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Practice Notes

Every Issue

Cite as: Jan/Feb 2015 89 (1/2) LIJ, p.65

Form updates

The following forms have been updated to include space to record the applicant and respondent names:

Annexure to draft consent parenting orders (FCoA):

www.familylawcourts.gov.au/wps/wcm/ connect/FLC/Home/Forms/Family+Court+ of+Australia+forms/FCOA_form_Annex_Consent_Parenting_Order

Case information (FCoA):

www.familylawcourts.gov.au/wps/wcm/ connect/FLC/Home/Forms/Family+Court+ of+Australia+forms/FCOA_form_Case_info

Changes to “Collector of Public Monies”

Cheques should now be made payable to the “Family Court and Federal Circuit Court” and not “Collector of Public Monies”.

The relevant court forms have been updated with this change including:

Proof of Divorce:

www.familylawcourts.gov.au/wps/wcm/ connect/FLC/Home/Forms/Family+Law+ Courts+forms/Divorce_Reprint_NEC

Application for sealed copy of orders (FLC):

www.familylawcourts.gov.au/wps/wcm/ connect/FLC/Home/Forms/Family+Law+ Courts+forms/Document+request+form

Family Law Courts National Communication Family Court of Australia, Federal Circuit Court of Australia, 6 November 2014

The Federal Circuit Court of Australia

(Bankruptcy) Amendment (Examination Summons and Other Measures) Rules 2014

The Federal Circuit Court has agreed to amendments to the Federal Circuit Court (Bankruptcy) Rules 2006 by way of the Federal Circuit Court (Bankruptcy) Amendment (Examination Summons and Other Measures) Rules 2014 (“the Amendment Rules”). The Amendment Rules include the following amendments to the Federal Circuit Court (Bankruptcy) Rules 2006:

Amendments to rules 6.12 and 6.17 to explicitly provide that a Registrar may exercise a power to discharge an examination summons (see Travagline v Raccunia [2007] FMCA 777).

Amendments to rule 6.13 to facilitate the staged implementation of an electronic court file. The amendment replicates, in an electronic environment, the requirements for an affidavit supporting an application for the issue of a summons for the examination of an examinable person under s81 of the Bankruptcy Act 1966, being filed in a sealed envelope.

An amendment to Form 6 is being made to remove reference to the Insolvency and Trustee Service Australia with the new title “Australian Financial Security Authority”.

The inclusion of sub-s55(3B) of the Bankruptcy Act 1966 to the list powers in Schedule 2 that may be exercised by a Registrar (being a power to direct an Official Receiver to accept or reject a debtor’s petition).

The amendment rules are available at www.comlaw.gov.au.

ADELE BYRNE Principal Registrar, 1 December 2014

The Magistrates’ Court of Victoria

Practice Direction 8 of 2014: Exclusion Orders (Summary Offences Act 1966)

Purpose:

To provide directions on how to apply:

  • for an Exclusion Order under s6D of the Summary Offences Act 1966
  • to vary or revoke an Exclusion Order under s6H of the Summary Offences Act 1966.
Application for an Exclusion Order:
  • a member of Victoria Police must file a “Notice of Application for an Exclusion Order” (“the notice”) and an affidavit in support.
  • the notice must contain:
    a hearing date at least 14 days from the date of filing; a venue of the Magistrates’ Court, being either the closest court to where the respondent resides or to the place of the subject of the proposed order.

Police must serve the respondent with the application as soon as practicable after the application is filed with the court.

Prior to the hearing date, police must file an affidavit of service of the notice.

Application to Vary/Revoke an Exclusion Order
  • the applicant must file an “Application to Vary/Revoke an Exclusion order”;
  • a hearing date will be listed at least 14 days from the date of filing of the application, unless otherwise directed by the court;
  • the applicant must serve a copy of the application on the respondent to the application as soon as is practicable after the application is filed with the court.

This Practice Direction takes effect on 3 November 2014.

Peter Lauritsen Chief Magistrate, 24 October 2014

The Magistrates’ Court of Victoria

Practice Direction 9 of 2014: Alcohol Exclusion Orders (Sentencing Act 1991)

Purpose:

To provide directions on how to apply to vary an Alcohol Exclusion Order under s89DG of the Sentencing Act 1991.

Applications to vary an Alcohol Exclusion Order
  • the applicant must file an “Application to Vary an Alcohol Exclusion Order”;
  • the following documents are to be attached to the application:
Original order made by Magistrates’ Court
  1. A copy of the “Summary of Charges” or “Statement of Alleged Facts” which was part of the brief originally served on the offender when charged with the relevant offence.
Original order made by County Court or Supreme Court
  1. A copy of the order made by the County Court or Supreme Court;
  2. A copy of the sentencing remarks in the hearing where the order was imposed; or

A copy of the “Summary of Charges” or “Statement of Alleged Facts” which was part of the brief originally served on the offender when charged with the relevant offence.

  • The court will list the application for hearing at least 14 days in advance, unless otherwise directed by the court.
  • The applicant must serve a copy of the application on the respondent to the applicaton as soon as is practicable after the applicaton was filed with the court.

This Practice Direction takes effect on 3 November 2014.

Peter Lauritsen Chief Magistrate, 24 October 2014

The Magistrates’ Court of Victoria

Practice Direction 10 of 2014: Fast tracking of the hearing and determination of criminal offences arising out of family violence incidents

Background:

It is well-known with family violence cases that the rate of recidivism for crimes of violence against intimate partners is much greater than crimes of violence against strangers. We also know that usually the violence increases, in number and intensity. Accordingly, the Magistrates’ Court of Victoria will introduce in stages the fast tracking of these cases. The first stage will start in the Dandenong Magistrates’ Court.

Direction:
  1. As and from 1 December 2014, all criminal charges arising out of family violence incidents and filed in the Dandenong Magistrates’ Court will be listed according to these timelines:
    1. Where the accused person is on bail, from the date of his or her release on bail to the first listing of those charges – one week;
    2. Where the accused person has been summonsed, from the date of the issue of the summons to the first listing – four weeks;
    3. In either case described in (a) and (b):
      1. From the date of the first listing to the date of the second listing – four weeks;
      2. From the date of the second listing to contest mention – four weeks
      3. From the date of the contest mention to trial – four weeks.
  2. At the time of release on bail or when served with a summons, the accused person must be given a document entitled “Family violence related criminal proceedings”.
  3. This Practice Direction commences on 1 December 2014.
  4. Peter Lauritsen Chief Magistrate, 25 November 2014

The Magistrates’ Court of Victoria

Practice Direction 11 of 2014: Mediation Programme

Background:

Practice Direction 6 of 2007 created a mediation pilot programme for certain defended civil proceedings at the Magistrates’ Court of Victoria (the Court) at Broadmeadows. The purpose of this Practice Direction is to extend the civil mediation programme to the Court at Frankston.

Directions

From 1 January 2015, the Court will commence a mediation programme at Frankston (the Programme) for all defended civil disputes where the amount sought in the complaint is less than $40,000 or where the dispute is under the Associations Incorporation Act 1981 (irrespective of the amount or matter of dispute). These proceedings will be referred to mediation pursuant to s108 of the Magistrates’ Court Act 1989 unless the Court determines otherwise, on application by any party.

The Programme will involve only those proceedings where a notice of defence is filed at the Court at Frankston on or after 1 January 2015.

In addition to serving upon a defendant the complaint and two notices of defence, a plaintiff in a proceeding will serve upon the defendant a document entitled “Information About Court-Annexed Mediation”.

Where a defendant seeks to defend a complaint and files and serves a notice of defence in order to do so, that person must return to the Magistrates’ Court at Frankston at the same time as the notice of defence is filed with a completed Section A.

This Practice Direction commences from 1 January 2015.

Peter Lauritsen Chief Magistrate, 8 December 2014

The Magistrates’ Court of Victoria

Practice Direction 12 of 2014: Mediation Programme

Background:

Practice Direction 6 of 2007 created a mediation pilot programme for certain defended civil proceedings at the Magistrates’ Court of Victoria (the Court) at Broadmeadows. The purpose of this Practice Direction is to extend the civil mediation programme to the Court at Moorabbin.

Directions

From 1 January 2015, the Court will commence a mediation programme at Moorabbin (the Programme) at Frankston for all defended civil disputes where the amount sought in the complaint is less than $40,000 or where the dispute is under the Associations Incorporation Act 1981 (irrespective of the amount or matter of dispute). These proceedings will be referred to mediation pursuant to s108 of the Magistrates’ Court Act 1989 unless the Court determines otherwise, on application by any party.

The Programme will involve only those proceedings where a notice of defence is filed at the Court at Moorabbin on or after 1 January 2015.

In addition to serving upon a defendant the complaint and two notices of defence, a plaintiff in a proceeding will serve upon the defendant a document entitled “Information About Court-Annexed Mediation”.

Where a defendant seeks to defend a complaint and files and serves a notice of defence in order to do so, that person must return to the Magistrates’ Court at Moorabbin at the same time as the notice of defence is filed with a completed Section A.

This Practice Direction commences from 1 January 2015.

Peter Lauritsen Chief Magistrate, 8 December 2014

State Revenue Office

Changes to SRO duty lodgements

Duties Online (DOL), the SRO’s online system for the lodgement and payment of duty, has recently celebrated its third birthday and is now the main accepted lodgement channel for duty transactions in Victoria. Nearly 90 per cent of all transactions are completed in DOL by more than 1400 DOL organisations.

Any business engaged in lodging duty transactions can apply to become a registered user of DOL. DOL is an easy to use, free, convenient way to lodge and pay duty with same day service.

Effective 15 January 2015, the SRO will no longer assess transactions which can be processed in DOL. The available options are as follows:

  1. sign up to DOL to take advantage of an easy to use, free and convenient way to lodge and pay duty; or
  2. use a registered DOL organisation to process the transaction on your behalf. A list of registered organisations is available on the SRO website.

The SRO will continue to accept lodgements of complex transactions and lodgements by individuals while we are building an all-inclusive electronic lodgement capability. These lodgements will be processed with a 21 day turnaround.

For further information, please visit www.sro.vic.gov.au/dutiesonline.


Duties Online Team State Revenue Office, Victoria, 25 November 2014

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