Family Law Practice Direction: Trans-Tasman Proceedings Act proceedings

1. Introduction

1.1 This Practice Direction applies to family law proceedings under the Trans-Tasman Proceedings Act 2010 (Cth) (Trans-Tasman Proceedings Act proceedings) filed in the Federal Circuit and Family Court of Australia (FCFCOA). The Trans-Tasman Proceedings Act 2010 (Cth) (Trans-Tasman Proceedings Act) does not apply to family law proceedings:

  1. in respect of an application made under the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980; and
  2. relating to the status or property of a person who is not fully able to manage his or her own affairs.

1.2 It is to be read together with:

  1. the Family Law Act 1975 (Cth) (Family Law Act);
  2. the Trans-Tasman Proceedings Act;
  3. the Federal Court Rules 2011 (Federal Court Rules);
  4. the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Family Law Rules); and
  5. Central Practice Direction – Family Law Case Management.

1.3 Division 1.2.3 of the Family Law Rules applies to all proceedings to which this practice direction applies. Division 34.4 of the Federal Court Rules will generally apply to the proceeding, as modified by rule 1.15 of the Family Law Rules.

1.4 This Practice Direction applies to all proceedings commenced on or after 1 September 2021. This Practice Direction will also apply to all proceedings commenced prior to 1 September 2021, unless unfair or impractical to do so.

1.5 To the extent this Practice Direction is inconsistent with any act, regulation, rule or other legislative provision (whether or not expressly listed above), the act, regulation, rule or other legislative provision shall prevail.

Before a proceeding starts

1.6 Each prospective party to the proceeding must comply with the pre-action procedures in Schedule 1 of the Family Law Rules, unless an exception in rule 4.01(2) applies. Those pre-action procedures require parties to take genuine steps to resolve the dispute before proceedings are instituted.

1.7 A Genuine Steps Certificate must be filed with any Initiating Application (Family Law) or Response to Initiating Application in Trans-Tasman Proceedings Act proceedings.

2. Application

Parties to Trans-Tasman Proceedings Act proceedings

2.1 A Trans-Tasman Proceedings Act proceeding may be commenced by an affected person.

2.2 An application must include all necessary parties: see Part 3.1 of the Family Law Rules.

Making an application and documents to file

2.3 A Trans-Tasman Proceedings Act proceeding is commenced by filing an Initiating Application (Family Law).

2.4 An Initiating Application (Family Law) may include an application for interlocutory orders.

2.5 The following orders must be sought as final orders in an Initiating Application (Family Law):

  1. an application to enforce compliance with an order made by a New Zealand court;
  2. an application for an extension of time to give notice of registration of a New Zealand judgment;
  3. an application to set aside the registration of a New Zealand judgment;
  4. an application for the stay of enforcement of a registered New Zealand judgment so that liable person can appeal the judgment; and
  5. an application for an extension of time to apply for a stay of enforcement of a registered New Zealand judgment so that liable person can appeal the judgment.

2.6 Once a Trans-Tasman Proceedings Act proceeding has been commenced, interlocutory orders are sought by filing an Application in a Proceeding.

2.7 The following documents must be filed with an Initiating Application (Family Law) or Application in a Proceeding (application) in Trans-Tasman Proceedings Act proceedings:

  1. when an Initiating Application (Family Law) is filed:
    1. a Genuine Steps Certificate, confirming the applicant’s compliance with the pre-action procedures listed in Schedule 1 of the Family Law Rules; and
    2. an affidavit stating the material facts on which the applicant relies that are necessary to give the respondent fair notice of the case to be made against the respondent at the hearing;
  2. if the application seeks interlocutory orders, an affidavit stating:
    1. if the person has started a proceeding in a New Zealand court:
      1. that the person has started a proceeding in a New Zealand court; and
      2. the relief sought in the New Zealand proceeding; and
      3. the steps taken in the New Zealand proceeding; or
    2. if the person intends to start a proceeding in the New Zealand court:
      1. when the intended proceeding will be started; and
      2. the court in which the intended proceeding is to be started; and
      3. the relief to be sought in the intended proceeding; and
    3. the interlocutory orders sought;
    4. why the interlocutory orders should be made;
  3. if the application seeks leave to serve a subpoena in New Zealand:
    1. a copy of the subpoena in relation to which leave is sought; and
    2. an affidavit stating briefly but specifically, the following:
      1. the name, occupation and address of the addressee;
      2. whether the addressee is over 18 years old;
      3. the nature and significance of the evidence to be given, or the document or thing to be produced, by the addressee;
      4. details of the steps taken to ascertain whether the evidence, document or thing could be obtained by other means without significantly greater expense, and with less inconvenience, to the addressee;
      5. the date by which it is intended to serve the subpoena in New Zealand;
      6. details of the amounts to be tendered to the addressee to meet the addressee's reasonable expenses of complying with the subpoena;
      7. details of the way in which the amounts mentioned in subparagraph (F) are to be given to the addressee;
      8. if the subpoena requires a specified person to give evidence, an estimate of the time that the addressee will be required to attend to give evidence; and
      9. any facts or matters known to the applicant that may be grounds for an application by the addressee to have the subpoena set aside, under section 36(2) or (3) of the Trans-Tasman Proceedings Act;
  4. if the application seeks leave to set aside a subpoena served in New Zealand:
    1. a copy of the subpoena; and
    2. an affidavit stating:
      1. the material facts on which the application is based; and
      2. whether the person making the application requests that any hearing be held by audio link or audio-visual link;
  5. if the application seeks to enforce an order made by a New Zealand court under section 58(2) of the Trans-Tasman Proceedings Act, an affidavit stating:
    1. the order that is alleged to have been contravened; and
    2. a description of the person alleged to have contravened the order; and
    3. the circumstances of the alleged contravention;
  6. if the application seeks to set aside the registration of a New Zealand judgment, an affidavit stating:
    1. briefly but specifically, the grounds on which the registration of the judgment should be set aside; and
    2. the material facts relied on in support of the application;
  7. if the application seeks to stay the enforcement of a registered New Zealand judgment, an affidavit stating:
    1. the order sought;
    2. briefly but specifically, the grounds relied on in support of the order sought; and
    3. the material facts relied on in support of the application;
  8. if the application seeks an extension of the time within which to apply for the stay of enforcement of a registered New Zealand judgment so that liable person can appeal the judgment, an affidavit stating:
    1. the order sought;
    2. briefly but specifically, the grounds relied on in support of the application;
    3. the material facts relied on in support of the application; and
    4. why the application was not made within time.

2.8 The applicant must also pay the filing fee set by regulation, unless an exemption applies. A Judge or Judicial Registrar may require a party to give an undertaking to pay a filing fee before accepting a document for filing.

When an affidavit is required

2.9 An affidavit is required to be filed with all applications in Trans-Tasman Proceedings Act proceedings.

2.10 An affidavit must be filed in the proper form as outlined in rules 2.14 (Formal requirements for documents) and 5.08 (Limit on number and length of affidavits) of the Family Law Rules.

Urgent applications

2.11 If an application is urgent, the applicant must seek an order that the matter be given an urgent listing (urgent application). An urgent application must be accompanied by:

  1. an affidavit stating the facts relied on in support of the urgent application; and
  2. a cover letter as to urgency, outlining the nature of the application and the basis upon which an urgent listing is required. The cover letter should refer to specific paragraphs of the affidavit relied upon in support of the urgent application.

2.12 If no application for final orders has been made, the urgent application should be included in the interlocutory orders sought in the Initiating Application (Family Law). If an application for final orders has already been made, an urgent application should be made by filing an Application in a Proceeding.

Notifying the other party/parties

2.13 The applicant must serve the following documents on all other parties in accordance with Part 2.6 or Part 2.7 (as appropriate) of the Family Law Rules:

  1. Initiating Application (Family Law) or Application in a Proceeding;
  2. Genuine Steps Certificate; and
  3. any affidavit filed.

2.14 A document may be served on a person in New Zealand in accordance with the Trans-Tasman Proceedings Act and this Practice Direction: see rule 2.48 of the Family Law Rules.

2.15 If the Federal Circuit and Family Court of Australia registers a New Zealand judgment, the entitled person must give notice of the registration in the prescribed form to every liable person within 15 days (unless ordered otherwise).

2.16 The notice of registration must be given to each liable person by:

  1. delivering the notice by registered post to the liable person's last known address; or
  2. handing the notice to the liable person.

2.17 If an application is filed seeking to enforce a registered New Zealand order, the applicant must file an affidavit proving service of the notice of registration: see rule 34.72 of the Federal Court Rules.

2.18 A subpoena to be served in New Zealand must also be accompanied with:

  1. a copy of the order giving leave for the subpoena to be served in New Zealand; and
  2. the appropriate information sheet.

What the Court will do next

2.19 Upon filing the Initiating Application (Family Law) and supporting documents, the Court will fix a date as soon as practicable for the first Court event.

2.20 Any application made by a party for an urgent listing will be determined by a Judicial Registrar on the papers.

2.21 If an Initiating Application (Family Law) or Response to Initiating Application is filed without a Genuine Steps Certificate, or before pre-action procedures have been complied with, and no exemption is applicable, the Court may stay the application until such time as the parties comply with the pre-action procedures: see rule 4.04 of the Family Law Rules.

2.22 If an application is filed seeking to enforce a registered New Zealand order without an affidavit proving service in accordance with rule 34.72 of the Federal Court Rules, the Court must stay the application until such time as the applicant complies with rule 34.72(3) of the Federal Court Rules.

3. Responding to an application

3.1 A respondent must file:

  1. a Response to Initiating Application if consenting to or opposing any of the orders sought by the applicant in an Initiating Application (Family Law) or if seeking any other orders in accordance with Part 2.4 of the Family Law Rules; or
  2. a Response to an Application in a Proceeding if consenting to or opposing any of the orders sought by the applicant in an Application in a Proceeding, or if seeking any other orders in accordance with Part 2.4 of the Family Law Rules.

3.2 However, if a respondent does not wish to contest any of the orders sought by the applicant and will submit to any order the court may make, a Submitting Notice should be filed in accordance with rule 2.22 of the Family Law Rules.

3.3 The following documents must be filed with a Response to Initiating Application:

  1. if the respondent opposes the interlocutory orders sought by the applicant or seeks interlocutory orders in their Response to Initiating Application, an affidavit; and
  2. a Genuine Steps Certificate, confirming the respondent’s compliance with the pre-action procedures listed in Schedule 1 of the Family Law Rules.

3.4 A Response to Initiating Application must be filed and served within 28 days of service of the application to which it relates: see rule 2.18(2) of the Family Law Rules.

If the Response to Initiating Application raises a different type of proceedings

3.5 In the event a Response to Initiating Application seeks orders related to financial proceedings or another type of proceedings not sought by the applicant in the application, the parties are directed to refer to Family Law Practice Direction – Financial proceedings or such other relevant Practice Direction. In such cases, all relevant Practice Directions apply to the proceeding.

3.6 Where a respondent seeks orders related to financial proceedings or another type of proceedings for the first time in the Response to Initiating Application and the applicant seeks to oppose those orders or seek different orders, the applicant must file a Reply with respect to those orders pursuant to rule 2.21 of the Family Law Rules.

4. Court attendance by audio link or audio-visual link

4.1 In Trans-Tasman Proceedings Act proceedings, a hearing where evidence is taken or submissions are made may occur by audio or audio-visual link.

4.2 An Application in a Proceeding must be filed if a party seeks permission to have part or the entire hearing heard by audio or audio-visual link.

5. Further information

5.1 For information on how family law proceedings are conducted in the FCFCOA, please refer to Central Practice Direction – Family Law Case Management.

5.2 For more information about the Trans-Tasman Proceedings Act and how it operates, see this fact sheet or visit Trans-Tasman Proceedings Regime | Attorney-General's Department.

The Honourable Justice William Alstergren

Chief Justice (Division 1) | Chief Judge (Division 2)

Federal Circuit and Family Court of Australia

Date: 1 September 2021

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