ByLawyers News and Updates

Family Law Rules – Additional changes as of 1 March 2018

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Documents to be used in conjunction with affidavits

As of 1 March 2018, in the Family Court, a document that is to be used in conjunction with an affidavit and tendered in evidence in a court proceeding, must be identified in the affidavit but must not be attached to or annexed to the affidavit, or filed as an exhibit to the affidavit.

There may be exceptions where court orders or the Rules provide otherwise: for example r 15.62 in relation to expert reports.

Any document referred to in the affidavit must be served with the affidavit on the other parties after filing. The document must then be tendered in evidence at the court event when the relevant affidavit is relied upon or as required: r 15.08(2)

While as of 1 March 2018, the Family Law Rules have changed, providing for annexures not to be attached to affidavits: r 15.08, in matters in the Family Court, the Federal Circuit Court continues to permit annexures to be attached. Given the majority of matters are filed in the Federal Circuit Court, not the Family Court, in practice the norm will continue to be that relevant annexures are attached to affidavits.

Undertakings

Rule 17.06 has been added, relating to undertakings. The rule sets out the form of undertakings and, in summary provides:

  • Undertakings may be given orally or in writing.
  • If they are in writing, it must be signed and filed.
  • If they are given orally, a written record must be made, signed, filed and served.
  • A definition of undertakings as to damages.

We have updated our Property Settlement and Children commentaries accordingly.

Family Law Rules – changes as of 1 March 2018

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As of 1 March 2018, changes came into effect in relation to consent orders in the Family Court.

The relevant By Lawyers publications, Children and Property Settlement, have been updated. The new forms have been linked to the matter plans and the commentary additions consist of the following:

Children changes

What was previously the annexure to consent parenting orders is now incorporated into the Application for Consent Orders form. A separate annexure is no longer required.

Three new forms were added for use in the Family Court.

The Notice of Child Abuse, Family Violence or Risk of Family Violence (Application for Consent Orders) must be filed with the Application for consent orders if parenting orders are sought and a party has said at item 25 of the Application there has been, or is a risk of child abuse, neglect or family violence.

The second form is the Notice of Child Abuse, Family Violence or Risk of Family Violence (Current Case). This form is now only for where cases are on foot: not for consent orders.

A third new form is the Submitting Notice. This form may be filed in Family Court proceedings if a party has been served with an Initiating Application, Response to Initiating Application, Reply or a Notice of Appeal, and does not want to contest the relief sought: Family Law Rules r 8.07.

Property Settlement changes

Previously, if the consent orders contained a provision for a superannuation splitting order, you had to ensure that a superannuation information form had been completed by the Trustee of the relevant super fund or a valuation had been obtained to the superannuation interest. However, as of 1 March 2018, a superannuation kit is no longer required. Proof of value of the interest is required to be filed with the Application.

Family Law Rules – Amendment

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ALERT – FROM 1 MARCH 2018 – APPLICATION FOR CONSENT ORDERS

Family Law Amendment (2018 Measures No. 1) Rules 2018

Parenting matters: Changes to consent orders and submitting notices. New forms for abuse/violence.

Financial matters: Superannuation interest – kit no longer required. Must file proof of value of the interest with application.

FAMILY LAW – LETTERS OF ADVICE FOR BINDING CHILD SUPPORT AGREEMENTS

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Detailed Letters of Advice for Binding Child Support Agreements have been added to the Children publication in Family Law with one for the “payee” and one for the “payer”. The letters explain Child Support Assessments and the meaning and effect of  Binding Child Support Agreements on the client’s rights. Each letter also lists the particular advantages and disadvantages of Binding Child Support Agreements for the “payee” and the “payer”. The “payee” letter explains the advantage of registering the agreement where there are non-periodic payments.

Locate these letters on the Children matter plan in Settling it Early in the Child Support folder.

FAMILY LAW – BINDING CHILD SUPPORT AGREEMENTS

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The Binding Child Support Agreements commentary has been updated with relevant case law.

Balzano & Balzano [2010] FamCAFC 11 at [40]-[41] and Gallup & Gallup [2009] FMCAfam 839 at [52]-[53] both demonstrate the extreme difficulty in having a binding child support agreement set aside.

Family Law – Grandparents order and commentary

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New commentary on parenting orders in relation to grandparents has been added to the Children publication … Grandparents are entitled to apply for parenting orders pursuant to s 65C, which provides: A parenting order in relation to a child may be applied for by … (ba)  a grandparent of the child; or … Whilst grandparents specifically have standing to make an application under the Family Law Act, it does not automatically mean orders will be granted.  As with any parenting order, the court will always consider an application by the grandparents through the prism of what is in the best interests of the child: s 60CC.

Also, a new draft order has been added to the library of Children Orders: “Spending time with grandparents”.

Family Law – Reference Manual – 101 Family Law Answers

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The Reference Manual – 101 Family Law Answers is the first of the By Lawyers reference manuals to be updated to the new stylish format.

As well as the new format, two commentaries have been added in the Enforcement chapter.

Court enforcement of a child support debt: A child support debt, a debt occasioned due to non payment of a registered maintenance liability, is a debt to the Commonwealth, as opposed to the payer, and is recoverable by action taken by the Child Support Registrar: s 113; or by the payee: s 113A. …

Property orders – Enforcement and the overseas factor: Unlike parenting orders, the Family Law Act, Rules or Regulation make no provision for the registration of property orders in overseas jurisdictions, or the registration and enforcement of overseas property orders in Australia. Furthermore, Australia is not party to any international conventions which provide for the reciprocal recognition of property orders overseas. …

 

Family Law – The Harman Undertaking – Information obtained on discovery or subpoena

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Commentary has been added to the Children and Property Settlement publications regarding the Harman undertaking:

Information obtained on discovery, subpoena or included within an affidavit cannot be used for a collateral or ulterior purpose unrelated to the proceedings in which that production occurs. This is called an implied or ‘Harman’ undertaking after Harman v Secretary of State for the Home Department [1983] 1 AC 280. It is a substantive legal obligation owed to the party who produces the documents and to the court: Hearne v Street [2008] HCA 36 (6 August 2008) at [107]-[108].

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