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Practice notes

Every Issue

Cite as: April 2011 85(4) LIJ, p.65

NEW PRACTICE NOTES

Due to space constraints, County Court Practice Note PNCI 2-2011: “Operation and management of the Damages and Compensation List” has not been able to be included in this edition of the LIJ. The full version can be found at www.countycourt.vic.gov.au under “Practice and Procedure”.

FEDERAL MAGISTRATES COURT

Filing by electronic communication

Notice to practitioners and litigants

The notice “Filing of supplementary documents and divorce application by electronic communication” dated September 2010 is revoked and is substituted with the following notice.

Introduction

On 16 August 2008, the Federal Magistrates Court (the Court), in conjunction with the Family Court, commenced the introduction of electronic filing (efiling) for a selection of supplementary documents via the Commonwealth Courts Portal (the Portal) at www.comcourts.gov.au.

On 28 September 2009, the Court extended efiling to include applications for divorce.

From 12 February 2011 the Court, in conjunction with the Family Court, will extend provision for efiling to include the initiating application (family law). Response to an initiating application (family law) will be available from either 26 March 2011 or a date to be advised.

The purpose of this notice is to inform litigants and practitioners of the approved processes for users of the system.

Procedures for efiling

Rules 2.07A and 2.07B of the Federal Magistrates Court Rules 2001 (the Rules) have been introduced to facilitate filing by electronic communication. Any document filed via the Portal must be in accordance with the Rules and this practice note.

Affidavits

To file an affidavit via the Portal, a scanned image of the affidavit, including any annexures, signed in accordance with the Rules, must be uploaded through the Portal.

Confirmation notice

Once a document has been successfully filed via the Portal, a sealed confirmation notice will be available for download from the Portal together with a sealed copy of the document.

Court seal on efiled documents

Pursuant to r2.11, all documents accepted for filing via the Portal will be stamped with a digital copy of the court seal on every page.

Legal practitioner conduct on the Portal

Pursuant to the Portal’s terms and conditions of use, litigants and practitioners will be liable for:

  • any conduct undertaken using their user ID; and
  • the conduct of any person to whom they have provided access rights.

Access may only be given to a person who acts as a professional adviser in relation to the family law proceedings.

Any inappropriate conduct may result in suspension of the account, amount to a contempt of court, or an offence under relevant laws of the Commonwealth.

Restrictions on document size and format

For the purposes of r2.07(2)(b), the electronic file format and maximum size limit for documents sent for filing via the Portal is ADOBE portable document format (PDF) 10Mb. Note: A free PDF converter tool is available from the Portal.

Documents filed in other formats or exceeding the prescribed size limits will not be accepted for filing.

Restrictions on who may file documents via the Portal

Only legal practitioners and litigants who are registered with the Portal are authorised to file documents via the Portal.

Retention of documents

Practitioners and/or litigants are required to keep a hard copy of all documents filed via the Portal and these documents may be required to be produced at the direction of the Court or request of the other party to the proceedings. On such direction or request, the document must be endorsed with a statement that it is the original of the document filed via the Portal and the day the document was uploaded to the Portal.

Time considerations

Documents may be electronically uploaded at any time. However, practitioners and litigants should note:

  • Pursuant to r2.05(3), documents uploaded after 4.30pm will be taken to have been filed on the following day.
  • For documents filed less than two business days prior to a hearing, litigants and/or practitioners:
  • will need to seek leave of the Court to rely on that document at that hearing; and
  • must provide a clean sealed copy of that document to the Court for consideration.
  • For documents filed less than four business days prior to the commencement of a circuit at which the matter is listed for hearing, litigants and/or practitioners:
  • will need to seek leave of the Court to rely on that document at that hearing; and
  • must provide a clean sealed copy of that document to the Court for consideration.
  • For the purposes of (a), times will be calculated according to the time zone of the filing registry and not the location of the person uploading the document.

Unsubmitted applications

Unsubmitted applications will be removed from the Portal following 60 days of inactivity.

Strict compliance with form requirements

Strict compliance with forms is required for the purposes of efiling. Documents that do not strictly comply with these authorised forms for the purposes of efiling will not be accepted.

Approval of efiling divorce forms

From 28 September 2009, the application for divorce (efiling) and affidavit for efiling application (divorce) are approved for the purpose of r2.07A of the Rules.

efiling divorce application process

Litigants and practitioners can log onto the Portal and complete the divorce application online. Registered users will be prompted to enter their relevant details and upload a scanned copy of their marriage certificate or other documents (as required). They will then be prompted for payment or to upload documentary evidence relating to an application for reduction of court fees – general. An application for a reduction of court fees on the basis of financial hardship is unable to be made electronically and must still be filed at a registry. They will then be able to select from a list of available hearing dates.

Once the application is complete, a sealed copy of the application form will be available from the Portal. The application form will include the file number and hearing date. Unlike an application for divorce filed by post or at a registry, the efiled divorce application will not be required to be sworn, but must be accompanied by the affidavit for efiling application (divorce), sworn by the applicant(s). This document will be automatically generated by the Portal. This affidavit will need to be sworn or affirmed before a lawyer, justice of the peace or other authorised person and then uploaded as a scanned image to the Portal. Once uploaded, a sealed copy of this affidavit with a sealed coversheet will be available from the Portal for downloading.

These documents will then need to be served on the respondent in accordance with the Rules (see the Divorce Service Kit).

The following divorce documents can also be filed through the Portal:

  • Affidavits of service by post (divorce);
  • Affidavits of service by hand (divorce);
  • Affidavits proving signature (divorce); and
  • Acknowledgments of service (divorce).
Approval of efiling supplementary documents

The supplementary documents as set out on the Portal are hereby approved for the purpose of r2.07A of the Rules.

These documents will be accepted for all family law and child support proceedings. At this stage, no other supplementary document may be filed via the Portal.

Approval of efiling initiating application (family law)
efiling initiating application process

Litigants and practitioners can log onto the Portal and complete the initiating application online, including the statement of truth at the end of the form. Registered users will be prompted to enter their relevant details and upload scanned copies of all required supplementary documents. They will then be prompted for payment (by credit card) or to upload documentary evidence relating to a request for a reduction in court fees. They will then be able to select from a list of available first return hearing dates by state and circuit location.

Once the application is complete, a sealed copy of the application form will be available from the Portal. The application form will include the file number and hearing date. In most cases the hearing date will be available immediately or soon after efiling, but in some cases the date may be longer if the efiling system requires intervention of a registrar to complete the process. This may occur, for example, when a notice of child abuse or family violence is filed.

The sealed copy of the application, along with any other documents, will then need to be served on the respondent in accordance with the Rules (see the Service Kit).

Note:

  • If there are multiple applicants, a statement of truth will be required from each applicant.
  • If there are multiple applicants and a reduction in fees is requested, each applicant must make such an application.
  • In some cases there may not be a prompt to choose a first return date as this will be assigned by the Court.

Allegations of family violence or child abuse

If there are allegations of either family violence or child abuse, or an interim order is sought, additional applications such as a separate notice of child abuse or family violence (Form 4) will be included in the printed document for service on the respondent.

efiling response process

Litigants and practitioners can log onto the Portal and complete the response online, including the statement of truth at the end of the form once it is available from either 26 March 2011 or a date to be advised.

Once an initiating application has been filed, if the respondent is self-represented they will need to contact the National Enquiry Centre to obtain their party identification number which can then be used in conjunction with the file number to obtain access to their file.

If a respondent is represented by a legal practitioner, the legal practitioner will be able to efile a notice of address for service or response using the file number. However, they will not be able to view the file until a client service officer in the Court links them to that file. This will normally take a day to process; however, in some cases it could take up to three working days.

Registered users will be prompted to select an application from their available files to which they wish to respond and to enter their relevant details and upload scanned copies of all required supplementary documents. Additional fees will be calculated based on the nature of the orders sought in the response. They will then be prompted for payment (by credit card) or to upload documentary evidence relating to a request for a reduction in court fees. The hearing date will be the same date allocated to the initiating application.

Note:

  • If there are multiple respondents, a statement of truth will be required from each.
  • If there are multiple respondents and a reduction in fees is requested, each respondent must make such an application.
  • Respondents cannot be added to the matters by filing a response.

JOHN PASCOE, Chief Federal Magistrate and ADELE BYRNE, Registrar , February 2011

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