to inspect the document.
(3.) 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 under section 78 of the Act that is in force, delegated any of his powers and functions under Part VII. of the Act.
PART XX.—FEES.
Fees.
300.—(1.) The court fees specified in the Second Schedule shall be charged in respect of the matters in relation to which they are specified.
(2.) Except as provided in the Second Schedule, no court fee shall be charged in respect of the following matters:—
(a) filing an affidavit in support of an application to the court or a registrar;
(b) filing any other affidavit, not being an affidavit that is filed in connexion with the enforcing of a decree or order;
(c) filing a pleading;
(d) searching for a pleading or other document if the time for filing the pleading or document has expired and the search is made for the purpose of establishing that the pleading or document has not been filed;
(e) sealing a copy of a document;
(f) drawing up, settling or signing a decree or order;
(g) amending a pleading;
(h) filing or making an application or request under these Rules; or
(i) filing, depositing, giving, issuing or serving any other document required by these Rules to be filed, deposited, given, issued or served in connexion with proceedings.
(3.) The court fee in connexion with proceedings in the Supreme Court of a State or Territory is payable in accordance with the practice and procedure of that court.
(4.) Nothing in this rule shall be deemed to prevent the making, under sub-section (4.) of section 127 of the Act, of rules of court or other provisions in relation to the practice and procedure of the Supreme Court of a State or Territory prescribing the court fees to be charged in respect of matters not specified in sub-rule (2.) of this rule or in the Second Schedule.
Fees required to be paid.
301.—(1.) Subject to the succeeding provisions of this Part, a pleading, application or other document shall not be filed, issued or otherwise dealt with, and any other matter or thing shall not be done in a court or by an officer of a court, unless the fee (if any) payable upon or in respect of filing, sealing, issuing or otherwise dealing with that pleading, application or other document, or upon or in respect of the doing of that matter or thing, has been paid or unless an undertaking to pay the fee has been given to the court or to the officer, as the case may be.
(2.) Nothing in these Rules shall be taken to prejudice the operation of any law (including a rule of court) in force in a State or Territory under which a party to any proceedings in the Supreme Court of that State or Territory is exempted, by reason of poverty, from the payment of court fees in relation to those proceedings.
Marking of fees.
The proper officer of a court shall, immediately upon payment of a fee upon or in respect of a document, or in respect of filing, issuing, sealing or otherwise dealing with a document, mark upon the document the amount of the fee paid and the date of payment.
Registrar to decide disputed fees.
If a question arises as to which, if any, of the fees is applicable in a particular case, the question shall be determined by a registrar, but a person affected by the determination of a registrar may have the decision reviewed under rule 292 of these Rules.
Court may remit fees.
A court or registrar may, in a particular case for special reasons, direct—
(a) that a fee shall not be taken, or that part only of a fee shall be taken, or, if taken, that the whole or a part of the fee be remitted; or
(b) that the payment of the whole or a part of a fee be postponed until such time, and upon such conditions, if any, as the court or registrar thinks fit.
PART XXI.—EFFECT OF NON-COMPLIANCE WITH THESE RULES OR WITH AN ORDER.
In this Part, a reference to proceedings shall be read as including a reference to a step in proceedings.
Non-compliance with rules not to render proceedings void.
Subject to these Rules, non-compliance with these Rules, or with a rule of practice and procedure of a court applicable under the Act to proceedings, does not render proceedings void unless the court so directs, but the proceedings may be set aside, either wholly or in part as irregular, or may be amended or otherwise dealt with in such manner and upon such terms as the court thinks fit.
Court or registrar may relieve from consequences of non-compliance.
Subject to the Act and to these Rules—
(a) a court may at any time, upon such terms as the court thinks fit, relieve a party from the consequences of non-compliance with these Rules, with a rule of practice and procedure of the court applicable to the proceedings or with an order made by the court or a registrar; and
(b) a registrar may at any time, upon such terms as he thinks fit, relieve a party to an application to a registrar from the consequences of non-compliance with these Rules in relation to the application, with a rule of practice and procedure of the court applicable to the application or with an order made by a registrar in relation to the application.
Application to set aside for irregularity.
308.—(1.) An application to set aside proceedings for irregularity shall not be allowed—
(a) if the application is not made within a reasonable time; or
(b) if the party making the application has taken a relevant step after knowledge of the irregularity.
(2.) Nothing in the last preceding sub-rule shall be taken to prevent a court from exercising, of its own motion, any of the powers conferred on it by the last two preceding rules.
(3.) Where application is made to set aside proceedings for irregularity, the several objections intended to be relied upon shall be stated in the application.
PART XXII.—PROCEEDINGS FOR JACTITATION OF MARRIAGE, DECLARATIONS, &C.
Division 1.—Application.
Application of this Part.
309.—(1.) This Part applies to and in relation to—
(a) proceedings for a decree of jactitation of marriage;
(b) proceedings for a decree of nullity of a void marriage instituted by a person who is not a party to the marriage;
(c) proceedings for a declaration or order of a kind referred to in paragraph (b) of the definition of “matrimonial cause”; and
(d) proceedings that constitute a matrimonial cause and relate to any proceedings referred to in the preceding paragraphs of this sub-rule,
and, to the extent and in the manner provided in this Part but not otherwise, these Rules, other than this Part, apply to and in relation to any such proceedings.
(a) a party to a marriage institutes, by petition, proceedings for a decree of dissolution of marriage, nullity of marriage, judicial separation or restitution of conjugal rights and also institutes, by the same petition, proceedings for a declaration or order of a kind referred to in paragraph (b) of the definition of “matrimonial cause”; and
(b) no persons other than the parties to the marriage are parties to those last-mentioned proceedings,
these Rules, other than this Part, apply in addition to this Part to and in relation to those last-mentioned proceedings and to any other proceedings that constitute a matrimonial cause and relate to those last-mentioned proceedings.
Division 2.—Petitions for Jactitation of Marriage.
A petition for a decree of jactitation of marriage shall be in accordance with Form 64.
311.—(1.) A petition for a decree of jactitation of marriage shall state—
(a) the dates on which and the times and places at which the respondent is alleged to have boasted and asserted that a marriage had taken place between the petitioner and the respondent; and
(b) particulars of those boastings and assertions.
(2.) A petition for a decree of jactitation of marriage shall state that the petitioner is not married to the respondent and that the petitioner has not acquiesced in the alleged boastings and assertions.
Division 3.—Petitions for Declarations, &c.
This Division applies to—
(a) proceedings for a decree of nullity of a void marriage instituted by a person who is not a party to the marriage; or
(b) proceedings for a declaration or order of a kind referred to in paragraph (b) of the definition of “matrimonial cause”.
Form of petition and parties to petition.
313.—(1.) A petition instituting proceedings to which this Division applies shall be in accordance with Form 65.
(2.) Subject to the next succeeding sub-rule and to any order made by the court in a particular case, a petitioner instituting proceedings to which this Division applies shall make each other person affected by the proceedings a respondent to the proceedings.
(3.) Where persons included in a class of persons are affected by proceedings to which this Division applies, a court may, if it is satisfied that it is expedient so to do either by reason of the difficulty in ascertaining the persons who are included in that class of persons or for the purpose of saving expense, by order, appoint a person or persons included in that class of persons to represent all the persons included in that class of persons.
(4.) An order under the last preceding sub-rule may be made upon the trial of the proceedings to which the order relates.
314.—(1.) A petition instituting proceedings of a kind referred to in paragraph (a) of rule 312 of these Rules shall comply with such of the provisions of Divisions 1 and 3 of Part V. as are applicable to petitions for a decree of nullity of a void marriage and are applicable to the circumstances of the particular case.
(2.) A petition for a declaration or order of a kind referred to in paragraph (b) of the definition of “matrimonial cause” shall—
(a) specify the declaration or order that the petitioner is seeking;
and
(b) set out, in as concise a form as the nature of the case allows, the facts, but not the evidence by which the facts are to be proved, upon which the court will be asked to make the declaration or order.
Application of rules.
315.—(1.) Subject to this Part, these Rules apply, as far as practicable and with the necessary modifications, to and in relation to proceedings to which this Division applies in like manner as they apply to proceedings for a decree of a kind referred to in paragraph (a) of that definition.
(2.) The provisions of these Rules that apply to and in relation to proceedings of a kind referred to in paragraph (c) or (d) of the definition of “matrimonial cause” that relate to proceedings of a kind referred to in paragraph (a) of that definition apply, as far as practicable and with the necessary modifications, to and in relation to proceedings of a kind referred to in paragraph (c) or (d) of that definition that relate to proceedings to which this Division applies.
PART XXIII.—MISCELLANEOUS.
Consent orders.
Nothing in these Rules shall be taken to prevent the court or a registrar, as the case may be, from making, with the consent of the parties to proceedings and in accordance with the practice of the court, an order (not including an order of a kind referred to in paragraph (a) or (b) of the definition of “matrimonial cause”) determining the proceedings or relating to the proceedings.
Application for order under section 120 may be made ex parte.
317.—(1.) Where a court is satisfied that a party who has instituted proceedings for an order under section 120 of the Act would be seriously prejudiced if the hearing and determination of the proceedings were delayed until after service of the petition or application instituting the proceedings had been effected on another party or the other parties to the proceedings, the court may hear and determine the proceedings or make such order in relation to the proceedings as it deems proper notwithstanding that that party has not, or those parties have not, been served with the petition or application.
(2.) Where the court has made an order under the last preceding sub-rule, whether or not that order determines proceedings, a person who is affected by the order and who had not been served with the petition or application instituting the proceedings may make application to the court to set aside or vary the order.
Court or registrar may extend time.
318.—(1.) Upon application made by a party to proceedings or by a person entitled to intervene in proceedings under sub-section (2.) of section 45 of the Act or under these Rules, the court or a registrar may extend the time limited by these Rules, or fixed by an order made by the court or a registrar, for the doing of an act or the taking of a step in proceedings.
(2.) Application under the last preceding sub-rule may be made whether or not the time limited for the doing of the act or the taking of the step in proceedings has expired.
(3.) Subject to the next succeeding sub-rule, an extension of time may be granted under sub-rule (1.) of this rule upon such conditions as the court or registrar thinks fit.
(4.) Unless a court otherwise orders, the costs of an application under sub-rule (1.) of this rule shall be borne by the applicant.
(5.) An application under sub-rule (1.) of this rule may be made orally to a court upon the trial of proceedings by the court or to a registrar upon the hearing of an application by the registrar.
Extension of time by consent.
The time limited for the doing of an act or the taking of a step in proceedings may be extended by consent, in writing, without application to a court or registrar.
Documents to be in writing.
320.—(1.) A pleading, application, affidavit, deposition, certificate, decree, notice or other document required or allowed by these Rules to be filed or delivered to or served on a person for use in or in connexion with proceedings shall, unless the nature of the document renders it in any respect impracticable or these Rules otherwise provide—
(a) be legibly and clearly typewritten or printed, without blotting, erasure or such alterations as cause material disfigurement;
(b) have a space of not less than one quarter of an inch between each line;
(c) be upon white folio foolscap paper of good and durable quality and capable of receiving ink writing;
(d) be upon one side only of the paper with a quarter margin upon the left hand side of each sheet;
(e) be folded lengthwise;
(f) have each page numbered; and
(g) have a backsheet upon which appears the number and short title of the proceedings, a short description of the document and the name, address and telephone number of the solicitor (if any) filing, delivering or serving the document or, if the person on whose behalf the document is filed, delivered or served is not represented by a solicitor, the name, address for service and telephone number (if any) of that person.
(2.) A typewritten copy of a document to which the last preceding sub-rule applies shall not be filed unless it is a first black ink copy.
Copies of affidavits on ex parte applications.
321.—(1.) Where, upon an ex parte application, an order is made by a court or registrar against, or affecting the rights of, a person, that person may request in writing the applicant or his solicitor to furnish him with a copy of each affidavit filed in support of the application.
(2.) Upon receipt of a request under the last preceding sub-rule and upon payment of the proper charges, the party who made the application shall furnish a copy of each affidavit filed in support of the application to the person who made the request.
Change of solicitor.
322.—(1.) A party to proceedings who is represented in the proceedings by a solicitor is, subject to sub-rule (3.) of this rule, at liberty to change his solicitor without an order for that purpose upon filing notice of the change and serving a copy of the notice on each other party to the proceedings who has an address for service for the purpose of the proceedings and on his former solicitor.
(2.) Until such a notice is filed and copies are served in accordance with the last preceding sub-rule, the former solicitor shall be considered the solicitor of the party.
(3.) A party to proceedings who is proceeding as a poor person shall not discharge the solicitor representing him in the proceedings without the leave of the court or registrar.
(4.) A notice under sub-rule (1.) of this rule shall be signed by the new solicitor for the party, and shall state the place of business of that solicitor and the address for service of the party for the purpose of the proceedings.
(5.) The address stated as the party’s address for service shall be not more than five miles from the office of the court in which the notice is filed, and may, subject to that requirement, be the address of the new solicitor for the party or of a solicitor acting as the agent of that solicitor.
Notice of appointment of solicitor.
323.—(1.) Where a party to proceedings who is not represented by a solicitor appoints a solicitor to represent him in the proceedings, the party may, either personally or by his solicitor, give notice of the appointment.
(2.) The provisions of the last preceding rule relating to notice of change of solicitor, to service of such a notice and to the stating of an address for service in such a notice apply, with the necessary modifications, in the case of notice of appointment of a solicitor.
Notice of intention to act in person.
324.—(1.) Where a party to proceedings who is represented by a solicitor intends to act in person in the proceedings, the party may give notice as to his intention to act in person.
(2.) The provisions of rule 322 of these Rules relating to a notice of change of solicitor, to service of such a notice and to the stating of an address for service in such a notice apply, with the necessary modifications, in the case of a notice of intention to act in person.
Solicitor ceasing to act for party.
325.—(1.) Where—
(a) the address for service of a party to proceedings is the address of a solicitor who has represented, but is no longer representing, the party in the proceedings;
(b) the solicitor has served on the party a notice, in accordance with Form 66, signed by the solicitor personally, and a period of not less than seven days has elapsed after service of that notice; and
(c) the party has not, since the solicitor ceased, or last ceased, to represent him in the proceedings, filed a notice under rule 322 or 324 of these Rules,
the solicitor may file a notice, in accordance with Form 67, of his having ceased to represent the party.
(2.) Where a solicitor who has represented a party files a notice in accordance with Form 67, the solicitor shall, on the day on which the notice is filed or on the next following day, cause a copy of the notice to be served on each other party who has an address for service.
(3.) Where a solicitor who has represented a party in proceedings has duly complied with sub-rule (1.) of this rule, the party may give notice, in accordance with these Rules, that he is represented by a solicitor or that he intends to act in person and, in default of his doing so, shall be deemed not to have an address for service for the purpose of the proceedings.
Solicitor not to act for adverse parties.
A solicitor shall not represent any two or more parties having adverse interests in proceedings.
Disallowance of costs of improper, vexatious or unnecessary matter in documents or proceedings.
327.—(1.) A court may, at the trial of a matrimonial cause or upon application to the court, whether or not objection is taken—
(a) direct that any costs which have been improperly, unnecessarily or negligently incurred be disallowed; or
(b) direct the registrar to examine the costs incurred, and to disallow such costs as he finds to have been improperly, unreasonably or negligently incurred.
(2.) A party whose costs are so disallowed shall pay to the other parties the costs incurred by those parties in relation to the matter in respect of which his costs have been disallowed.
Transfer of proceedings from one court to another.
Where a court makes an order under section 26 of the Act transferring a matrimonial cause to another court having jurisdiction under the Act, a copy of the order shall be retained of record in the first-mentioned court.
PART XXIV.—TRANSITIONAL PROVISIONS.
Pending proceedings.
329.—(1.) The provisions of these Rules, other than the succeeding provisions of this rule, do not apply to or in relation to proceedings of a kind referred to in paragraph (c) or (d) of the definition of “matrimonial cause” that are pending at the commencement of the Act.
(2.) Where proceedings referred to in the last preceding sub-rule, being proceedings with respect to—
(a) the maintenance of a party to the proceedings, settlements, the custody or guardianship of infant children of a marriage, or the maintenance, welfare, advancement or education of children of a marriage; or
(b) the dispensing with the service of process of a court,
would, if the Act had not been passed, have been heard and determined by an officer of a court, the proceedings shall nevertheless be heard and determined by the court.
(3.) Where, before the commencement of the Act, proceedings referred to in the last preceding sub-rule had been set down, or made returnable, for hearing before an officer of a court, the proceedings shall be deemed to have been set down, or made returnable, for hearing before the court sitting in public chambers and, if the proceedings had been set down, or made returnable, for hearing on a particular day, or at a particular time on a particular day, the proceedings shall be deemed to have been set down, or made returnable, for hearing before the court sitting in public chambers on that day, or at that time on that day, as the case may be.
(4.) The court may give directions with respect to the practice and procedure (including directions that are inconsistent with any practice and procedure that would otherwise be applicable by virtue of sub-section (6.) of section 127 of the Act) to be followed in proceedings of a kind referred to in paragraph (c) or (d) of the definition of “matrimonial cause” that are pending at the commencement of the Act.
THE SCHEDULES.
FIRST SCHEDULE.
FORM 1. R. 12.
NOTICE OF ADDRESS FOR SERVICE.
FORM 2. R. 12.
NOTICE OF CHANGE OF ADDRESS FOR SERVICE.
FORM. 3. R. 15.
CERTIFICATE RELATING TO RECONCILIATION.
I, (full name of solicitor) certify that I am the solicitor representing the petitioner (or as the case may be) and that I have brought to the attention of the petitioner (or respondent) the provisions of the Matrimonial Causes Act 1959 relating to reconciliation of the parties to a marriage and the approved marriage guidance organizations reasonably available to assist in effecting a reconciliation between the petitioner and the respondent and that I have discussed with the petitioner (or respondent) the possibility of a reconciliation between the petitioner and the respondent being effected either with or without the assistance of such an organization.
FORM 4. R. 17.
TITLE OF PROCEEDINGS.
Matrimonial Causes Act 1959.
In the Supreme Court
of
No.
of 19
Between
Petitioner
(or Applicant)
Respondent
and
Co-respondent
(or as the case may be)
FORM 5. Rr. 19 and 201 (3.).
APPLICATION TO COURT OR REGISTRAR.
Application is made to the court (or a registrar of the court) on behalf of the for (here set out the order sought).
This application has been set down for hearing by the court (or registrar) at the Supreme Court, , (or as the case may be) on the day of , 19 , at the hour of o’clock
in the noon, or so soon thereafter as the course of business will permit (or on a date and time to be fixed by the registrar).
FORM 6. Rr. 39, 45 and 50.
PETITION FOR DECREE OF DISSOLUTION OF MARRIAGE, NULLITY OF MARRIAGE OR JUDICIAL SEPARATION.
MARRIAGE.
1. The petitioner, then a (conjugal condition), was lawfully married to (or went through a ceremony of marriage with) the respondent, then a (conjugal condition), at on the day of , 19 , according to the rites of the Church.
2. The surname of the immediately before the marriage (or purported marriage) was .
3. (Here insert any particulars required by sub-rule (2.) or (3.) of rule 29.)
BIRTH OF PETITIONER AND RESPONDENT.
4. The petitioner was born at on the day of , 19 , and the respondent was born at on the day of , 19 .
5. (Here insert any particulars required by sub-rule (2.) of rule 30.)
6. The petitioner is, within the meaning of the Act, domiciled (or resident) in Australia. The facts on which the court will be asked to find that the petitioner is so domiciled (or resident) are as follows:—
COHABITATION.
7. Particulars of the places at which and periods during which the petitioner and the respondent have cohabited are as follows:—
or
7. The petitioner and respondent have never cohabited.
8. The date on which and circumstances in which cohabitation between the petitioner and respondent ceased (or last ceased) are as follows:—
(Leave out if the petitioner and respondent have never cohabited.)
Form 6—continued.
Children.
9. At the date of this petition no infant children of the marriage are living.
or
Particulars relating to the infant children of the marriage who are living at the date of this petition are as follows:—
(Here insert the particulars required by rule 33.)
PREVIOUS PROCEEDINGS.
10. Since the marriage (or ceremony of marriage) there have not been any previous proceedings in a court between the petitioner and the respondent.
or
10. The following are particulars of previous proceedings between the petitioner and the respondent since the marriage (or ceremony of marriage):—
11. Since the marriage (or ceremony of marriage) there have not been any proceedings, instituted otherwise than between the parties to the marriage, concerning the custody, guardianship, welfare, advancement or education of a child of the marriage.
or
11. The following are particulars of proceedings that have been instituted since the marriage (or ceremony of marriage), otherwise than between the parties to the marriage, concerning the custody, guardianship, welfare, advancement or education of a child of the marriage:—
12. The facts relied on by the petitioner as constituting the ground (or each ground) specified above are as follows:—
CONDONATION, CONNIVANCE AND COLLUSION.
(Leave out in the case of a petition for nullity of marriage.)
13. The petitioner has not condoned or connived at the ground (or any of the grounds) specified above, and is not guilty of collusion in presenting this petition.
or
13. The petitioner has not connived at the ground (or any of the grounds) specified above, and is not guilty of collusion in presenting this petition; the following facts are furnished in relation to condonation:—
(In the succeeding paragraphs set out any matters required to be stated by virtue of rule 41, 42 or 48 of the Matrimonial Causes Rules and, if proceedings for ancillary relief within the meaning of Part XIV. of those Rules are instituted by the petition, any further matters stated in relation to those proceedings.)
FORM 7. R. 52.
PETITION FOR DECREE OF RESTITUTION OF CONJUGAL RIGHTS.
MARRIAGE.
1. The petitioner, then a (conjugal condition), was lawfully married to the respondent, then a (conjugal condition), at on the day of , 19 , according to the rites of the Church.
2. The surname of the immediately before the marriage was
3. (Here insert any particulars required by sub-rule (2.) or (3.) of rule 29.)
BIRTH OF PETITIONER AND RESPONDENT.
4. The petitioner was born at on the
day of , 19 , and the respondent was born at
on the day of , 19 .
5. (Here insert any particulars required by sub-rule (2.) of rule 30.)
6. The petitioner is, within the meaning of the Act, domiciled (or resident) in Australia. The facts on which the court will be asked to find that the petitioner is so domiciled (or resident) are as follows:—
COHABITATION.
7. Particulars of the places at which and periods during which the petitioner and the, respondent have cohabited are as follows:—
or
7. The petitioner and respondent have never cohabited.
8. The date on which and circumstances in which cohabitation between the petitioner and respondent ceased (or last ceased) are as follows:—
(Leave out if the petitioner and respondent have never cohabited.)
CHILDREN.
9. At the date of this petition no infant children of the marriage are living.
or
9. Particulars relating to the infant children of the marriage who are living at the date of this petition are as follows:—
(Here insert the particulars required by rule 33.)
Form 7—continued.
PREVIOUS PROCEEDINGS.
10. Since the marriage there have not been any previous proceedings in a court between the petitioner and the respondent.
or
10. The following are particulars of previous proceedings between the petitioner and the respondent since the marriage:—
11. Since the marriage there have not been any proceedings, instituted otherwise than between the parties to the marriage, concerning the custody, guardianship, welfare, advancement or education of a child of the marriage.
or
11. The following are particulars of proceedings that have been instituted since the marriage, otherwise than between the parties to the marriage, concerning the custody, guardianship, welfare, advancement or education of a child of the marriage:—
12. The respondent still refuses to cohabit with, and render conjugal rights to, the petitioner who sincerely desires conjugal rights to be rendered by the respondent and is willing to render conjugal rights to the respondent.
13. (Here set out the particulars required by paragraph (b) of sub-rule (1.) of rule 53.)
(If proceedings for ancillary relief within the meaning of Part XIV. of the Matrimonial Causes Rules are instituted by the petition, set out in the succeeding paragraphs any further matters stated in relation to those proceedings.)
FORM 8. R. 55.
NOTICE OF PETITION.
To (full name and address of respondent).
Take notice that a petition has been presented to the abovenamed court by (full name and address of petitioner) instituting proceedings for a decree of and also seeking orders with respect to .
2. A sealed copy of the petition is delivered to you with this notice.
3. If you intend to consult a solicitor in connexion with the proceedings, you should take to him all the documents delivered to you.
Form 8—continued.
4. The form of Acknowledgment of Service delivered to you with this notice should be completed and signed by you and either you or your solicitor should immediately return it to the petitioner’s solicitor. A stamped and addressed envelope is delivered to you for that purpose.
5. If you desire—
(a) to deny any facts alleged in the petition;
(b) to allege any additional facts for the consideration of the court;
(c) to submit to the court that it should dismiss any of the proceedings instituted by the petition; or
(d) to make any other submissions to the court,
you should file an answer to the petition.
6. If you wish to institute proceedings for dissolution of marriage, nullity of marriage, judicial separation or restitution of conjugal rights, you may do so in an answer to the petition filed by you. If you institute proceedings for dissolution of marriage on the ground that the petitioner has committed adultery, you may also, by the answer, institute proceedings for damages in respect of the adultery.
7. If you wish to institute proceedings for the purpose of seeking an order with respect to maintenance for yourself, a settlement, the custody or guardianship of infant children of the marriage or the maintenance, welfare, advancement or education of children of the marriage, you should do so by filing an answer to the petition. If you fail to do so, you will have to obtain the leave of the court to institute the proceedings.
8. If you do not wish to file an answer but wish to receive a copy of each document filed in connexion with the proceedings, you should file a notice of address for service. However, unless you file an answer, you will not, without the leave of the court, be entitled to furnish evidence to the court, or address the court, at the trial of the proceedings and the court may hear and determine the proceedings in your absence.
9. Any answer or notice of address for service filed by you must be filed within days after you receive this notice or within such extended period as the petitioner or the registrar allows, and service of a copy of the answer or notice must be effected in accordance with the Matrimonial Causes Rules.
Dated this
day of
, 19 .
FORM 9.
R. 55.
NOTICE OF PROCEEDINGS.
To (full name and address of co-respondent, party cited or person named in the petition or answer, as the case may be).
Take notice that (full name and address of petitioner or respondent, as the case may be) has, by a petition (or answer) instituted proceedings for a decree of alleging that (full name of respondent or petitioner, as the case may be) committed adultery (or rape or sodomy) with (or on) you. The petitioner (or respondent) is also seeking orders for (here set out particulars of any orders for damages or costs sought against the person to whom the notice is addressed).
2. A sealed copy of the petition (or answer) is delivered to you with this notice.
3. If you intend to consult a solicitor in connexion with the proceedings you should take to him all the documents delivered to you.
4. The form of Acknowledgment of Service delivered to you with this notice should be completed and signed by you and either you or your solicitor should immediately return it to the petitioner’s (or respondent’s) solicitor. A stamped and addressed envelope is delivered to you for that purpose.
Form 9—continued.
5. If you desire—
(a) to deny any facts alleged in the petition (or answer) or to allege any additional facts for the consideration of the court, being facts material to proceedings, instituted by the petition (or answer), to which you are a party (or in which you are entitled to intervene);
(b) to submit to the court that it should dismiss any such proceedings; or
(c) to make any other submissions to the court,
you should file an answer to the petition (or reply to the answer).
6. If you do not wish to file an answer (or reply) but wish to receive a copy of each document filed in connexion with the proceedings to which you are a party, you should file a notice of address for service. However, unless you file an answer (or reply), you will not, without the leave of the court, be entitled to furnish evidence to the court, or address the court, at the trial of the proceedings, and the court may hear and determine the proceedings in your absence.
7. Although you are not joined in the proceedings as a party, you are entitled to intervene in the proceedings, and may do so by filing an answer to the petition (or reply to the answer).
(Leave out this paragraph if the person to whom the notice is addressed is a party to the proceedings.)
8. Any answer (or reply) or notice of address for service filed by you must be filed within days after you receive this notice or within such extended period as the petitioner (or respondent) or the registrar allows, and service of a copy of the answer (or reply) or notice must be effected in accordance with the Matrimonial Causes Rules.
Dated this
day of
, 19 .
FORM 10. R. 55.
NOTICE OF PROCEEDINGS.
To (full name and address of person), a parent of (full name and address of infant) (or an adult person with whom is residing or an adult person specified by the court (or registrar) in an order dated the day of , 19 , as the person to be served with a sealed copy of the petition (or answer) in order that due service of the petition (or answer) may be effected on ).
Take notice that (full name and address of petitioner or respondent, as the case may be) has, by a petition (or answer), instituted proceedings against (full name and address of respondent or petitioner, as the case may be) on the ground that (here set out, briefly, the ground, including the full name and address of any person with or on whom the respondent or petitioner, as the case may be, is alleged to have committed adultery, rape or sodomy).
The said is believed to be a person who has not attained the age of twenty-one years. Under the Matrimonial Causes Rules, service of a petition (or answer) on a person who has not attained that age is required to be effected—
(a) by serving a sealed copy of the petition (or answer) and a notice of petition or notice or proceedings on the person; and
(b) by serving a sealed copy of the petition (or answer) on a parent of the person, on an adult person with whom the person is residing or on some other adult person specified by the court or registrar.
Form 10—continued.
3. A sealed copy of the petition (or answer) is delivered to you with this notice. Service of the petition (or answer) is effected on you, in pursuance of the above-mentioned provision of the Matrimonial Causes Rules, in order that you may advise (full name of infant) in connexion with the proceedings. The notice of petition (or notice or proceedings) that is being served on (full name of infant) sets out the various courses of action that he (or she) may take in the proceedings.
4. The form of Acknowledgment of Service delivered to you with this notice should be completed and signed by you and returned immediately to the petitioner’s (or respondent’s) solicitor. A stamped and addressed envelope is delivered to you for that purpose.
FORM 11.
R. 62.
ACKNOWLEDGMENT OF SERVICE.
* Leave out this paragraph if inapplicable.
I, (full name), acknowledge that on the day of day of
, 19 , at , I received—
(a) a sealed copy of the petition in these proceedings (or as the case may be); and
*(b) a notice of petition (or notice of proceedings) addressed to me.
I also acknowledge that I am the person referred to in the sealed copy of the petition as the and that I am the person to whom the notice of petition (or notice of proceedings) is addressed (or as the case may be).
FORM 12. R. 64.
REQUEST FOR SERVICE ABROAD.
I hereby request that a sealed copy of a petition (or as the case may be, describing the document or documents) in this suit be transmitted through the proper channel to (name of country) for service personally on the respondent (or as the case may be) at (address), or elsewhere in by the judicial authority in that country (or as the case may be).
I hereby undertake to be responsible personally for all expenses incurred by the Commonwealth in respect of the service hereby requested, and on receiving due notification of the amount of those expenses I undertake to pay the same to the Commonwealth Treasury and to produce the receipt for payment to the registrar of the abovenamed Supreme Court.
Dated this
day of
, 19 .
Solicitor for the
FORM 13. R. 71.
AFFIDAVIT OF PERSONAL SERVICE.
I, (full name, address and occupation of deponent) make oath and say:—
1. On the day of , 19 , I duly served
with by delivering it to
him personally at (address).
(Here set out the means by which the deponent identified the person served.)
3. Annexed hereto and marked with the letter “ ” is a document acknowledging receipt of the , which was signed in my presence by the person to whom I delivered the .
4. (If service of the document was effected by the party on whose behalf the document was being served, here set out the circumstances that rendered it impracticable for another person to effect the service and the matters required by sub-rule (3.) of rule 61.)
FORM 14. R 74.
MEMORANDUM OF PUBLICATION OF ADVERTISEMENT.
Nature of document to which advertisement relates:
Newspaper in which advertisement published:
Date on which published:
FORM 15. R. 76.
ANSWER.
The respondent (or as the case may be), in answer to the petition in these proceedings, says:—
The respondent (or as the case may be) therefore (here set out particulars of the orders that the court will be asked to make).
FORM 16. R. 78.
ANSWER UNDER PROTEST.
The respondent (or as the case may be), in answer to the petition in these proceedings, objects to the jurisdiction of the abovenamed court upon the following grounds:—
The respondent (or as the case may be) therefore (here set out particulars of the orders that the court will be asked to make).
FORM 17. R. 79.
REPLY.
The petitioner (or as the case may be), in reply to the answer of the in these proceedings, says:—
The petitioner (or as thè case may be) therefore (here set out particulars of any orders or additional orders that the court will be asked to make).
FORM 18. R. 80.
REPLY UNDER PROTEST.
The petitioner (or party cited), in reply to the answer of the respondent in these proceedings, objects to the jurisdiction of the abovenamed court upon the following grounds:—
The petitioner (or party cited) therefore (here set out particulars of the orders that the court will be asked to make).
FORM 19. R. 88.
NOTICE OF WITHDRAWAL OF PLEADING.
It is intended to effect service of a copy of this notice on
FORM 20. R. 98 (2.).
SUPPLEMENTARY PETITION.
Date of petition:
The petitioner, by his supplementary petition, petitions the court for a decree of against the respondent on the ground of .
1. (In this and the succeeding paragraphs, set out the facts relied on as constituting that ground and any other facts stated in pursuance of Division 2 of Part VIII. of the Matrimonial Causes Rules.)
FORM 21. R. 98 (3.).
SUPPLEMENTARY ANSWER.
Date of answer:
The respondent, in further answer to the petition in these proceedings, says:—
The respondent therefore seeks the following additional orders:—
FORM 22. R. 122.
ELECTION OF GUARDIAN AD LITEM OF INFANT.
I, (full name), the petitioner (or as the case may be) elect my father (or mother or legal guardian) (full name) of to be my guardian ad litem for the purpose of these proceedings (or for the purpose of proceedings I propose to institute against ).
CONSENT.
I, (full name, address and occupation) consent to act as the guardian ad litem of for the purpose of these proceedings (or for the purpose of proceedings that he proposes to institute against ). I declare that I am the father (or mother or legal guardian) of the petitioner (or as the case
may be).
(Signature and address of witness.)
FORM 23. R. 124.
CONSENT TO ACT AS GUARDIAN AD LITEM.
I, , the Attorney-General of the Commonwealth
(or , an authorized person), consent to act as the guardian ad litem of
the abovenamed , for the purpose of these proceedings (or for the purpose of proceedings proposed to be instituted by him against the abovenamed ),
FORM 24. R. 138.
REQUEST FOR DISCOVERY.
Take notice that the petitioner (or as the case may be) requests the respondent (or as the case may be) to make discovery on oath of the documents that are or have been in his possession, custody or power relating to matters that are in question in these proceedings (or the following matters that are in question in these proceedings:—
).
To
FORM 25. R. 139 (4.).
AFFIDAVIT OF DISCOVERY.
I, (full name, address and occupation of deponent) make oath and say as follows:—
1. I have in my possession, custody or power the documents, relating to matters in question in these proceedings, specified or referred to in the first, second and third parts of the First Schedule to this affidavit.
2. I object to produce the documents specified (or referred to) in the second part of the First Schedule to this affidavit on the ground that the documents are professional communications of a confidential character made by me to my legal adviser or to me by my legal adviser for the purpose of giving me legal advice, cases for the opinion of counsel, instructions to counsel or opinions of counsel given in anticipation of or during the progress of these proceedings, letters or copies of letters from me to my solicitor, from my solicitor to me or from my solicitor to another person in anticipation of or during the progress of these proceedings or drafts or memoranda made by my counsel or solicitor for the purpose of these proceedings.
3. I object to produce the documents specified (or referred to) in the third part of the First Schedule to this affidavit on the ground that
4. I have had, but do not now have, in my possession, custody or power the documents relating to matters in question in these proceedings specified or referred to in the Second Schedule to this affidavit.
5. To the best of my knowledge and belief, the documents specified or referred to in the Second Schedule to this affidavit are, respectively, in the possession of the persons specified in that Schedule in relation to the documents.
6. I have not now and have never had in my possession, custody or power, or in the possession, custody or power of a solicitor, agent or other person on my behalf, any deed, account, book of account, voucher, receipt, letter, memorandum, paper or writing which relates to matters in question in these proceedings (or to the matters in question in these proceedings that are specified in the Third Schedule to this affidavit) or in which an entry relating to such a matter has been made or any copy of or extract from any such deed, account, book of account, voucher, receipt, letter, memorandum, paper or writing, save and except the documents specified or referred to in the First and Second Schedules to this affidavit.
FORM 26. R. 150.
NOTICE TO ADMIT DOCUMENTS.
Take notice that the petitioner (or as the case may be) in these proceedings proposes to give in evidence the several documents referred to in the First and Second Schedules to this notice. Those documents may be inspected by the , and by his solicitor or agent, at on the day of , 19 , between the hours of .
The respondent (or as the case may be) is called upon to admit, within seven days after service of this notice on him—
(a) that the documents referred to in the First Schedule are original documents that were duly written, signed or executed, as the case may be, on the respective dates specified in that Schedule by the persons by whom they purport to have been written, signed or executed;
FORM 26—continued.
(b) that the documents referred to in the Second Schedule are true copies of the documents of which they purport to be copies; and
(c) that, where particulars of the service, sending or delivery of an original document are specified in the third column of the Second Schedule in relation to a reference to a copy of that document in the first column of the Second Schedule, that original document was served, sent or delivered as specified in the third column of the Second Schedule.
FIRST SCHEDULE.
Original Documents.
Description of documents.
Date on which written, signed or executed.
SECOND SCHEDULE.
Copies of Documents.
FORM 27. R. 151.
NOTICE TO ADMIT FACTS.
Take notice that the petitioner (or as the case may be) calls upon the respondent (or as the case may be) to admit, within seven days after receipt of this notice, for the purpose of these proceedings only, each of the following facts:—
To
FORM 28. R. 151.
ADMISSION OF FACTS.
The respondent (or as the case may be) hereby admits, for the purpose of these proceedings only, the facts specified hereunder subject to the qualifications (if any) specified in relation to any of those facts.
These admissions are not to be used against the respondent (or as the case may be) in any other proceedings or by any person other than the petitioner (or as the case may be) in these proceedings.
Form 29. R. 153.
NOTICE TO PRODUCE AT TRIAL.
Take notice that you are required to produce, at the trial of these proceedings, all books, papers, letters, copies of letters and other writings and documents in your custody, possession or power that relate to, or contain an entry, memorandum or minute relating to, any matters in question in these proceedings, and, in particular, the following documents:—
Dated this
day of
, 19 .
Solicitor for the
.
To
FORM 30. R. 162.
DISCRETION STATEMENT.
Discretion Statement of the
On the trial of these proceedings, the court will be asked to make a decree of dissolution of marriage (or judicial separation) notwithstanding that I have, since the date of my marriage to the respondent (or as the case may be), committed adultery with of
Particulars of the adultery and the circumstances giving rise to the commission of the adultery are as follows:—
The grounds on which the court will be asked to make the decree notwithstanding that adultery are as follows:—
Apart from the acts of adultery referred to above, I have not committed adultery since the date of my marriage to the respondent (or as the case may be).
FORM 31. Rr. 171 (2.)
and 173 (2.).
REQUEST TO SET SUIT DOWN FOR TRIAL.
* Leave out this paragraph if suit is undefended.
The petitioner (or as the case may be) requests the registrar to set this suit down for trial at
2. At the trial of the suit it is proposed to call, as witnesses, the petitioner (or as the case may be) and (number of witnesses) other witnesses who reside, respectively, at (names of towns).
3. In addition to the proceedings comprising this suit, the following proceedings are pending in this court between the petitioner and the respondent:—
or
3. No proceedings, other than proceedings comprising this suit, are pending in this court between the petitioner and the respondent.
4.* The probable length of the trial is
It is intended to serve a copy of this request on the
FORM 32. Rr. 171 (3.) and
173 (3.).
CERTIFICATE THAT SUIT IS READY FOR TRIAL.
I, , the solicitor for the petitioner
(or as the case may be), certify:—
1. That this suit is ready for trial.
2. (Here set out the matters (if any) required by rule 171(3.) (f) or rule 173 (6.) (b).)
3. (Here set out the matters (if any) required by sub-rules (7.) and (8.) of rule 173.)
FORM 33. R. 178 (1.).
NOTICE OF TRIAL.
Notice is hereby given that this suit has been set down for trial at
(or at , on the
day of , 19 , or for the sittings of the court at
commencing on the day of
,19 , or as the case may be).
To
NOTES:—1. This notice does not necessarily state the actual date on which the suit will be tried by the court. Inquiry may be made at the office of the court as to the approximate date on which the suit will be tried. The date of the trial may, in accordance with the usual practice of the court, be published in certain daily newspapers.
2. If this suit proceeds to trial and a decree of dissolution of marriage (or a decree of nullity of a voidable marriage) is made, the marriage is not dissolved (or annulled) until the decree has become absolute in accordance with the provisions of section 72 of the Matrimonial Causes Act 1959.
FORM 34. R. 178 (5.).
REGISTRAR’S CERTIFICATE THAT SUIT IS READY FOR TRIAL.
I certify that this suit is ready for trial (or this suit has been set down for trial by leave of the court or this suit has been set down for trial in pursuance of a request under sub-rule of rule 175 of the Matrimonial Causes Rules notwithstanding that, in my opinion, the following matters are not in order:—
(a)
(b) ).
2. No proceedings, other than proceedings comprising this suit, are pending in this court between the petitioner and the respondent.
or
2. In addition to proceedings comprising this suit, the following proceedings are pending in this court between the petitioner and the respondent:—
3. Division 6 of Part XI. of those Rules does not apply in relation to any proceedings comprised in this suit.
or
3. A compulsory conference was held in accordance with the provisions of Division 6 of Part XI. of those Rules and agreement between the petitioner and respondent was (or was not) reached at that conference.
or
3. The petitioner (or respondent) complied with the provisions of sub-rule (1.) of rule 166 of those Rules but the respondent (or petitioner) failed to attend (or to take part in) a conference for the purpose of Division 6 of Part XI. of those Rules.
or
3. This suit has been set down for trial in accordance with sub-rule (2.) of rule 166 of those Rules.
4. I certify that I have duly complied with the provisions of paragraphs (a) and (b) of sub-rule (5.) of rule 178 of those Rules in relation to this suit.
____
FORM 35. R. 182.
DECREE NISI OF DISSOLUTION OF MARRIAGE.
Before the Honourable Mr. Justice
counsel for the petitioner, Mr. being counsel for the respondent
and Mr. being counsel for the co-respondent (or as the case may be).
The court was satisfied that at the time when the suit was instituted the petitioner was domiciled in Australia within the meaning of the Matrimonial Causes Act 1959 (or was domiciled in Australia according to the principles of the common law) and that (here set out the ground or grounds proved at the trial).
(The court was also satisfied that (here set out any matter by reason of which the court could, in its discretion, have refused to make a decree of dissolution of marriage), but decided, in the exercise of its discretion, to make a decree of dissolution of marriage notwithstanding that it was so satisfied.)
FORM 35—continued.
The court therefore decreed that, upon and subject to the decree of the court becoming absolute, the marriage solemnized on the day of , 19 , at between , the petitioner, and , the respondent, be dissolved.
(Here set out any further orders made by the court at the trial, including particulars of any arrangements stated in pursuance of rule 186.)
NOTES:—1. A party to the marriage who marries again before this decree has become absolute (unless the other party has died) will commit the offence of bigamy.
2. If, after this decree has been made but before it has become absolute, it comes to the notice of a party to the suit who has an address for service that a party to the marriage has died, he or she is required by rule 188 of the Matrimonial Causes Rules to make and file an affidavit stating such particulars of the date and place of death as are known to him or her.
3. If the parties to the marriage become reconciled before this decree becomes absolute, application should be made to the court for the rescission of this decree.
FORM 36. R. 183.
DECREE OF NULLITY OF VOID MARRIAGE.
The court was satisfied that at the time when the suit was instituted the petitioner was domiciled in Australia within the meaning of the Matrimonial Causes Act 1959 (or was domiciled in Australia according to the principles of the common law or was resident in Australia) and that (here set out the ground or grounds proved at the trial).
The court therefore decreed that the marriage in fact solemnized on the
day of , 19 , at
between , the petitioner, and , the
respondent, be declared to have been absolutely null and void.
FORM 37. R. 183.
DECREE NISI OF NULLITY OF VOIDABLE MARRIAGE.
The court was satisfied that at the time when the suit was instituted the petitioner was domiciled in Australia within the meaning of the Matrimonial Causes Act 1959 (or was domiciled in Australia according to the principles of the common law) and that (here set out the ground or grounds proved at the trial).
The court therefore decreed that, upon and subject to the decree of the court becoming absolute, the marriage in fact solemnized on the day of , 19 , at between ,
the petitioner, and , the respondent, be annulled.
(Here set out any other orders made by the court at the trial, including particulars of any arrangements stated in pursuance of rule 186.)
NOTES:—1. A party to the marriage who marries again before this decree has become absolute (unless the other party has died) will commit the offence of bigamy.
2. If, after this decree has been made but before it has become absolute, it comes to the notice of a party to the suit who has an address for service that a party to the marriage has died, he or she is required by rule 188 of the Matrimonial Causes Rules to make and file an affidavit stating such particulars of the date and place of death as are known to him or her.
FORM 38. R. 184.
DECREE OF JUDICIAL SEPARATION.
counsel for the petitioner, Mr. being counsel for the respondent and Mr. being counsel for the co-respondent (or as the case may be).
The court was satisfied that at the time when the suit was instituted the petitioner was domiciled in Australia within the meaning of the Matrimonial Causes Act 1959 (or was domiciled in Australia according to the principles of the common law or was resident in Australia) and that the respondent (here set out the ground or grounds proved at the trial).
(The court was also satisfied that (here set out any matters by reason of which the court could, in its discretion, have refused to make a decree of judicial separation), but decided, in the exercise of its discretion, to make a decree of judicial separation notwithstanding that it was so satisfied.)
The court therefore decreed that , the petitioner, who was
married to , the respondent, on the
day of , 19 , at be judicially separated from the respondent.
FORM 39. R. 185.
DECREE OF RESTITUTION OF CONJUGAL RIGHTS.
The court was satisfied that at the time when the suit was instituted the petitioner was domiciled in Australia within the meaning of the Matrimonial Causes Act 1959 (or was domiciled in Australia according to the principles of the common law or was resident in Australia), that the petitioner and respondent were not cohabiting and that the respondent had refused, without just cause or excuse, to cohabit with, and render conjugal rights to, the petitioner.
The court therefore decreed that the respondent take back (or return home to) the petitioner and render to the petitioner conjugal rights.
FORM 40. R. 189(1.).
MEMORANDUM OF DECREE NISI HAVING BECOME ABSOLUTE.
* If not applicable, state “not applicable”.
1. Date of decree nisi:
*2. Date of order under section 71:
*3. Date of determination or discontinuance of appeal:
*4. Date of order under sub-section (3.) of section 72:
*5. Date on which intervention determined:
The decree nisi of dissolution of the marriage between the petitioner and the respondent solemnized (or of nullity of the marriage between the petitioner and the respondent in fact solemnized) on the day of , 19 .
became absolute on the day of , 19 .
FORM 41. R. 189 (2.).
CERTIFICATE OF DECREE NISI HAVING BECOME ABSOLUTE.
I certify that the decree nisi of dissolution (or nullity) of marriage made by the Supreme Court of on the day of
, 19 , dissolving (or annulling) the marriage solemnized
(or in fact solemnized) on the day of , 19 ,
between , the petitioner, and , the respondent,
became absolute on the day of , 19 .
FORM 42. R. 192.
NOTICE OF INTERVENTION BY ATTORNEY-GENERAL.
Take notice that , the Attorney-General of the Commonwealth,
(or , a person authorized by delegation of the Attorney-General
of the Commonwealth dated the day of ,
19 ,) intervenes in these proceedings under section 76 (or 77) of the Matrimonial
Causes Act 1959.
Crown Solicitor for the Commonwealth
(or Solicitor for ).
This notice is filed by on behalf of the Attorney-General
of the Commonwealth (or as the case may be) whose address for service is .
It is intended to effect service of copies of this notice on the petitioner and on .
FORM 43. R. 194.
NOTICE OF INTERVENTION.
Take notice that of intervenes
in these proceedings in pursuance of leave granted by the court on the
day of , 19 .
Dated this day of , 19
Solicitor for the intervener.
It is intended to effect service of copies of this notice on the petitioner and on
FORM 44. R. 201 (2.).
APPLICATION FOR ANCILLARY RELIEF.
In pursuance of leave granted by the court on the day of
, 19 , application is made to the court on behalf of
the for (here set out the order sought).
It is proposed that the proceedings instituted by this application be heard and determined by the court, so far as is practicable, at the same time as the proceedings to instituted by the .
This application is filed by on behalf of the above-
named whose address for service is
It is intended to effect service of this application on
FORM 45. R. 201 (4.).
APPLICATION FOR MAINTENANCE PENDING SUIT.
This application is filed by on behalf of the above-
named whose address for service is
It is intended to effect service of this application on
FORM 46. Rr. 202 (4.) and 214 (1.).
REQUEST TO SET PROCEEDINGS DOWN FOR HEARING.
FORM 47. Rr. 202 (5.) and 214 (2.).
NOTICE OF HEARING.
Take notice that the proceedings for an order for pending suit
instituted by the petition (or answer) in this suit have been set down for hearing
at on the day of , 19 ,
at o’clock in the noon, or so soon thereafter as the course of business
will permit.
To
FORM 48. R. 204 (2.) and (3.).
REQUEST TO ASSESS MAINTENANCE PENDING SUIT.
The petitioner (or respondent) requests the registrar to make an assessment under rule 204 in the proceedings for maintenance pending suit instituted by petition (or as the case may be) dated the day of , 19 .
That petition was served personally on the respondent on the
day of , 19 , as appears by the affidavit of
sworn the day of , 19 (or as the case
may be).
FORM 49. R. 204 (8.).
ASSESSMENT OF MAINTENANCE PENDING SUIT.
In pursuance of rule 204 of the Matrimonial Causes Rules—
(a) I specify £ as the proper rate per week of maintenance pending suit for (and £ as the proper rate per week of maintenance pending suit for );
(b) I specify the day of , 19 , as the commencing date for that maintenance; and
(c) I specify £ (and £ ) as the proper rate (or rates) per week for the making of payments in respect of arrears of maintenance for (, and , respectively,) for the period commencing on that date and ending on the date of this assessment, less any amount paid as such maintenance before the date of this assessment for that period.
2. Payments of maintenance in accordance with this assessment should be made to (here set out the office of the court, the public authority or the person to whom the registrar considers that the maintenance should be paid), and the first payment should be made not later than 6 days after the date of this assessment.
Dated this day of , 19
NOTES:—1. A party may, not later than seven days after the service of a copy of this assessment on him, file a request, in accordance with Form 50, requesting the registrar to refer to the court the proceedings of the petitioner (or respondent) for maintenance pending suit.
2. Unless the respondent (or petitioner) duly files such a request, he shall be deemed to have consented to the making of an order by the court in accordance with the terms of this assessment and, if he does not duly pay maintenance in accordance with those terms, the court may, without further notice to him, order him to make payments of maintenance pending suit in accordance with those terms.
FORM 50. Rr. 206 and 207.
REQUEST TO REFER MAINTENANCE PROCEEDINGS TO THE COURT.
In pursuance of rule 206 (or 207) of the Matrimonial Causes Rules, the
requests the registrar to refer to the court the proceedings for an order for the maintenance pending suit of
.
FORM 51. R. 208.
NOTICE OF HEARING OF MAINTENANCE PROCEEDINGS REFERRED TO THE COURT.
Take notice that, in pursuance of a request made by the under rule 206 (or 207) of the Matrimonial Causes Rules, the proceedings for an order for the maintenance of pending suit have been referred to the court and have been set down for hearing at on the
day of , 19 , at the hour of o’clock in the noon, or so soon thereafter as the course of business will permit.
To
FORM 52. R. 211.
APPLICATION FOR CERTIFICATE OF MEANS.
Application is made to a registrar of the court on behalf of the
for a certificate of means (by reason of a registrar being unable to make an assessment until the certificate has been issued).
This application has been set down for hearing by the registrar at the Supreme Court,
, (or as the case may be) on the day of , 19 , at the hour of o’clock in the noon, or so soon thereafter as the course of business will permit (or on a date and time to be fixed by the registrar).
It is intended to effect service of this application on .
FORM 53. R. 212.
CERTIFICATE OF MEANS.
The application dated the day of , 19 , of the petitioner (or respondent) for a certificate of means was heard by me on the day of , 19 , Mr. appearing for the petitioner and Mr. appearing for the respondent (or as the case may be).
I certify that the pecuniary resources of the petitioner and respondent are as follows:—
I also certify that the capabilities of the petitioner and respondent to earn income are as follows:—
Dated this
day of
, 19 .
Registrar.
FORM 54. R. 234
AFFIDAVIT.
I, (full name, address and occupation of deponent) make oath and say as follows:—
FORM 55. R. 253.
ATTACHMENT OF EARNINGS ORDER.
Whereas of , aged years,
who is employed by at as a
(works No. ) is liable to make payments of a week (or as
the case may be) to under a maintenance order made by the
Supreme Court of on the day of , 19 :
And whereas this court is satisfied that the said
is a person to whom earnings are payable or are likely to become payable by the said and that, at the time when application was made for this order, there was due under the maintenance order and unpaid an amount equal to not less than four weekly payments (or as the case may be):
Form 55—continued.
This court therefore orders:—
1. That the said (name of employer) do make payments out of those earnings in accordance with the Third Schedule to the Matrimonial Causes Act 1959 to (here insert the officer of the court or other person to whom payments are to be made) for transmission to .
2. That, for the purpose of calculating those payments, the normal deduction rate shall be a week (or as the case may be) and that the protected earnings rate shall be a week (or as the case may be).
Registrar (or Clerk or as the case may be).
To of and to
of
NOTE:—Paragraphs 10 and 11 of the Third Schedule to the Matrimonial Causes Act 1959 are as follows:—
“10. An attachment of earnings order does not come into force until the expiration of seven days after the day on which a copy of the order is served on the person to whom the order is directed.
“11. An employer to whom an attachment of earnings order is directed, being an attachment of earnings order that is in force, shall, in respect of each pay-day, if the net earnings of the defendant exceed the sum of—
(a) the protected earnings of the defendant; and
(b) so much of any amount by which the net earnings that became payable on any previous pay-day were less than the protected earnings for the purposes of that pay-day as has not been made good on any other previous pay-day,
pay, so far as that excess permits, to the officer specified for the purpose in the order—
(c) the normal deduction; and
(d) so much of the normal deduction for the purposes of any previous pay-day as was not paid on that pay-day and has not been paid on any other previous pay-day.”.
FORM 56. R. 255.
NOTICE OF ATTACHMENT OF EARNINGS ORDER HAVING CEASED TO HAVE EFFECT.
Take notice that the attachment of earnings order made by the abovenamed court
on the day of , 19 , whereby
was ordered to make payments out of earnings payable to the ,
ceased to have effect on the day of , 19 , by
reason of the fact that
For the Registrar (or Clerk or as the case may be),
Clerk of the Supreme Court (or as the case may be),
To
NOTE:—You are not required to make any further deductions under the attachment of earnings order but paragraph 20 of the Third Schedule to the Matrimonial Causes Act 1959 is as follows:—
“20. Where an attachment of earnings order ceases to have effect or is discharged, the person to whom the attachment of earnings order is directed does not incur any liability in consequence of his treating the order as still in force at any time before the expiration of seven days after the date on which the notice required by the last preceding paragraph, or a copy of the discharging order, as the case may be, is served on him”.
FORM 57. R. 256.
NOTICE BY EMPLOYER THAT PERSON NOT IN HIS EMPLOY.
Whereas, by an attachment of earnings order made by the abovenamed court on the day of , 19 , I was directed to make payments to out of the earnings of :
I hereby give notice, under paragraph 24 of the Third Schedule to the Matrimonial Causes Act 1959, that I have not on any occasion during the period of four weeks immediately preceding the day of , 19 , been the employer of within the meaning of that Schedule.
Employer.
To the Registrar of the Supreme Court of (or as the
case may be).
FORM 58. R. 262.
NOTATION TO BE WRITTEN ON CERTAIN WARRANTS AND WRITS.
On the day of , 19 , a copy of this
warrant (or writ) was deposited in the office of the Supreme Court of in pursuance of rule 262 of the Matrimonial Causes Rules.
By virtue of that rule, this warrant (or writ) may be executed in the State (or Territory) of as if it had been issued by the Supreme Court of that State (or Territory) and as if it was directed, for the purpose of being executed, to the Sheriff of that State (or Territory) (or as the case may be).
For the Registrar of the Supreme Court
of
FORM 59. R. 266.
CERTIFICATE OF DECREE OR ORDER.
Nature of proceedings:
Date of decree or order made in those proceedings:
Name and address of party to whom payment is to be made or in whose favour decree or order was made:
Name, address and occupation of party ordered to pay money or to do or not to do any act:
Abstract of decree or order: (Here set out particulars of the effect of the decree including amount (if any) ordered to be paid, the date on or from which it is payable and particulars of any act ordered to be done or not to be done.)
I certify that this certificate correctly states particulars of a decree (or order) made in this court on the day of , 19 , in proceedings in which was the petitioner and was the respondent (or as the case may be).
FORM 60. R. 283.
REGISTRAR’S SUMMONS.
To (full name and address of person).
In pursuance of the power conferred by rule 283 of the Matrimonial Causes Rules,
I, , a registrar of the Supreme Court of
summon you to attend at on the
day of , 19 , at the hour of o’clock in
the noon to give evidence in connexion with (give short particulars of
the application) (and then and there to produce any books, documents and writings in your custody or control that relate to that matter, and, in particular, the following books, documents and writings:— ).
__________
NOTE:—Rule 285 of the Matrimonial Causes Rules authorizes a judge to issue a warrant for the apprehension of a person who, having been served with a summons and paid or tendered reasonable expenses, fails to attend as required by the summons.
FORM 61. R. 288.
REPORT OF REGISTRAR WHERE WITNESS FAILS TO ANSWER QUESTION SATISFACTORILY.
On the day of , 19 , at the hearing of an application by the for an order the following question was put by me (or allowed by me to be put) to :—
2. The witness refused to answer the question.
or
2. The witness answered the question as follows:—
3. I thereupon named the day of , 19 ,
at o’clock in the noon, at as the time and place at which the refusal to answer (or the answer) would be reported to the court.
FORM 62. R. 292 (1.).
REQUEST FOR REVIEW OF REGISTRAR’S DECISION.
In pursuance of rule 292 of the Matrimonial Causes Rules, the petitioner (or as the case may be) requests the court to review the decision of the registrar given on the day of , 19 , upon (here set out the matter in respect of which the decision was given).
FORM 63. R. 292 (2.).
NOTICE OF HEARING OF REVIEW OF REGISTRAR’S DECISION.
Take notice that the petitioner (or as the case may be) has, under rule 292 of the Matrimonial Causes Rules, requested the court to review the decision of the registrar given on the day of , 19 , upon (here set out the matter in respect of which the decision was given) and that the review of that decision by the court has been set down for hearing at on the day of , 19 , at the hour of o’clock in the noon, or so soon thereafter as the course of business will permit.
To
FORM 64. R. 310.
PETITION FOR JACTITATION OF MARRIAGE.
The petitioner, whose address is and whose
occupation is , petitions the court for a decree of
jactitation of marriage against the respondent, whose address is
and whose occupation is .
1. The petitioner is, within the meaning of the Act, domiciled (or resident) in Australia. The facts on which the court will be asked to find that the petitioner is so domiciled (or resident) are as follows:—
2. The petitioner is not married to the respondent.
3. (Here set out the dates on which, and times and places at which, the respondent boasted and asserted that a marriage had taken place between the petitioner and the respondent, together with particulars of the boastings and assertions.)
4. The said boastings and assertions are false and the petitioner has not acquiesced in those boastings and assertions.
(If proceedings for ancillary relief within the meaning of Part XIV. of the Matrimonial Causes Rules are instituted by the petition, set out in the succeeding paragraphs any further matters that are relevant to those proceedings.)
This petition was settled by (name of counsel).
Solicitor for the petitioner.
This petition is filed by on behalf of the petitioner whose
address for service is .
FORM 65. R. 313.
PETITION FOR DECLARATION, &c.
The petitioner, whose address is
and whose occupation is , petitions the court for a declaration (or order or decree) that (set out the declaration, order or decree sought) against the respondent, whose address is
and whose occupation is .
1. The facts on which the court will be asked to make that declaration (or order or decree) are as follows:—
(If proceedings for ancillary relief within the meaning of Part XIV. of the Matrimonial Causes Rules are instituted by the petition, set out in the succeeding paragraphs any further facts that are relevant to those proceedings.)
FORM 66. R. 325.
NOTICE OF INTENTION TO GIVE NOTICE TO COURT THAT SOLICITOR HAS CEASED TO REPRESENT PARTY.
Take notice that, as I have ceased to act for you in these proceedings, I intend, after the expiration of seven days from service of this notice on you, to file a notice of my having ceased to represent you in these proceedings.
Under the Matrimonial Causes Rules, you may give notice, in accordance with those Rules, that you are represented by a solicitor or that you intend to act in person. However, if you do not give such a notice, you will be deemed not to have an address for service for the purpose of these proceedings and will not be entitled to have pleadings or other documents served on you.
Solicitor.
To
FORM 67. R. 325.
NOTICE THAT SOLICITOR HAS CEASED TO REPRESENT PARTY.
Take notice that I am no longer representing the
in these proceedings.
A notice, a copy of which is annexed to this notice and marked “A”, was served
on the on the
day of , 19 , by (here set out such particulars of the
service as establish due service of the notice).
The last address of the known to me
is .
Solicitor.
__________
SECOND SCHEDULE. R. 300.
COURT FEES.
________________
By Authority: A. J. ARTHUR, Commonwealth Government Printer, Canberra