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Practice Manual 4th Edition
Updates by Peter Szabo updated to 1 July 2003 |
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Practice Manual 4th Edition
Updates by Peter Szabo updated to 1 July 2003 |
Important Notice
The Fifth Edition of the Practice Manual planned for release in 2004 to coincide with the Family Law Rules and Forms being totally rewritten. This is now expected to take effect at the end of March 2004.No further updates will be undertaken to the 4th Edition either in hard copy or on this site pending that event. The Forms have been mostly updated using the Forms as published by the Family Court as at April 2003 and available on the Updates Page. The 4th Edition is, with the updates on this site still current and highly relevant to current Family Law Practice. Given the impending rewrite Leo Cussen is having a clearance sale of the 4th Edition hard copy for $33 including GST. See Purchase Manual link. This is great value and if the rewrite of the Forms and Rules is delayed, the currency of the 4th edition is enhanced even further. While the format and number of the Forms and Rules changes, the basics of how Family Law practice is conducted will remain the same. The Manual is full of practical hints and comments that are of benefit to the young practioner and also to the interested legal secretary.
Peter Szabo
20 June 2003
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Keeping the Practice Manual Up to date
You should print out these updates and keep them in section 10 of your Manual. At this stage, given the very significant changes during 2002, and with a rewrite of the Rules threatening to take effect at the end of March 2004, a hard copy update is quite frankly not feasible at present. However, I have incorporated the changes below as they arise, with comments on how to update the material in the Manual accordingly. The Manual will therefore continue to remain current. A CD Rom update that will link changes from the original text quickly is being developed. Details of when it will be available will be published here when known, but is expected by June 2003.
Precedents updated from manual to forms current as at 31 March 2003
To assist in keeping theManual current, I am publishing the precedents on the most recent forms as released by the Family Court from their website.
Peter Szabo
1 July 2003
| SUMMARY OF CHANGES - Reverse Date Order | ||
| July 2003 | Interest Rate changes from 10.1% to 9.55% |
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| June 2003 | Hickey Full Court judgement simplifies many superannuation applictions |
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| March 2003 | Precedents updated to Forms available as at March 2003 |
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| January 2003 | Superannuation information to be filed with Form 17 |
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| December 2002 | Superannuation changes incorporated in Forms 3, 3A. 3B, 12A, & 17 |
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| August 2002 | Form 17A replaced by Case Summary document |
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| July 2002 | Affidavits in Interim Applications Banned in Pilot Project (Vic, Tas) | Commentary |
| July 2002 | Form 36 Subpoena minor change |
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| July 2002 | Filing Fees Increased. Interst Rate lowered to 10.1% |
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| October 2001 | Case Conferences - Chapter 4 and 5 text updated | Commentary |
| October 2001 | Child Abduction forms Update - Chapter 8 |
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| October 2001 | Court introduces Case Conference and new Case Management guidelines | Commentary |
| September 2001 | Chapter 8 Child Welfare affidavit - text in Manual updated |
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| August 2001 | Introduction of Form 3 and 3A text changes - Chapter 4 and Chapter 8 updated | Commentary |
| August 2001 | Chapter 9 updated to incorporate Parenting Compliance Regime |
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| August 2001 | Chapter 6 updated to incorporate Form 3, Child welfare compliance orders (S65DA) |
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| July 2001 | Child Welfare Affidavit NOT required in Federal Magistrates Court |
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| June 2001 | Child Welfare Affidavit revised to be in less rigid "boxed" format - at last! |
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| March 2001 | Form 63 Child support application now in "boxes" format" |
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| January 2001 | Child Welfare Orders to contain details of obligations and penalties for non compliance |
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| January 2001 | Form 8 used for Interim and interlocutory orders not otherwise included in Form 3 | Commentary |
| December 2000 | Financial agreements replace Section 86, 87 Agreements | Commentary |
| July 2000 | Form 17 Simplified - for use in both Family Court and Federal Magistrates Court | Commentary |
| July 2000 | Child Welfare Affidavit under review - Commentary on different layout in manual | Commentary |
| July 2000 | Form 3 introduced to replace form 7 - chapter 5 updated | Commentary |
| July 2000 | Chapter 5 Property final orders - Summary of changes to the pages in this chapter | Commentary |
| July 2000 | Forms 36, 37, 38 merged into one form incorporating the "boxes" format. | Commentary |
| July 2000 | Filing and other fees increase for Forms 4, 7, 7A and Hearing Fee | Commentary |
| July 2000 | Penalty interest rate increases to 11.3% |
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| December 1999 | Costs of proceedings letters to be exchanged with the other party | Commentary |
| July 1999 | Court forms no longer available on disk. Changes to some pages in manual. |
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| July 1999 | Form 44 updated - Review of Registrars Decision |
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| July 1999 | Form 17A - Conciliation conference particulars changed - commentary updated |
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| July 1999 | Form 12A - Application for consent ordes in chambers - commentary updated |
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| July 1999 | Forms 12A and 17A changes, as well as Child support pro forma agreement | Commentary |
| July 1999 | Penalty Interest Rate changes from 14% to 9.55% |
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| July 1999 | Corrections to hard copy text - Minor errors noted |
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Updates and corrections
to the Manual.
Apologies for these errors.
.Interest Rate Changes - 9.55.% from 1 July 2003.
The relevant interest rate for Order 40 Rule 1 is now 9.55%. Tracking the changes since the hard copy of the Manual was published, it has been reduced from 14% to 9.55 from 1 July 1999. From 1 July 2000 the rate increased to 11.3%. Then it went to 10.1% from July 2002 until 30 June 2003. The rate will now be reviewed annually. Page 4-39 of the manual needs to be altered accordingly, as do pages 9-8 and 9-21. If using precedent 9F do not forget to alter paragraph 2 there from 14% to 9.55% to bring it up to date..Increase in Filing Fees from 1 July 2002.
Increased filing fees apply as from 1 July 2002. There was an increase on 1 July 2000, making this the second increase from what was published in the Manual.
The new rates for the main applications in the Family Court and (for comparison) Federal Magistrates Court are:
Family Court fees Federal Magistrates Court fees (go to link for full list of fees)
Forms 3 and 3A - $172.00 $109.00
Form 4 - $574.00 $274.00
Hearing Fee - $344.00 $329.00GST is NOT applicable to these fees.
Do not forget that in many cases, your client is entitled to a waiver of these fees. See the commentary on this in the Internet Version of the Practice Manual. The hard copy commentary is on page 2-11
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Note also that the Hearing fee may be refunded if for example, the matter is resolved prior to the hearing date. See page 4-5.For full details see the Family Court New Fees Bulletin.
Changes should be noted to the amounts set out in the Manual on pages 2-11, 4-5, 4-29, 5-31, 5-39, 6-2, 6-4, 7-3, 7-22, 8-13, and 9-4. Remember that old rates may apply when calculating arrears owing under orders or agreements.
Forms/documents updated from hard copy manual.
Forms 12A, and 17A in the manual are updated below. See Commentary for Form 12A and Commentary for Form 17A.
The Application for Registration of a Child Support Agreement (Attachment 9K) has been slightly changed.
The numbers have been rearranged very slightly, but otherwise the information is exactly as is in the manual. Specifically, items 21 and 22 of the old form are now items 1 and 2 of the new forms. Old item 1 is now 3, 2 becomes 4, and so on. There is a new item 21 calling for bank account details for the the payee to receive payment. Items after that change by one not two numbers - ie 23 is now 24. Not as confusing as it sounds. Some of the instructions are slightly changed as well, but are of no consequence to the instructions for completing the form. The latest version can be obtained from the Child Support Agency site.
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to main pageAs from the end of June 1999, it is mandatory to complete financial particulars for both parties even if both parties are represented. This is a subsantial change from the current position where section G (financial details) can be omitted for property orders in those circumstances. See the commentary on this at page 9-12. It has also increased in size, to 11 pages. The "boxes" format remains. So much for the cheap, quick consent order procedure.
The form contains the following additional information:
Further minor changes were made in January 2001, to make reference to Financial Agreements, which came into operation in late December 2000. See items 14 and 15.
Form 17A Conciliation Conference Particulars. This diabolical form was introduced on 28 June 1999 but phased out in favour of the Case Summary Document as from August 2002. Having regard to the comments below - not before time! A sample of the completed case conference document will be available here by the end of March 2003. Some of the commentary below is relevant to its completion hence it is not being deleted from this site.
The Boxes format has not been dropped. Rather, it has been expanded.
The existing form of 2 pages has been replaced by (wait for it...) 8 pages!
The major additions are the inclusion of the following:
A more comprehensive, time consuming and costly form to complete by a long shot. The commentary for completing the older version is still relevant for the new version. There is more detail. Fortunately this document was replace by a simpler document, being the Case Summary Document
A predent form is not being prepared at present, given changes to all forms and rules.
Form 44 Application for review of exercise of power by judicial registrar/registrar New form MUST be used from 28 June 1999
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The Judges Rules Committee is considering submissions on possible changes to this document. The comments made by me in the Practice Manual have been put to the Rules Committee. Hopefully, they will be accepted as being a sensible way to resolve the problems encountered with the "pro forma". The link to this Document on the Internet also provides notes on completing the form.
Court Forms on disc no longer provided by Family Court.
Court approved software is no longer available to facilitate the production of court documents. This is likely to mean an amendment to Order 2 Rule 5. See references to production of forms using court approved software in Chapter 2 page 2-2 and Chapter 4 page 4-2. On page 2-2 the third paragraph refers to using that software to prepare a form 4 that is deemed to comply with the rules. This will not be possible! At the top of page 4-3, the sentence "There is a lot to be said, therefore, for purchasing the court produced discs and learning how to use them." should be deleted from your manual. What are your options for producing the court forms on your computer? There are various products, the two major ones I am aware of being Lawperfect and Bing. For further information about Lawperfect, contact David Hill on (03) 98738033. For information about Bing telephoning Emmanuel Theodosiou on 07 33669266.Costs letters to be exchanged as from 6 December 1999.
Updates to text in Chapter 5.
As you know, you are to provide your client with an estimate of costs of proceedings to date, and an estimate of the likely further costs to the final hearing of the matter. This is required at the first return date (the Case Conference or Directions Hearing), at the Conciliation Conference, at the Pre Hearing Conference, and for the Final Hearing. The exchange of letters happens at each of these events. There are sound commercial reasons for advising your client of the costs incurred, so that they can make informed decisions on the outlay they make for litigating compared to the likely outcome. The rules now provide for that costs letter not only to be given to your client but actually exchanged with the other party's solicitor (or party if unrepresented). The wisdom of doing this quite frankly escapes me. It is all very well for your client to know this detail, but to give this to the other party in my view may only encourage ratbag litigants to keep going with costly litigation, knowing fully how much damage they are inflicting on their spouse. I sincerely hope the Law Council takes this issue on, in the interests of our clients. If you have any comments on this issue, please let me know by email.Changes to Manual: Chapter 5, pages 5-41 and 5-42, and attachments 5 G and 5 J - for commentary and examples of costs letters. Be aware that you will also have to include the source of the funds paid to you. Again, the logic behind this new requirement eludes me completely. The Form 17 Financial Statement already requires the disclosure of how much is spent on costs (see Attachment 5B section H item 12), so why is this extra potentially inflamatory information required?
Introduction of Forms 3 and 3A replace Form 7 and the use of Form 8 when seeking Final and Interim orders similtaneously.
Form 3 has replaced Form 7 and 8 for Final orders and Interim Orders filed similtaneously. Initially, the intention was for Form 3 to also replace Form 8 totally, with the new form also being used for further interim applications filed after the Final orders application was on foot. This however, caused some confusion with several Form 3 documents being filed along with the accompanying information sheet. Hence the Rules were amended in January 2001 to allow for separate interim applictions to be filed using a Form 8 - see next section.
Form 8 for stand-alone interim applications as from January 2001
Form 3 is a combination of the two forms. The Form can be used in both the Family Court and the Federal Magistrates Court. The filing fee for the Form 7 has been applied to the Form 3. Filing fees for applications in the Federal Magistrates Court are half those in the Family Court. See the commentary on the Federal Magistrates Court.The format is a simplified version of the replaced Form 7. Some detail has been trimmed from the Form 7, which is now reproduced in a document termed an Information Sheet. The Form 3 allows for interim orders to be set out along with final orders. However, if you seek further interim orders at a later stage, a Form 8 must be used, not a form 3 with interim orders only.
To assist in determining whether the application should be allocated a Case Conference, a Case Conference Information Sheet is required to be filed with all Form 3 Applications. This is a totally different form to the Information Sheet that contains the parties details, referred to below. Cases which will NOT be allocated a Case Conference are those where a party is interstate or overseas, or in prison, and in cases involving domestic violence. If interim orders are sought in the Form 3 that "mirror" (ie closely resemble) the final orders sought, a Case Conference will still be allocated. For guidelines on these cases, download the PDF document entitled "Case Conferences at the Melbourne Registry" from this site, outlining how the court will allocate these matters. As from 12 November2001 they will be listed on Mondays and Tuesdays at 10:15 am. If the interim issues are not resolved at the Case Conference, the case will be transferred to the Registrar's Duty List for callover at 11:30 am. Remember that your client will probably be at an Information Session at 9:15 for almost an hour, so plan to obtain instructions beforehand.
In January 2001 the Rules were again amended to provide for the use of a Form 8 where interim or proceedural orders are sought. (See Order 3 Rule 3). Interim orders may be included in a Form 3 - Order 8 Rule 3 - ie, when seeking both Final or Interim orders, they can be set out in the one Form 3. Thus the confusion of using a Form 3 for only interim orders and having to file an information sheet with it has been removed. So the procedure now is:
- Final Orders - Form 3
- Final and Interim Orders sought similtaneously - Form 3 - instead of the old Form 7 and Form 8 - one document for both orders.
- Interim Orders not sought at the time final orders are sought - Form 8 (but must have a Form 3 final application pending)
Interestingly, Order 8 Rule 3 uses the word "may" - so it is possible to file a Form 3 for final orders and a Form 8 seeing interim orders similtaneously. Not very cost effective, but permissible.Throughout chapter 5, all references to Form 7 should now be to Form 3. References to Form 7A are now to Form 3A. Form 7B now becomes Form 3B.Page 5-2 References to Form 7 are to Form 3.The text below Form 3 - How to complete the Form now replaces that detail on page 5-2 and following, althought the commentary on 5-3 to 5-7 remains fully relevant.
Page 5-2: Reference to Order 8 Rule 8 should now be Order 8 Rule 9.
Page 5- 3 Section C. Remember that interim applications may be inserted in section C of Form 3 (order 8, Rule 3) or in a separate Form 8. Clearly, it would be more cost effective to simply use the one Form 3. The reference to Chapter 8 and Chapter 7 (spousal Maintenance) remains relevant. The operation of Order 11 Rule 1A remains unchanged, makes it mandatory to include interim spousal maintenance in a Form 3 or Form 8, and not a Form 12..
Page 5-7: Heading "No Interim Orders" is not correct now. Interim orders can now be inserted in Form 3 part C. The commentary now should be that those orders are set out in part C, and to refer to chapters 7 and 8 regarding the wording of the orders.
Page 5-14 to 5: 28 : Completing Form 17. This section has been totally re-written. See the commentary below.
Page 5-31: Additional document to file is the Information Sheet. You will need an original and one copy.
Page 5-31: Urgent applications. Where Part C is completed, an earlier date can be obtained. See also the practice and procedure commentary below
Page 5-32: Service of documents should now include the Information Sheet.
Page 5-34: Affidavit of Service. Make certain to refer to the Information Sheet as being served as well.
Page 5-37 to 5-39: This is updated by the commentary on completing Form 3A set out below.
Page 5-42 to 5-45: Form 17A Conciliation Conference particulars. See the commentary on changes to Form 17A.
Form 3 - How to complete the Form. (commentary includes superannuation details required from 28 December 2002)
Form 3 replaced Form 7 from 1 July 2000. Initially it was proposed that a Form 8 would not be needed. However, using Form 3 for interim applications only has proved cumbersome and confusing. Accordingly, A Form 3 is used when seeking final orders only, or when you are seeking final orders AND interim orders AT THE SAME TIME. Logically,. Form 3 is therefore a combination of the two forms. The Form isused in both the Family Court and the Federal Magistrates Court. See the explanatory notes on the Family Court Site for the court's summary of the changes. I have set out details of the changes below, cross referencing to the Manual for more details. Most information remains the same, but has been set out in different parts of Form 3 and on the Information Sheet which is now required. The filing fee for the Form 7 has been applied to the Form 3 if final orders are sought. Filing fees for applications in the Federal Magistrates Court are half those in the Family Court. See the commentary on the Federal Magistrates Court on the Main page.
The format is a simplified version of Form 7. Some detail has been removed from Form 3, which is instead reproduced in a document termed an Information Sheet. This is to be filed by the applicant. The Information Sheet is available on the Family Court Site, in PDF format. It is in the same section as Form 3, so look carefully. You will see that the form takes much of the information from the original Form 7, and the commentary on completing it can be directly taken from Chapter 5 of the manual.
Completing Form 3 - Application for Final Orders (Download PDF Form)
The "Boxes" detail in the top right hand corner will be completed by the court filing staff. Note that apart from a file number, there is now a client number as well. I notice the client number is NOT on the new Form 17 or Form 36 - and suspect it is a statistics mechanism for Federal Magistrates Court proceedings. The time and place of hearing will be inserted by the court filing staff.
There are now boxes to tick regarding whether the application relates tofinal orders only or for final orders with interim orders. Similarly there are boxes to select whether the application relates to Children only, Financial only, or Children and Financial. Remember that if you check the second or third box, you must file a Form 17 Financial Statement. (this is the court form - I will complete and load a new version form soon)
The Notice to the respondent is almost identical to Form 7, except that it refers to Form 3, and contains a warning - If you do not attend the hearing orders may be made in your absence. This no doubt relates to the fact that the form now covers interim applications as well.
Part A - Details of parties
These details are similar to Form 7, combining parts A and B. Details of date of birth and citizenship have been removed, being incorporated in the Information Sheet (referred to below). The additional information now required is the address and telephone number of the parties. This is the same as on the Form 4. Be careful not to disclose these details where your client does not want the other party to be aware of this information. The commentary on this at page 2-2 is relevant. (Or see the commentary on the Internet Version )
The details set out on pages 5-2 and 5-3 are mostly relevant here.Part B - Final Orders sought by applicant.
This is identical to Part C of Form 7. The commentary on pages 5-3 to 5-9 are current for how to set out orders, and the types of orders to seek. The comment on interim orders on page 5-7 is now not relevant as clearly interim orders can now be inserted in Part C of Form 3.Part C - Interim Orders sought by applicant. This is almost identical to Part C of Form 8. The commentary in Chapter 8 of the Manual is totally relevant here, as to the types of orders to obtain and how toset them out. Refer to pages 8-5 for children's matters and 8-30 for financial orders. Remember that if you complete this section, you must file an affidavit in support, in the same way that Form 8 had to be accompanied by an affidavit in support. See Chapter 8.
Part D - Cross-vested jurisdiction
This is identical to section F of the old Form 7 - see page 5-11
The next two sections were inserted to take into account the Superannuation legislation that became effective 28 December 2002.
Part E - Superannuation Interests - to be completed only if there are property proceedings. The information sought here is whether the parties have entered into a Financial Agreement under Part VIIIA or Part VIIIB of the Act. Although the heading refers to Superannuation, Part VIIA agreements includes Financial Agreements whether pre, during or post marriage. See Commentary on Financial Agreements. Mostly the answer to both questions will be negative. Otherwise, a copy is to be attached and it is to be taken into account under Section 75 (2) (p)
Part F - Proceeds of Crime Legislation - relevant for Property and Maintenance proceedings. Again, an unusual situation and likely to be answered in the negative. If relevant, a copy of the application or order under the Proceeds of Crime Act 2002 must be attached.
Part E - Signature of applicant or lawyer.
This is identical to section H of Form 7 - see page 5-12.The next two items used to be E and F respectively, but have moved down due to the above insertions.
Part F - Lawyer's declaration - apart from calling solicitors lawyers, is identical to section I of Form 7. See page 5-12.
The Form 3 must be accompanied by an Information sheet.
Completing the Information Sheet: (Download PDF format)
The Information Sheet can be typed or hand written, as per the notes on the top of the form. As this is the first document to be filed in the particular Registry, there will be no court file number. Note that there is now a new category, being a client number. This detail will be given by the court at the time of filing and will be used on the Form 3. The time and place of hearing will be inserted by the court filing staff.
Part A - Details of parties.
This is identical to what is in part A of Form 7 - see page 5-2 for commentary on completing that section
Part B - Relationship of Parties
This is almost identical to Part D of Form 7 - see Page 5-10 for commentary on completing that section. The numbers start at 5, not 8 and you are asked in item 10 for the place of the divorce, which was not called for in the old form, only the date.
Part C - Children
This is identical to Part E of Form 7, so the commentary on page 5-11 is applicable.
Part D - Other court proceedings and Orders
This is identical to section G of Form 7 and the commentary on page 5-11 is applicable.
Part E - Signature of applicant or lawyer
This is the same as section H of Form 7 - the commentary on page 5-12 appliesThe form does not require a declaration regarding the handing of pamphlets to the client.
Practice and Procedure changes for Form 3 seeking final orders only, compared to Form 7 Final Orders
Most of the commentary in chapter 5 remains relevant regarding what documents to file (page 5-13), issuing documents (5-30) Filing documents, (5-31). There is one major difference, namely that if there are interim and final orders sought together, the first return date will be a month from filing. Case track has now also come into play, whereby the Directions Hearing now takes place on that date as well, thus avoiding the problems with two separate dates being allocated when Form 7 and Form 8 were used. See commentary on page 5-31. Remember that if you seek further interim orders at later stage, Form 8 is to be used. The Family Court introduced a new computer system during late 2002. With it came the introduction of a new system of dealing with matters known as "Case Track". The chapter most affected here is Chapter 4. However, the fact is that the Case Conference is very much like a Conciliation Conference, but lasts for an hour only. Where the application relates only to children, the Case Conference is held with a Counsellor, and a Registrar is not called for until case management orders are required. Hence the comments in chapter 4 page 4-25 remains relevant. See alo the Commentary on Case Conferences and Chapter 4 updated commentary
When acting for the respondent, Form 3A replaces Form 7A and Form 8A, when the orders are sought at the same time. If responding to a Form 8, form 8A is used.. The Form 3A is very similar to Form 3.
Part A - Details of Parties
The differences are minor in Part A, being that here is a client number as well as a file number, and "solicitor" has changed to "lawyer". The explanatory notes make it clearer as to what information goes in the "Applicant" section - being the original applicant in the Form 3. The names now go down the boxes instead of across, now consistent with Form 3. Whew! The commentary on page 5-37 remains relevant.Part B - Final orders sought by respondent.
You are first ask to set out the orders in Form 3 you agree with, and then to specify the other final orders sought. The commentary on page 5-38 remains relevant.Part C - Interim orders sought by the respondent
Again, you first set out the orders agreed to, then the different orders sought. The commentary in Chapter 8 is relevant here.Part D - Disputed facts.
This relates to the Information Sheet only. The same numbers are used. The commentary on Disputed Fact on page 5-38 remains relevant here.Part E - Cross-vested jurisdiction
This is identical to Part D of Form 7A - see commentary on page 5-39Comment: Parts F and G have been included from 28 December 2002 to incorporate Superannuation changes. The information is the same as items E and F of Form 3 and hence the commentary is identical. One might get the impression that the creators of the forms felt that the applicant might not know if they had signed a Financial Agreement, or might choose not to refer to Proceeds of Crime proceedings. It should be remembered that the applicant may not raise property matters in Form 3. The respondent does, as part of their application, and therefore the information is incorporated, probably for the first time. That then means the person filing Form 3 has to file a Form 3B, Where the Form 3 does answer items E and F, F and G here should hopefully coincide!
Part F - Superannuation Interests - to be completed only if there are property proceedings. The information sought here is whether the parties have entered into a Financial Agreement under Part VIIIA or Part VIIIB of the Act. Although the heading refers to Superannuation, Part VIIA agreements includes Financial Agreements whether pre, during or post marriage. See Commentary on Financial Agreements. Mostly the answer to both questions will be negative. Otherwise, a copy is to be attached and it is to be taken into account under Section 75 (2) (p)
Part G - Proceeds of Crime Legislation - relevant for Property and Maintenance proceedings. Again, an unusual situation and likely to be answered in the negative. If relevant, a copy of the application or order under the Proceeds of Crime Act 2002 must be attached.
The next two items were F and G, moving down to allow the new items E and F.
Part H - Signature
This is identical to Part E of Form 7A - see commentary on page 5-39Part I - Lawyer's declaration
Apart from changing the word to "Lawyer" it is identical to Part F of Form 7A - see commentary on page 5-39Filing and serving documents remains the same - - see commentary on page 5-39. Do not forget the filing fee or waiver of it.
For reasons set out on page 3-40 I do not think this document should ever be used. However, should you have to, the changes from Form 7B are minor. It is very similar in fact to Form 3A, except it relates ONLY to final orders, which are set out in Part A item 5. You can downlaod a PDF version of Form 3B.
Form 17 Simplified - to be used from July 2000. Commentary updated.
Form 17 has been simplified. The old form can be used for 3 months from 1 July 2000. The main change is that if no orders are sought regarding spousal maintenance or child support, then those tedious details regarding food, clothing and other weekly outgoings are not called for. For maintenance/child support cases, there is a page setting out these details to be completed. It is similar to the outgoing page from the Form 12 document. It is improved by having a totals column. There are fewer pages as well. This was achieved mainly by moving the notes to the back and not counting them as pages, and by changing the summary on page two from half a page to two lines.
One Form 36 replaces old forms 36, 37, 38 from 1 July 2000.The simplified form is in test mode as I understand it. Any comments on it would be welcome. The re-written section on Form 17 in the Manual, being pages 5-14 to 5-29 is now available fully on line in HTML format. The additional information for maintenance/child support cases (Section F) is almost identical for what is called for on page 4 of Form 12 (see Attachment 7A in the Manual). The obvious improvement is that there is a totals column. Hence, the commentary for completing this section is as set out on page 7-14 of the Manual. What is not in expenses in this section is now in the fixed outgoings section of the new Form 17. This is explained in the full commentary.
A consolidated Form 36 now incorporates old forms 37 and 38. From 1 July, forms 37 and 38 have been abolished.
The updated Form 36 in pdf format can be obtained from the Family Court Site. It is now in the familiar "Boxes" format.
There is a 3 months grace period for use of the old forms 36, 37 and 38. The reference to service in New Zealand has been (sensibly) omitted from the new form.A further update in July 2002 changed the heading, which now requires the insertion of the name on whose behalf the document is filed.
Changes to Manual - Index - Chapter 4 form 38 should be form 36. Page 2-24 refers to a subpoena to give evidence. The one new form can be adapted accordingly. Attachment 2L will be updated accordingly. In the meantime, the blank form can be obtained from the Family Court site. On page 4-34 reference to forms 37 and 38 are now to the one form 36 which is adapted accordingly. Attachment 4O will need to be changed accordingly.
Form 63 Now in "Boxes" FormatForm 63 in PDF format is now available for downloading from the Family Court site. The commentary on the form is worth reading in addition to the commentary in Chapter 7, page 7-24. Note that with the introduction of the Federal Magistrates Court applications for Departure orders can be brought in that court as well. The commentary on page 7-24 regarding appeals from courts of summary jurisdiction apply to the Federal Magistrates Court - ie leave from the Family Court is required.Interim Child Welfare Affidavit Modified - to be used from 2 July 2001Can I say "I told you so?" In my commentary in the hard copy Manual I suggested the Affidavit needed to be modified. Perhaps those comments have been heeded, and the form is now easier to complete. My comments on the July 2000 review of this document are set out above. The commentary in Chapter 8 page 8-7 is even more relevant now.Updates to text in Chapters 4 and 8 to incorporate new forms and Case Conferences.Practice Direction 1 of 1998 has been updated by Practice Direction 1 of 2001 to incorporate the changes.
Advantages of issueing Child Welfare proceedings in the Federal Magistrates Court
If you are seeking interim orders in relation to child welfare matters, the Family Court requires you to complete the detailed Pro forma affidavit in support which is costly to produce.
In many instances involving say for example, simple contact issues, such detail is unnecessary. Usually the client is complaining simply that he or she wants to see the children fortnightly and is not being permitted to do so, having just separated and because the other party is “holding out” for emotional reasons. Such an application in the Federal Magistrates’ Court , which has juridiction to deal with all such applications would involve using the standard application, setting out the orders sought. The accompanying affidavit could be pruned to the relevant facts omitting all of the superfluous material otherwise contained in the pro forma affidavit required for the Family Court.
The introduction of Form 3 (and 3A and 3B) and minor alterations to the Rules means changes to references to Forms 7 and 7A in these chapters. There have also been changes to case management, with Case Conferences taking the place of Directions Hearings in many instances. I will update the commentary on these changes soon. The commentary on Counselling has also changed due to Government cutbacks, resulting in outsourcing of counselling services.Chapters 4 and 5 - References to Directions Hearing to refer to Case Conferences in certain circumstancesIn the meantime - refer to the Case Conference Summary on the Main Page where I have summarised the Case Conference system being introduced.
Most importantly - download the Case Conference Summary Document - a PDF document prepared by the court incorporating all of the information referred to.
Athena Sikiotis, Deputy Registrar (Dandenong) has prepared a Summary Guide for Lawyers published on the Family Court Site.
View this paper in HTML Format, or download a PDF version.The court Case Management Directions came into effect in August 2002. The above is a summary of changes brought about by this document.
Chapter 4Page 4-22 - The Directions Hearing will probably now be a Case Conference, unless there are interim orders sought or the case otherwise falls outside of the Guidelines for Case Conferences. Those cases are where a party is interstate, overseas or there is domestic violence. The conference is likely to last an hour. Refer to the article by Deputy Registar Sikiotis of Dandenong as to what is expected and what is likely to happen. Have a good look at the "Do's and Don'ts" section in that article. Considerably more preparation is required for a Case Conference, as is set out in my summary on the Practice Manual Page.
If a matter is not dealt with as a Case Conference Matter it will be dealt with by a Deputy Registrar at a Directions Hearing. The commentary in this case is still applicable.
Case conferences cannot be administratively adjourned. If the matter is unresolved, interim orders can be made to ensure proper preparation is undertaken before the next stage. This is the Conciliation Conference in financial matters.
Page 4-25 - The above commentary for page 4-22 is applicable there.
Chapter 5
5-41 - Reference is made to page 4-22, hence the above commentary is relevant.
Updates to text in Chapter 6 - Child Residence and Contact Orders
Page 6-2 and 6- 3 : Form 3 is used in place of Form 7. See Commentary on how to complete Form 3 as updated in Chapter 5.
Filing Fee increased - to $172.Page 6-4 Directions Hearing will now be a Case Conference
Page 6-5 Interim Applications - can be included in Form 3. If not, Form 8 remains the correct Form to then use.
See the Updated commentary on use of Form3 and Form 8.You are obliged to give your client the court prepared pamphlet entitled Penalties for Breaking Parenting Orders. Download the pamphlet in PDF format. The best time to do this is when you take instructions to obtain an order for Residence or Contact. See the commentary on the court's approach to the enforcemnt of Child Welfare orders on the Main Page
In practice, this will mean that when you take out the final order, you must refer to the required pamphlet and attach it to the orders. The wording to be used in the order is:
That pursuant to Section 65 DA (2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.The particulars document is available from court registries and on the bar table in most courts.
Child Welfare orders must specify the parties obligations, consequences of non-compliance
As of 27 December 2001, it is the duty of the court to include in the order particulars of .the obligations the order creates, and the consequences that may follow if a person contravenes the order ( Section 65DA ). Any parenting order must now have the relevant details incorporated. Athena Sikiotis of the Dandenong Registry of the court has put together sample particulars, which were made available to the profession in Victoria in January 2001. Her summary of the Parenting Compliance Regime is well worth reading and can be downloaded in PDF format. She was also good enough to also make available Sample Particulars (also available in PDF format for downloading) to be incorporated in parenting orders. Attached is a (pdf format) sample of the way to word the order so that the particulars are attached to the end of the orders, rather than cluttering the main body of the orders with them For mine, its the way to do it.The court has prepared a brochure setting out the penalties for breaking parenting orders. You are expected to make it available to your clients when parenting orders made. I will be adding further commentary and updating the precedent orders in the Manual soon, to take into account the requirements. As I understand it, Registries (and in particular Dandenong) is assisting practitioners in the early stages by having material available at the bar table. Let me know by email what is happening in your Registry so that I can incorporate comments here.
The requirement for setting out particulars is part of the Government's attempts to ensure that parties comply with parenting orders. For further information refer to "What's New" on the Family Court Site, which includes details of the legislation.
Chapter 8 Updates
Page 8-1: Reference to Form 7 should now be to Form 3. Form 3 contains provision for interim orders to be set out in Section C. See Chapter 5 update commentary.
Update to commentary on Affidavit in Support of interim child welfare orders.
Commentary on pages 8-10 to 8-12:
The affidavit is required to be filed pursuant to Practice Direction 1 of 2001. All of the commentary in the Manual (pages 8-10 to 8-12 is still current. The form has been re-structured, with some information moved to different locations. The major change was to move away from the "column" structure and back to an "across the page" layout, from Section D onwards. Much more practical. Closer to the version I suggest be used set out in Attachment 8b of the Manual, and which I will still use in preference, but re-arranged to follow the exact number sequence of the current document. The changes to the hard copy version of the Manual are as follows:
Sections A and B are identical except Number 6 in Section B now requires you to insert two additional pieces of information. The first is the date of birth of the person who made the affidavit. The second is the role of that person, eg Applicant Wife. Then a new Number 7 requires the date and place of swearing. Remember that Section B is only relevant if you are the respondent and in the precedent in the manual, this section is covered by "Not applicable" in item 6 of the precedent affidavit
Section C - Relationship of Parties: This is expanded a little. The new number 8 askes if the parties lived together. Old items 7, 8 and 9 are now 9 10 and 11 respectively. Old 10 becomes 12, and whilst the same information is called for (details of separations), the new form caters for 4 instances of separations, compared to 2 previously. Interesting.
Section D - Other court Proceedings and Orders: this is now Section L. Apart from the numbers changing from 12 etc to 42 etc the wording is unchanged.
Section E - Details of Children: now Section D - Children. The inforation is almost identical but the "boxes" format is gone. You can type the information across the page and fit 4 children in 4 lines rather than taking the whole page. The address of the child/ren is not required, but their relationship to the applicant now is. Note that this section is now broken into items 12 and 13. Item 12 deals with children about whom orders are sought. Item 13 deals with other children, about whom orders are not sought.
Section F - Present and Proposed arrangement for the Children: This is now Section E and apart from being set out across the page (and saving space) the text and information sought is identical. The item numbers now also line up exactly.
Section G - Past Arrangements for the Children: Apart from now becoming Section F, numbering and information identical. More sensibly and succinctly set out.
Section H - Needs of the Children: Now Section G.Numbering and information identical. Again, more succintly set out.
Section I - Care of the Children: Now Section H. Numbering identical and more succinctly set out. Old number 28 - any other relevant facts or circumstances - has been moved to become Section N.
Section J - My Proposals for my contact with the children. Now Section I. Information requested identical. Text more succintly set out, and subsections are now numbered from 28 to 32.
Section K - My Proposals for the other party's contact with the children: Now Section J. Again, same information better set out. Item numbers change from 32 and 33 to be 33 to 37.
Section L - Supervision of Contact: Now Section K. Identical to earlier form. Numbers change from 33 to 35 to 38 to 41.
Old section D is now new Section L.
Section M - Specific Issues order: Identical to earlier form, except item numbers changed from 36 and 37 to 45 and 46.
Section N is now Other relevant facts or circumstances. It contains what was item 28 in old Section I.
Section N in the old form is now Section O.
Mercury Project - Pilot in Melbourne and Hobart
Practice Direction 2 of 2002 - Project Mercury
This initiative seeks to severly limit the use of affidavits in interim applications.
In Brief, the new Practice Direction:
- Applies only to interim orders sought on a Form 3
- Only in Melbourne and Hobart
- Only if no abridgement of time is sought
- Does not apply to circuit hearings cases
- Does not apply to Form 8 applications
Practice Direction No 2 of 2002 comes into effect on 15 July 2002 in Hobart and 29 July 2002 in Melbourne. It introduces a radical new approach to interim applications. In most cases, the necessity for filing an affidavit in support at the time of filing is eliminated. The Practice Direction in fact states that affidavits will not be accepted for matters which are allocated a Case Assessment Conference.The Practice Direction applies to applications made under order 8 rule 3(5) of the Family Law Rules which are to be filed in the trial registries, being Melbourne or Hobart. Circuit hearings are excluded from the Pilot project.
The Direction only applies to interim orders sought on a Form 3 application. Interim applications on a Form 8 will still require an affidavit in support. Urgent applications where an abridgement of time is sought will still require an affidavit in support. The filing clerk will determine whether the application is urgent or not, and if it is determined that it is not, the affidavit will be rejected for filing. The decision can be reviewed. Practitioners will need to exercise caution in preparing detailed affidavits in cases that are not obviously urgent. Their clients need to be told of this situation before the costs of undertaking the affidavit are incurred.
When filing any Form 3 application, the Case Assessement Conference Checklist must be completed. Otherwise the application will be rejected. The filing clerk will determine if the application is to be allocated a Case Conference or a Directions Hearing.
At the Case Assessment Conference, it is expected that a Registrar will make directions for the filing of affidavits and other directions to manage the case. Typically, a further return date will be allocated in 6 weeks with directions for the applicant to file affidavits within 10 days, the respondent in another 10 days. Other procedural orders such as the appointment of a Child Representative or a subpoena return date can also be made. In appropriate cases the Registrar can shorten or extend these times.
Special arrangements will be made in cases of domestic violence, and where parties cannot attend. Phone conferences are possible. Previously, these factors would exclude a case from being allocated a Case Assessment Conference. The concept is to bring as many cases to an informal court setting as quickly as possible, and to eliminate inflammatory and costly affidavit material. The hope is that such early intervention will limit costly affidavits and facilitate resolutions. Where that is not possible, issues in dispute can be properly identified and the case managed sensibly.
The requirement that the parties attend an information session prior to a Case Assessment Conference is suspended.
A careful reading of the Practice Direction is recommended. I personally believe the project has merit and should be constructively embraced by practitioners. Much will depend on the court's resources to deal with the conferences. More importantly, the parties need to know that the case will in fact be judicially determined on the next hearing date.
Chapter 9 Updates
Commentary updated to incorporate Child Welfare Obligations and Penalties in Orders
Page 9-8: Child Welfare Orders need to comply with Section 65DA - incorporate this clause where appropriate (usually at the end of the group of orders referring to children's issues):
That pursuant to Section 65 DA (2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
You also have to attach the Parenting Compliance particulars to the order. Obviously, you do not need to include particulars that are not relevant to the orders they are attached to.
See commentary on the Parenting Compliance Regime on the Main Page for more information regarding the Parenting Compliance Regime and what it hopes to achieve.
Binding Financial Agreements come into operation after 27 December 2000 - Chapter 9 Amendments.
Chapter 9 page 9-2 regarding Section 87 Agreements is now redundant as such agreements are unable to be registered in the court.
Pages 9-17 to 9-27 are no longer applicable as Financial Agreements have taken the place of Section 86 and 87 Agreements. I have decided at this stage NOT to include any commentary about those agreements, for the following reasons. First, pre-nuptial agreements (made pursuant to Section 90B of the Act) are I believe, outside the scope of the Practice Manual, which covers the more standard types of matters dealt with. Pre-Nuptual agreements are in my view the province of experienced and specialised Family Lawyers. Second, my major concern with financial agreements under Sections 90C and 90D is that t transfers of assets under these agreements do NOT attract rollover relief for Capital Gains Tax purposes. Better to avoid the potential problem by not providing a precedent! If you feel I am wrong in this approach, please let me have your comments by email.
Accordingly in my view we really have only one method of properly dealing with matters, namely by consent orders.
A seminar on Binding Financial Agreements was presented to the Leo Cussen Institute on 6 December 2000. The speakers were Michael Taussig, QC, Miranda Milne, Olivia Nikou, SC, and me (Peter Szabo). My Powerpoint Summary is available on request pending my completing the commentary. I am concerned about the use of Financial Agreements, due to the implications of Capital Gains Tax. I may soon prepare a simple agreement to be incorporated into Chapter 9, with that caveat. If you want that precedent included, let me know by email. For enquiries about the papers, which are on sale from the Leo Cussen Institute - telephone 03 96023111
Chapter 8 - Hague Convention - Child Abduction Cases
The Attorney General's Department Website has published a Guide entitled International Child Abduction - A Guide for Parents and Practitioners. It contains the up to date Form 1 referred to in Chapter 8 Attachment N and current commentary. It is a "Must have" for the serious Family Lawyer.
Forms Changes following Superannuation becoming Property - effective 28 December 2002
Changes to Forms have been made. As I get to them I will incorporate them in the commentary.
For an understanding of how Superannuation is likely to be dealt with, see the article Superannuation - the New Regime Explained.Form 17 now requires the completion of new section D on Superannuation, and the attachment of the Superannuation Information Form. One part is a declaration by the client, and the other is to be completed by the trustee of each relevant fund. This could involve multiple 12 page plus pro-forma forms...! The form is undergoing changes, so make sure to download the most recent form. The problem is the form does not coincide exactly with the legislation. This is causing with trustees who are interpreting the legislation rigidly and strictly.
Initial approach by the court complicated.. comments from March 2003
I am further troubled that the Family Court is requiring the filing of very detailed information regarding Superannuation in EVERY property case, regardless of the value of that asset, and whether or not the parties intend splitting or flagging superannuation entitlements. In this regard, see the decision of Chisolm J in the matter of Jovanovic (24 January 2003) (download PDF file). His view is that this requirement is unnecessary in most cases. I hope his view prevails. Otherise, many simple cases are being made unnecessarily complex and costly. See How to complete Superannuation details for Form 17. Note that the Federal Magistrates Service is not insisting on completed forms at the time of filing, but giving directions for its completion before consent orders are made or a final hearing takes place. This is more sensible, given that in most cases, superannuation is not of great value.I will comment further on this issue by way of further article soon. Suffice to say that mass confusion reigns, and it is costly for client.
Situation made simpler for most cases - Hickey's Case
Luckily as of 30 May 2003 the situation has become simplified with the handing down of the Full Court decision of Hickey. A summary of Hickey has been prepared by Jacky Campbell of Aitken Walker and Strachan, released in Australian Family Law News by CCH Australia which you can download in pdf format. In essence, where superannuation comprises accumulation funds in the growth phase, with no superannuation split taking place, the costly Form 6 procedure is not required to be completed. This means that in most cases property applications can be issued without having to go through what is in most cases a wasted exercise. The Registrar at the case conference will no doubt review the situation regarding further requirements. If you then end up wanting to split superannuation, you will be faced with delays in having to obtain the required information and of course having to give procedural fairness notice of 28 days to the trustee. See Order 14 Rule 3A
Forms done so far:
Forms 3,
Form 3A
Form 3B
Form 17In the meantime, check the information about this topic under new developments on the Family Court Website