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This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017-2018
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Federal Circuit and Family Court of
Australia Bill 2018
No. , 2018
(Attorney-General)
A Bill for an Act relating to the Federal Circuit and
Family Court of Australia, and for other purposes
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
i
Contents
Chapter 1--Introduction
2
Part 1--Introduction
2
Division 1--Preliminary
2
1
Short title ........................................................................................... 2
2
Commencement ................................................................................. 2
3
Crown to be bound ............................................................................ 3
4
External Territories ............................................................................ 3
Division 2--Objects of this Act
4
5
Objects of this Act ............................................................................. 4
Division 3--Simplified outline of this Act
5
6
Simplified outline of this Act ............................................................ 5
Part 2--Definitions
7
7
Definitions ......................................................................................... 7
Chapter 2--Federal Circuit and Family Court of
Australia
17
8
Federal Circuit and Family Court of Australia ................................ 17
9
Federal Circuit and Family Court of Australia (Division 1) ............ 17
10
Federal Circuit and Family Court of Australia (Division 2) ............ 17
Chapter 3--Federal Circuit and Family Court of
Australia (Division 1)
19
Part 1--Constitution
19
Division 1--Constitution
19
11
Appointment of Judges .................................................................... 19
12
Judges to be assigned to particular location ..................................... 19
13
Authorised Judges may manage classes of proceedings .................. 20
14
Style ................................................................................................. 20
15
Seniority .......................................................................................... 21
16
Oath or affirmation of allegiance and office .................................... 21
Division 2--Terms and conditions of judges
23
17
Remuneration .................................................................................. 23
18
Resignation from office ................................................................... 23
19
Removal from office ........................................................................ 23
ii
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Division 3--Judges of 2 or more courts
24
20
Dual appointments ........................................................................... 24
21
Judge also holding office of a prescribed court ............................... 24
22
Judge also holding office of a State Family Court ........................... 25
Division 4--Acting Chief Justice
26
23
Acting Chief Justice ........................................................................ 26
Part 2--Jurisdiction
27
Division 1--Original jurisdiction
27
24
Original jurisdiction ......................................................................... 27
Division 2--Appellate jurisdiction
28
25
Appeals from courts of summary jurisdiction in relation to
family law or child support matters ................................................. 28
Division 3--Associated matters
29
26
Jurisdiction in associated matters .................................................... 29
Division 4--Exercise of jurisdiction
30
27
Exercise of jurisdiction .................................................................... 30
28
Determination of matter completely and finally .............................. 30
Division 5--Certain powers relating to matters of jurisdiction
31
29
Making of orders and issuing writs.................................................. 31
30
Contempt of court ............................................................................ 31
Division 6--Administration
32
31
Arrangement of business ................................................................. 32
32
Complaints ...................................................................................... 33
33
Protection for the Chief Justice and Deputy Chief Justice ............... 34
Part 3--Transfer of proceedings
36
34
Discretionary transfer of proceedings to the Federal Circuit
and Family Court of Australia (Division 2) ..................................... 36
35
Rules of Court ................................................................................. 37
36
Delegation ....................................................................................... 38
Part 4--Appeals
39
37
Appeals to the High Court may not be brought ............................... 39
Part 5--Practice and procedure
40
Division 1--General
40
38
Practice and procedure..................................................................... 40
39
Representation ................................................................................. 40
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
iii
Division 2--Documents filed in the Federal Circuit and Family
Court of Australia (Division 1)
42
40
Filing of documents in the Federal Circuit and Family Court
of Australia (Division 1) .................................................................. 42
41
Seal of the Federal Circuit and Family Court of Australia
(Division 1) ..................................................................................... 42
42
Federal Circuit and Family Court of Australia (Division 1)
stamps .............................................................................................. 43
43
Writs etc. ......................................................................................... 43
44
Proceedings may be instituted by application .................................. 44
45
Limits on length of documents ........................................................ 44
Division 3--Conduct of proceedings
45
46
Place of sitting ................................................................................. 45
47
Change of venue .............................................................................. 45
47A
Formal defects not to invalidate ...................................................... 45
Division 4--Case management
46
48
Overarching purpose of family law practice and procedure
provisions ........................................................................................ 46
49
Parties to act consistently with the overarching purpose ................. 47
50
Power of the Federal Circuit and Family Court of Australia
(Division 1) to give directions about practice and procedure
in a civil proceeding ........................................................................ 48
51
Chief Justice to achieve common approaches to case
management with the Federal Circuit and Family Court of
Australia (Division 2) ...................................................................... 49
Division 5--Evidence
50
52
Oaths and affirmations..................................................................... 50
53
Swearing of affidavits etc. ............................................................... 50
53A
Orders and commissions for examination of witnesses ................... 52
Division 6--Judgments
53
54
Reserved judgments etc. .................................................................. 53
Division 7--Common approaches with the Federal Circuit and
Family Court of Australia (Division 2)
54
55
Chief Justice to achieve common approaches with the
Federal Circuit and Family Court of Australia (Division 2) ............ 54
Division 8--Rules of Court
55
56
Rules of Court ................................................................................. 55
Part 6--Management and administration
57
Division 1--Management responsibilities of the Chief Justice
57
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Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
57
Management of administrative affairs of the Federal Circuit
and Family Court of Australia (Division 1) ..................................... 57
58
Arrangements with other courts ....................................................... 58
59
Arrangements with agencies or organisations ................................. 59
60
Arrangements for sharing courtrooms and other facilities ............... 60
61
Advisory committees ....................................................................... 60
Division 2--Chief Executive Officer
62
62
Chief Executive Officer ................................................................... 62
63
Powers of Chief Executive Officer .................................................. 62
Division 3--Registries and registrars
63
64
Registries ......................................................................................... 63
65
Registrars and Deputy Registrars .................................................... 63
66
Powers exercisable by Chief Executive Officer, Registrars
and Deputy Registrars ..................................................................... 63
67
Delegation ....................................................................................... 66
68
Independence of delegates ............................................................... 68
69
Review of power exercised by delegate........................................... 68
70
Oath or affirmation of office............................................................ 69
Division 4--Other officers and staff
71
71
Officers of the Federal Circuit and Family Court of Australia
(Division 1) ..................................................................................... 71
72
Marshal ............................................................................................ 72
73
Delegation by Registry Managers.................................................... 73
Division 5--Miscellaneous administrative matters
74
74
Procedural information to be given to unrepresented parties ........... 74
75
Annual report ................................................................................... 74
76
Delegation of administrative powers of Chief Justice ..................... 74
77
Proceedings arising out of administration of the Federal
Circuit and Family Court of Australia (Division 1) ......................... 74
78
Protection of persons involved in handling etc. complaints ............. 75
Chapter 4--Federal Circuit and Family Court of
Australia (Division 2)
76
Part 1--Constitution
76
Division 1--Constitution
76
79
Appointment of Judges .................................................................... 76
80
Assignment of Judges to Divisions .................................................. 76
81
Authorised Judges may manage classes of proceedings .................. 77
82
Style ................................................................................................. 77
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
v
83
Oath or affirmation of office............................................................ 78
Division 2--Terms and conditions of serving Judges
79
84
Remuneration .................................................................................. 79
85
Leave ............................................................................................... 79
86
Outside work ................................................................................... 79
87
Other terms and conditions .............................................................. 80
88
Resignation from office ................................................................... 80
89
Removal from office ........................................................................ 80
Division 3--Disability and death benefits
81
90
Certification of retired disabled Judges ........................................... 81
91
Pensions for retired disabled Judges ................................................ 81
92
Superannuation for retired disabled Judges ..................................... 82
93
Death benefits .................................................................................. 83
94
Relationship definitions ................................................................... 85
95
Meaning of eligible child ................................................................. 87
96
Appropriation .................................................................................. 88
Division 4--Judges of 2 or more courts
89
97
Dual appointments ........................................................................... 89
Division 5--Acting Chief Judge
90
98
Acting Chief Judge .......................................................................... 90
Part 2--Jurisdiction
92
Division 1--Original jurisdiction
92
99
Original jurisdiction--general ......................................................... 92
100
Original jurisdiction--family law or child support matters ............. 92
101
Original jurisdiction--Commonwealth tenancy disputes ................ 93
Division 2--Appellate jurisdiction
95
102
Appeals from courts of summary jurisdiction in relation to
family law or child support matters ................................................. 95
Division 3--Associated matters
96
103
Jurisdiction in associated matters .................................................... 96
Division 4--Exercise of jurisdiction
97
104
General and Fair Work Divisions of the Federal Circuit and
Family Court of Australia (Division 2) ............................................ 97
105
Exercise of jurisdiction--open court or in Chambers ...................... 98
106
Exercise of jurisdiction .................................................................... 99
107
Determination of matter completely and finally ............................ 100
Division 5--Certain powers relating to matters of jurisdiction
101
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Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
108
Making of orders and issue of writs............................................... 101
109
Declarations of right ...................................................................... 101
110
Contempt of court .......................................................................... 101
111
Summary judgment ....................................................................... 102
Division 6--Administration
103
112
Arrangement of business ............................................................... 103
113
Complaints .................................................................................... 104
114
Exercise of powers of General and Fair Work Divisions of
the Federal Circuit and Family Court of Australia
(Division 2) ................................................................................... 105
115
Assignment of Judges to locations or registries ............................. 106
116
Protection for the Chief Judge and Deputy Chief Judge ................ 106
Part 3--Transfer of proceedings
108
Division 1--Transfer of proceedings to the Federal Circuit and
Family Court of Australia (Division 1)
108
117
Discretionary transfer of proceedings ............................................ 108
118
Rules of Court ............................................................................... 109
119
Delegation ..................................................................................... 110
Division 2--Transfer of proceedings to the Federal Court
111
120
Discretionary transfer of proceedings ............................................ 111
121
Rules of Court ............................................................................... 112
Part 4--Appeals
113
122
Appeals to the High Court may not be brought ............................. 113
Part 5--Dispute resolution for proceedings other than
proceedings under the Family Law Act 1975
114
Division 1--General
114
123
This Part does not apply to proceedings under the Family
Law Act 1975 ................................................................................. 114
124
Federal Circuit and Family Court of Australia (Division 2) to
consider whether to advise people to use dispute resolution
processes ........................................................................................ 114
125
Federal Circuit and Family Court of Australia (Division 2) to
advise people to use dispute resolution processes.......................... 114
126
Duty of legal practitioners to consider whether to advise
people to use dispute resolution processes ..................................... 115
127
Officers of the Federal Circuit and Family Court of Australia
(Division 2) to advise people about dispute resolution
processes ........................................................................................ 115
128
Conciliation ................................................................................... 116
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
vii
129
Referral of question of law--dispute resolution process
(other than arbitration) ................................................................... 116
130
Rules of Court about dispute resolution processes ........................ 117
131
Regulations about dispute resolution processes ............................. 117
132
Rules of Court about costs of dispute resolution processes ........... 118
133
Rules of Court about dispute resolution processes under the
Family Law Act 1975 ..................................................................... 118
134
Consent orders ............................................................................... 118
Division 2--Proceedings other than family law or child support
proceedings
119
135
Scope of Division .......................................................................... 119
136
Mediation ...................................................................................... 119
137
Arbitration ..................................................................................... 120
138
Power of arbitrator to refer question of law to the Federal
Circuit and Family Court of Australia (Division 2) ....................... 120
139
Review of arbitration award on a question of law etc. ................... 121
140
Arbitration awards ......................................................................... 122
Part 6--Practice and procedure
123
Division 1--General
123
141
Practice and procedure................................................................... 123
142
Representation ............................................................................... 124
143
Interrogatories and discovery ........................................................ 124
Division 2--Documents filed in the Federal Circuit and Family
Court of Australia (Division 2)
125
144
Filing of documents in the Federal Circuit and Family Court
of Australia (Division 2) ................................................................ 125
145
Seal of the Federal Circuit and Family Court of Australia
(Division 2) ................................................................................... 125
146
Federal Circuit and Family Court of Australia (Division 2)
stamps ............................................................................................ 126
147
Writs etc. ....................................................................................... 126
148
Proceedings may be instituted by application ................................ 127
149
Limits on length of documents ...................................................... 127
Division 3--Conduct of proceedings
128
150
Place of sitting ............................................................................... 128
151
Change of venue ............................................................................ 128
152
Determination of proceedings without a jury ................................ 128
153
Decisions without oral hearing ...................................................... 128
154
Limits on the length of oral argument ........................................... 128
155
Written submissions ...................................................................... 129
viii
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
156
Formal defects not to invalidate .................................................... 129
Division 4--Case management
130
157
Overarching purpose of civil practice and procedure
provisions ...................................................................................... 130
158
Parties to act consistently with the overarching purpose ............... 131
159
Power of the Federal Circuit and Family Court of Australia
(Division 2) to give directions about practice and procedure
in a civil proceeding ...................................................................... 132
160
Chief Judge to achieve common approaches to case
management with the Federal Circuit and Family Court of
Australia (Division 1) .................................................................... 133
Division 5--Evidence
134
161
Oaths and affirmations................................................................... 134
162
Swearing of affidavits etc. ............................................................. 134
163
Orders and commissions for examination of witnesses ................. 136
164
Time limits on giving of testimony................................................ 136
165
Federal Circuit and Family Court of Australia (Division 2)
may question witnesses ................................................................. 136
166
Evidence may be given orally or by affidavit ................................ 137
167
Offences by witness ....................................................................... 138
Division 6--Use of video links or audio links
140
168
Testimony by video link or audio link ........................................... 140
169
Appearance of persons by video link or audio link........................ 141
170
Making of submissions by video link or audio link ....................... 141
171
Conditions for use of video links and audio links .......................... 142
172
Putting documents to a person by video link or audio link ............ 144
173
Administration of oaths and affirmations ...................................... 144
174
Expenses ........................................................................................ 145
175
New Zealand proceedings ............................................................. 145
Division 7--Orders and judgments
146
176
Orders ............................................................................................ 146
177
Reserved judgments etc. ................................................................ 146
178
Interest up to judgment .................................................................. 146
179
Interest on judgment ...................................................................... 149
180
Enforcement of judgment .............................................................. 149
Division 8--Costs
150
181
Costs .............................................................................................. 150
182
Security for costs ........................................................................... 150
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
ix
Division 9--Common approaches with the Federal Circuit and
Family Court of Australia (Division 1)
152
183
Chief Judge to achieve common approaches with the Federal
Circuit and Family Court of Australia (Division 1) ....................... 152
Division 10--Rules of Court
153
184
Rules of Court ............................................................................... 153
185
Documents ..................................................................................... 154
186
Service ........................................................................................... 154
187
Evidence ........................................................................................ 155
188
Orders and judgments .................................................................... 155
189
Costs .............................................................................................. 156
190
General .......................................................................................... 156
191
Incidental matters .......................................................................... 158
Part 7--Suppression and non-publication orders
159
Division 1--Introduction
159
192
Powers of Federal Circuit and Family Court of Australia
(Division 2) not affected ................................................................ 159
193
Other laws not affected .................................................................. 159
194
This Part does not apply to proceedings under the Family
Law Act 1975 ................................................................................. 159
Division 2--Suppression and non-publication orders
160
195
Safeguarding public interest in open justice .................................. 160
196
Power to make orders .................................................................... 160
197
Grounds for making an order ......................................................... 160
198
Procedure for making an order ...................................................... 161
199
Interim orders ................................................................................ 162
200
Duration of orders.......................................................................... 162
201
Exception for court officials .......................................................... 163
202
Contravention of order................................................................... 163
Part 8--Vexatious proceedings
164
Division 1--Introduction
164
203
Meaning of a person acting in concert .......................................... 164
204
Powers of the Federal Circuit and Family Court of Australia
(Division 2) not affected ................................................................ 164
Division 2--Vexatious proceedings orders
165
205
Making vexatious proceedings orders ........................................... 165
206
Notification of vexatious proceedings orders ................................ 166
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Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Division 3--Particular consequences of vexatious proceedings
orders
168
207
Proceedings in contravention of vexatious proceedings order ....... 168
208
Application for leave to institute proceedings ............................... 169
209
Dismissing application for leave ................................................... 169
210
Granting application for leave ....................................................... 170
Part 9--Management and administration
171
Division 1--Management responsibilities of the Chief Judge and
the Chief Executive Officer
171
211
Management of administrative affairs of the Federal Circuit
and Family Court of Australia (Division 2) ................................... 171
212
Arrangements with other courts ..................................................... 172
213
Arrangements with agencies or organisations ............................... 173
214
Arrangements for sharing courtrooms and other facilities ............. 174
215
Advisory committees ..................................................................... 174
Division 2--Chief Executive Officer
176
216
Chief Executive Officer ................................................................. 176
217
Powers of Chief Executive Officer ................................................ 176
Division 3--Registries and registrars
177
218
Registries ....................................................................................... 177
219
Registrars ....................................................................................... 177
220
Powers exercisable by Chief Executive Officer and
Registrars ....................................................................................... 177
221
Delegation ..................................................................................... 180
222
Independence of delegates ............................................................. 182
223
Review of power exercised by delegate......................................... 182
224
Oath or affirmation of office.......................................................... 183
Division 4--Other officers and staff
184
Subdivision A--Officers and staff
184
225
Officers of the Federal Circuit and Family Court of Australia
(Division 2) ................................................................................... 184
226
Sheriff ............................................................................................ 184
227
Deputy Sheriffs .............................................................................. 185
228
Marshal .......................................................................................... 185
229
Deputy Marshals ............................................................................ 186
230
Family consultants ......................................................................... 186
231
Staff of the Federal Circuit and Family Court of Australia
(Division 2) ................................................................................... 186
Subdivision B--Provisions relating to officers and staff
186
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
xi
232
Arrangements relating to Commonwealth staff ............................. 186
233
Delegation by Registry Managers.................................................. 187
234
Authorised persons to assist the Sheriff or Deputy Sheriffs .......... 187
235
Authorised persons to assist the Marshal or Deputy Marshals ...... 187
236
Actions by or against Sheriff or Marshal ....................................... 187
237
Making arrests under this Chapter or warrants .............................. 188
238
Receivers ....................................................................................... 189
Division 5--Miscellaneous administrative matters
191
239
Procedural information to be given to unrepresented parties ......... 191
240
Annual report ................................................................................. 191
241
Delegation of the administrative powers of the Chief Judge ......... 191
242
Proceedings arising out of administrative affairs of the
Federal Circuit and Family Court of Australia (Division 2) .......... 192
243
Protection of persons involved in handling etc. complaints ........... 192
Chapter 5--Miscellaneous
193
Part 1--Administration of family services
193
244
Chief Executive Officer has functions of family consultants......... 193
245
Chief Executive Officer may delegate powers and functions
that relate to family consultants ..................................................... 193
246
Chief Executive Officer may give directions that relate to
family services functions ............................................................... 193
247
Chief Executive Officer may authorise officers or staff
members to act as family counsellor or family dispute
resolution practitioner .................................................................... 194
Part 2--Miscellaneous
195
248
References in other laws to a Judge of the Federal Circuit
and Family Court of Australia ....................................................... 195
249
Regulations .................................................................................... 195
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
1
A Bill for an Act relating to the Federal Circuit and
1
Family Court of Australia, and for other purposes
2
The Parliament of Australia enacts:
3
Chapter 1 Introduction
Part 1 Introduction
Division 1 Preliminary
Section 1
2
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Chapter 1--Introduction
1
Part 1--Introduction
2
Division 1--Preliminary
3
1 Short title
4
This Act is the Federal Circuit and Family Court of Australia Act
5
2018.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 and
2 and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Sections 3 to
249
1 January 2019.
1 January 2019
Note:
This table relates only to the provisions of this Act as originally
13
enacted. It will not be amended to deal with any later amendments of
14
this Act.
15
(2) Any information in column 3 of the table is not part of this Act.
16
Information may be inserted in this column, or information in it
17
may be edited, in any published version of this Act.
18
Introduction Chapter 1
Introduction Part 1
Preliminary Division 1
Section 3
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
3
3 Crown to be bound
1
(1) This Act binds the Crown in each of its capacities.
2
(2) This Act does not make the Crown liable to be prosecuted for an
3
offence.
4
4 External Territories
5
This Act extends to every external Territory.
6
Chapter 1 Introduction
Part 1 Introduction
Division 2 Objects of this Act
Section 5
4
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Division 2--Objects of this Act
1
5 Objects of this Act
2
The objects of this Act are:
3
(a) to ensure that justice is delivered by federal courts effectively
4
and efficiently; and
5
(b) to provide for just outcomes, in particular, in family law or
6
child support proceedings; and
7
(c) to provide a framework to facilitate cooperation between the
8
Federal Circuit and Family Court of Australia (Division 1)
9
and the Federal Circuit and Family Court of Australia
10
(Division 2) with the aim of ensuring:
11
(i) common rules of court and forms; and
12
(ii) common practices and procedures; and
13
(iii) common approaches to case management.
14
Introduction Chapter 1
Introduction Part 1
Simplified outline of this Act Division 3
Section 6
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
5
Division 3--Simplified outline of this Act
1
6 Simplified outline of this Act
2
The following is a simplified outline of this Act:
3
The federal court known as the Family Court of Australia
4
continues in existence as the Federal Circuit and Family Court of
5
Australia (Division 1). The Court consists of the Chief Justice, the
6
Deputy Chief Justice, Senior Judges and other Judges. The Court
7
has original jurisdiction in family law and child support matters,
8
and has appellate jurisdiction in these matters in relation to appeals
9
from judgments of courts of summary jurisdiction.
10
The federal court known as the Federal Circuit Court of Australia
11
continues in existence as the Federal Circuit and Family Court of
12
Australia (Division 2). The Court consists of the Chief Judge, the
13
Deputy Chief Judge and other Judges. The Court has original
14
jurisdiction in general federal law matters, as well as family law
15
and child support matters. The Court has appellate jurisdiction in
16
family law and child support matters in relation to appeals from
17
judgments of courts of summary jurisdiction.
18
All proceedings before the Federal Circuit and Family Court of
19
Australia are subject to case management. The overarching
20
purpose of case management is to facilitate the just resolution of
21
disputes according to law as quickly, inexpensively and efficiently
22
as possible. Judges may be authorised to manage classes of
23
proceedings. The parties and their lawyers are required to
24
cooperate with the Federal Circuit and Family Court of Australia,
25
and among themselves, to assist in achieving the overarching
26
purpose.
27
The Chief Executive Officer is to assist the Chief Justice and the
28
Chief Judge in managing the administrative affairs of the Federal
29
Circuit and Family Court of Australia.
30
Chapter 1 Introduction
Part 1 Introduction
Division 3 Simplified outline of this Act
Section 6
6
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Registrars and other officers of the Federal Circuit and Family
1
Court of Australia may hold appointments as officers of more than
2
one of the following courts:
3
(a)
the Federal Circuit and Family Court of Australia
4
(Division 1);
5
(b)
the Federal Circuit and Family Court of Australia
6
(Division 2);
7
(c)
the Federal Court.
8
Introduction Chapter 1
Definitions Part 2
Section 7
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
7
Part 2--Definitions
1
2
7 Definitions
3
(1) In this Act:
4
administrative affairs:
5
(a) in relation to the Federal Circuit and Family Court of
6
Australia (Division 1), has a meaning affected by
7
subsection 57(2); and
8
(b) in relation to the Federal Circuit and Family Court of
9
Australia (Division 2), has a meaning affected by
10
subsection 211(2).
11
Agency has the same meaning as in the Public Service Act 1999.
12
Agency Head has the same meaning as in the Public Service Act
13
1999.
14
audio link means facilities (for example, telephone facilities) that
15
enable audio communication between persons in different places.
16
Australia, when used in a geographical sense, includes every
17
external Territory.
18
Australian court means a federal court or a court of a State or
19
Territory.
20
Australian court or tribunal means a court or tribunal of the
21
Commonwealth, a State or a Territory.
22
beneficiary, in respect of a payment under section 93, has the
23
meaning given by subsection 93(4).
24
Chief Executive Officer means the Chief Executive Officer and
25
Principal Registrar of the Federal Court.
26
Chief Judge means the Chief Judge of the Federal Circuit and
27
Family Court of Australia (Division 2).
28
Chapter 1 Introduction
Part 2 Definitions
Section 7
8
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Chief Justice means the Chief Justice of the Federal Circuit and
1
Family Court of Australia (Division 1).
2
Child Support (Assessment) Act 1989 includes regulations made
3
under that Act.
4
Child Support (Registration and Collection Act) 1988 includes
5
regulations made under that Act.
6
civil practice and procedure provisions, in relation to the Federal
7
Circuit and Family Court of Australia (Division 2), has the
8
meaning given by subsection 157(4).
9
Commonwealth officer or employee means a person who:
10
(a) is appointed or engaged under the Public Service Act 1999;
11
or
12
(b) is appointed under another law of the Commonwealth; or
13
(c) holds an office established by a law of the Commonwealth;
14
or
15
(d) is employed by a public authority of the Commonwealth; or
16
(e) is a member of the Australian Defence Force; or
17
(f) is the Commissioner of the Australian Federal Police, a
18
Deputy Commissioner of the Australian Federal Police, an
19
AFP employee or a special member of the Australian Federal
20
Police (all within the meaning of the Australian Federal
21
Police Act 1979).
22
Commonwealth superannuation contribution, in respect of a
23
Judge or retired disabled Judge of the Federal Circuit and Family
24
Court of Australia (Division 2), means a Commonwealth
25
contribution to the Judge's choice of:
26
(a) a complying superannuation fund (within the meaning of
27
section 45 of the Superannuation Industry (Supervision) Act
28
1993); or
29
(b) a retirement savings account (within the meaning of section 8
30
of the Retirement Savings Accounts Act 1997).
31
Commonwealth tenancy dispute means a matter:
32
(a) involving a lease, licence or other arrangement to possess,
33
occupy or use land and a dispute about:
34
Introduction Chapter 1
Definitions Part 2
Section 7
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
9
(i) the recovery of rent or other payments payable under or
1
in relation to the lease, licence or other arrangement; or
2
(ii) the termination of the lease, licence or other
3
arrangement; or
4
(iii) the possession, occupation or use of the land; and
5
(b) in which the Commonwealth, or a person suing or being sued
6
on behalf of the Commonwealth, is a party.
7
complaint:
8
(a) in Chapter 3, means a complaint mentioned in
9
paragraph 31(2)(d); and
10
(b) in Chapter 4, means a complaint mentioned in
11
paragraph 112(2)(d).
12
complaint handler:
13
(a) in Chapter 3, means any of the following persons:
14
(i) the Chief Justice;
15
(ii) a person who is authorised by the Chief Justice under
16
subsection 32(2);
17
(iii) a person who is a member of a body that is authorised
18
by the Chief Justice under subsection 32(2); and
19
(b) in Chapter 4, means any of the following persons:
20
(i) the Chief Judge;
21
(ii) a person who is authorised by the Chief Judge under
22
subsection 113(2);
23
(iii) a person who is a member of a body that is authorised
24
by the Chief Judge under subsection 113(2).
25
conveyance includes a vehicle, a vessel and an aircraft.
26
corporate services:
27
(a) in relation to the Federal Circuit and Family Court of
28
Australia (Division 1), has the meaning given by
29
subsection 57(3); and
30
(b) in relation to the Federal Circuit and Family Court of
31
Australia (Division 2), has the meaning given by
32
subsection 211(3).
33
delegate:
34
Chapter 1 Introduction
Part 2 Definitions
Section 7
10
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(a) in Chapter 3, means:
1
(i) the Chief Executive Officer; or
2
(ii) a Registrar or Deputy Registrar of the Federal Circuit
3
and Family Court of Australia (Division 1); and
4
(b) in Chapter 4, means:
5
(i) the Chief Executive Officer; or
6
(ii) a Registrar of the Federal Circuit and Family Court of
7
Australia (Division 2).
8
Deputy Chief Judge means the Deputy Chief Judge of the Federal
9
Circuit and Family Court of Australia (Division 2).
10
Deputy Chief Justice means the Deputy Chief Justice of the
11
Federal Circuit and Family Court of Australia (Division 1).
12
dispute resolution processes means procedures and services for the
13
resolution of disputes otherwise than by way of the exercise of the
14
judicial power of the Commonwealth, and includes:
15
(a) counselling; and
16
(b) mediation; and
17
(c) arbitration; and
18
(d) neutral evaluation; and
19
(e) case appraisal; and
20
(f) conciliation.
21
Division means the General Division or the Fair Work Division of
22
the Federal Circuit and Family Court of Australia (Division 2).
23
dwelling house includes a conveyance, or a room in
24
accommodation, in which people ordinarily retire for the night.
25
electronic signature of a person means the person's unique
26
identification in an electronic form that is approved by the Chief
27
Executive Officer.
28
eligible child has the meaning given by section 95.
29
eligible spouse has the meaning given by section 94.
30
excluded child order means:
31
Introduction Chapter 1
Definitions Part 2
Section 7
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
11
(a) a parenting order to the extent to which it provides that:
1
(i) a child is to live with a person; or
2
(ii) a child is to spend time with a person; or
3
(iii) a child is to communicate with a person; or
4
(iv) a person is to have parental responsibility for a child; or
5
(b) an order in relation to the welfare of a child;
6
other than:
7
(c) an order made until further order; or
8
(d) an order made in undefended proceedings; or
9
(e) an order made with the consent of all the parties to the
10
proceedings.
11
Family Law Act 1975 includes regulations made under that Act.
12
family law or child support proceedings means proceedings under:
13
(a) the Family Law Act 1975; or
14
(b) the Child Support (Assessment) Act 1989; or
15
(c) the Child Support (Registration and Collection) Act 1988
16
(other than proceedings under section 72Q of that Act).
17
family law practice and procedure provisions, in relation to the
18
Federal Circuit and Family Court of Australia (Division 1), has the
19
meaning given by subsection 48(4).
20
Federal Circuit and Family Court of Australia means:
21
(a) the Federal Circuit and Family Court of Australia
22
(Division 1); or
23
(b) the Federal Circuit and Family Court of Australia
24
(Division 2).
25
Federal Court means the Federal Court of Australia.
26
handle a complaint means do one or more of the following acts
27
relating to the complaint:
28
(a) consider the complaint;
29
(b) investigate the complaint;
30
(c) report on an investigation of the complaint;
31
(d) deal with a report of an investigation of the complaint;
32
Chapter 1 Introduction
Part 2 Definitions
Section 7
12
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(e) dispose of the complaint;
1
(f) refer the complaint to a person or body.
2
information includes any document.
3
institute, in relation to proceedings and the power of the Federal
4
Circuit and Family Court of Australia (Division 2) to deal with
5
vexatious proceedings, includes:
6
(a) for civil proceedings--the taking of a step or the making of
7
an application that may be necessary before proceedings can
8
be started against a party; and
9
(b) for proceedings before a tribunal--the taking of a step or the
10
making of an application that may be necessary before
11
proceedings can be started before the tribunal; and
12
(c) for criminal proceedings--the making of a complaint or the
13
obtaining of a warrant for the arrest of an alleged offender;
14
and
15
(d) for civil or criminal proceedings or proceedings before a
16
tribunal--the taking of a step or the making of an application
17
that may be necessary to start an appeal in relation to the
18
proceedings or to a decision made in the course of the
19
proceedings.
20
Judge:
21
(a) in Chapter 3, means a person holding office as a Judge of the
22
Federal Circuit and Family Court of Australia (Division 1),
23
including the Chief Justice, Deputy Chief Justice and a
24
Senior Judge; and
25
(b) in Chapter 4, means a person holding office as a Judge of the
26
Federal Circuit and Family Court of Australia (Division 2),
27
including the Chief Judge and Deputy Chief Judge.
28
judgment means a judgment, decree or order, whether final or
29
interlocutory, a decision or a sentence, and includes a decree within
30
the meaning of the Family Law Act 1975.
31
living with a person has the meaning given by subsection 94(8).
32
marital or couple relationship has the meaning given by
33
subsection 94(5).
34
Introduction Chapter 1
Definitions Part 2
Section 7
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
13
news publisher means a person engaged in the business of
1
publishing news or a public or community broadcasting service
2
engaged in the publishing of news through a public news medium.
3
non-publication order means an order that prohibits or restricts the
4
publication of information (but that does not otherwise prohibit or
5
restrict the disclosure of information).
6
overarching purpose:
7
(a) of the family law practice and procedure provisions in
8
relation to the Federal Circuit and Family Court of Australia
9
(Division 1), means the overarching purpose set out in
10
subsection 48(1); and
11
(b) of the civil practice and procedure provisions in relation to
12
the Federal Circuit and Family Court of Australia
13
(Division 2), means the overarching purpose set out in
14
subsection 157(1).
15
partner: a person is the partner of another person if the 2 persons
16
have a relationship as a couple (whether the persons are the same
17
sex or different sexes).
18
party to a proceeding, in the context of a decision by the Federal
19
Circuit and Family Court of Australia (Division 2) about whether
20
to make a suppression order or non-publication order, includes the
21
complainant or victim (or alleged victim) in a criminal proceeding
22
and any person named in evidence given in a proceeding and, in
23
relation to a proceeding that has concluded, means a person who
24
was a party to the proceeding before the proceeding concluded.
25
police officer means a member or special member of the Australian
26
Federal Police or a member of the police force or police service of
27
a State or Territory.
28
premises includes a place and a conveyance.
29
prior judicial service, in relation to a retired disabled Judge of the
30
Federal Circuit and Family Court of Australia (Division 2), means
31
service, prior to the Judge's appointment as a Judge of the Court
32
(and in the case of more than one appointment as a Judge of the
33
Chapter 1 Introduction
Part 2 Definitions
Section 7
14
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Court, the Judge's most recent appointment), as one of the
1
following:
2
(a) a Justice or Judge of a federal court;
3
(b) the holder of an office, being an office the holder of which
4
has, by virtue of an Act, the same status as a Justice or Judge
5
of a federal court;
6
(c) a Judge of the Federal Circuit and Family Court of Australia
7
(Division 2);
8
(d) a Judge or acting Judge of a court of a State or Territory;
9
(e) a magistrate of a State or Territory;
10
(f) in the case of a State or Territory office that qualifies the
11
holder of the office for a pension or retiring allowance under
12
a law of the State or Territory relating to pensions or retiring
13
allowances payable to retired Judges--a holder of the office
14
(including an acting holder).
15
proceeding:
16
(a) in relation to a court--means a proceeding in a court,
17
whether between parties or not, and includes an incidental
18
proceeding in the course of, or in connection with, a
19
proceeding, and also includes an appeal; and
20
(b) in relation to a tribunal--means a proceeding in the tribunal,
21
whether between parties or not, and includes an incidental
22
proceeding in the course of, or in connection with, a
23
proceeding.
24
proceedings of a particular type includes:
25
(a) proceedings in relation to a particular matter; and
26
(b) proceedings against a particular person.
27
public authority of the Commonwealth means:
28
(a) a body incorporated, whether before or after the
29
commencement of this definition, for a public purpose by a
30
law of the Commonwealth, being a body corporate
31
employing staff on its own behalf; or
32
(b) an authority or body, not being a body corporate, established,
33
whether before or after the commencement of this definition,
34
for a public purpose by, or in accordance with the provisions
35
Introduction Chapter 1
Definitions Part 2
Section 7
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
15
of, a law of the Commonwealth, being an authority or body
1
employing staff on its own behalf; or
2
(c) an incorporated company over which the Commonwealth, or
3
a body or authority mentioned in paragraph (a) or (b), is in a
4
position to exercise control.
5
publish, in relation to a news publisher, means disseminate or
6
provide access to the public or a section of the public by any
7
means, including by:
8
(a) publication in a book, newspaper, magazine or other written
9
publication; or
10
(b) broadcast by radio or television; or
11
(c) public exhibition; or
12
(d) broadcast or publication by means of the internet.
13
Registrar:
14
(a) in Chapter 3, means a Registrar of the Federal Circuit and
15
Family Court of Australia (Division 1); and
16
(b) in Chapter 4, means a Registrar of the Federal Circuit and
17
Family Court of Australia (Division 2).
18
Registry Manager:
19
(a) in Chapter 3, means a Registry Manager of the Federal
20
Circuit and Family Court of Australia (Division 1); and
21
(b) in Chapter 4, means a Registry Manager of the Federal
22
Circuit and Family Court of Australia (Division 2).
23
relevant belief:
24
(a) in relation to the Federal Circuit and Family Court of
25
Australia (Division 1), has the meaning given by
26
subsection 32(4); and
27
(b) in relation to the Federal Circuit and Family Court of
28
Australia (Division 2), has the meaning given by
29
subsection 113(4).
30
retired disabled Judge of the Federal Circuit and Family Court of
31
Australia (Division 2) means a person certified by the Minister to
32
be a retired disabled Judge under paragraph 90(2)(a).
33
Chapter 1 Introduction
Part 2 Definitions
Section 7
16
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
retires, in relation to a Judge of the Federal Circuit and Family
1
Court of Australia (Division 2), means ceases, otherwise than by
2
death, to hold any office as a Judge.
3
Rules of Court:
4
(a) in relation to the Federal Circuit and Family Court of
5
Australia (Division 1), means Rules of Court made under
6
Chapter 3; and
7
(b) in relation to the Federal Circuit and Family Court of
8
Australia (Division 2), means Rules of Court made under
9
Chapter 4.
10
suppression order means an order that prohibits or restricts the
11
disclosure of information (by publication or otherwise).
12
vexatious proceeding includes:
13
(a) a proceeding that is an abuse of the process of a court or
14
tribunal; and
15
(b) a proceeding instituted in a court or tribunal to harass or
16
annoy, to cause delay or detriment, or for another wrongful
17
purpose; and
18
(c) a proceeding instituted or pursued in a court or tribunal
19
without reasonable ground; and
20
(d) a proceeding conducted in a court or tribunal in a way so as
21
to harass or annoy, cause delay or detriment, or achieve
22
another wrongful purpose.
23
vexatious proceedings order means an order made under
24
subsection 205(2).
25
video link means facilities (for example, closed-circuit television
26
facilities) that enable audio and visual communication between
27
persons in different places.
28
(2) An expression has the same meaning in this Act as it has in the
29
Family Law Act 1975 (other than the expression "this Act").
30
(3) To the extent of any inconsistency between the meaning of an
31
expression defined in this Act and the Family Law Act 1975, the
32
meaning of the expression in this Act prevails.
33
Federal Circuit and Family Court of Australia Chapter 2
Section 8
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
17
Chapter 2--Federal Circuit and Family
1
Court of Australia
2
3
4
8 Federal Circuit and Family Court of Australia
5
(1) The federal court known immediately before 1 January 2019 as the
6
Family Court of Australia is continued in existence as the Federal
7
Circuit and Family Court of Australia (Division 1).
8
(2) The federal court known immediately before 1 January 2019 as the
9
Federal Circuit Court of Australia is continued in existence as the
10
Federal Circuit and Family Court of Australia (Division 2).
11
Note:
The Parliament may create federal courts under Chapter III of the
12
Constitution.
13
9 Federal Circuit and Family Court of Australia (Division 1)
14
(1) The Federal Circuit and Family Court of Australia (Division 1) is:
15
(a) a superior court of record; and
16
(b) a court of law and equity.
17
(2) The Federal Circuit and Family Court of Australia (Division 1)
18
consists of the following:
19
(a) a Chief Justice;
20
(b) a Deputy Chief Justice;
21
(c) such Senior Judges and other Judges as from time to time
22
hold office in accordance with this Act.
23
10 Federal Circuit and Family Court of Australia (Division 2)
24
(1) The Federal Circuit and Family Court of Australia (Division 2) is:
25
(a) a court of record; and
26
(b) a court of law and equity.
27
(2) The Federal Circuit and Family Court of Australia (Division 2)
28
consists of the following:
29
(a) a Chief Judge;
30
Chapter 2 Federal Circuit and Family Court of Australia
Section 10
18
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(b) a Deputy Chief Judge;
1
(c) such other Judges as from time to time hold office in
2
accordance with this Act.
3
Federal Circuit and Family Court of Australia (Division 1) Chapter 3
Constitution Part 1
Constitution Division 1
Section 11
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
19
Chapter 3--Federal Circuit and Family
1
Court of Australia (Division 1)
2
Part 1--Constitution
3
Division 1--Constitution
4
11 Appointment of Judges
5
(1) A Judge is to be appointed by the Governor-General by
6
commission.
7
(2) A person is not to be appointed as a Judge unless:
8
(a) the person is or has been:
9
(i) a Judge of another court created by the Parliament or of
10
a court of a State; or
11
(ii) enrolled as a legal practitioner of the High Court, or the
12
Supreme Court of a State or Territory, for at least 5
13
years; and
14
(b) by reason of training, experience and personality, the person
15
is a suitable person to deal with matters of family law.
16
(3) A person must not be appointed as a Judge if the person has
17
attained the age of 70 years.
18
(4) The appointment of a Judge (including by way of promotion or to
19
another judicial office) is to be for a term expiring upon the Judge
20
attaining the age of 70 years.
21
Note 1:
Section 72 of the Constitution sets out requirements relating to the
22
appointment and tenure of Judges.
23
Note 2:
Division 2 of this Part deals with terms and conditions of appointment.
24
12 Judges to be assigned to particular location
25
(1) The commission of appointment of a Judge must assign the Judge
26
to a particular location. The Judge:
27
Chapter 3 Federal Circuit and Family Court of Australia (Division 1)
Part 1 Constitution
Division 1 Constitution
Section 13
20
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(a) must not sit at another location on a permanent basis unless
1
the Minister and the Chief Justice consent; and
2
(b) cannot be required to sit at another location on a permanent
3
basis unless the Judge consents (in addition to the consents
4
required by paragraph (a)); and
5
(c) may sit at another location on a temporary basis.
6
(2) In deciding whether to consent as mentioned in paragraph (1)(a),
7
the Chief Justice has the same protection and immunity as if the
8
Chief Justice were making that decision as, or as a member of, the
9
Federal Circuit and Family Court of Australia (Division 1).
10
(3) Despite section 39B of the Judiciary Act 1903, the Federal Court
11
does not have jurisdiction with respect to a matter relating to the
12
exercise by the Minister or the Chief Justice of the power to
13
consent as mentioned in paragraph (1)(a).
14
13 Authorised Judges may manage classes of proceedings
15
(1) The Chief Justice may, by written instrument, authorise a Judge to
16
manage such class or classes of proceedings as may be specified:
17
(a) in the instrument; or
18
(b) by the Rules of Court.
19
(2) In managing a class or classes of proceedings, a Judge is subject to
20
any direction from the Chief Justice.
21
(3) The authorisation of a Judge does not affect the rank, title, status
22
and precedence as a Judge that the Judge had immediately before
23
any such authorisation.
24
(4) If a direction under subsection (2) is given in writing, the direction
25
is not a legislative instrument.
26
14 Style
27
Chief Justice
28
(1) The Chief Justice is to be styled "the Honourable Chief Justice
29
(name) of the Federal Circuit and Family Court of Australia
30
(Division 1)".
31
Federal Circuit and Family Court of Australia (Division 1) Chapter 3
Constitution Part 1
Constitution Division 1
Section 15
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
21
Deputy Chief Justice
1
(2) The Deputy Chief Justice is to be styled "the Honourable Deputy
2
Chief Justice (name) of the Federal Circuit and Family Court of
3
Australia (Division 1)".
4
Other Judges
5
(3) A Judge (other than the Chief Justice or Deputy Chief Justice) is to
6
be styled "the Honourable".
7
Former Judges
8
(4) A former Judge is to be styled "the Honourable".
9
15 Seniority
10
(1) The order of seniority of the Judges of the Federal Circuit and
11
Family Court of Australia (Division 1) is as follows:
12
(a) the Chief Justice;
13
(b) the Deputy Chief Justice;
14
(c) Senior Judges, according to the days on which their
15
appointments as Senior Judges took effect;
16
(d) Judges (other than Senior Judges), according to the days on
17
which their appointments as Judges took effect.
18
(2) If 2 or more commissions of appointment as Judge took effect on
19
the same day, those Judges have such seniority in relation to each
20
other as is assigned to them by the Governor-General.
21
16 Oath or affirmation of allegiance and office
22
(1) Before proceeding to discharge the duties of office, a Judge must
23
take:
24
(a) an oath or affirmation of allegiance in the form in the
25
Schedule to the Constitution; and
26
(b) an oath or affirmation in accordance with the form set out in
27
whichever of subsection (3) or (4) is applicable.
28
(2) The oaths or affirmations must be taken before:
29
Chapter 3 Federal Circuit and Family Court of Australia (Division 1)
Part 1 Constitution
Division 1 Constitution
Section 16
22
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(a) the Chief Justice; or
1
(b) a Justice of the High Court; or
2
(c) another Judge of the Federal Circuit and Family Court of
3
Australia (Division 1); or
4
(d) a Judge of another court created by the Parliament.
5
Oath
6
(3) This is the form of oath for the purposes of paragraph (1)(b):
7
I,
, do swear that I will well and truly serve in the office
8
of (Chief Justice, Deputy Chief Justice, Senior Judge or Judge, as
9
the case may be) of the Federal Circuit and Family Court of
10
Australia (Division 1) and that I will do right to all manner of
11
people according to law, without fear or favour, affection or
12
ill-will. So help me God!
13
Affirmation
14
(4) This is the form of affirmation for the purposes of
15
paragraph (1)(b):
16
I,
, do solemnly and sincerely promise and declare that I
17
will well and truly serve in the office of (Chief Justice, Deputy
18
Chief Justice, Senior Judge or Judge, as the case may be) of the
19
Federal Circuit and Family Court of Australia (Division 1) and that
20
I will do right to all manner of people according to law without
21
fear or favour, affection or ill-will.
22
Federal Circuit and Family Court of Australia (Division 1) Chapter 3
Constitution Part 1
Terms and conditions of judges Division 2
Section 17
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
23
Division 2--Terms and conditions of judges
1
17 Remuneration
2
(1) A Judge is to be paid such remuneration as is determined by the
3
Remuneration Tribunal.
4
(2) Subsection (1) has effect subject to the Remuneration Tribunal Act
5
1973.
6
(3) In this section:
7
remuneration has the same meaning as in Part II of the
8
Remuneration Tribunal Act 1973.
9
Note 1:
A Judge's remuneration may not be diminished during the Judge's
10
continuance in office: see paragraph 72(iii) of the Constitution.
11
Note 2:
Subsection 3(2) of the Remuneration Tribunal Act 1973 provides that
12
a reference in Part II of that Act to remuneration is to be read as
13
including a reference to annual allowances.
14
Note 3:
Under subsection 7(4) of the Remuneration Tribunal Act 1973, the
15
Remuneration Tribunal may determine any matter significantly related
16
to the remuneration of Judges.
17
18 Resignation from office
18
(1) A Judge may resign office by delivering a written resignation to
19
the Governor-General.
20
(2) The resignation takes effect on the day it is received by the
21
Governor-General or, if a later day is specified in the resignation,
22
on that later day.
23
19 Removal from office
24
A Judge must not be removed from office except by the
25
Governor-General, on an address from both Houses of the
26
Parliament in the same session, praying for the Judge's removal on
27
the ground of proved misbehaviour or incapacity.
28
Chapter 3 Federal Circuit and Family Court of Australia (Division 1)
Part 1 Constitution
Division 3 Judges of 2 or more courts
Section 20
24
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Division 3--Judges of 2 or more courts
1
20 Dual appointments
2
Chief Justice
3
(1) Nothing in this Act prevents the Chief Justice of the Federal
4
Circuit and Family Court of Australia (Division 1) from being
5
appointed to, and holding at the same time, the office of Chief
6
Judge of the Federal Circuit and Family Court of Australia
7
(Division 2).
8
Deputy Chief Justice
9
(2) Nothing in this Act prevents the Deputy Chief Justice of the
10
Federal Circuit and Family Court of Australia (Division 1) from
11
being appointed to, and holding at the same time, the office of
12
Deputy Chief Judge of the Federal Circuit and Family Court of
13
Australia (Division 2).
14
21 Judge also holding office of a prescribed court
15
(1) Despite any provision of any other Act, a person may hold office at
16
the one time as:
17
(a) a Judge of the Federal Circuit and Family Court of Australia
18
(Division 1); and
19
(b) a Judge of a prescribed court or of 2 or more prescribed
20
courts.
21
(2) In this section:
22
prescribed court means:
23
(a) a court (other than the Federal Circuit and Family Court of
24
Australia (Division 1)) created by the Parliament; or
25
(b) the Supreme Court of the Northern Territory.
26
Federal Circuit and Family Court of Australia (Division 1) Chapter 3
Constitution Part 1
Judges of 2 or more courts Division 3
Section 22
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
25
22 Judge also holding office of a State Family Court
1
If a person who holds office as a Judge of the Federal Circuit and
2
Family Court of Australia (Division 1) is appointed or serves as a
3
Judge of a Family Court of a State, the appointment or service does
4
not affect:
5
(a) the person's tenure of office of Judge of the Federal Circuit
6
and Family Court of Australia (Division 1); or
7
(b) the person's rank, title, status, precedence, salary or annual
8
allowance, or other rights or privileges, as the holder of the
9
office of Judge of the Federal Circuit and Family Court of
10
Australia (Division 1);
11
and, for all purposes, the person's service as a Judge of the Family
12
Court of that State is taken to be service as the holder of the office
13
of Judge of the Federal Circuit and Family Court of Australia
14
(Division 1).
15
Chapter 3 Federal Circuit and Family Court of Australia (Division 1)
Part 1 Constitution
Division 4 Acting Chief Justice
Section 23
26
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Division 4--Acting Chief Justice
1
23 Acting Chief Justice
2
(1) The Deputy Chief Justice may act as Chief Justice:
3
(a) during a vacancy in the office of Chief Justice (whether or
4
not an appointment has previously been made to the office);
5
or
6
(b) during any period, or during all periods, when the Chief
7
Justice:
8
(i) is absent from duty or from Australia; or
9
(ii) is, for any reason, unable to perform the duties of the
10
office.
11
Note:
For rules that apply to acting appointments, see sections 33AB and
12
33A of the Acts Interpretation Act 1901.
13
(2) The Minister may, by written instrument, appoint a Judge to act as
14
the Chief Justice:
15
(a) during a vacancy in the offices of Chief Justice and Deputy
16
Chief Justice (whether or not an appointment has previously
17
been made to either office); or
18
(b) during any period, or all periods, when both the Chief Justice
19
and Deputy Chief Justice are unavailable because:
20
(i) either or both Justices are absent from duty; or
21
(ii) either or both Justices are absent from Australia; or
22
(iii) either or both Justices are, for any reason, unable to
23
perform the duties of the office.
24
Note:
For rules that apply to acting appointments, see sections 33AB and
25
33A of the Acts Interpretation Act 1901.
26
(3) A person who is acting as Chief Justice is to be called Acting Chief
27
Justice of the Federal Circuit and Family Court of Australia
28
(Division 1).
29
Federal Circuit and Family Court of Australia (Division 1) Chapter 3
Jurisdiction Part 2
Original jurisdiction Division 1
Section 24
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
27
Part 2--Jurisdiction
1
Division 1--Original jurisdiction
2
24 Original jurisdiction
3
(1) The Federal Circuit and Family Court of Australia (Division 1) has
4
original jurisdiction:
5
(a) with respect to matters in respect of which proceedings may
6
be instituted under the Family Law Act 1975; or
7
(b) with respect to matters arising under the Marriage Act 1961
8
in respect of which proceedings (other than proceedings
9
under Part VII of that Act) are instituted under that Act; or
10
(c) with respect to matters arising under a law of a Territory
11
(other than the Northern Territory) concerning:
12
(i) the adoption of children; or
13
(ii) the property of the parties to a marriage or either of
14
them, being matters between those parties referred to in
15
the definition of matrimonial cause in the Family Law
16
Act 1975; or
17
(iii) the rights and status of a person who is an ex-nuptial
18
child, and the relationship of such a person to the
19
person's parents; or
20
(d) as is conferred on the Court, or in respect of which
21
proceedings may be instituted in the Court, by any other Act.
22
(2) Subject to such restrictions and conditions (if any) in:
23
(a) section 111AA of the Family Law Act 1975; or
24
(b) regulations made under that Act; or
25
(c) the Rules of Court made under this Chapter;
26
the jurisdiction of the Federal Circuit and Family Court of
27
Australia (Division 1) may be exercised in relation to persons or
28
things outside Australia.
29
Note:
Division 4 of Part XIIIAA of the Family Law Act 1975 (international
30
protection of children) may affect the jurisdiction of the Federal
31
Circuit and Family Court of Australia (Division 1).
32
Chapter 3 Federal Circuit and Family Court of Australia (Division 1)
Part 2 Jurisdiction
Division 2 Appellate jurisdiction
Section 25
28
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Division 2--Appellate jurisdiction
1
25 Appeals from courts of summary jurisdiction in relation to family
2
law or child support matters
3
(1) The Federal Circuit and Family Court of Australia (Division 1) has
4
jurisdiction to hear and determine appeals from:
5
(a) a judgment of a court of summary jurisdiction of a State or
6
Territory exercising jurisdiction under the Family Law Act
7
1975; or
8
(b) a judgment of a court of summary jurisdiction of a State or
9
Territory exercising jurisdiction under the Child Support
10
(Assessment) Act 1989 or the Child Support (Registration
11
and Collection) Act 1988.
12
Note 1:
For the definition of court of summary jurisdiction, see section 2B of
13
the Acts Interpretation Act 1901.
14
Note 2:
See section 47A of the Family Law Act 1975.
15
(2) For the purposes of subsection (1), a Family Court of a State is not
16
a court of summary jurisdiction.
17
Federal Circuit and Family Court of Australia (Division 1) Chapter 3
Jurisdiction Part 2
Associated matters Division 3
Section 26
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
29
Division 3--Associated matters
1
26 Jurisdiction in associated matters
2
To the extent that the Constitution permits, jurisdiction is conferred
3
on the Federal Circuit and Family Court of Australia (Division 1)
4
in respect of matters not otherwise within its jurisdiction that are
5
associated with matters in which the jurisdiction of the Federal
6
Circuit and Family Court of Australia (Division 1) is invoked.
7
Chapter 3 Federal Circuit and Family Court of Australia (Division 1)
Part 2 Jurisdiction
Division 4 Exercise of jurisdiction
Section 27
30
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Division 4--Exercise of jurisdiction
1
27 Exercise of jurisdiction
2
(1) The jurisdiction of the Federal Circuit and Family Court of
3
Australia (Division 1), including its appellate jurisdiction, is to be
4
exercised by the Court constituted by a single Judge.
5
(2) In a matter before, or coming before, the Federal Circuit and
6
Family Court of Australia (Division 1), a Judge may give
7
directions under subsection 50(1).
8
28 Determination of matter completely and finally
9
In every matter before the Federal Circuit and Family Court of
10
Australia (Division 1), the Court must grant, either:
11
(a) absolutely; or
12
(b) on such terms and conditions as the Court thinks just;
13
all remedies to which any of the parties appears to be entitled in
14
respect of a legal or equitable claim properly brought forward by a
15
party in the matter, so that, as far as possible:
16
(c) all matters in controversy between the parties may be
17
completely and finally determined; and
18
(d) all multiplicity of proceedings concerning any of those
19
matters may be avoided.
20
Federal Circuit and Family Court of Australia (Division 1) Chapter 3
Jurisdiction Part 2
Certain powers relating to matters of jurisdiction Division 5
Section 29
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
31
Division 5--Certain powers relating to matters of
1
jurisdiction
2
29 Making of orders and issuing writs
3
The Federal Circuit and Family Court of Australia (Division 1) has
4
power, in relation to matters in which it has jurisdiction, to:
5
(a) make orders of such kinds as the Court considers appropriate;
6
or
7
(b) issue, or direct the issue of, writs of such kinds as the Court
8
considers appropriate.
9
30 Contempt of court
10
(1) The Federal Circuit and Family Court of Australia (Division 1) has
11
the same power to punish contempts of its power and authority as
12
is possessed by the High Court in respect of contempts of the High
13
Court.
14
(2) The jurisdiction of the Federal Circuit and Family Court of
15
Australia (Division 1) to punish a contempt of the Court committed
16
in the face or hearing of the Court may be exercised by the Court
17
as constituted at the time of the contempt.
18
Note:
See also section 112AP of the Family Law Act 1975, which deals with
19
family law or child support proceedings.
20
Chapter 3 Federal Circuit and Family Court of Australia (Division 1)
Part 2 Jurisdiction
Division 6 Administration
Section 31
32
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Division 6--Administration
1
31 Arrangement of business
2
(1) The Chief Justice is responsible for ensuring the effective, orderly
3
and expeditious discharge of the business of the Federal Circuit
4
and Family Court of Australia (Division 1).
5
(2) In discharging the Chief Justice's responsibility, the Chief Justice:
6
(a) must promote the objects of this Act; and
7
(b) may, subject to this Chapter and to such consultation with
8
Judges of the Federal Circuit and Family Court of Australia
9
(Division 1) as is appropriate and practicable, do all or any of
10
the following:
11
(i) make arrangements as to the Judge who is to constitute
12
the Court in particular matters or classes of matters;
13
(ii) without limiting the generality of subparagraph (i)--
14
assign particular caseloads, classes of cases or functions
15
to particular Judges;
16
(iii) temporarily restrict a Judge to non-sitting duties; and
17
(c) must ensure that arrangements are in place to provide Judges
18
with appropriate access to (or reimbursement for the cost of):
19
(i) annual health assessments; and
20
(ii) short-term counselling services; and
21
(iii) judicial education; and
22
(d) may deal, as set out in section 32, with a complaint about the
23
performance by another Judge of the Judge's judicial or
24
official duties; and
25
(e) may take any measures that the Chief Justice believes are
26
reasonably necessary to maintain public confidence in the
27
Federal Circuit and Family Court of Australia (Division 1),
28
including, but not limited to, temporarily restricting another
29
Judge to non-sitting duties.
30
(3) The Deputy Chief Justice is to assist the Chief Justice in the
31
exercise of the functions conferred on the Chief Justice by this
32
section (other than paragraph (2)(d) or (e)).
33
Federal Circuit and Family Court of Australia (Division 1) Chapter 3
Jurisdiction Part 2
Administration Division 6
Section 32
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
33
32 Complaints
1
(1) The Chief Justice may, if a complaint is made about another Judge
2
of the Federal Circuit and Family Court of Australia (Division 1),
3
deal with the complaint by doing either or both of the following in
4
respect of the complaint:
5
(a) deciding whether or not to handle the complaint and then
6
doing one of the following:
7
(i) dismissing the complaint;
8
(ii) handling the complaint if the Chief Justice has a
9
relevant belief in relation to the complaint about the
10
other Judge;
11
(iii) arranging for any other complaint handlers to assist the
12
Chief Justice to handle the complaint if the Chief Justice
13
has a relevant belief in relation to the complaint about
14
the other Judge;
15
(b) arranging for any other complaint handlers to decide whether
16
or not to handle the complaint and then to do one of the
17
following:
18
(i) dismiss the complaint;
19
(ii) handle the complaint if each of the complaint handlers
20
has a relevant belief in relation to the complaint about
21
the other Judge.
22
Note:
A complaint handler (other than the Chief Justice) may handle a
23
complaint by referring it to the Chief Justice. The Chief Justice may
24
then do either or both of the things referred to in paragraph (a) or (b)
25
in respect of the complaint.
26
(2) The Chief Justice may authorise, in writing, a person or a body to
27
do one or more of the following:
28
(a) assist the Chief Justice to handle complaints or a specified
29
complaint;
30
(b) decide whether or not to handle complaints or a specified
31
complaint;
32
(c) dismiss complaints or a specified complaint;
33
(d) handle complaints or a specified complaint.
34
(3) To avoid doubt, the Chief Justice may authorise under
35
subsection (2):
36
Chapter 3 Federal Circuit and Family Court of Australia (Division 1)
Part 2 Jurisdiction
Division 6 Administration
Section 33
34
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(a) the Deputy Chief Justice; or
1
(b) a body that includes the Deputy Chief Justice.
2
(4) In this section:
3
relevant belief: a person has a relevant belief in relation to a
4
complaint about a Judge if:
5
(a) the person believes that one or more of the circumstances that
6
gave rise to the complaint may, if substantiated, justify
7
consideration of the removal of the Judge in accordance with
8
paragraph 72(ii) of the Constitution; or
9
(b) the person believes that one or more of the circumstances that
10
gave rise to the complaint may, if substantiated:
11
(i) adversely affect, or have adversely affected, the
12
performance of judicial or official duties by the Judge;
13
or
14
(ii) have the capacity to adversely affect, or have adversely
15
affected, the reputation of the Federal Circuit and
16
Family Court of Australia (Division 1).
17
33 Protection for the Chief Justice and Deputy Chief Justice
18
(1) In exercising the functions or powers mentioned in
19
paragraph 31(2)(b), the Chief Justice has the same protection and
20
immunity as if the Chief Justice were exercising those functions or
21
powers as, or as a member of, the Federal Circuit and Family Court
22
of Australia (Division 1).
23
Note:
See also section 78.
24
(2) In assisting in the exercise of the functions or powers mentioned in
25
paragraph 31(2)(b), the Deputy Chief Justice has the same
26
protection and immunity as if the Deputy Chief Justice were
27
exercising those functions or powers as, or as a member of, the
28
Federal Circuit and Family Court of Australia (Division 1).
29
Note:
See also section 78.
30
(3) Despite section 39B of the Judiciary Act 1903, the Federal Court
31
does not have jurisdiction with respect to a matter relating to:
32
Federal Circuit and Family Court of Australia (Division 1) Chapter 3
Jurisdiction Part 2
Administration Division 6
Section 33
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
35
(a) the exercise by the Chief Justice of the functions or powers
1
mentioned in subsection 31(2) or section 32; or
2
(b) the assisting in the exercise by the Deputy Chief Justice of
3
the functions or powers mentioned in subsection 31(2) or
4
section 32.
5
Functions and powers of the Chief Justice
6
(4) In addition to the functions and powers conferred on the Chief
7
Justice by this Chapter, the Chief Justice has such other functions
8
and powers in relation to the Federal Circuit and Family Court of
9
Australia (Division 1) as are specified in the regulations.
10
Chapter 3 Federal Circuit and Family Court of Australia (Division 1)
Part 3 Transfer of proceedings
Section 34
36
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Part 3--Transfer of proceedings
1
2
34 Discretionary transfer of proceedings to the Federal Circuit and
3
Family Court of Australia (Division 2)
4
(1) If a proceeding is pending in the Federal Circuit and Family Court
5
of Australia (Division 1), the Court may, by order, transfer the
6
proceeding from the Court to the Federal Circuit and Family Court
7
of Australia (Division 2).
8
(2) The Federal Circuit and Family Court of Australia (Division 1)
9
may transfer a proceeding:
10
(a) on the application of a party to the proceeding; or
11
(b) on its own initiative.
12
(3) In deciding whether to transfer a proceeding to the Federal Circuit
13
and Family Court of Australia (Division 2), the Federal Circuit and
14
Family Court of Australia (Division 1) must have regard to:
15
(a) any Rules of Court made for the purposes of
16
subsection 35(2); and
17
(b) whether proceedings in respect of an associated matter are
18
pending in the Federal Circuit and Family Court of Australia
19
(Division 2); and
20
(c) whether the resources of the Federal Circuit and Family
21
Court of Australia (Division 1) are sufficient to hear and
22
determine the proceeding; and
23
(d) the interests of the administration of justice.
24
(4) If an order is made under subsection (1), the order takes effect on
25
the day that the order is approved by the Chief Judge of the Federal
26
Circuit and Family Court of Australia (Division 2) under
27
subsection (5).
28
(5) The Chief Judge of the Federal Circuit and Family Court of
29
Australia (Division 2) may approve, in writing, an order made
30
under subsection (1). In deciding whether to approve the order, the
31
Chief Judge must have regard to any Rules of Court made for the
32
purposes of subsection 35(2).
33
Federal Circuit and Family Court of Australia (Division 1) Chapter 3
Transfer of proceedings Part 3
Section 35
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
37
(6) The Federal Circuit and Family Court of Australia (Division 1)
1
may make such orders as it considers necessary pending written
2
approval being given by the Chief Judge of the Federal Circuit and
3
Family Court of Australia (Division 2).
4
(7) An appeal does not lie from a decision of the Federal Circuit and
5
Family Court of Australia (Division 1) in relation to the transfer of
6
a proceeding under this section.
7
(8) The following provisions have effect in relation to a decision by
8
the Chief Judge of the Federal Circuit and Family Court of
9
Australia (Division 2) to give, or refuse to give, an approval under
10
subsection (5):
11
(a) the Administrative Decisions (Judicial Review) Act 1977 does
12
not apply to the decision;
13
(b) despite section 39B of the Judiciary Act 1903, the Federal
14
Court does not have jurisdiction with respect to a matter
15
relating to the decision.
16
(9) An approval given under subsection (5) is not a legislative
17
instrument.
18
(10) This section does not apply to proceedings of a kind specified in
19
the regulations.
20
35 Rules of Court
21
(1) The Rules of Court may make provision in relation to transfers of
22
proceedings to the Federal Circuit and Family Court of Australia
23
(Division 2) under subsection 34(1), including in relation to the
24
scale of costs that applies to any order made in respect of
25
proceedings that are transferred.
26
(2) In particular, the Rules of Court may specify matters to which the
27
Federal Circuit and Family Court of Australia (Division 1) must
28
have regard in deciding whether to transfer a proceeding to the
29
Federal Circuit and Family Court of Australia (Division 2) under
30
subsection 34(1).
31
(3) Before Rules of Court are made for the purposes of this section, the
32
Chief Justice of the Federal Circuit and Family Court of Australia
33
Chapter 3 Federal Circuit and Family Court of Australia (Division 1)
Part 3 Transfer of proceedings
Section 36
38
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(Division 1) must consult the Chief Judge of the Federal Circuit
1
and Family Court of Australia (Division 2).
2
36 Delegation
3
The Chief Justice may, in writing, delegate the Chief Justice's
4
power under subsection 117(5) to any one or more of the Judges.
5
Note:
Section 117 allows the Federal Circuit and Family Court of Australia
6
(Division 2) to order the transfer of proceedings to the Federal Circuit
7
and Family Court of Australia (Division 1), subject to the approval of
8
the Chief Justice.
9
Federal Circuit and Family Court of Australia (Division 1) Chapter 3
Appeals Part 4
Section 37
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
39
Part 4--Appeals
1
2
37 Appeals to the High Court may not be brought
3
(1) An appeal must not be brought directly to the High Court from a
4
judgment of the Federal Circuit and Family Court of Australia
5
(Division 1).
6
(2) If, apart from this subsection, subsection (1) is to any extent
7
inconsistent with section 73 of the Constitution, this Act has effect
8
as if the words ", except by special leave of the High Court" were
9
added at the end of subsection (1).
10
Chapter 3 Federal Circuit and Family Court of Australia (Division 1)
Part 5 Practice and procedure
Division 1 General
Section 38
40
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Part 5--Practice and procedure
1
Division 1--General
2
38 Practice and procedure
3
(1) Subject to this Chapter and the Family Law Act 1975, the practice
4
and procedure of the Federal Circuit and Family Court of Australia
5
(Division 1) is to be in accordance with:
6
(a) regulations made under this Act and the Family Law Act
7
1975; and
8
(b) the Rules of Court.
9
(2) To the extent that the provisions mentioned in subsection (1) are
10
insufficient, the Rules of the High Court apply, mutatis mutandis,
11
so far as they are capable of applying and subject to any directions
12
of the Federal Circuit and Family Court of Australia (Division 1)
13
or a Judge, to the practice and procedure of the Federal Circuit and
14
Family Court of Australia (Division 1).
15
(3) This section does not apply in relation to proceedings that are
16
transferred to the Federal Circuit and Family Court of Australia
17
(Division 1) from the Federal Court.
18
(4) In this section, practice and procedure includes all matters with
19
respect to which regulations under this Act, the Family Law Act
20
1975 or Rules of Court may be made.
21
Note:
For further provisions concerning procedure and evidence, see Part XI
22
of the Family Law Act 1975.
23
39 Representation
24
A party to a proceeding before the Federal Circuit and Family
25
Court of Australia (Division 1) is not entitled to be represented by
26
another person unless:
27
(a) under the Judiciary Act 1903, the other person is entitled to
28
practise as a barrister or solicitor, or both, in a federal court;
29
or
30
Federal Circuit and Family Court of Australia (Division 1) Chapter 3
Practice and procedure Part 5
General Division 1
Section 39
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
41
(b) under the regulations, the other person is taken to be an
1
authorised representative; or
2
(c) another law of the Commonwealth authorises the other
3
person to represent the party.
4
Chapter 3 Federal Circuit and Family Court of Australia (Division 1)
Part 5 Practice and procedure
Division 2 Documents filed in the Federal Circuit and Family Court of Australia
(Division 1)
Section 40
42
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Division 2--Documents filed in the Federal Circuit and
1
Family Court of Australia (Division 1)
2
40 Filing of documents in the Federal Circuit and Family Court of
3
Australia (Division 1)
4
(1) If a document is required or permitted to be filed in the Federal
5
Circuit and Family Court of Australia (Division 1):
6
(a) the document is to be filed:
7
(i) at a registry of the Court; or
8
(ii) in accordance with an arrangement under section 58 or
9
59; and
10
(b) the document is to be filed in accordance with the Rules of
11
Court.
12
(2) The Rules of Court may provide that the requirements of
13
subsection (1) are taken to have been met in relation to a
14
document:
15
(a) if the document, or its contents, are sent to the Federal Circuit
16
and Family Court of Australia (Division 1), using the web
17
portal of the Federal Circuit and Family Court of Australia;
18
or
19
(b) in other circumstances set out in the Rules of Court.
20
41 Seal of the Federal Circuit and Family Court of Australia
21
(Division 1)
22
(1) The Federal Circuit and Family Court of Australia (Division 1) is
23
to have a seal, and the design of the seal is to be determined by the
24
Minister.
25
(2) The seal of the Federal Circuit and Family Court of Australia
26
(Division 1) must be kept in such custody as the Chief Justice
27
directs.
28
(3) The seal of the Federal Circuit and Family Court of Australia
29
(Division 1) must be affixed to documents as provided by this or
30
any other Act or by the Rules of Court.
31
Federal Circuit and Family Court of Australia (Division 1) Chapter 3
Practice and procedure Part 5
Documents filed in the Federal Circuit and Family Court of Australia (Division 1)
Division 2
Section 42
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
43
42 Federal Circuit and Family Court of Australia (Division 1)
1
stamps
2
(1) There are to be one or more Federal Circuit and Family Court of
3
Australia (Division 1) stamps. For this purpose, a Federal Circuit
4
and Family Court of Australia (Division 1) stamp is a stamp the
5
design of which is, as nearly as practicable, the same as the design
6
of the seal of the Federal Circuit and Family Court of Australia
7
(Division 1).
8
(2) A document or a copy of a document marked with a Federal
9
Circuit and Family Court of Australia (Division 1) stamp is as
10
valid and effectual as if it had been sealed with a seal of the
11
Federal Circuit and Family Court of Australia (Division 1).
12
(3) A Federal Circuit and Family Court of Australia (Division 1) stamp
13
must be affixed to documents as provided by this or any other Act
14
or by the Rules of Court.
15
43 Writs etc.
16
(1) All writs, commissions and process issued from the Federal Circuit
17
and Family Court of Australia (Division 1) must be:
18
(a) under the seal of the Court; and
19
(b) signed (including by way of electronic signature) by:
20
(i) a Judge; or
21
(ii) the Chief Executive Officer; or
22
(iii) a Registrar; or
23
(iv) a Deputy Registrar; or
24
(v) an officer acting with the authority of the Chief
25
Executive Officer.
26
(2) Subsection (1) does not apply to writs, commissions and process
27
signed and issued in accordance with an arrangement under
28
section 58.
29
Note:
See paragraph 58(1)(b).
30
(3) To avoid doubt, subsection (1) does not apply to an order of the
31
Federal Circuit and Family Court of Australia (Division 1).
32
Chapter 3 Federal Circuit and Family Court of Australia (Division 1)
Part 5 Practice and procedure
Division 2 Documents filed in the Federal Circuit and Family Court of Australia
(Division 1)
Section 44
44
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
44 Proceedings may be instituted by application
1
(1) Proceedings may be instituted in the Federal Circuit and Family
2
Court of Australia (Division 1) by way of application without the
3
need for pleadings.
4
(2) Subsection (1) has effect subject to the Rules of Court.
5
45 Limits on length of documents
6
(1) The Federal Circuit and Family Court of Australia (Division 1) or a
7
Judge may give directions about limiting the length of documents
8
required or permitted to be filed in the Court.
9
(2) Subsection (1) has effect subject to the Rules of Court.
10
Federal Circuit and Family Court of Australia (Division 1) Chapter 3
Practice and procedure Part 5
Conduct of proceedings Division 3
Section 46
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
45
Division 3--Conduct of proceedings
1
46 Place of sitting
2
Sittings of the Federal Circuit and Family Court of Australia
3
(Division 1) must be held from time to time as required and the
4
Court may sit at any place in Australia.
5
47 Change of venue
6
The Federal Circuit and Family Court of Australia (Division 1) or a
7
Judge may, at any stage of a proceeding in the Court, order that the
8
proceeding, or a part of the proceeding, be conducted or continued
9
at a place specified in the order, subject to such conditions (if any)
10
as the Court or Judge imposes.
11
47A Formal defects not to invalidate
12
(1) Proceedings in the Federal Circuit and Family Court of Australia
13
(Division 1) are not invalidated by a formal defect or an
14
irregularity, unless the Court is of the opinion that:
15
(a) substantial injustice has been caused by the defect or
16
irregularity; and
17
(b) the injustice cannot be remedied by an order of the Court.
18
(2) The Federal Circuit and Family Court of Australia (Division 1) or a
19
Judge may, on such conditions (if any) as the Court or Judge thinks
20
fit, make an order declaring that the proceeding is not invalid:
21
(a) by reason of a defect that it or the Judge considers to be
22
formal; or
23
(b) by reason of an irregularity.
24
Chapter 3 Federal Circuit and Family Court of Australia (Division 1)
Part 5 Practice and procedure
Division 4 Case management
Section 48
46
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Division 4--Case management
1
48 Overarching purpose of family law practice and procedure
2
provisions
3
(1) The overarching purpose of the family law practice and procedure
4
provisions is to facilitate the just resolution of disputes:
5
(a) according to law; and
6
(b) as quickly, inexpensively and efficiently as possible.
7
Note 1:
See also paragraphs 5(a) and (b).
8
Note 2:
The Federal Circuit and Family Court of Australia (Division 1) must
9
give effect to principles in the Family Law Act 1975 when exercising
10
jurisdiction in relation to proceedings under that Act.
11
(2) Without limiting subsection (1), the overarching purpose includes
12
the following objectives:
13
(a) the just determination of all proceedings before the Federal
14
Circuit and Family Court of Australia (Division 1);
15
(b) the efficient use of the judicial and administrative resources
16
available for the purposes of the Court;
17
(c) the efficient disposal of the Court's overall caseload;
18
(d) the disposal of all proceedings in a timely manner;
19
(e) the resolution of disputes at a cost that is proportionate to the
20
importance and complexity of the matters in dispute.
21
(3) The family law practice and procedure provisions must be
22
interpreted and applied, and any power conferred or duty imposed
23
by them (including the power to make Rules of Court) must be
24
exercised or carried out, in the way that best promotes the
25
overarching purpose.
26
(4) The family law practice and procedure provisions are the
27
following, so far as they apply in relation to civil proceedings:
28
(a) the Rules of Court;
29
(b) any other provision made by or under this Act, or any other
30
Act, with respect to the practice and procedure of the Federal
31
Circuit and Family Court of Australia (Division 1).
32
Federal Circuit and Family Court of Australia (Division 1) Chapter 3
Practice and procedure Part 5
Case management Division 4
Section 49
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
47
49 Parties to act consistently with the overarching purpose
1
(1) The parties to a civil proceeding before the Federal Circuit and
2
Family Court of Australia (Division 1) must conduct the
3
proceeding (including negotiations for settlement of the dispute to
4
which the proceeding relates) in a way that is consistent with the
5
overarching purpose.
6
(2) A party's lawyer must, in the conduct of a civil proceeding before
7
the Federal Circuit and Family Court of Australia (Division 1)
8
(including negotiations for settlement) on the party's behalf:
9
(a) take account of the duty imposed on the party by
10
subsection (1); and
11
(b) assist the party to comply with the duty.
12
(3) The Federal Circuit and Family Court of Australia (Division 1) or a
13
Judge may, for the purpose of enabling a party to comply with the
14
duty imposed by subsection (1), require the party's lawyer to give
15
the party an estimate of:
16
(a) the likely duration of the proceeding or part of the
17
proceeding; and
18
(b) the likely amount of costs that the party will have to pay in
19
connection with the proceeding or part of the proceeding,
20
including:
21
(i) the costs that the lawyer will charge to the party; and
22
(ii) any other costs that the party will have to pay in the
23
event that the party is unsuccessful in the proceeding or
24
part of the proceeding.
25
Note:
Paragraph (b)--the Federal Circuit and Family Court of Australia
26
(Division 1) may make an order as to costs under section 117 of the
27
Family Law Act 1975 if the Court is of the opinion that there are
28
circumstances that justify it in doing so.
29
(4) In exercising the discretion to award costs in a civil proceeding, the
30
Federal Circuit and Family Court of Australia (Division 1) or a
31
Judge must take account of any failure to comply with the duty
32
imposed by subsection (1) or (2).
33
Chapter 3 Federal Circuit and Family Court of Australia (Division 1)
Part 5 Practice and procedure
Division 4 Case management
Section 50
48
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(5) Without limiting the exercise of that discretion, the Federal Circuit
1
and Family Court of Australia (Division 1) or a Judge may order a
2
party's lawyer to bear costs personally.
3
(6) If the Federal Circuit and Family Court of Australia (Division 1) or
4
a Judge orders a lawyer to bear costs personally because of a
5
failure to comply with the duty imposed by subsection (2), the
6
lawyer must not recover the costs from the lawyer's client.
7
50 Power of the Federal Circuit and Family Court of Australia
8
(Division 1) to give directions about practice and
9
procedure in a civil proceeding
10
(1) The Federal Circuit and Family Court of Australia (Division 1) or a
11
Judge may give directions about the practice and procedure to be
12
followed in relation to a civil proceeding, or any part of a civil
13
proceeding, before the Court.
14
(2) Without limiting subsection (1), a direction may:
15
(a) require things to be done; or
16
(b) set time limits for the doing of anything, or the completion of
17
any part of the proceeding; or
18
(c) limit the number of witnesses who may be called to give
19
evidence, or the number of documents that may be tendered
20
in evidence; or
21
(d) provide for submissions to be made in writing; or
22
(e) limit the length of submissions (whether written or oral); or
23
(f) waive or vary any provision of the Rules of Court in their
24
application to the proceeding; or
25
(g) revoke or vary an earlier direction.
26
(3) If a party fails to comply with a direction given by the Federal
27
Circuit and Family Court of Australia (Division 1) or a Judge
28
under subsection (1), the Court or Judge may make such order or
29
direction as the Court or Judge thinks appropriate.
30
(4) In particular, the Federal Circuit and Family Court of Australia
31
(Division 1) or Judge may do any of the following:
32
(a) dismiss the proceeding in whole or in part;
33
Federal Circuit and Family Court of Australia (Division 1) Chapter 3
Practice and procedure Part 5
Case management Division 4
Section 51
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
49
(b) strike out, amend or limit any part of a party's claim or
1
defence;
2
(c) disallow or reject any evidence;
3
(d) award costs against a party;
4
(e) order that costs awarded against a party are to be assessed on
5
an indemnity basis or otherwise.
6
(5) Subsections (3) and (4) do not affect any power that the Federal
7
Circuit and Family Court of Australia (Division 1) or a Judge has
8
apart from those subsections to deal with a party's failure to
9
comply with a direction.
10
Note:
The Federal Circuit and Family Court of Australia (Division 1) or a
11
Judge may also make orders under the Family Law Act 1975.
12
51 Chief Justice to achieve common approaches to case management
13
with the Federal Circuit and Family Court of Australia
14
(Division 2)
15
For the purposes of ensuring the efficient resolution of family law
16
or child support proceedings, the Chief Justice must work
17
cooperatively with the Chief Judge with the aim of ensuring
18
common approaches to case management.
19
Chapter 3 Federal Circuit and Family Court of Australia (Division 1)
Part 5 Practice and procedure
Division 5 Evidence
Section 52
50
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Division 5--Evidence
1
52 Oaths and affirmations
2
(1) A Judge may require and administer all necessary oaths and
3
affirmations for the purposes of the Federal Circuit and Family
4
Court of Australia (Division 1).
5
(2) A Judge may cause to be administered all necessary oaths and
6
affirmations for the purposes of the Federal Circuit and Family
7
Court of Australia (Division 1). For this purpose, the Court may,
8
either orally or in writing, authorise any person (whether in or
9
outside Australia) to administer oaths and affirmations.
10
(3) The Chief Executive Officer may, in writing, authorise:
11
(a) a Registrar or Deputy Registrar; or
12
(b) a staff member of the Federal Circuit and Family Court of
13
Australia (Division 1);
14
to administer oaths and affirmations for the purposes of the Court.
15
Note:
See also paragraph 58(1)(d).
16
53 Swearing of affidavits etc.
17
(1) An affidavit to be used in a proceeding in the Federal Circuit and
18
Family Court of Australia (Division 1) may be sworn or affirmed
19
in Australia before:
20
(a) a Judge; or
21
(b) the Chief Executive Officer; or
22
(c) a Registrar; or
23
(d) a Deputy Registrar; or
24
(e) a justice of the peace; or
25
(f) a commissioner for affidavits; or
26
(g) a commissioner for declarations; or
27
(h) a person who is authorised to administer oaths or affirmations
28
for the purposes of:
29
(i) the High Court; or
30
(ii) the Federal Court; or
31
Federal Circuit and Family Court of Australia (Division 1) Chapter 3
Practice and procedure Part 5
Evidence Division 5
Section 53
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
51
(iii) the Federal Circuit and Family Court of Australia; or
1
(iv) the Supreme Court of a State or Territory; or
2
(i) a person before whom affidavits can be sworn or affirmed
3
under the Evidence Act 1995.
4
(2) An affidavit to be used in a proceeding in the Federal Circuit and
5
Family Court of Australia (Division 1) may be sworn or affirmed
6
at a place outside Australia before:
7
(a) a commissioner of the High Court who is authorised to
8
administer oaths or affirmations in that place for the purposes
9
of the High Court; or
10
(b) an Australian Diplomatic Officer or an Australian Consular
11
Officer, as defined by the Consular Fees Act 1955, who is
12
exercising the officer's function in that place; or
13
(c) an employee of the Commonwealth who is:
14
(i) authorised under paragraph 3(c) of the Consular Fees
15
Act 1955; and
16
(ii) exercising the employee's function in that place; or
17
(d) an employee of the Australian Trade and Investment
18
Commission who is:
19
(i) authorised under paragraph 3(d) of the Consular Fees
20
Act 1955; and
21
(ii) exercising the employee's function in that place; or
22
(e) a notary public who is exercising the notary public's function
23
in that place; or
24
(f) a person who is:
25
(i) qualified to administer an oath or affirmation in that
26
place; and
27
(ii) certified by a person mentioned in any of
28
paragraphs (b), (c), (d) and (e), or by the superior court
29
of that place, to be so qualified.
30
(3) An affidavit sworn or affirmed outside Australia otherwise than
31
before a person referred to in subsection (2) may be used in a
32
proceeding in the Federal Circuit and Family Court of Australia
33
(Division 1) in circumstances provided by the Rules of Court.
34
Chapter 3 Federal Circuit and Family Court of Australia (Division 1)
Part 5 Practice and procedure
Division 5 Evidence
Section 53A
52
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
53A Orders and commissions for examination of witnesses
1
The Federal Circuit and Family Court of Australia (Division 1) or a
2
Judge may, for the purposes of any proceeding before the Court or
3
Judge:
4
(a) order the examination of a person upon oath or affirmation
5
before the Court, a Judge, an officer of the Court or other
6
person, at any place within Australia; or
7
(b) order that a commission issue to a person, either in or outside
8
Australia, authorising the person to take the testimony on
9
oath or affirmation of another person;
10
and the Court or a Judge may:
11
(c) by the same or a subsequent order, give any necessary
12
directions concerning the time, place and manner of the
13
examination; and
14
(d) empower any party to the proceeding to give in evidence in
15
the proceeding the testimony so taken on such terms (if any)
16
as the Court or Judge directs.
17
Federal Circuit and Family Court of Australia (Division 1) Chapter 3
Practice and procedure Part 5
Judgments Division 6
Section 54
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
53
Division 6--Judgments
1
54 Reserved judgments etc.
2
(1) If:
3
(a) the Federal Circuit and Family Court of Australia
4
(Division 1) reserves judgment in a proceeding; and
5
(b) the Judge who heard the proceeding prepares orders and
6
reasons;
7
those orders and reasons may be made public by another Judge on
8
behalf of the Judge who heard the proceeding or as otherwise
9
provided for by the Rules of Court.
10
(2) If:
11
(a) the Federal Circuit and Family Court of Australia
12
(Division 1) reserves reasons for its decision in a proceeding;
13
and
14
(b) the Judge who heard the proceeding prepares reasons;
15
those reasons may be made public by another Judge on behalf of
16
the Judge who heard the proceeding or as otherwise provided for
17
by the Rules of Court.
18
Chapter 3 Federal Circuit and Family Court of Australia (Division 1)
Part 5 Practice and procedure
Division 7 Common approaches with the Federal Circuit and Family Court of Australia
(Division 2)
Section 55
54
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Division 7--Common approaches with the Federal Circuit
1
and Family Court of Australia (Division 2)
2
55 Chief Justice to achieve common approaches with the Federal
3
Circuit and Family Court of Australia (Division 2)
4
For the purposes of ensuring the efficient resolution of family law
5
or child support proceedings, the Chief Justice must work
6
cooperatively with the Chief Judge with the aim of ensuring:
7
(a) common rules of court and forms; and
8
(b) common practices and procedures.
9
Federal Circuit and Family Court of Australia (Division 1) Chapter 3
Practice and procedure Part 5
Rules of Court Division 8
Section 56
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
55
Division 8--Rules of Court
1
56 Rules of Court
2
(1) The Chief Justice may make Rules of Court:
3
(a) providing for, or in relation to, the practice and procedure to
4
be followed in the Federal Circuit and Family Court of
5
Australia (Division 1) (including the practice and procedure
6
to be followed in Registries of the Court); or
7
(b) providing for, or in relation to, all matters and things
8
incidental to any such practice or procedure, or necessary or
9
convenient to be prescribed for the conduct of any business
10
of the Federal Circuit and Family Court of Australia
11
(Division 1); or
12
(c) providing for, or in relation to, any matter or thing in respect
13
of which Rules of Court may be made under the Family Law
14
Act 1975 for the purposes of their application to the Federal
15
Circuit and Family Court of Australia (Division 1); or
16
(d) providing for, or in relation to, proceedings transferred to the
17
Federal Circuit and Family Court of Australia (Division 1)
18
under section 35A of the Bankruptcy Act 1966; or
19
(e) providing for, or in relation to, the time and manner of
20
institution of appeals in and to the Federal Circuit and Family
21
Court of Australia (Division 1); or
22
(f) prescribing the duties of officers of the Federal Circuit and
23
Family Court of Australia (Division 1); or
24
(g) prescribing penalties, not exceeding 50 penalty units, for
25
offences against the Rules of Court; or
26
(h) prescribing matters required or permitted by:
27
(i) any other provision of this Chapter; or
28
(ii) any other law of the Commonwealth;
29
to be prescribed by the Rules of Court.
30
(2) The Rules of Court may make provision for:
31
(a) the amendment of a document in a proceeding; or
32
(b) leave to amend a document in a proceeding;
33
Chapter 3 Federal Circuit and Family Court of Australia (Division 1)
Part 5 Practice and procedure
Division 8 Rules of Court
Section 56
56
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
even if the effect of the amendment would be to allow a person to
1
seek a remedy in respect of a legal or equitable claim that would
2
have been barred because of the expiry of a period of limitation if
3
the remedy had originally been sought at the time of the
4
amendment.
5
(3) Rules of Court have effect subject to any provision made by
6
another Act, or by rules or regulations under another Act, with
7
respect to the practice and procedure in particular matters.
8
(4) The Legislation Act 2003 (other than sections 8, 9, 10 and 16 of
9
that Act) applies in relation to Rules of Court made by the Chief
10
Justice under this Chapter or another Act (other than the Family
11
Law Act 1975):
12
(a) as if a reference to a legislative instrument were a reference
13
to a Rule of Court; and
14
(b) subject to such further modifications or adaptations as are
15
provided for in regulations made under section 249 of this
16
Act.
17
(5) Despite the fact that section 16 of the Legislation Act 2003 does
18
not apply to Rules of Court made by the Chief Justice under this
19
Chapter or another Act, the Office of Parliamentary Counsel
20
(established by subsection 2(1) of the Parliamentary Counsel Act
21
1970) may provide assistance in the drafting of any of those Rules
22
if the Chief Justice so desires.
23
Federal Circuit and Family Court of Australia (Division 1) Chapter 3
Management and administration Part 6
Management responsibilities of the Chief Justice Division 1
Section 57
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
57
Part 6--Management and administration
1
Division 1--Management responsibilities of the Chief
2
Justice
3
57 Management of administrative affairs of the Federal Circuit and
4
Family Court of Australia (Division 1)
5
(1) The Chief Justice is responsible for managing the administrative
6
affairs of the Federal Circuit and Family Court of Australia
7
(Division 1).
8
(2) The administrative affairs of the Federal Circuit and Family Court
9
of Australia (Division 1) do not include the corporate services of
10
the Court.
11
(3) The following matters relating to the Federal Circuit and Family
12
Court of Australia (Division 1) are the corporate services of the
13
Court:
14
(a) communications;
15
(b) finance;
16
(c) human resources;
17
(d) information technology;
18
(e) libraries;
19
(f) records management;
20
(g) administrative matters relating to judgments, to the extent
21
that such matters do not involve the exercise of judicial
22
power;
23
(h) procurement and contract management;
24
(i) property;
25
(j) risk oversight and management;
26
(k) court security;
27
(l) statistics;
28
(m) any other matter prescribed by a determination under
29
subsection (7).
30
Chapter 3 Federal Circuit and Family Court of Australia (Division 1)
Part 6 Management and administration
Division 1 Management responsibilities of the Chief Justice
Section 58
58
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(4) For the purpose referred to in subsection (1), the Chief Justice has
1
power to do all things that are necessary or convenient to be done,
2
including, on behalf of the Commonwealth:
3
(a) entering into contracts; and
4
(b) acquiring or disposing of personal property.
5
(5) The powers given to the Chief Justice by subsection (4) are in
6
addition to any powers given to the Chief Justice by any other
7
provision of this Act or by any other Act.
8
(6) Subsection (4) does not authorise the Chief Justice to enter into a
9
contract under which the Commonwealth is to pay or receive an
10
amount exceeding:
11
(a) $1 million; or
12
(b) if a higher amount is prescribed--that higher amount;
13
except with the approval of the Minister.
14
(7) The Minister may, by legislative instrument, determine matters that
15
are the corporate services of the Court (see paragraph (3)(m)).
16
Note 1:
See Part IIB of the Federal Court of Australia Act 1976 for provisions
17
relating to the corporate services of the Court.
18
Note 2:
For the purposes of the finance law (within the meaning of the Public
19
Governance, Performance and Accountability Act 2013), the officers
20
and staff of the Federal Circuit and Family Court of Australia
21
(Division 1) are officials of the listed entity referred to in
22
section 18ZB of the Federal Court of Australia Act 1976.
23
Note 3:
For the purposes of the Public Service Act 1999, the APS employees
24
referred to in section 71 of this Act are part of the Statutory Agency
25
declared under section 18ZE of the Federal Court of Australia Act
26
1976.
27
58 Arrangements with other courts
28
(1) The Chief Justice may arrange with the chief judicial officer
29
(however described) of another Australian court for an officer or
30
officers of that court to perform on behalf of the Federal Circuit
31
and Family Court of Australia (Division 1) any or all of the
32
following functions:
33
(a) the receipt of documents to be lodged with or filed in the
34
Court;
35
Federal Circuit and Family Court of Australia (Division 1) Chapter 3
Management and administration Part 6
Management responsibilities of the Chief Justice Division 1
Section 59
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
59
(b) the signing and issuing of writs, commissions and process for
1
the purposes of any proceedings in the Court;
2
(c) the authentication of orders of the Court;
3
(d) the administration of oaths and affirmations, and the
4
witnessing of affidavits, for the purposes of any proceedings
5
in the Court;
6
(e) such other non-judicial functions as are permitted by the
7
Rules of Court to be performed under such an arrangement;
8
(f) such other non-judicial functions as the Chief Justice
9
considers appropriate.
10
(2) If an arrangement under subsection (1) is in force in relation to the
11
performance by an officer of an Australian court of a function on
12
behalf of the Federal Circuit and Family Court of Australia
13
(Division 1), the officer may perform that function despite:
14
(a) any other provision of this Chapter; or
15
(b) any other law of the Commonwealth.
16
(3) A function performed on behalf of the Federal Circuit and Family
17
Court of Australia (Division 1) in accordance with an arrangement
18
under subsection (1) has effect as if the function had been
19
performed by the Court.
20
(4) Copies of an arrangement under subsection (1) are to be made
21
available for inspection by members of the public.
22
(5) For the purposes of this section, a member of the staff of an
23
Australian court is taken to be an officer of that court.
24
59 Arrangements with agencies or organisations
25
(1) The Chief Justice may arrange with the chief executive officer
26
(however described) of:
27
(a) an agency of the Commonwealth, a State or a Territory; or
28
(b) another organisation;
29
for an employee or employees of the agency or organisation to:
30
(c) receive, on behalf of the Federal Circuit and Family Court of
31
Australia (Division 1), documents to be lodged with or filed
32
in the Court; or
33
Chapter 3 Federal Circuit and Family Court of Australia (Division 1)
Part 6 Management and administration
Division 1 Management responsibilities of the Chief Justice
Section 60
60
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(d) perform, on behalf of the Federal Circuit and Family Court of
1
Australia (Division 1), other non-judicial functions of the
2
Court.
3
(2) If an arrangement under subsection (1) is in force in relation to the
4
performance by an employee of an agency or organisation of a
5
function on behalf of the Federal Circuit and Family Court of
6
Australia (Division 1), the employee may perform that function
7
despite:
8
(a) any other provision of this Chapter; or
9
(b) any other law of the Commonwealth.
10
(3) A function performed on behalf of the Federal Circuit and Family
11
Court of Australia (Division 1) in accordance with an arrangement
12
under subsection (1) has effect as if the function had been
13
performed by the Court.
14
(4) Copies of an arrangement under subsection (1) are to be made
15
available for inspection by members of the public.
16
60 Arrangements for sharing courtrooms and other facilities
17
The Chief Justice may make arrangements with the chief judicial
18
officer (however described) of another Australian court for:
19
(a) the Federal Circuit and Family Court of Australia
20
(Division 1) to sit in rooms of the other court; and
21
(b) the Court to share registry facilities and other facilities with
22
the other court.
23
61 Advisory committees
24
(1) The Federal Circuit and Family Court of Australia (Division 1)
25
may appoint committees consisting of Judges, or of Judges and
26
other persons, for the purpose of advising the Court in relation to
27
the exercise of the powers of the Court under this Chapter.
28
(2) The Chief Justice may appoint committees consisting of Judges, or
29
of Judges and other persons, for the purpose of advising the Chief
30
Justice in relation to:
31
(a) the making of the Rules of Court; or
32
Federal Circuit and Family Court of Australia (Division 1) Chapter 3
Management and administration Part 6
Management responsibilities of the Chief Justice Division 1
Section 61
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
61
(b) the management of the administrative affairs of the Federal
1
Circuit and Family Court of Australia (Division 1).
2
Chapter 3 Federal Circuit and Family Court of Australia (Division 1)
Part 6 Management and administration
Division 2 Chief Executive Officer
Section 62
62
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Division 2--Chief Executive Officer
1
62 Chief Executive Officer
2
In managing the administrative affairs of the Federal Circuit and
3
Family Court of Australia (Division 1), the Chief Justice is assisted
4
by the Chief Executive Officer.
5
63 Powers of Chief Executive Officer
6
(1) The Chief Executive Officer has power to do all things necessary
7
or convenient to be done for the purpose of assisting the Chief
8
Justice under section 62.
9
(2) In particular, the Chief Executive Officer may act on behalf of the
10
Chief Justice in relation to the administrative affairs of the Federal
11
Circuit and Family Court of Australia (Division 1).
12
(3) The Chief Justice may give the Chief Executive Officer directions
13
regarding the exercise of the Chief Executive Officer's powers
14
under:
15
(a) this Chapter; or
16
(b) Chapter 5, to the extent that the provisions of that Chapter
17
apply to the Federal Circuit and Family Court of Australia
18
(Division 1).
19
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Management and administration Part 6
Registries and registrars Division 3
Section 64
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
63
Division 3--Registries and registrars
1
64 Registries
2
The Minister must cause such Registries of the Federal Circuit and
3
Family Court of Australia (Division 1) to be established as the
4
Minister thinks fit.
5
65 Registrars and Deputy Registrars
6
The Federal Circuit and Family Court of Australia (Division 1) is
7
to have such Registrars and Deputy Registrars as are necessary.
8
66 Powers exercisable by Chief Executive Officer, Registrars and
9
Deputy Registrars
10
(1) The object of this section is to allow certain powers of the Federal
11
Circuit and Family Court of Australia (Division 1) to be exercised
12
by:
13
(a) the Chief Executive Officer; or
14
(b) a Registrar; or
15
(c) a Deputy Registrar.
16
Note:
The Chief Executive Officer, a Registrar and a Deputy Registrar may
17
be delegates of the Federal Circuit and Family Court of Australia
18
(Division 1): see the definition of delegate in subsection 7(1).
19
(2) The following powers of the Federal Circuit and Family Court of
20
Australia (Division 1) may, if the Court or a Judge so directs, be
21
exercised by a delegate:
22
(a) the power to make an order transferring family law or child
23
support proceedings to the Federal Circuit and Family Court
24
of Australia (Division 2) under section 34;
25
(b) the power, under subsection 49(3), to require a party's lawyer
26
to give the party an estimate of:
27
(i) the likely duration of a proceeding or part of a
28
proceeding; and
29
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Part 6 Management and administration
Division 3 Registries and registrars
Section 66
64
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(ii) the likely amount of costs that the party will have to pay
1
in connection with the proceeding or part of the
2
proceeding;
3
(c) the power, under subsection 50(1), to give directions about
4
the practice and procedure to be followed in relation to a
5
proceeding or part of a proceeding;
6
(d) the power, under subsection 50(3), to make such order or
7
direction as is appropriate when a party fails to comply with a
8
direction about the practice and procedure to be followed in
9
relation to a proceeding or part of a proceeding;
10
(e) the power to dispense with the service of any process of the
11
Court;
12
(f) the power to make orders in relation to substituted service;
13
(g) the power to make orders in relation to discovery, inspection
14
and production of documents in the possession, power or
15
custody of a party to proceedings in the Court or of any other
16
person;
17
(h) the power to make orders in relation to interrogatories;
18
(i) the power, in proceedings in the Court, to make an order
19
adjourning the hearing of the proceedings;
20
(j) the power to make an order as to costs;
21
(k) the power to make an order about security for costs;
22
(l) the power to make an order exempting a party to proceedings
23
in the Court from compliance with a provision of the Rules of
24
Court;
25
(m) a power of the Court prescribed by the Rules of Court;
26
(n) the power, in family law or child support proceedings, to
27
direct a party to the proceedings to answer particular
28
questions;
29
(o) the power to make orders under the following provisions of
30
the Family Law Act 1975:
31
(i) sections 11F and 11G;
32
(ii) sections 13C and 13D;
33
(iii) subsection 65LA(1);
34
(iv) paragraph 70NEB(1)(a);
35
(p) the power to direct a family consultant to give a report under
36
section 62G of the Family Law Act 1975;
37
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Section 66
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Federal Circuit and Family Court of Australia Bill 2018
65
(q) the power, in family law or child support proceedings, to
1
make:
2
(i) an order under section 66Q, 67E, 77 or 90SG of the
3
Family Law Act 1975; or
4
(ii) an order for the payment of maintenance pending the
5
disposal of the proceedings;
6
(r) the power to make an order the terms of which have been
7
agreed upon by all the parties to the proceedings;
8
(s) the power to make orders (including an order for
9
garnishment, seizure of property or sequestration) for the
10
enforcement of maintenance orders under the Family Law
11
Act 1975;
12
(t) the power to make an order exempting a party to family law
13
or child support proceedings from compliance with a
14
provision of regulations made under the Family Law Act
15
1975.
16
(3) Despite subsection (2), the powers of the Federal Circuit and
17
Family Court of Australia (Division 1) in respect of which the
18
Court or a Judge may not give a direction include the following:
19
(a) the power to make a divorce order in proceedings that are
20
defended;
21
(b) the power to make a decree of nullity of marriage;
22
(c) the power to make a declaration as to the validity of:
23
(i) a marriage; or
24
(ii) a divorce; or
25
(iii) the annulment of a marriage;
26
(d) the power to make an excluded child order;
27
(e) the power to make an order setting aside a registered award
28
under section 13K of the Family Law Act 1975.
29
Costs
30
(4) A delegate must not exercise the powers referred to in
31
paragraph (2)(j) except in relation to costs of, or in connection
32
with, an application heard by a delegate.
33
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Part 6 Management and administration
Division 3 Registries and registrars
Section 67
66
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Orders made as a matter of urgency
1
(5) A delegate must not exercise the power referred to in
2
paragraph (2)(q) on application by a party to proceedings under the
3
Family Law Act 1975 unless:
4
(a) the other party to the proceedings appears at the hearing of
5
the application; or
6
(b) the delegate is satisfied that notice of the intention of the
7
party to make the application has been served on the other
8
party.
9
Application of laws
10
(6) The provisions of this Act, the Rules of Court and any other law of
11
the Commonwealth that relate to the exercise by the Federal
12
Circuit and Family Court of Australia (Division 1) of a power that
13
is, because of subsection (2), exercisable by a delegate, apply in
14
relation to an exercise of the power by a delegate under this section
15
as if references in those provisions to the Federal Circuit and
16
Family Court of Australia (Division 1) (expressly or otherwise)
17
were references to the delegate.
18
67 Delegation
19
Delegation of powers
20
(1) The Chief Justice may make Rules of Court delegating any of the
21
powers of the Federal Circuit and Family Court of Australia
22
(Division 1), including any of the powers mentioned in
23
subsection 66(2), to a delegate.
24
Note:
For the definition of delegate, see subsection 7(1).
25
(2) Despite subsection (1), the powers of the Federal Circuit and
26
Family Court of Australia (Division 1) that may not be delegated
27
include the following:
28
(a) the power to make a divorce order in proceedings that are
29
defended;
30
(b) the power to make a decree of nullity of marriage;
31
(c) the power to make a declaration as to the validity of:
32
Federal Circuit and Family Court of Australia (Division 1) Chapter 3
Management and administration Part 6
Registries and registrars Division 3
Section 67
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
67
(i) a marriage; or
1
(ii) a divorce; or
2
(iii) the annulment of a marriage;
3
(d) the power to make an excluded child order;
4
(e) the power to make an order setting aside a registered award
5
under section 13K of the Family Law Act 1975.
6
Effect of delegation
7
(3) A power delegated by the Rules of Court, when exercised by a
8
delegate, is taken, for all purposes, to have been exercised by the
9
Federal Circuit and Family Court of Australia (Division 1) or a
10
Judge of the Court.
11
(4) The delegation of a power by the Rules of Court does not prevent
12
the exercise of the power by the Federal Circuit and Family Court
13
of Australia (Division 1) or a Judge of the Court.
14
Costs
15
(5) If the power referred to in paragraph 66(2)(j) is delegated by the
16
Rules of Court, a delegate must not exercise the power except in
17
relation to costs of, or in connection with, an application heard by a
18
delegate.
19
Orders made as a matter of urgency
20
(6) If the power referred to in paragraph 66(2)(q) is delegated by the
21
Rules of Court, a delegate must not exercise the power on
22
application by a party to proceedings under the Family Law Act
23
1975 unless:
24
(a) the other party to the proceedings appears at the hearing of
25
the application; or
26
(b) the delegate is satisfied that notice of the intention of the
27
party to make the application has been served on the other
28
party.
29
Chapter 3 Federal Circuit and Family Court of Australia (Division 1)
Part 6 Management and administration
Division 3 Registries and registrars
Section 68
68
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Application of laws
1
(7) The provisions of this Act, the Rules of Court and any other law of
2
the Commonwealth that relate to the exercise by the Federal
3
Circuit and Family Court of Australia (Division 1) of a power that
4
is, because of a delegation under subsection (1), exercisable by a
5
delegate, apply in relation to an exercise of the power by a delegate
6
under the delegation as if references in those provisions to the
7
Federal Circuit and Family Court of Australia (Division 1)
8
(expressly or otherwise) were references to the delegate.
9
68 Independence of delegates
10
Despite any other provision of this Chapter and any provision of
11
the Public Service Act 1999 or of any other law, a delegate is not
12
subject to the direction or control of any person or body in relation
13
to the way in which the delegate exercises powers under
14
subsection 66(2) or under a delegation under subsection 67(1).
15
69 Review of power exercised by delegate
16
(1) A party to proceedings in which a delegate has exercised any of the
17
powers of the Federal Circuit and Family Court of Australia
18
(Division 1) under subsection 66(2) or under a delegation under
19
subsection 67(1) may:
20
(a) within the time prescribed by the Rules of Court; or
21
(b) within any further time allowed in accordance with the Rules
22
of Court;
23
apply to the Court for review of that exercise of power.
24
(2) The Federal Circuit and Family Court of Australia (Division 1)
25
may, on application under subsection (1) or on its own initiative,
26
review an exercise of power by a delegate under subsection 66(2)
27
or under a delegation under subsection 67(1), and may make any
28
order or orders it thinks fit in relation to the matter in respect of
29
which the power was exercised.
30
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Management and administration Part 6
Registries and registrars Division 3
Section 70
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
69
Referral to Court by delegates
1
(3) If an application for the exercise of a power referred to in
2
subsection 66(2) or under a delegation under subsection 67(1) is to
3
be, or is being, heard by a delegate, and:
4
(a) the delegate considers that it is not appropriate for the
5
application to be determined by a delegate acting under
6
section 66 or a delegation under subsection 67(1); or
7
(b) an application is made to the delegate to arrange for the
8
first-mentioned application to be determined by a Judge;
9
the delegate must not hear, or continue to hear, the application and
10
must make appropriate arrangements for the application to be
11
heard by a Judge.
12
70 Oath or affirmation of office
13
(1) Before proceeding to discharge the duties of office, a Registrar or
14
Deputy Registrar must take an oath or affirmation in the form set
15
out in whichever of subsection (3) or (4) is applicable.
16
(2) The oath or affirmation must be taken before the Chief Justice or
17
another Judge of the Federal Circuit and Family Court of Australia
18
(Division 1).
19
Oath
20
(3) This is the form of oath for the purposes of subsection (1):
21
I,
, do swear that I will well and truly serve in the office
22
of (Registrar or Deputy Registrar, as the case may be) of the
23
Federal Circuit and Family Court of Australia (Division 1) and that
24
I will do right to all manner of people according to law, without
25
fear or favour, affection or ill-will. So help me God!
26
Affirmation
27
(4) This is the form of affirmation for the purposes of subsection (1):
28
I,
, do solemnly and sincerely promise and declare that I
29
will well and truly serve in the office of (Registrar or Deputy
30
Registrar, as the case may be) of the Federal Circuit and Family
31
Chapter 3 Federal Circuit and Family Court of Australia (Division 1)
Part 6 Management and administration
Division 3 Registries and registrars
Section 70
70
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Court of Australia (Division 1) and that I will do right to all
1
manner of people according to law, without fear or favour,
2
affection or ill-will.
3
Federal Circuit and Family Court of Australia (Division 1) Chapter 3
Management and administration Part 6
Other officers and staff Division 4
Section 71
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
71
Division 4--Other officers and staff
1
71 Officers of the Federal Circuit and Family Court of Australia
2
(Division 1)
3
(1) In addition to the Chief Executive Officer, there are the following
4
officers of the Federal Circuit and Family Court of Australia
5
(Division 1):
6
(a) the Registrars and Deputy Registrars of the Court;
7
(b) such Registry Managers of the Court as are necessary;
8
(c) the Marshal of the Court;
9
(d) such Deputy Marshals of the Court as are necessary;
10
(e) such family consultants as are necessary.
11
(2) The officers of the Federal Circuit and Family Court of Australia
12
(Division 1), other than the Chief Executive Officer, have such
13
duties, powers and functions as are given to them:
14
(a) by or under:
15
(i) this Chapter or Chapter 5; or
16
(ii) the Family Law Act 1975; or
17
(iii) the Rules of Court; or
18
(b) by the Chief Justice or the Court.
19
(3) The officers of the Federal Circuit and Family Court of Australia
20
(Division 1), other than the Chief Executive Officer and the
21
Deputy Marshals, are to be persons engaged under the Public
22
Service Act 1999.
23
(4) The Deputy Marshals may be persons engaged under the Public
24
Service Act 1999.
25
(5) The Chief Executive Officer may, on behalf of the Chief Justice,
26
arrange with an Agency Head, or with an authority of the
27
Commonwealth, for the services of officers or employees of the
28
Agency or authority to be made available for the purposes of the
29
administrative affairs of the Federal Circuit and Family Court of
30
Australia (Division 1).
31
Chapter 3 Federal Circuit and Family Court of Australia (Division 1)
Part 6 Management and administration
Division 4 Other officers and staff
Section 72
72
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(6) There are to be such staff of the Registries as are necessary.
1
(7) The staff of the Registries are to consist of persons engaged under
2
the Public Service Act 1999.
3
72 Marshal
4
(1) The Marshal of the Federal Circuit and Family Court of Australia
5
(Division 1) is responsible for the service and execution of all
6
process of the Court directed to the Marshal.
7
(2) The Marshal is also responsible for:
8
(a) dealing, on behalf of the Federal Circuit and Family Court of
9
Australia (Division 1), with the Australian Federal Police and
10
the police forces of the States and Territories in relation to
11
the service and execution of process of the Court directed to
12
members of any of those police forces; and
13
(b) the security of the Federal Circuit and Family Court of
14
Australia (Division 1); and
15
(c) the personal security of the Judges, officers and staff of the
16
Court; and
17
(d) taking, receiving and detaining all persons committed to the
18
Marshal's custody by the Federal Circuit and Family Court of
19
Australia (Division 1); and
20
(e) discharging such persons when so directed by the Federal
21
Circuit and Family Court of Australia (Division 1) or
22
otherwise required by law.
23
(3) A Deputy Marshal may, subject to any directions of the Marshal,
24
exercise or perform any of the powers and functions of the
25
Marshal.
26
(4) The Marshal may authorise persons to assist the Marshal in
27
exercising powers or performing functions as the Marshal.
28
(5) A Deputy Marshal may authorise persons to assist the Deputy
29
Marshal in exercising powers or performing functions as a Deputy
30
Marshal.
31
Federal Circuit and Family Court of Australia (Division 1) Chapter 3
Management and administration Part 6
Other officers and staff Division 4
Section 73
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
73
73 Delegation by Registry Managers
1
(1) A Registry Manager of the Federal Circuit and Family Court of
2
Australia (Division 1) may delegate all or any of a Registry
3
Manager's functions or powers under the Family Law Act 1975 to
4
a person whom the Registry Manager considers is an appropriate
5
officer or staff member of the Court.
6
(2) In performing a delegated function or exercising a delegated
7
power, the person must comply with any written directions of the
8
relevant Registry Manager.
9
Chapter 3 Federal Circuit and Family Court of Australia (Division 1)
Part 6 Management and administration
Division 5 Miscellaneous administrative matters
Section 74
74
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Division 5--Miscellaneous administrative matters
1
74 Procedural information to be given to unrepresented parties
2
The Chief Executive Officer may give directions and issue
3
guidelines to officers and staff of the Federal Circuit and Family
4
Court of Australia (Division 1) in relation to the procedural
5
information to be given to parties (and, in particular, unrepresented
6
parties) to enable them to formulate and present their cases.
7
75 Annual report
8
(1) As soon as practicable after 30 June in each financial year, the
9
Chief Justice must prepare a report of the management of the
10
administrative affairs of the Federal Circuit and Family Court of
11
Australia (Division 1) during the financial year.
12
(2) A report prepared after 30 June in a year must be given to the
13
Minister by 15 October of that year.
14
(3) The Minister must cause a copy of the report to be tabled in each
15
House of the Parliament as soon as practicable.
16
(4) A report prepared under this section may be included in a report
17
prepared and given to the Minister under section 46 of the Public
18
Governance, Performance and Accountability Act 2013 in relation
19
to the listed entity referred to in section 18ZB of the Federal Court
20
of Australia Act 1976.
21
76 Delegation of administrative powers of Chief Justice
22
The Chief Justice may, in writing, delegate all or any of the Chief
23
Justice's powers under section 57 to any one or more of the Judges.
24
77 Proceedings arising out of administration of the Federal Circuit
25
and Family Court of Australia (Division 1)
26
Any judicial or other proceeding relating to a matter arising out of
27
the management of the administrative affairs of the Federal Circuit
28
Federal Circuit and Family Court of Australia (Division 1) Chapter 3
Management and administration Part 6
Miscellaneous administrative matters Division 5
Section 78
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
75
and Family Court of Australia (Division 1) under this Part,
1
including any proceeding relating to anything done by the Chief
2
Executive Officer under this Part, may be instituted by or against
3
the Commonwealth.
4
78 Protection of persons involved in handling etc. complaints
5
(1) In exercising powers or performing functions under
6
paragraph 31(2)(d) and subsection 32(1), or assisting in exercising
7
those powers or performing those functions, a complaint handler
8
has the same protection and immunity as a Justice of the High
9
Court.
10
(2) In authorising a person or body under subsection 32(2), the Chief
11
Justice has the same protection and immunity as a Justice of the
12
High Court.
13
(3) A witness requested to attend, or appearing, before a complaint
14
handler handling a complaint has the same protection, and is
15
subject to the same liabilities in a proceeding, as a witness in a case
16
tried by the High Court.
17
(4) A lawyer assisting, or appearing on behalf of a person before, a
18
complaint handler handling a complaint has the same protection
19
and immunity as a barrister has in appearing for a party in
20
proceedings in the High Court.
21
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 1 Constitution
Division 1 Constitution
Section 79
76
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Chapter 4--Federal Circuit and Family
1
Court of Australia (Division 2)
2
Part 1--Constitution
3
Division 1--Constitution
4
79 Appointment of Judges
5
(1) A Judge is to be appointed by the Governor-General by
6
commission.
7
(2) A person is not to be appointed as a Judge unless:
8
(a) the person has been enrolled as a legal practitioner (however
9
described) of the High Court, or a Supreme Court of a State
10
or Territory, for at least 5 years; and
11
(b) the person has appropriate knowledge, skills and experience
12
to deal with the kinds of matters that may come before the
13
Federal Circuit and Family Court of Australia (Division 2).
14
(3) A person must not be appointed as a Judge if the person has
15
attained the age of 70 years.
16
(4) The appointment of a Judge (including by way of promotion or to
17
another judicial office) is to be for a term expiring upon the Judge
18
attaining the age of 70 years.
19
Note 1:
Section 72 of the Constitution sets out requirements relating to the
20
appointment and tenure of Judges.
21
Note 2:
Division 2 of this Part deals with terms and conditions of appointment.
22
80 Assignment of Judges to Divisions
23
The Governor-General may:
24
(a) assign a Judge (other than the Chief Judge and Deputy Chief
25
Judge) to one of the Divisions either:
26
(i) in the commission of appointment of the Judge; or
27
(ii) at a later time, with the consent of the Judge; and
28
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Constitution Part 1
Constitution Division 1
Section 81
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
77
(b) vary any such assignment, with the consent of the Judge.
1
Note:
A Judge (including the Chief Judge and Deputy Chief Judge) who is
2
not assigned to either Division of the Federal Circuit and Family
3
Court of Australia (Division 2) may exercise the powers of the Court
4
in either Division (see subsection 114(3)).
5
81 Authorised Judges may manage classes of proceedings
6
(1) The Chief Judge may, by written instrument, authorise a Judge to
7
manage such class or classes of proceedings as may be specified:
8
(a) in the instrument; or
9
(b) by the Rules of Court.
10
(2) In managing a class or classes of proceedings, a Judge is subject to
11
any direction from the Chief Judge.
12
(3) A Judge may be authorised even though the Judge is not assigned
13
to a Division.
14
(4) The authorisation of a Judge does not affect the rank, title, status
15
and precedence as a Judge that the Judge had immediately before
16
any such authorisation.
17
(5) If a direction under subsection (2) is given in writing, the direction
18
is not a legislative instrument.
19
82 Style
20
Chief Judge
21
(1) The Chief Judge is to be styled "His Honour Chief Judge (name) of
22
the Federal Circuit and Family Court of Australia (Division 2)" or
23
"Her Honour Chief Judge (name) of the Federal Circuit and Family
24
Court of Australia (Division 2)".
25
Deputy Chief Judge
26
(2) The Deputy Chief Judge is to be styled "His Honour Deputy Chief
27
Judge (name) of the Federal Circuit and Family Court of Australia
28
(Division 2)" or "Her Honour Deputy Chief Judge (name) of the
29
Federal Circuit and Family Court of Australia (Division 2)".
30
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 1 Constitution
Division 1 Constitution
Section 83
78
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Other Judges
1
(3) A Judge (other than the Chief Judge and Deputy Chief Judge) is to
2
be styled "His Honour Judge (name)" or "Her Honour Judge
3
(name)".
4
83 Oath or affirmation of office
5
(1) Before proceeding to discharge the duties of office, a Judge must
6
take an oath or affirmation in accordance with the form set out in
7
whichever of subsection (3) or (4) is applicable.
8
(2) The oath or affirmation must be taken before:
9
(a) the Governor-General; or
10
(b) a Justice of the High Court; or
11
(c) a Judge of the Federal Court; or
12
(d) a Judge of the Federal Circuit and Family Court of Australia
13
(Division 1); or
14
(e) another Judge of the Federal Circuit and Family Court of
15
Australia (Division 2).
16
Oath
17
(3) This is the form of oath for the purposes of subsection (1):
18
I,
, do swear that I will well and truly serve in the office
19
of (Chief Judge, Deputy Chief Judge or Judge, as the case may be)
20
of the Federal Circuit and Family Court of Australia (Division 2)
21
and that I will do right to all manner of people according to law
22
without fear or favour, affection or ill-will. So help me God!
23
Affirmation
24
(4) This is the form of affirmation for the purposes of subsection (1):
25
I,
, do solemnly and sincerely promise and declare that I
26
will well and truly serve in the office of (Chief Judge, Deputy
27
Chief Judge or Judge, as the case may be) of the Federal Circuit
28
and Family Court of Australia (Division 2) and that I will do right
29
to all manner of people according to law without fear or favour,
30
affection or ill-will.
31
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Constitution Part 1
Terms and conditions of serving Judges Division 2
Section 84
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
79
Division 2--Terms and conditions of serving Judges
1
84 Remuneration
2
(1) A Judge is to be paid such remuneration as is determined by the
3
Remuneration Tribunal.
4
(2) Subsection (1) has effect subject to the Remuneration Tribunal Act
5
1973.
6
(3) In this section:
7
remuneration has the same meaning as in Part II of the
8
Remuneration Tribunal Act 1973.
9
Note 1:
A Judge's remuneration may not be diminished during the Judge's
10
continuance in office: see paragraph 72(iii) of the Constitution.
11
Note 2:
Subsection 3(2) of the Remuneration Tribunal Act 1973 provides that
12
a reference in Part II of that Act to remuneration is to be read as
13
including a reference to annual allowances.
14
Note 3:
Under subsection 7(4) of the Remuneration Tribunal Act 1973, the
15
Remuneration Tribunal may determine any matter significantly related
16
to the remuneration of Judges.
17
85 Leave
18
A Judge has the recreation leave entitlements that are determined
19
by the Remuneration Tribunal.
20
86 Outside work
21
(1) A Judge must not engage in paid work outside the duties of the
22
Judge's office if that work is incompatible with the holding of a
23
judicial office under Chapter III of the Constitution.
24
(2) A Judge must not:
25
(a) engage in work as a legal practitioner; or
26
(b) engage in work as an employee of, or consultant to, a legal
27
practice.
28
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 1 Constitution
Division 2 Terms and conditions of serving Judges
Section 87
80
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(3) This section does not, by implication, limit the application to a
1
Judge of any doctrine of constitutional incompatibility.
2
(4) In this section:
3
paid work means work for financial gain or reward (whether as an
4
employee, a self-employed person or otherwise).
5
87 Other terms and conditions
6
(1) A Judge holds office on such terms and conditions (if any) in
7
relation to matters not covered by this Act as are specified in a
8
written determination made by the Governor-General for the
9
purposes of this subsection.
10
(2) The Minister must cause a copy of a determination under
11
subsection (1) to be tabled in each House of the Parliament.
12
(3) Either House may, following a motion upon notice, pass a
13
resolution disallowing the determination. To be effective, the
14
resolution must be passed within 15 sittings days of the House after
15
the copy of the determination was tabled in the House.
16
(4) If neither House passes such a resolution, the determination takes
17
effect on the day immediately after the last day that such a
18
resolution could have been passed.
19
88 Resignation from office
20
(1) A Judge may resign office by delivering a written resignation to
21
the Governor-General.
22
(2) The resignation takes effect on the day it is received by the
23
Governor-General or, if a later day is specified in the resignation,
24
on that later day.
25
89 Removal from office
26
A Judge must not be removed from office except by the
27
Governor-General, on an address from both Houses of the
28
Parliament in the same session, praying for the Judge's removal on
29
the ground of proved misbehaviour or incapacity.
30
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Constitution Part 1
Disability and death benefits Division 3
Section 90
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
81
Division 3--Disability and death benefits
1
90 Certification of retired disabled Judges
2
(1) If:
3
(a) a Judge retires; and
4
(b) the Judge has not attained the age of 70 years;
5
the Minister may be requested to certify that the Judge is a retired
6
disabled Judge.
7
(2) On receiving the request, the Minister must:
8
(a) if the Minister is satisfied that the retirement was due to
9
permanent disability or infirmity--certify that the Judge is a
10
retired disabled Judge; or
11
(b) otherwise--refuse to so certify.
12
(3) Applications may be made to the Administrative Appeals Tribunal
13
for review of decisions of the Minister to refuse to so certify.
14
91 Pensions for retired disabled Judges
15
(1) A retired disabled Judge is entitled to a pension until the retired
16
disabled Judge attains the age of 70 years or dies, whichever
17
happens first.
18
Annual rate of pension
19
(2) The annual rate of the pension is 60% of the annual rate of salary
20
the Judge would have been entitled to from time to time if the
21
Judge had not retired.
22
(3) However, the rate of the pension must be reduced by the amount of
23
any pension or retiring allowance:
24
(a) payable to the Judge, whether under a law or otherwise, out
25
of money provided in whole or in part by the
26
Commonwealth, a State or a Territory (other than a
27
Commonwealth superannuation contribution the Judge was
28
entitled to under a determination under subsection 87(1));
29
and
30
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 1 Constitution
Division 3 Disability and death benefits
Section 92
82
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(b) payable to the Judge by reason of prior judicial service, or
1
prior judicial service and any other service.
2
(4) For the purposes of subsection (2), the annual rate of salary is the
3
annual rate of remuneration determined under section 84:
4
(a) excluding any allowances that are paid in lieu of any other
5
entitlement; and
6
(b) if any arrangements have been entered into for any amount of
7
the annual rate of remuneration (other than an allowance
8
covered by paragraph (a)) to be provided in the form of
9
another benefit--including that amount.
10
When pension is due and payable
11
(5) The pension is due daily, but is payable on the days that salary
12
payments are made to Judges.
13
Safety, Rehabilitation and Compensation Act 1988
14
(6) For the purposes of Division 3 of Part II of the Safety,
15
Rehabilitation and Compensation Act 1988:
16
(a) the pension is taken to be a pension payable to the Judge
17
under a superannuation scheme; and
18
(b) the Judge is not required to pay superannuation contributions
19
to that scheme.
20
92 Superannuation for retired disabled Judges
21
(1) A retired disabled Judge who has not attained the age of 65 years is
22
entitled to a Commonwealth superannuation contribution until the
23
retired disabled Judge attains the age of 65 years or dies, whichever
24
happens first.
25
(2) The amount of the Commonwealth superannuation contribution is
26
the amount of the Commonwealth superannuation contribution (if
27
any) the Judge would have been entitled to from time to time,
28
under a determination under subsection 87(1), if the Judge had not
29
retired.
30
(3) The Commonwealth superannuation contribution is to be made by
31
payments on the days that salary payments are made to Judges.
32
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Constitution Part 1
Disability and death benefits Division 3
Section 93
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
83
93 Death benefits
1
(1) A payment is payable under this section if:
2
(a) a Judge, or a retired disabled Judge, who has not attained the
3
age of 65 years dies; and
4
(b) the Judge leaves one or more eligible spouses or eligible
5
children.
6
Amount
7
(2) The amount of the payment is the amount of the Commonwealth
8
superannuation contribution (if any) the Judge would have been
9
entitled to, under a determination under subsection 87(1), during
10
the period in subsection (3) if:
11
(a) the Judge had neither died nor retired before the end of that
12
period; and
13
(b) the amount of the Commonwealth superannuation
14
contribution the Judge was entitled to under that
15
determination did not change during that period.
16
(3) The period in this subsection is the period:
17
(a) beginning on the day that the Judge died; and
18
(b) ending on the day that the Judge would have attained the age
19
of 65 years.
20
Beneficiaries
21
(4) The beneficiaries in respect of the payment are each eligible
22
spouse and eligible child the Judge leaves.
23
(5) If there is only one beneficiary in respect of the payment, the
24
payment is payable to the beneficiary.
25
(6) If there is more than one beneficiary in respect of the payment, the
26
payment is payable to the beneficiaries in the proportions (totalling
27
100% of the amount of the payment) the Minister considers
28
appropriate, having regard to the respective circumstances of each
29
beneficiary.
30
Note:
For review of decisions under subsection (6), see subsection (10).
31
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 1 Constitution
Division 3 Disability and death benefits
Section 93
84
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Beneficiaries--eligible children
1
(7) If the payment (or a proportion of the payment) is payable to an
2
eligible child, the Minister may, in writing, direct that:
3
(a) some or all of the payment or proportion be paid to a
4
specified person for the benefit of the child (including for the
5
support or education of the child); or
6
(b) if the Minister is satisfied that, by reason of special
7
circumstances, it is desirable to do so in the interests of the
8
child--some or all of the payment or proportion be spent in a
9
specified manner for the benefit of the child.
10
Note:
For review of decisions under subsection (7), see subsection (10).
11
(8) The Minister may be requested to give a direction under
12
subsection (7) in respect of an eligible child.
13
(9) On receiving an application, the Minister must:
14
(a) if the Minister is satisfied that the Minister should make a
15
direction in respect of the child--give such a direction; or
16
(b) if the Minister is not so satisfied--refuse to give such a
17
direction.
18
Note:
For review of decisions under paragraph (9)(b), see subsection (10).
19
Applications for review
20
(10) Applications may be made to the Administrative Appeals Tribunal
21
for review of the following decisions of the Minister:
22
(a) a decision to determine the proportions of a payment under
23
subsection (6);
24
(b) a decision to give a direction under subsection (7);
25
(c) a decision to refuse to give a direction under
26
paragraph (9)(b).
27
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Constitution Part 1
Disability and death benefits Division 3
Section 94
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
85
94 Relationship definitions
1
Meaning of eligible spouse
2
(1) For the purposes of this Chapter, subsections (2), (3) and (4) set out
3
the 3 circumstances in which a person is an eligible spouse of a
4
Judge, or a retired disabled Judge, who dies.
5
(2) A person is an eligible spouse of a Judge who dies if the person
6
had a marital or couple relationship with the Judge at the time of
7
the death of the Judge.
8
(3) A person is an eligible spouse of a retired disabled Judge who dies
9
if:
10
(a) the person had a marital or couple relationship with the Judge
11
at the time of the Judge's death; and
12
(b) the marital or couple relationship began:
13
(i) before the Judge retired; or
14
(ii) before the Judge attained the age of 60 years.
15
(4) A person is an eligible spouse of a Judge, or a retired disabled
16
Judge, who dies if:
17
(a) the person had previously had a marital or couple relationship
18
with the Judge; and
19
(b) the person did not, at the time of the Judge's death, have a
20
marital or couple relationship with the Judge but was legally
21
married to the Judge; and
22
(c) in the Minister's opinion, the person was wholly or
23
substantially dependent upon the Judge at the time of the
24
Judge's death; and
25
(d) in the case of a marital or couple relationship that began after
26
the Judge retired--the marital or couple relationship began
27
before the Judge attained the age of 60 years.
28
Note:
For review of decisions under paragraph (4)(c), see subsection (9).
29
Meaning of marital or couple relationship
30
(5) For the purposes of this Chapter, a person had a marital or couple
31
relationship with another person at a particular time if:
32
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 1 Constitution
Division 3 Disability and death benefits
Section 94
86
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(a) the person had been living with the other person as the other
1
person's husband, wife, spouse or partner for a continuous
2
period of at least 3 years up to that time; or
3
(b) both:
4
(i) the person had been living with the other person as the
5
other person's husband, wife, spouse or partner for a
6
continuous period of less than 3 years up to that time;
7
and
8
(ii) the Minister, having regard to any relevant evidence, is
9
of the opinion that the person ordinarily lived with the
10
other person as the other person's husband, wife, spouse
11
or partner on a permanent and bona fide domestic basis
12
at that time;
13
whether or not the person was legally married to the other person.
14
Note 1:
Subsection (7) lists some of the evidence relevant to
15
subparagraph (5)(b)(ii).
16
Note 2:
For review of decisions under subparagraph (5)(b)(ii), see
17
subsection (9).
18
(6) For the purposes of this Chapter, a marital or couple relationship is
19
taken to have begun at the beginning of the continuous period
20
mentioned in paragraph (5)(a) or subparagraph (5)(b)(i).
21
(7) For the purpose of subparagraph (5)(b)(ii), relevant evidence
22
includes, but is not limited to, evidence establishing any of the
23
following:
24
(a) that the person was wholly or substantially dependent on that
25
other person at the time;
26
(b) that the persons were legally married to each other at the
27
time;
28
(c) that the persons' relationship was registered under a law of a
29
State or Territory prescribed for the purposes of section 2E of
30
the Acts Interpretation Act 1901 as a kind of relationship
31
prescribed for the purposes of that section;
32
(d) that the persons had a child who was:
33
(i) born of the relationship between the persons; or
34
(ii) adopted by the persons during the period of the
35
relationship; or
36
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Constitution Part 1
Disability and death benefits Division 3
Section 95
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
87
(iii) a child of both of the persons within the meaning of the
1
Family Law Act 1975;
2
(e) that the persons jointly owned a home which was their usual
3
residence.
4
Meaning of living with a person
5
(8) For the purposes of this Chapter, a person is taken to be living with
6
another person if the Minister is satisfied that the person would
7
have been living with that other person except for a period of:
8
(a) temporary absence; or
9
(b) absence because of special circumstances (for example,
10
absence because of the person's illness or infirmity).
11
Note:
For review of decisions under subsection (8), see subsection (9).
12
Applications for review
13
(9) Applications may be made to the Administrative Appeals Tribunal
14
for review of decisions of the Minister under paragraph (4)(c),
15
subparagraph (5)(b)(ii) or subsection (8).
16
95 Meaning of eligible child
17
(1) For the purposes of this Chapter, a person is an eligible child of a
18
Judge, or a retired disabled Judge, who dies if:
19
(a) the person:
20
(i) has not attained the age of 16 years; or
21
(ii) has not attained the age of 25 years and is receiving
22
full-time education at a school, college or university;
23
and
24
(b) one of the following applies:
25
(i) the person is a child or adopted child of the Judge;
26
(ii) the person is a child of the Judge within the meaning of
27
the Family Law Act 1975;
28
(iii) in the Minister's opinion, the person was wholly or
29
substantially dependent on the Judge at the time of the
30
Judge's death;
31
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 1 Constitution
Division 3 Disability and death benefits
Section 96
88
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(iv) in the Minister's opinion, the person would have been
1
wholly or substantially dependent on the Judge but for
2
the Judge's death.
3
(2) Applications may be made to the Administrative Appeals Tribunal
4
for review of decisions of the Minister under
5
subparagraph (1)(b)(iii) or (iv).
6
96 Appropriation
7
The following are to be paid out of the Consolidated Revenue
8
Fund, which is appropriated accordingly:
9
(a) pensions under section 91;
10
(b) Commonwealth superannuation contributions under
11
section 92;
12
(c) payments under section 93.
13
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Constitution Part 1
Judges of 2 or more courts Division 4
Section 97
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
89
Division 4--Judges of 2 or more courts
1
97 Dual appointments
2
Chief Judge
3
(1) Nothing in this Act prevents the Chief Judge of the Federal Circuit
4
and Family Court of Australia (Division 2) from being appointed
5
to, and holding at the same time, the office of Chief Justice of the
6
Federal Circuit and Family Court of Australia (Division 1).
7
Deputy Chief Judge
8
(2) Nothing in this Act prevents the Deputy Chief Judge of the Federal
9
Circuit and Family Court of Australia (Division 2) from being
10
appointed to, and holding at the same time, the office of Deputy
11
Chief Justice of the Federal Circuit and Family Court of Australia
12
(Division 1).
13
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 1 Constitution
Division 5 Acting Chief Judge
Section 98
90
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Division 5--Acting Chief Judge
1
98 Acting Chief Judge
2
(1) The Deputy Chief Judge may act as Chief Judge:
3
(a) during a vacancy in the office of Chief Judge (whether or not
4
an appointment has previously been made to the office); or
5
(b) during any period, or during all periods, when the Chief
6
Judge:
7
(i) is absent from duty or from Australia; or
8
(ii) is, for any reason, unable to perform the duties of the
9
office.
10
Note:
For rules that apply to acting appointments, see sections 33AB and
11
33A of the Acts Interpretation Act 1901.
12
(2) The Minister may, by written instrument, appoint a Judge to act as
13
the Chief Judge:
14
(a) during a vacancy in the offices of Chief Judge and Deputy
15
Chief Judge (whether or not an appointment has previously
16
been made to either office); or
17
(b) during any period, or all periods, when both the Chief Judge
18
and Deputy Chief Judge are unavailable because:
19
(i) either or both Judges are absent from duty; or
20
(ii) either or both Judges are absent from Australia; or
21
(iii) either or both Judges are, for any reason, unable to
22
perform the duties of the office.
23
Note:
For rules that apply to acting appointments, see sections 33AB and
24
33A of the Acts Interpretation Act 1901.
25
(3) A person who is acting as Chief Judge is to be called Acting Chief
26
Judge of the Federal Circuit and Family Court of Australia
27
(Division 2).
28
(4) For the purposes of this Chapter, a person who is acting as Chief
29
Judge is taken not to be assigned to either Division of the Federal
30
Circuit and Family Court of Australia (Division 2).
31
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Constitution Part 1
Acting Chief Judge Division 5
Section 98
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
91
Note:
A Judge who is not assigned to either Division of the Federal Circuit
1
and Family Court of Australia (Division 2) may exercise the powers of
2
the Court in either Division (see subsection 114(3)).
3
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 2 Jurisdiction
Division 1 Original jurisdiction
Section 99
92
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Part 2--Jurisdiction
1
Division 1--Original jurisdiction
2
99 Original jurisdiction--general
3
(1) The Federal Circuit and Family Court of Australia (Division 2) has
4
such original jurisdiction as is vested in it:
5
(a) by laws made by the Parliament:
6
(i) by express provision; or
7
(ii) by the application of section 15C of the Acts
8
Interpretation Act 1901 to a provision that, whether
9
expressly or by implication, authorises a civil
10
proceeding to be instituted in the Federal Circuit and
11
Family Court of Australia (Division 2) in relation to a
12
matter; or
13
(b) by a legislative instrument made under section 101.
14
(2) The original jurisdiction of the Federal Circuit and Family Court of
15
Australia (Division 2) includes any jurisdiction vested in it to hear
16
and determine appeals from decisions of persons, authorities or
17
tribunals other than courts.
18
(3) The process of the Federal Circuit and Family Court of Australia
19
(Division 2) runs, and the judgments of the Federal Circuit and
20
Family Court of Australia (Division 2) have effect and may be
21
executed, throughout Australia.
22
100 Original jurisdiction--family law or child support matters
23
(1) The Federal Circuit and Family Court of Australia (Division 2) has
24
original jurisdiction:
25
(a) with respect to matters in respect of which proceedings may
26
be instituted under the Family Law Act 1975; or
27
(b) with respect to matters arising under the Marriage Act 1961
28
in respect of which proceedings (other than proceedings
29
under Part VII of that Act) are instituted under that Act; or
30
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Jurisdiction Part 2
Original jurisdiction Division 1
Section 101
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
93
(c) with respect to matters arising under a law of a Territory
1
(other than the Northern Territory) concerning:
2
(i) the adoption of children; or
3
(ii) the property of the parties to a marriage or either of
4
them, being matters between those parties referred to in
5
the definition of matrimonial cause in the Family Law
6
Act 1975; or
7
(iii) the rights and status of a person who is an ex-nuptial
8
child, and the relationship of such a person to the
9
person's parents; or
10
(d) as is conferred on the Court, or in respect of which
11
proceedings may be instituted in the Court, by any other Act.
12
(2) Subject to such restrictions and conditions (if any) in:
13
(a) section 111AA of the Family Law Act 1975; or
14
(b) regulations made under that Act; or
15
(c) the related Federal Circuit and Family Court of Australia
16
(Division 2) Rules, as defined by that Act;
17
the jurisdiction of the Federal Circuit and Family Court of
18
Australia (Division 2) may be exercised in relation to persons or
19
things outside Australia.
20
Note:
Division 4 of Part XIIIAA of the Family Law Act 1975 (international
21
protection of children) may affect the jurisdiction of the Federal
22
Circuit and Family Court of Australia (Division 2).
23
101 Original jurisdiction--Commonwealth tenancy disputes
24
(1) The Federal Circuit and Family Court of Australia (Division 2) has
25
original jurisdiction to hear and determine a Commonwealth
26
tenancy dispute between the parties to a lease, licence or other
27
arrangement in which:
28
(a) the Commonwealth, or a person suing or being sued on
29
behalf of the Commonwealth, is:
30
(i) the lessor (other than as a sublessor); or
31
(ii) the licensor (other than as a sublicensor); or
32
(iii) the grantor of a right or permission to possess, occupy
33
or use land owned by the Commonwealth; and
34
(b) a person other than:
35
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 2 Jurisdiction
Division 1 Original jurisdiction
Section 101
94
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(i) the Commonwealth; or
1
(ii) a person suing or being sued on behalf of the
2
Commonwealth; or
3
(iii) a Commonwealth officer or employee;
4
is:
5
(iv) the lessee (other than as a sublessee); or
6
(v) the licensee (other than as a sublicensee); or
7
(vi) the grantee of the right or permission.
8
(2) The Minister may, by legislative instrument, confer jurisdiction on
9
the Federal Circuit and Family Court of Australia (Division 2) in
10
respect of any other specified Commonwealth tenancy dispute.
11
Note:
For specification by class, see subsection 13(3) of the Legislation Act
12
2003.
13
(3) The Minister may, by legislative instrument, make provision for
14
and in relation to all or any of the following matters in respect of a
15
Commonwealth tenancy dispute:
16
(a) the rights of the parties to the Commonwealth tenancy
17
dispute;
18
(b) the law (whether a law of the Commonwealth or a law of a
19
State or Territory) to be applied in determining the
20
Commonwealth tenancy dispute (the applicable law);
21
(c) any modifications of the applicable law that are to apply in
22
relation to the Commonwealth tenancy dispute;
23
(d) the powers that the Federal Circuit and Family Court of
24
Australia (Division 2) may exercise under the applicable law;
25
(e) if the Federal Circuit and Family Court of Australia
26
(Division 2) makes an order when exercising jurisdiction
27
over the Commonwealth tenancy dispute--the powers that
28
may be exercised when executing the order or a class of
29
orders.
30
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Jurisdiction Part 2
Appellate jurisdiction Division 2
Section 102
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
95
Division 2--Appellate jurisdiction
1
102 Appeals from courts of summary jurisdiction in relation to
2
family law or child support matters
3
(1) The Federal Circuit and Family Court of Australia (Division 2) has
4
jurisdiction to hear and determine appeals from:
5
(a) a judgment of a court of summary jurisdiction of a State or
6
Territory exercising jurisdiction under the Family Law Act
7
1975; or
8
(b) a judgment of a court of summary jurisdiction of a State or
9
Territory exercising jurisdiction under the Child Support
10
(Assessment) Act 1989 or the Child Support (Registration
11
and Collection) Act 1988.
12
Note 1:
For the definition of court of summary jurisdiction, see section 2B of
13
the Acts Interpretation Act 1901.
14
Note 2:
See section 47A of the Family Law Act 1975.
15
(2) For the purposes of subsection (1), a Family Court of a State is not
16
a court of summary jurisdiction.
17
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 2 Jurisdiction
Division 3 Associated matters
Section 103
96
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Division 3--Associated matters
1
103 Jurisdiction in associated matters
2
To the extent that the Constitution permits, jurisdiction is conferred
3
on the Federal Circuit and Family Court of Australia (Division 2)
4
in respect of matters not otherwise within its jurisdiction that are
5
associated with matters in which the jurisdiction of the Federal
6
Circuit and Family Court of Australia (Division 2) is invoked.
7
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Jurisdiction Part 2
Exercise of jurisdiction Division 4
Section 104
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
97
Division 4--Exercise of jurisdiction
1
104 General and Fair Work Divisions of the Federal Circuit and
2
Family Court of Australia (Division 2)
3
(1) For the purpose of the organisation and conduct of the business of
4
the Federal Circuit and Family Court of Australia (Division 2), the
5
Court comprises the following Divisions:
6
(a) the General Division;
7
(b) the Fair Work Division.
8
(2) Every proceeding in the Federal Circuit and Family Court of
9
Australia (Division 2) must be instituted, heard and determined in a
10
Division mentioned in subsection (1).
11
Fair Work Division
12
(3) The following jurisdiction of the Federal Circuit and Family Court
13
of Australia (Division 2) is to be exercised in the Fair Work
14
Division:
15
(a) jurisdiction that is required by any other Act to be exercised
16
in the Fair Work Division;
17
(b) jurisdiction that is incidental to such jurisdiction.
18
Note:
Under section 567 of the Fair Work Act 2009, jurisdiction is required
19
to be exercised in the Fair Work Division of the Federal Circuit and
20
Family Court of Australia (Division 2) in relation to matters arising
21
under that Act.
22
General Division
23
(4) The following jurisdiction of the Federal Circuit and Family Court
24
of Australia (Division 2) is to be exercised in the General Division:
25
(a) jurisdiction that is not required by any other Act to be
26
exercised in the Fair Work Division;
27
(b) jurisdiction that is incidental to such jurisdiction (including
28
jurisdiction that is required by any other Act to be exercised
29
in the Fair Work Division).
30
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 2 Jurisdiction
Division 4 Exercise of jurisdiction
Section 105
98
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Jurisdiction that is required to be exercised in both Divisions
1
(5) If the jurisdiction of the Federal Circuit and Family Court of
2
Australia (Division 2) is required to be exercised in both the
3
General Division and the Fair Work Division in relation to
4
particular proceedings or proceedings of a particular kind, the
5
Chief Judge may, at any time (whether before or after the
6
proceedings are instituted), give a direction about the allocation to
7
the General Division or the Fair Work Division of those
8
proceedings or proceedings of that kind.
9
105 Exercise of jurisdiction--open court or in Chambers
10
(1) This section does not apply to family law or child support
11
proceedings.
12
Note:
See section 97 of the Family Law Act 1975.
13
Open court
14
(2) The jurisdiction of the Federal Circuit and Family Court of
15
Australia (Division 2) must be exercised in open court. However,
16
this rule does not apply where, as authorised by this Chapter or
17
another law of the Commonwealth, the jurisdiction of the Court is
18
exercised by a Judge of that Court sitting in Chambers.
19
Judge sitting in Chambers
20
(3) The jurisdiction of the Federal Circuit and Family Court of
21
Australia (Division 2) may be exercised by a Judge of the Court
22
sitting in Chambers in:
23
(a) a proceeding on an application relating to the conduct of a
24
proceeding; and
25
(b) a proceeding on an application for orders or directions as to
26
any matter which, by this Chapter or any other law of the
27
Commonwealth, is made subject to the direction of a Judge
28
of the Court sitting in Chambers; and
29
(c) a proceeding on any other application authorised by the Rules
30
of Court to be made to a Judge of the Court sitting in
31
Chambers.
32
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Jurisdiction Part 2
Exercise of jurisdiction Division 4
Section 106
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
99
(4) The jurisdiction of the Federal Circuit and Family Court of
1
Australia (Division 2) is to be exercised by a Judge of the Court
2
sitting in Chambers in a proceeding where:
3
(a) under the Rules of Court, the Court is authorised to make a
4
decision relating to the proceeding without an oral hearing;
5
and
6
(b) the parties to the proceeding have consented to the Court
7
making a decision in relation to the proceeding without an
8
oral hearing.
9
Proceeding in Chambers may be adjourned into court
10
(5) A Judge of the Federal Circuit and Family Court of Australia
11
(Division 2) may order a proceeding in Chambers to be adjourned
12
into the Court.
13
Proceeding in open court may be adjourned into Chambers
14
(6) The Federal Circuit and Family Court of Australia (Division 2)
15
may order a proceeding in open court to be adjourned into
16
Chambers if, apart from this subsection, the jurisdiction of the
17
Court may be exercised by a Judge of the Court sitting in
18
Chambers in that proceeding.
19
Closed court etc.
20
(7) The Federal Circuit and Family Court of Australia (Division 2)
21
may order the exclusion of the public or of persons specified by the
22
Court from a sitting of the Court if the Court is satisfied that the
23
presence of the public or of those persons, as the case may be,
24
would be:
25
(a) contrary to the interests of justice; or
26
(b) prejudicial to the security of the Commonwealth.
27
106 Exercise of jurisdiction
28
(1) The jurisdiction of the Federal Circuit and Family Court of
29
Australia (Division 2), including its appellate jurisdiction, is to be
30
exercised by the Court constituted by a single Judge.
31
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 2 Jurisdiction
Division 4 Exercise of jurisdiction
Section 107
100
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(2) In a matter before, or coming before, the Federal Circuit and
1
Family Court of Australia (Division 2), a Judge may give
2
directions under subsection 159(1).
3
107 Determination of matter completely and finally
4
In every matter before the Federal Circuit and Family Court of
5
Australia (Division 2), the Court must grant, either:
6
(a) absolutely; or
7
(b) on such terms and conditions as the Court thinks just;
8
all remedies to which any of the parties appears to be entitled in
9
respect of a legal or equitable claim properly brought forward by a
10
party in the matter, so that, as far as possible:
11
(c) all matters in controversy between the parties may be
12
completely and finally determined; and
13
(d) all multiplicity of proceedings concerning any of those
14
matters may be avoided.
15
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Jurisdiction Part 2
Certain powers relating to matters of jurisdiction Division 5
Section 108
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
101
Division 5--Certain powers relating to matters of
1
jurisdiction
2
108 Making of orders and issue of writs
3
The Federal Circuit and Family Court of Australia (Division 2) has
4
power, in relation to matters in which it has jurisdiction, to:
5
(a) make orders of such kinds, including interlocutory orders, as
6
the Court considers appropriate; and
7
(b) issue, or direct the issue of, writs of such kinds as the Court
8
considers appropriate.
9
109 Declarations of right
10
(1) The Federal Circuit and Family Court of Australia (Division 2)
11
may, in relation to a matter in which it has original jurisdiction,
12
make binding declarations of right, whether or not any
13
consequential relief is or could be claimed.
14
(2) A proceeding is not open to objection on the ground that a
15
declaratory order only is sought.
16
110 Contempt of court
17
(1) The Federal Circuit and Family Court of Australia (Division 2) has
18
the same power to punish contempts of its power and authority as
19
is possessed by the High Court in respect of contempts of the High
20
Court.
21
(2) The jurisdiction of the Federal Circuit and Family Court of
22
Australia (Division 2) to punish a contempt of the Court committed
23
in the face or hearing of the Court may be exercised by the Court
24
as constituted at the time of the contempt.
25
Note:
See also section 112AP of the Family Law Act 1975, which deals with
26
family law or child support proceedings.
27
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 2 Jurisdiction
Division 5 Certain powers relating to matters of jurisdiction
Section 111
102
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
111 Summary judgment
1
(1) The Federal Circuit and Family Court of Australia (Division 2)
2
may give judgment for one party against another in relation to the
3
whole or any part of a proceeding if:
4
(a) the first party is prosecuting the proceeding or that part of the
5
proceeding; and
6
(b) the Court is satisfied that the other party has no reasonable
7
prospect of successfully defending the proceeding or that part
8
of the proceeding.
9
(2) The Federal Circuit and Family Court of Australia (Division 2)
10
may give judgment for one party against another in relation to the
11
whole or any part of a proceeding if:
12
(a) the first party is defending the proceeding or that part of the
13
proceeding; and
14
(b) the Court is satisfied that the other party has no reasonable
15
prospect of successfully prosecuting the proceeding or that
16
part of the proceeding.
17
(3) For the purposes of this section, a defence or a proceeding or part
18
of a proceeding need not be:
19
(a) hopeless; or
20
(b) bound to fail;
21
for it to have no reasonable prospect of success.
22
(4) This section does not limit any powers that the Federal Circuit and
23
Family Court of Australia (Division 2) has apart from this section.
24
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Jurisdiction Part 2
Administration Division 6
Section 112
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
103
Division 6--Administration
1
112 Arrangement of business
2
(1) The Chief Judge is responsible for ensuring the effective, orderly
3
and expeditious discharge of the business of the Federal Circuit
4
and Family Court of Australia (Division 2).
5
(2) In discharging the Chief Judge's responsibility, the Chief Judge:
6
(a) must promote the objects of this Act; and
7
(b) may, subject to this Chapter and to such consultation with
8
Judges of the Federal Circuit and Family Court of Australia
9
(Division 2) as is appropriate and practicable, do all or any of
10
the following:
11
(i) make arrangements as to the Judge who is to constitute
12
the Court in particular matters or classes of matters;
13
(ii) without limiting the generality of subparagraph (i)--
14
assign particular caseloads, classes of cases or functions
15
to particular Judges;
16
(iii) temporarily restrict a Judge to non-sitting duties; and
17
(c) must ensure that arrangements are in place to provide Judges
18
with appropriate access to (or reimbursement for the cost of):
19
(i) annual health assessments; and
20
(ii) short-term counselling services; and
21
(iii) judicial education; and
22
(d) may deal, as set out in section 113, with a complaint about
23
the performance by another Judge of the Judge's judicial or
24
official duties; and
25
(e) may take any measures that the Chief Judge believes are
26
reasonably necessary to maintain public confidence in the
27
Federal Circuit and Family Court of Australia (Division 2),
28
including, but not limited to, temporarily restricting another
29
Judge to non-sitting duties.
30
(3) The Deputy Chief Judge is to assist the Chief Judge in the exercise
31
of the functions conferred on the Chief Judge by this section (other
32
than paragraph (2)(d) or (e)).
33
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 2 Jurisdiction
Division 6 Administration
Section 113
104
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
113 Complaints
1
(1) The Chief Judge may, if a complaint is made about another Judge
2
of the Federal Circuit and Family Court of Australia (Division 2),
3
deal with the complaint by doing either or both of the following in
4
respect of the complaint:
5
(a) deciding whether or not to handle the complaint and then
6
doing one of the following:
7
(i) dismissing the complaint;
8
(ii) handling the complaint if the Chief Judge has a relevant
9
belief in relation to the complaint about the other Judge;
10
(iii) arranging for any other complaint handlers to assist the
11
Chief Judge to handle the complaint if the Chief Judge
12
has a relevant belief in relation to the complaint about
13
the other Judge;
14
(b) arranging for any other complaint handlers to decide whether
15
or not to handle the complaint and then to do one of the
16
following:
17
(i) dismiss the complaint;
18
(ii) handle the complaint if each of the complaint handlers
19
has a relevant belief in relation to the complaint about
20
the other Judge.
21
Note:
A complaint handler (other than the Chief Judge) may handle a
22
complaint by referring it to the Chief Judge. The Chief Judge may
23
then do either or both of the things referred to in paragraph (a) or (b)
24
in respect of the complaint.
25
(2) The Chief Judge may authorise, in writing, a person or a body to
26
do one or more of the following:
27
(a) assist the Chief Judge to handle complaints or a specified
28
complaint;
29
(b) decide whether or not to handle complaints or a specified
30
complaint;
31
(c) dismiss complaints or a specified complaint;
32
(d) handle complaints or a specified complaint.
33
(3) To avoid doubt, the Chief Judge may authorise under
34
subsection (2):
35
(a) the Deputy Chief Judge; or
36
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Jurisdiction Part 2
Administration Division 6
Section 114
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
105
(b) a body that includes the Deputy Chief Judge.
1
(4) In this section:
2
relevant belief: a person has a relevant belief in relation to a
3
complaint about a Judge if:
4
(a) the person believes that one or more of the circumstances that
5
gave rise to the complaint may, if substantiated, justify
6
consideration of the removal of the Judge in accordance with
7
paragraph 72(ii) of the Constitution; or
8
(b) the person believes that one or more of the circumstances that
9
gave rise to the complaint may, if substantiated:
10
(i) adversely affect, or have adversely affected, the
11
performance of judicial or official duties by the Judge;
12
or
13
(ii) have the capacity to adversely affect, or have adversely
14
affected, the reputation of the Federal Circuit and
15
Family Court of Australia (Division 2).
16
114 Exercise of powers of General and Fair Work Divisions of the
17
Federal Circuit and Family Court of Australia
18
(Division 2)
19
(1) A Judge who is assigned to a Division of the Federal Circuit and
20
Family Court of Australia (Division 2) must exercise, or participate
21
in exercising, the powers of the Court only in that Division, except
22
as set out in subsection (2).
23
(2) The Chief Judge may arrange for a Judge who is assigned to a
24
particular Division of the Federal Circuit and Family Court of
25
Australia (Division 2) to exercise, or participate in exercising, the
26
powers of the Court in the other Division if the Chief Judge
27
considers that circumstances make it desirable to do so.
28
(3) To avoid doubt, a Judge who is not assigned to either Division of
29
the Federal Circuit and Family Court of Australia (Division 2) may
30
exercise, or participate in exercising, the powers of the Court in
31
either Division.
32
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 2 Jurisdiction
Division 6 Administration
Section 115
106
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(4) Subsection (1) does not affect the validity of any exercise of
1
powers by the Federal Circuit and Family Court of Australia
2
(Division 2) otherwise than in accordance with that subsection.
3
115 Assignment of Judges to locations or registries
4
(1) The Chief Judge may, by written instrument, assign a particular
5
Judge to a particular location or registry.
6
(2) An instrument under subsection (1) has no effect unless it is
7
approved, in writing, by the Minister.
8
(3) Subsection (1) does not prevent a Judge from performing duties at
9
one or more other locations or registries on a temporary basis
10
(whether on circuit or otherwise).
11
116 Protection for the Chief Judge and Deputy Chief Judge
12
(1) In exercising the functions or powers mentioned in
13
paragraph 112(2)(b) or subsection 115(1), the Chief Judge has the
14
same protection and immunity as if the Chief Judge were
15
exercising those functions or powers as, or as a member of, the
16
Federal Circuit and Family Court of Australia (Division 2).
17
Note:
See also section 243.
18
(2) In assisting in the exercise of the functions or powers mentioned in
19
paragraph 112(2)(b), the Deputy Chief Judge has the same
20
protection and immunity as if the Deputy Chief Judge were
21
exercising those functions or powers as, or as a member of, the
22
Federal Circuit and Family Court of Australia (Division 2).
23
Note:
See also section 243.
24
(3) Despite section 39B of the Judiciary Act 1903, the Federal Court
25
does not have jurisdiction with respect to a matter relating to:
26
(a) the exercise by the Chief Judge of the functions or powers
27
mentioned in subsection 112(2), section 113 or
28
subsection 115(1); or
29
(b) the assisting in the exercise by the Deputy Chief Judge of the
30
functions or powers mentioned in subsection 112(2) or
31
section 113.
32
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Jurisdiction Part 2
Administration Division 6
Section 116
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
107
Functions and powers of the Chief Judge
1
(4) In addition to the functions and powers conferred on the Chief
2
Judge by this Chapter, the Chief Judge has such other functions
3
and powers in relation to the Federal Circuit and Family Court of
4
Australia (Division 2) as are specified in the regulations.
5
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 3 Transfer of proceedings
Division 1 Transfer of proceedings to the Federal Circuit and Family Court of Australia
(Division 1)
Section 117
108
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Part 3--Transfer of proceedings
1
Division 1--Transfer of proceedings to the Federal Circuit
2
and Family Court of Australia (Division 1)
3
117 Discretionary transfer of proceedings
4
(1) If a family law or child support proceeding is pending in the
5
Federal Circuit and Family Court of Australia (Division 2), the
6
Court may, by order, transfer the proceeding from the Court to the
7
Federal Circuit and Family Court of Australia (Division 1).
8
(2) The Federal Circuit and Family Court of Australia (Division 2)
9
may transfer a proceeding:
10
(a) on the application of a party to the proceeding; or
11
(b) on its own initiative.
12
(3) In deciding whether to transfer a proceeding to the Federal Circuit
13
and Family Court of Australia (Division 1), the Federal Circuit and
14
Family Court of Australia (Division 2) must have regard to:
15
(a) any Rules of Court made for the purposes of
16
subsection 118(2); and
17
(b) whether proceedings in respect of an associated matter are
18
pending in the Federal Circuit and Family Court of Australia
19
(Division 1); and
20
(c) whether the resources of the Federal Circuit and Family
21
Court of Australia (Division 2) are sufficient to hear and
22
determine the proceeding; and
23
(d) the interests of the administration of justice.
24
(4) If an order is made under subsection (1), the order takes effect on
25
the day that the order is approved by the Chief Justice of the
26
Federal Circuit and Family Court of Australia (Division 1) under
27
subsection (5).
28
(5) The Chief Justice of the Federal Circuit and Family Court of
29
Australia (Division 1) may approve, in writing, an order made
30
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Transfer of proceedings Part 3
Transfer of proceedings to the Federal Circuit and Family Court of Australia (Division
1) Division 1
Section 118
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
109
under subsection (1). In deciding whether to approve the order, the
1
Chief Justice must have regard to any Rules of Court made for the
2
purposes of subsection 118(2).
3
(6) The Federal Circuit and Family Court of Australia (Division 2)
4
may make such orders as it considers necessary pending written
5
approval being given by the Chief Justice of the Federal Circuit
6
and Family Court of Australia (Division 1).
7
(7) An appeal does not lie from a decision of the Federal Circuit and
8
Family Court of Australia (Division 2) in relation to the transfer of
9
a proceeding under this section.
10
(8) The following provisions have effect in relation to a decision by
11
the Chief Justice of the Federal Circuit and Family Court of
12
Australia (Division 1) to give, or refuse to give, an approval under
13
subsection (5):
14
(a) the Administrative Decisions (Judicial Review) Act 1977 does
15
not apply to the decision;
16
(b) despite section 39B of the Judiciary Act 1903, the Federal
17
Court does not have jurisdiction with respect to a matter
18
relating to the decision.
19
(9) An approval given under subsection (5) is not a legislative
20
instrument.
21
(10) This section does not apply to proceedings of a kind specified in
22
the regulations.
23
118 Rules of Court
24
(1) The Rules of Court may make provision in relation to transfers of
25
proceedings to the Federal Circuit and Family Court of Australia
26
(Division 1) under subsection 117(1), including in relation to the
27
scale of costs that applies to any order made in respect of
28
proceedings that are transferred.
29
(2) In particular, the Rules of Court may specify matters to which the
30
Federal Circuit and Family Court of Australia (Division 2) must
31
have regard in deciding whether to transfer a proceeding to the
32
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 3 Transfer of proceedings
Division 1 Transfer of proceedings to the Federal Circuit and Family Court of Australia
(Division 1)
Section 119
110
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Federal Circuit and Family Court of Australia (Division 1) under
1
subsection 117(1).
2
(3) Before Rules of Court are made for the purposes of this section, the
3
Chief Judge of the Federal Circuit and Family Court of Australia
4
(Division 2) must consult the Chief Justice of the Federal Circuit
5
and Family Court of Australia (Division 1).
6
119 Delegation
7
The Chief Judge may, in writing, delegate the Chief Judge's power
8
under subsection 34(5) to any one or more of the Judges.
9
Note:
Section 34 allows the Federal Circuit and Family Court of Australia
10
(Division 1) to order the transfer of proceedings to the Federal Circuit
11
and Family Court of Australia (Division 2), subject to the approval of
12
the Chief Judge.
13
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Transfer of proceedings Part 3
Transfer of proceedings to the Federal Court Division 2
Section 120
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
111
Division 2--Transfer of proceedings to the Federal Court
1
120 Discretionary transfer of proceedings
2
(1) If:
3
(a) a proceeding is pending in the Federal Circuit and Family
4
Court of Australia (Division 2); and
5
(b) the proceeding is not a family law or child support
6
proceeding;
7
the Court may, by order, transfer the proceeding from the Court to
8
the Federal Court.
9
(2) The Federal Circuit and Family Court of Australia (Division 2)
10
may transfer a proceeding:
11
(a) on the application of a party to the proceeding; or
12
(b) on its own initiative.
13
(3) In deciding whether to transfer a proceeding to the Federal Court,
14
the Federal Circuit and Family Court of Australia (Division 2)
15
must have regard to:
16
(a) any Rules of Court made for the purposes of
17
subsection 121(2); and
18
(b) whether proceedings in respect of an associated matter are
19
pending in the Federal Court; and
20
(c) whether the resources of the Federal Circuit and Family
21
Court of Australia (Division 2) are sufficient to hear and
22
determine the proceeding; and
23
(d) the interests of the administration of justice.
24
(4) If an order is made under subsection (1), the order takes effect on
25
the day that the order is confirmed by the Federal Court under
26
section 32AD of the Federal Court of Australia Act 1976.
27
(5) The Federal Circuit and Family Court of Australia (Division 2)
28
may make such orders as it considers necessary pending the order
29
transferring the proceeding being confirmed by the Federal Court.
30
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 3 Transfer of proceedings
Division 2 Transfer of proceedings to the Federal Court
Section 121
112
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(6) An appeal does not lie from a decision of the Federal Circuit and
1
Family Court of Australia (Division 2) in relation to the transfer of
2
a proceeding under this section.
3
(7) This section does not apply to proceedings of a kind specified in
4
the regulations.
5
121 Rules of Court
6
(1) The Rules of Court may make provision in relation to transfers of
7
proceedings to the Federal Court under subsection 120(1),
8
including in relation to the scale of costs that applies to any order
9
made in respect of proceedings that are transferred.
10
(2) In particular, the Rules of Court may set out factors that are to be
11
taken into account by the Federal Circuit and Family Court of
12
Australia (Division 2) in deciding whether to transfer a proceeding
13
to the Federal Court under subsection 120(1).
14
(3) Before Rules of Court are made for the purposes of this section, the
15
Chief Judge of the Federal Circuit and Family Court of Australia
16
(Division 2) must consult the Chief Justice of the Federal Court.
17
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Appeals Part 4
Section 122
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
113
Part 4--Appeals
1
2
122 Appeals to the High Court may not be brought
3
(1) An appeal must not be brought directly to the High Court from a
4
judgment of the Federal Circuit and Family Court of Australia
5
(Division 2).
6
(2) If, apart from this subsection, subsection (1) is to any extent
7
inconsistent with section 73 of the Constitution, this Act has effect
8
as if the words ", except by special leave of the High Court" were
9
added at the end of subsection (1).
10
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 5 Dispute resolution for proceedings other than proceedings under the Family
Law Act 1975
Division 1 General
Section 123
114
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Part 5--Dispute resolution for proceedings other
1
than proceedings under the Family Law
2
Act 1975
3
Division 1--General
4
123 This Part does not apply to proceedings under the Family Law
5
Act 1975
6
This Part applies to proceedings in the Federal Circuit Court and
7
Family Court of Australia (Division 2) other than proceedings
8
under the Family Law Act 1975.
9
Note 1:
For proceedings under the Family Law Act 1975, see in particular
10
Parts II, III, IIIA and IIIB of that Act, which contain provisions
11
dealing with family counselling, family dispute resolution and other
12
processes that apply to the Federal Circuit Court and Family Court of
13
Australia (Division 2) in relation to proceedings under that Act.
14
Note 2:
This Part (other than Division 2: see section 135) applies to
15
proceedings under the Child Support (Assessment) Act 1989 and the
16
Child Support (Registration and Collection) Act 1988.
17
124 Federal Circuit and Family Court of Australia (Division 2) to
18
consider whether to advise people to use dispute
19
resolution processes
20
The Federal Circuit and Family Court of Australia (Division 2)
21
must consider whether or not to advise the parties to proceedings
22
before it about the dispute resolution processes that could be used
23
to resolve any matter in dispute.
24
125 Federal Circuit and Family Court of Australia (Division 2) to
25
advise people to use dispute resolution processes
26
(1) If the Federal Circuit and Family Court of Australia (Division 2)
27
considers that a dispute resolution process may help the parties to a
28
dispute before it to resolve that dispute, the Court must advise the
29
parties to use that dispute resolution process.
30
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Dispute resolution for proceedings other than proceedings under the Family Law Act
1975 Part 5
General Division 1
Section 126
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
115
(2) If the Federal Circuit and Family Court of Australia (Division 2)
1
does so advise the parties, it may, if it considers it desirable to do
2
so, adjourn any proceedings before it to enable attendance in
3
connection with the dispute resolution process.
4
Note:
See also Part III of the Family Law Act 1975, which deals with dispute
5
resolution in family law and child support matters.
6
126 Duty of legal practitioners to consider whether to advise people
7
to use dispute resolution processes
8
A legal practitioner acting in proceedings in the Federal Circuit and
9
Family Court of Australia (Division 2), or consulted by a person
10
considering instituting such proceedings, must consider whether or
11
not to advise:
12
(a) the parties to the proceedings; or
13
(b) the person considering instituting proceedings;
14
about the dispute resolution processes that could be used to resolve
15
any matter in dispute.
16
127 Officers of the Federal Circuit and Family Court of Australia
17
(Division 2) to advise people about dispute resolution
18
processes
19
(1) A designated officer of the Federal Circuit and Family Court of
20
Australia (Division 2) must, as far as practicable, on request by:
21
(a) a party to proceedings in the Court; or
22
(b) a person considering instituting proceedings in the Court;
23
advise the party or person about the dispute resolution processes
24
that could be used to resolve any matter in dispute.
25
(2) For the purposes of this section, a member of the staff of the
26
Federal Circuit and Family Court of Australia (Division 2) is taken
27
to be an officer of the Court.
28
(3) For the purposes of this section, a designated officer of the Federal
29
Circuit and Family Court of Australia (Division 2) is an officer of
30
the Court specified in writing by the Chief Executive Officer for
31
the purposes of this subsection.
32
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 5 Dispute resolution for proceedings other than proceedings under the Family
Law Act 1975
Division 1 General
Section 128
116
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
128 Conciliation
1
(1) The Federal Circuit and Family Court of Australia (Division 2)
2
may, by order, refer proceedings in the Court, or any part of them
3
or any matter arising out of them, for conciliation in accordance
4
with the Rules of Court.
5
(2) Subsection (1) has effect subject to the Rules of Court.
6
(3) Referrals under subsection (1) to a conciliator may be made with or
7
without the consent of the parties to the proceedings.
8
129 Referral of question of law--dispute resolution process (other
9
than arbitration)
10
(1) If the Federal Circuit and Family Court of Australia (Division 2)
11
makes an order, or gives a direction, under this Chapter or any
12
other law of the Commonwealth:
13
(a) referring any or all of the matters in dispute in proceedings
14
before it for a dispute resolution process (other than
15
arbitration); or
16
(b) referring any proceedings before it, or any part of them or
17
any matters arising out of them, for a dispute resolution
18
process (other than arbitration); or
19
(c) requiring either or both of the parties to a proceeding before
20
it to attend a dispute resolution process (other than
21
arbitration);
22
a party to the dispute resolution process may make an application
23
to the Court for determination of a question of law arising out of
24
the proceedings.
25
(2) An application under subsection (1) must be accompanied by a
26
statement that:
27
(a) is signed by the person (the eligible person) conducting the
28
dispute resolution process; and
29
(b) states that the eligible person consents to the making of the
30
application; and
31
(c) states that the eligible person is of the opinion that the
32
determination of the question of law by the Federal Circuit
33
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Dispute resolution for proceedings other than proceedings under the Family Law Act
1975 Part 5
General Division 1
Section 130
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
117
and Family Court of Australia (Division 2) is likely to assist
1
the parties in reaching agreement about any or all of the
2
matters in dispute in the proceedings.
3
(3) If an application is made under subsection (1), the Federal Circuit
4
and Family Court of Australia (Division 2) may determine the
5
question of law.
6
(4) If the Federal Circuit and Family Court of Australia (Division 2)
7
determines a question of law under subsection (3), the
8
determination is binding on the parties to the proceedings
9
concerned.
10
130 Rules of Court about dispute resolution processes
11
(1) The Rules of Court may make provision for or in relation to
12
dispute resolution processes carried out under an order made, or
13
direction given, by the Federal Circuit and Family Court of
14
Australia (Division 2) under this Chapter or another law of the
15
Commonwealth.
16
(2) In particular, Rules of Court made for the purposes of
17
subsection (1) may make provision for or in relation to the
18
procedure to be followed when any dispute resolution process
19
ends.
20
131 Regulations about dispute resolution processes
21
(1) The regulations may make provision for or in relation to dispute
22
resolution processes carried out under an order made, or direction
23
given, by the Federal Circuit and Family Court of Australia
24
(Division 2) under this Chapter or another law of the
25
Commonwealth.
26
(2) In particular, regulations made for the purposes of subsection (1)
27
may make provision for or in relation to:
28
(a) the procedures to be followed by a person conducting a
29
dispute resolution process in carrying out that process; and
30
(b) the attendance by persons at:
31
(i) a dispute resolution process; or
32
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 5 Dispute resolution for proceedings other than proceedings under the Family
Law Act 1975
Division 1 General
Section 132
118
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(ii) a conference conducted for the purpose of carrying out a
1
dispute resolution process; and
2
(c) the kinds of persons who are eligible to conduct particular
3
kinds of dispute resolution processes.
4
132 Rules of Court about costs of dispute resolution processes
5
The Rules of Court may make provision for or in relation to the
6
costs of dispute resolution processes and the assessment or taxation
7
of those costs, where:
8
(a) the dispute resolution process was carried out under an order
9
made, or direction given, by the Federal Circuit and Family
10
Court of Australia (Division 2) under this Chapter or another
11
law of the Commonwealth; or
12
(b) the dispute resolution process was carried out for the purpose
13
of settling a dispute about a matter with respect to which
14
proceedings have been instituted in the Federal Circuit and
15
Family Court of Australia (Division 2).
16
133 Rules of Court about dispute resolution processes under the
17
Family Law Act 1975
18
The Rules of Court may make provision for or in relation to the
19
making of applications under the Family Law Act 1975 for
20
mediation or arbitration and for orders under section 13F of that
21
Act. Section 123 of this Act does not affect this section.
22
Note:
For provision about the award of costs, see Division 4 of Part 6 and
23
paragraphs 159(4)(d) and (e).
24
134 Consent orders
25
(1) If the parties to proceedings in the Federal Circuit and Family
26
Court of Australia (Division 2) have reached agreement about a
27
matter in dispute in the proceedings, the Court or a Judge may, on
28
application by the parties, make an order in the terms of the
29
agreement.
30
(2) This section has effect subject to the Rules of Court.
31
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Dispute resolution for proceedings other than proceedings under the Family Law Act
1975 Part 5
Proceedings other than family law or child support proceedings Division 2
Section 135
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
119
Division 2--Proceedings other than family law or child
1
support proceedings
2
135 Scope of Division
3
This Division applies to proceedings in the Federal Circuit and
4
Family Court of Australia (Division 2) other than family law or
5
child support proceedings.
6
Note:
See Part III of the Family Law Act 1975.
7
136 Mediation
8
(1) The Federal Circuit and Family Court of Australia (Division 2)
9
may, by order, refer proceedings in the Court, or any part of them
10
or any matter arising out of them, to a mediator for mediation in
11
accordance with the Rules of Court.
12
(2) Subsection (1) has effect subject to the Rules of Court.
13
(3) Referrals under subsection (1) to a mediator may be made with or
14
without the consent of the parties to the proceedings.
15
(4) Evidence of anything said, or of any admission made, at a
16
conference conducted by a mediator in the course of mediating
17
anything referred under subsection (1) is not admissible:
18
(a) in any court (whether exercising federal jurisdiction or not);
19
or
20
(b) in any proceedings before a person authorised by a law of the
21
Commonwealth or of a State or Territory, or by the consent
22
of the parties, to hear evidence.
23
(5) A mediator has, in mediating anything referred under
24
subsection (1), the same protection and immunity as a Judge of the
25
Federal Circuit and Family Court of Australia (Division 2) has in
26
performing the functions of a Judge.
27
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 5 Dispute resolution for proceedings other than proceedings under the Family
Law Act 1975
Division 2 Proceedings other than family law or child support proceedings
Section 137
120
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
137 Arbitration
1
(1) The Federal Circuit and Family Court of Australia (Division 2)
2
may, by order, refer proceedings in the Court, or any part of them
3
or any matter arising out of them, to an arbitrator for arbitration in
4
accordance with the Rules of Court.
5
(2) Subsection (1) has effect subject to the Rules of Court.
6
(3) Referrals under subsection (1) to an arbitrator may be made only
7
with the consent of the parties.
8
(4) The Rules of Court may make provision for the registration of
9
awards made in an arbitration carried out under an order made
10
under subsection (1).
11
(5) An arbitrator has, in arbitrating anything referred under
12
subsection (1), the same protection and immunity as a Judge of the
13
Federal Circuit and Family Court of Australia (Division 2) has in
14
performing the functions of a Judge.
15
138 Power of arbitrator to refer question of law to the Federal
16
Circuit and Family Court of Australia (Division 2)
17
(1) If:
18
(a) any proceedings in the Federal Circuit and Family Court of
19
Australia (Division 2), or any part of them or any matter
20
arising out of them, has been referred under
21
subsection 137(1) to an arbitrator for arbitration; and
22
(b) the arbitrator has not made an award in respect of the
23
arbitration; and
24
(c) a party to the arbitration has requested the arbitrator to apply
25
to the Court for leave to refer to the Court a question of law
26
arising in the arbitration;
27
the arbitrator may apply to the Court or a Judge for leave to refer
28
the question to the Court.
29
(2) The Federal Circuit and Family Court of Australia (Division 2) or a
30
Judge must not grant leave unless satisfied that the determination
31
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Dispute resolution for proceedings other than proceedings under the Family Law Act
1975 Part 5
Proceedings other than family law or child support proceedings Division 2
Section 139
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
121
of the question of law by the Court might result in substantial
1
savings in costs to the parties to the arbitration.
2
(3) If:
3
(a) the Federal Circuit and Family Court of Australia
4
(Division 2) or a Judge grants leave; and
5
(b) the arbitrator refers the question of law to the Court;
6
the Court must determine the question of law.
7
139 Review of arbitration award on a question of law etc.
8
(1) If:
9
(a) any proceedings in the Federal Circuit and Family Court of
10
Australia (Division 2), or any part of them or any matter
11
arising out of them, has been referred under
12
subsection 137(1) to an arbitrator for arbitration; and
13
(b) the arbitrator has made an award in respect of the arbitration;
14
and
15
(c) the award has been registered with the Court under the Rules
16
of Court;
17
the following provisions have effect.
18
(2) A party to the award may apply to the Federal Circuit and Family
19
Court of Australia (Division 2) for a review, on a question of law,
20
of the award.
21
(3) On a review of an award on a question of law, the Federal Circuit
22
and Family Court of Australia (Division 2) may:
23
(a) determine the question of law; and
24
(b) make such orders as it thinks appropriate, including:
25
(i) an order affirming the award; or
26
(ii) an order varying the award; or
27
(iii) an order setting aside the award and remitting the award
28
to the arbitrator for reconsideration in accordance with
29
the directions of the Court; or
30
(iv) an order setting aside the award and determining the
31
matter to which the award related.
32
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 5 Dispute resolution for proceedings other than proceedings under the Family
Law Act 1975
Division 2 Proceedings other than family law or child support proceedings
Section 140
122
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(4) A party to the award may apply to the Federal Circuit and Family
1
Court of Australia (Division 2) or a Judge for an order that the
2
costs payable by the party in respect of the arbitration be taxed in
3
accordance with the Rules of Court.
4
(5) The person who made the application is not liable to pay, in respect
5
of the costs of the arbitration, an amount that is more than the
6
amount of the costs as taxed under an order made under
7
subsection (4).
8
140 Arbitration awards
9
(1) The Federal Circuit and Family Court of Australia (Division 2)
10
may, on application by a party to an award made in an arbitration
11
(whether carried out under an order made under subsection 137(1)
12
or otherwise) in relation to a matter in which the Court has original
13
jurisdiction, make an order in the terms of the award.
14
(2) Subsection (1) does not apply to an award made in an arbitration
15
carried out under an order made under subsection 137(1) unless the
16
award has been registered with the Federal Circuit and Family
17
Court of Australia (Division 2) under the Rules of Court.
18
(3) An order so made is enforceable in the same manner as if it had
19
been made in an action in the Federal Circuit and Family Court of
20
Australia (Division 2). This subsection has effect subject to
21
subsection (4).
22
(4) A writ of attachment must not be issued to enforce payment of
23
money under an order made in accordance with this section.
24
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Practice and procedure Part 6
General Division 1
Section 141
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
123
Part 6--Practice and procedure
1
Division 1--General
2
141 Practice and procedure
3
(1) The practice and procedure of the Federal Circuit and Family Court
4
of Australia (Division 2) is to be in accordance with:
5
(a) the Rules of Court; and
6
(b) the regulations.
7
However, this subsection is subject to any provision made by or
8
under this or any other Act with respect to practice and procedure
9
of the Court.
10
Note:
Rules of Court are made under section 184 and regulations are made
11
under section 249.
12
(2) To the extent that the provisions mentioned in subsection (1) are
13
insufficient:
14
(a) in relation to the jurisdiction of the Court in a family law or
15
child support proceeding--the Rules of Court made under
16
Chapter 3 apply, with necessary modifications, so far as they
17
are capable of application and subject to any directions of the
18
Federal Circuit and Family Court of Australia (Division 2) or
19
a Judge, to the practice and procedure of the Court; and
20
(b) in relation to the jurisdiction of the Court in a proceeding that
21
is not a family law or child support proceeding--the Rules of
22
Court made under the Federal Court of Australia Act 1976
23
apply, with necessary modifications, so far as they are
24
capable of application and subject to any directions of the
25
Federal Circuit and Family Court of Australia (Division 2) or
26
a Judge, to the practice and procedure of the Court.
27
(3) In this section:
28
practice and procedure includes all matters in relation to which:
29
(a) Rules of Court may be made; and
30
(b) regulations may be made.
31
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 6 Practice and procedure
Division 1 General
Section 142
124
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
142 Representation
1
A party to a proceeding before the Federal Circuit and Family
2
Court of Australia (Division 2) is not entitled to be represented by
3
another person unless:
4
(a) under the Judiciary Act 1903, the other person is entitled to
5
practise as a barrister or solicitor, or both, in a federal court;
6
or
7
(b) under the regulations, the other person is taken to be an
8
authorised representative; or
9
(c) another law of the Commonwealth authorises the other
10
person to represent the party.
11
143 Interrogatories and discovery
12
(1) Interrogatories and discovery are allowed in relation to family law
13
and child support proceedings in the Federal Circuit and Family
14
Court of Australia (Division 2).
15
(2) However, interrogatories and discovery are not allowed in relation
16
to any other proceedings in the Federal Circuit and Family Court of
17
Australia (Division 2), unless the Court or a Judge declares that it
18
is appropriate, in the interests of the administration of justice, to
19
allow the interrogatories or discovery.
20
(3) In deciding whether to make a declaration under subsection (2), the
21
Federal Circuit and Family Court of Australia (Division 2) or a
22
Judge must have regard to:
23
(a) whether allowing the interrogatories or discovery would be
24
likely to contribute to the fair and expeditious conduct of the
25
proceedings; and
26
(b) such other matters (if any) as the Court or the Judge
27
considers relevant.
28
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Practice and procedure Part 6
Documents filed in the Federal Circuit and Family Court of Australia (Division 2)
Division 2
Section 144
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
125
Division 2--Documents filed in the Federal Circuit and
1
Family Court of Australia (Division 2)
2
144 Filing of documents in the Federal Circuit and Family Court of
3
Australia (Division 2)
4
(1) If a document is required or permitted to be filed in the Federal
5
Circuit and Family Court of Australia (Division 2):
6
(a) the document is to be filed:
7
(i) at a registry of the Court; or
8
(ii) in accordance with an arrangement under section 212 or
9
213; and
10
(b) the document is to be filed in accordance with the Rules of
11
Court.
12
(2) The Rules of Court may provide that the requirements of
13
subsection (1) are taken to have been met in relation to a
14
document:
15
(a) if the document, or its contents, are sent to the Federal Circuit
16
and Family Court of Australia (Division 2), using the web
17
portal of the Federal Circuit and Family Court of Australia;
18
or
19
(b) in other circumstances set out in the Rules of Court.
20
145 Seal of the Federal Circuit and Family Court of Australia
21
(Division 2)
22
(1) The Federal Circuit and Family Court of Australia (Division 2) is
23
to have a seal, and the design of the seal is to be determined by the
24
Minister.
25
(2) The seal of the Federal Circuit and Family Court of Australia
26
(Division 2) must be kept in such custody as the Chief Judge
27
directs.
28
(3) The seal of the Federal Circuit and Family Court of Australia
29
(Division 2) must be affixed to documents as provided by this or
30
any other Act or by the Rules of Court.
31
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 6 Practice and procedure
Division 2 Documents filed in the Federal Circuit and Family Court of Australia
(Division 2)
Section 146
126
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
146 Federal Circuit and Family Court of Australia (Division 2)
1
stamps
2
(1) There are to be one or more Federal Circuit and Family Court of
3
Australia (Division 2) stamps. For this purpose, a Federal Circuit
4
and Family Court of Australia (Division 2) stamp is a stamp the
5
design of which is, as nearly as practicable, the same as the design
6
of the seal of the Federal Circuit and Family Court of Australia
7
(Division 2).
8
(2) A document or a copy of a document marked with a Federal
9
Circuit and Family Court of Australia (Division 2) stamp is as
10
valid and effectual as if it had been sealed with a seal of the
11
Federal Circuit and Family Court of Australia (Division 2).
12
(3) A Federal Circuit and Family Court of Australia (Division 2) stamp
13
must be affixed to documents as provided by this or any other Act
14
or by the Rules of Court.
15
147 Writs etc.
16
(1) All writs, commissions and process issued from the Federal Circuit
17
and Family Court of Australia (Division 2) must be:
18
(a) under the seal of the Court; and
19
(b) signed (including by way of electronic signature) by:
20
(i) a Judge; or
21
(ii) the Chief Executive Officer; or
22
(iii) a Registrar; or
23
(iv) an officer acting with the authority of the Chief
24
Executive Officer.
25
(2) Subsection (1) does not apply to writs, commissions and process
26
signed and issued in accordance with an arrangement under
27
section 212.
28
Note:
See paragraph 212(1)(b).
29
(3) To avoid doubt, subsection (1) does not apply to an order of the
30
Federal Circuit and Family Court of Australia (Division 2).
31
Note:
For orders, see section 176.
32
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Practice and procedure Part 6
Documents filed in the Federal Circuit and Family Court of Australia (Division 2)
Division 2
Section 148
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
127
148 Proceedings may be instituted by application
1
(1) Proceedings may be instituted in the Federal Circuit and Family
2
Court of Australia (Division 2) by way of application without the
3
need for pleadings.
4
(2) Subsection (1) has effect subject to the Rules of Court.
5
149 Limits on length of documents
6
(1) The Federal Circuit and Family Court of Australia (Division 2) or a
7
Judge may give directions about limiting the length of documents
8
required or permitted to be filed in the Court.
9
(2) Subsection (1) has effect subject to the Rules of Court.
10
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 6 Practice and procedure
Division 3 Conduct of proceedings
Section 150
128
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Division 3--Conduct of proceedings
1
150 Place of sitting
2
Sittings of the Federal Circuit and Family Court of Australia
3
(Division 2) must be held from time to time as required and the
4
Court may sit at any place in Australia.
5
151 Change of venue
6
The Federal Circuit and Family Court of Australia (Division 2) or a
7
Judge may, at any stage of a proceeding in the Court, order that:
8
(a) the proceeding; or
9
(b) a part of the proceeding;
10
be conducted or continued at a place specified in the order, subject
11
to such conditions (if any) as the Court or Judge imposes.
12
152 Determination of proceedings without a jury
13
A civil proceeding between parties in the Federal Circuit and
14
Family Court of Australia (Division 2) is to be determined without
15
a jury.
16
153 Decisions without oral hearing
17
The Rules of Court may authorise the Federal Circuit and Family
18
Court of Australia (Division 2) or a Judge to make decisions in
19
proceedings without an oral hearing if the parties to the
20
proceedings have consented to the making of such decisions
21
without an oral hearing.
22
154 Limits on the length of oral argument
23
(1) The Federal Circuit and Family Court of Australia (Division 2) or a
24
Judge may give directions about limiting the time for oral
25
argument in proceedings before the Court.
26
(2) Subsection (1) has effect subject to the Rules of Court.
27
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Practice and procedure Part 6
Conduct of proceedings Division 3
Section 155
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
129
155 Written submissions
1
(1) The Federal Circuit and Family Court of Australia (Division 2) or a
2
Judge may give directions about the use of written submissions in
3
proceedings before the Court.
4
(2) The Federal Circuit and Family Court of Australia (Division 2) or a
5
Judge may give directions limiting the length of written
6
submissions in proceedings before the Court.
7
(3) Subsections (1) and (2) have effect subject to the Rules of Court.
8
156 Formal defects not to invalidate
9
(1) Proceedings in the Federal Circuit and Family Court of Australia
10
(Division 2) are not invalidated by a formal defect or an
11
irregularity, unless the Court is of the opinion that:
12
(a) substantial injustice has been caused by the defect or
13
irregularity; and
14
(b) the injustice cannot be remedied by an order of the Court.
15
(2) The Federal Circuit and Family Court of Australia (Division 2) or a
16
Judge may, on such conditions (if any) as the Court or Judge thinks
17
fit, make an order declaring that the proceeding is not invalid:
18
(a) by reason of a defect that it or the Judge considers to be
19
formal; or
20
(b) by reason of an irregularity.
21
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 6 Practice and procedure
Division 4 Case management
Section 157
130
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Division 4--Case management
1
157 Overarching purpose of civil practice and procedure provisions
2
(1) The overarching purpose of the civil practice and procedure
3
provisions is to facilitate the just resolution of disputes:
4
(a) according to law; and
5
(b) as quickly, inexpensively and efficiently as possible.
6
Note 1:
See also paragraphs 5(a) and (b).
7
Note 2:
The Federal Circuit and Family Court of Australia (Division 2) must
8
give effect to principles in the Family Law Act 1975 when exercising
9
jurisdiction in relation to proceedings under that Act.
10
(2) Without limiting subsection (1), the overarching purpose includes
11
the following objectives:
12
(a) the just determination of all proceedings before the Federal
13
Circuit and Family Court of Australia (Division 2);
14
(b) the efficient use of the judicial and administrative resources
15
available for the purposes of the Court;
16
(c) the efficient disposal of the Court's overall caseload;
17
(d) the disposal of all proceedings in a timely manner;
18
(e) the resolution of disputes at a cost that is proportionate to the
19
importance and complexity of the matters in dispute.
20
(3) The civil practice and procedure provisions must be interpreted and
21
applied, and any power conferred or duty imposed by them
22
(including the power to make Rules of Court) must be exercised or
23
carried out, in the way that best promotes the overarching purpose.
24
(4) The civil practice and procedure provisions are the following, so
25
far as they apply in relation to civil proceedings:
26
(a) the Rules of Court;
27
(b) any other provision made by or under this Act or any other
28
Act with respect to the practice and procedure of the Federal
29
Circuit and Family Court of Australia (Division 2).
30
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Practice and procedure Part 6
Case management Division 4
Section 158
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
131
158 Parties to act consistently with the overarching purpose
1
(1) The parties to a civil proceeding before the Federal Circuit and
2
Family Court of Australia (Division 2) must conduct the
3
proceeding (including negotiations for settlement of the dispute to
4
which the proceeding relates) in a way that is consistent with the
5
overarching purpose.
6
(2) A party's lawyer must, in the conduct of such a proceeding before
7
the Federal Circuit and Family Court of Australia (Division 2)
8
(including negotiations for settlement) on the party's behalf:
9
(a) take account of the duty imposed on the party by
10
subsection (1); and
11
(b) assist the party to comply with the duty.
12
(3) The Federal Circuit and Family Court of Australia (Division 2) or a
13
Judge may, for the purpose of enabling a party to comply with the
14
duty imposed by subsection (1), require the party's lawyer to give
15
the party an estimate of:
16
(a) the likely duration of the proceeding or part of the
17
proceeding; and
18
(b) the likely amount of costs that the party will have to pay in
19
connection with the proceeding or part of the proceeding,
20
including:
21
(i) the costs that the lawyer will charge to the party; and
22
(ii) any other costs that the party will have to pay in the
23
event that the party is unsuccessful in the proceeding or
24
part of the proceeding.
25
Note:
Paragraph (b)--in relation to a family law or child support proceeding,
26
the Federal Circuit and Family Court of Australia (Division 2) may
27
make an order as to costs under section 117 of the Family Law Act
28
1975 if the Court is of the opinion that there are circumstances that
29
justify it in doing so.
30
(4) In exercising the discretion to award costs in a civil proceeding, the
31
Federal Circuit and Family Court of Australia (Division 2) or a
32
Judge must take account of any failure to comply with the duty
33
imposed by subsection (1) or (2).
34
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 6 Practice and procedure
Division 4 Case management
Section 159
132
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(5) Without limiting the exercise of that discretion, the Federal Circuit
1
and Family Court of Australia (Division 2) or a Judge may order a
2
party's lawyer to bear costs personally.
3
(6) If the Federal Circuit and Family Court of Australia (Division 2) or
4
a Judge orders a lawyer to bear costs personally because of a
5
failure to comply with the duty imposed by subsection (2), the
6
lawyer must not recover the costs from the lawyer's client.
7
159 Power of the Federal Circuit and Family Court of Australia
8
(Division 2) to give directions about practice and
9
procedure in a civil proceeding
10
(1) The Federal Circuit and Family Court of Australia (Division 2) or a
11
Judge may give directions about the practice and procedure to be
12
followed in relation to a civil proceeding, or any part of such a
13
proceeding, before the Court.
14
(2) Without limiting subsection (1), a direction may:
15
(a) require things to be done; or
16
(b) set time limits for the doing of anything, or the completion of
17
any part of the proceeding; or
18
(c) limit the number of witnesses who may be called to give
19
evidence, or the number of documents that may be tendered
20
in evidence; or
21
(d) provide for submissions to be made in writing; or
22
(e) limit the length of submissions (whether written or oral); or
23
(f) waive or vary any provision of the Rules of Court in their
24
application to the proceeding; or
25
(g) revoke or vary an earlier direction.
26
(3) If a party fails to comply with a direction given by the Federal
27
Circuit and Family Court of Australia (Division 2) or a Judge
28
under subsection (1), the Court or Judge may make such order or
29
direction as the Court or Judge thinks appropriate.
30
(4) In particular, the Federal Circuit and Family Court of Australia
31
(Division 2) or Judge may do any of the following:
32
(a) dismiss the proceeding in whole or in part;
33
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Practice and procedure Part 6
Case management Division 4
Section 160
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
133
(b) strike out, amend or limit any part of a party's claim or
1
defence;
2
(c) disallow or reject any evidence;
3
(d) award costs against a party;
4
(e) order that costs awarded against a party are to be assessed on
5
an indemnity basis or otherwise.
6
(5) Subsections (3) and (4) do not affect any power that the Federal
7
Circuit and Family Court of Australia (Division 2) or a Judge has
8
apart from those subsections to deal with a party's failure to
9
comply with a direction.
10
Note:
The Federal Circuit and Family Court of Australia (Division 2) or a
11
Judge may also make orders under the Family Law Act 1975.
12
160 Chief Judge to achieve common approaches to case
13
management with the Federal Circuit and Family Court
14
of Australia (Division 1)
15
For the purposes of ensuring the efficient resolution of family law
16
or child support proceedings, the Chief Judge must work
17
cooperatively with the Chief Justice with the aim of ensuring
18
common approaches to case management.
19
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 6 Practice and procedure
Division 5 Evidence
Section 161
134
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Division 5--Evidence
1
161 Oaths and affirmations
2
(1) A Judge may require and administer all necessary oaths and
3
affirmations for the purposes of the Federal Circuit and Family
4
Court of Australia (Division 2).
5
(2) A Judge may cause to be administered all necessary oaths and
6
affirmations for the purposes of the Federal Circuit and Family
7
Court of Australia (Division 2). For this purpose, the Court may,
8
either orally or in writing, authorise any person (whether in or
9
outside Australia) to administer oaths and affirmations.
10
(3) The Chief Executive Officer may, by written instrument, authorise:
11
(a) a Registrar; or
12
(b) a staff member of the Federal Circuit and Family Court of
13
Australia (Division 2);
14
to administer oaths and affirmations for the purposes of the Court.
15
Note:
See also paragraph 212(1)(d).
16
162 Swearing of affidavits etc.
17
(1) An affidavit to be used in a proceeding in the Federal Circuit and
18
Family Court of Australia (Division 2) may be sworn or affirmed
19
within Australia before:
20
(a) a Judge; or
21
(b) the Chief Executive Officer; or
22
(c) a Registrar; or
23
(d) a justice of the peace; or
24
(e) a commissioner for affidavits; or
25
(f) a commissioner for declarations; or
26
(g) a person who is authorised to administer oaths or affirmations
27
for the purposes of:
28
(i) the High Court; or
29
(ii) the Federal Court; or
30
(iii) the Federal Circuit and Family Court of Australia; or
31
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Practice and procedure Part 6
Evidence Division 5
Section 162
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
135
(iv) the Supreme Court of a State or Territory; or
1
(h) a person before whom affidavits can be sworn or affirmed
2
under the Evidence Act 1995.
3
Note:
See also paragraph 212(1)(d).
4
(2) An affidavit to be used in a proceeding in the Federal Circuit and
5
Family Court of Australia (Division 2) may be sworn or affirmed
6
at a place outside Australia before:
7
(a) a commissioner of the High Court who is authorised to
8
administer oaths or affirmations in that place for the purposes
9
of the High Court; or
10
(b) an Australian Diplomatic Officer or an Australian Consular
11
Officer, as defined by the Consular Fees Act 1955, who is
12
exercising the officer's function in that place; or
13
(c) an employee of the Commonwealth who is:
14
(i) authorised under paragraph 3(c) of the Consular Fees
15
Act 1955; and
16
(ii) exercising the employee's function in that place; or
17
(d) an employee of the Australian Trade and Investment
18
Commission who is:
19
(i) authorised under paragraph 3(d) of the Consular Fees
20
Act 1955; and
21
(ii) exercising the employee's function in that place; or
22
(e) a notary public who is exercising the notary public's function
23
in that place; or
24
(f) a person who is:
25
(i) qualified to administer an oath or affirmation in that
26
place; and
27
(ii) certified by the person mentioned in any of
28
paragraphs (b), (c), (d) and (e), or by the superior court
29
of that place, to be so qualified.
30
(3) An affidavit sworn or affirmed outside Australia otherwise than
31
before a person referred to in subsection (2) may be used in a
32
proceeding in the Federal Circuit and Family Court of Australia
33
(Division 2) in circumstances provided by the Rules of Court.
34
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 6 Practice and procedure
Division 5 Evidence
Section 163
136
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
163 Orders and commissions for examination of witnesses
1
The Federal Circuit and Family Court of Australia (Division 2) or a
2
Judge may, for the purposes of any proceeding before the Court or
3
Judge:
4
(a) order the examination of a person upon oath or affirmation
5
before the Court, a Judge, an officer of the Court or other
6
person, at any place within Australia; or
7
(b) order that a commission issue to a person, either in or outside
8
Australia, authorising the person to take the testimony on
9
oath or affirmation of another person;
10
and the Court or a Judge may:
11
(c) by the same or a subsequent order, give any necessary
12
directions concerning the time, place and manner of the
13
examination; and
14
(d) empower any party to the proceeding to give in evidence in
15
the proceeding the testimony so taken on such terms (if any)
16
as the Court or Judge directs.
17
164 Time limits on giving of testimony
18
(1) The Federal Circuit and Family Court of Australia (Division 2) or a
19
Judge may give directions about limiting the time for the giving of
20
testimony in proceedings before the Court.
21
(2) Subsection (1) has effect subject to the Rules of Court.
22
165 Federal Circuit and Family Court of Australia (Division 2) may
23
question witnesses
24
(1) The Federal Circuit and Family Court of Australia (Division 2)
25
may:
26
(a) put a question to a person giving testimony in a proceeding
27
if, in the opinion of the Court, the question is likely to assist
28
in:
29
(i) the resolution of a matter in dispute in the proceeding;
30
or
31
(ii) the expeditious and efficient conduct of the proceeding;
32
and
33
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Practice and procedure Part 6
Evidence Division 5
Section 166
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
137
(b) require the person to answer the question.
1
(2) Subsection (1) has effect subject to the Rules of Court.
2
(3) This section has effect in addition to, and not instead of, any other
3
powers that the Federal Circuit and Family Court of Australia
4
(Division 2) may have to ask questions.
5
166 Evidence may be given orally or by affidavit
6
(1) Testimony in a proceeding in the Federal Circuit and Family Court
7
of Australia (Division 2) is to be given orally or by affidavit.
8
(2) However, the Federal Circuit and Family Court of Australia
9
(Division 2) or a Judge may:
10
(a) direct that particular testimony is to be given orally; or
11
(b) direct that particular testimony is to be given by affidavit.
12
(3) Subsections (1) and (2) have effect subject to:
13
(a) any other provision of this Chapter; and
14
(b) the Rules of Court; and
15
(c) any other law of the Commonwealth.
16
Cross-examination of person who makes an affidavit
17
(4) If:
18
(a) a person makes an affidavit; and
19
(b) a party to a proceeding in the Federal Circuit and Family
20
Court of Australia (Division 2) adduces, or proposes to
21
adduce, evidence by the affidavit;
22
a party to the proceeding may request the person to appear as a
23
witness to be cross-examined with respect to the matters in the
24
affidavit.
25
(5) Subsection (4) has effect subject to the Rules of Court.
26
(6) If:
27
(a) a request under subsection (4) is given to a person who has
28
made an affidavit; and
29
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 6 Practice and procedure
Division 5 Evidence
Section 167
138
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(b) the person does not appear as a witness to be cross-examined
1
with respect to the matters in the affidavit;
2
the Federal Circuit and Family Court of Australia (Division 2) is to
3
give the matters in the affidavit such weight as the Court thinks fit
4
in the circumstances.
5
167 Offences by witness
6
(1) A person commits an offence if:
7
(a) the person has been duly served with a subpoena or summons
8
to appear as a witness before the Federal Circuit and Family
9
Court of Australia (Division 2); and
10
(b) the person:
11
(i) fails to attend as required by the subpoena or summons;
12
or
13
(ii) fails to appear and report from day to day unless
14
excused, or released from further attendance, by the
15
Court.
16
Penalty: Imprisonment for 6 months.
17
(2) A person commits an offence if the person, while appearing as a
18
witness before the Federal Circuit and Family Court of Australia
19
(Division 2):
20
(a) refuses or fails to be sworn or to make an affirmation; or
21
(b) refuses or fails to answer a question that the person is
22
required by the Court to answer; or
23
(c) refuses or fails to produce a document that the person is
24
required by the Court or by a subpoena or summons issued
25
from the Court to produce.
26
Penalty: Imprisonment for 6 months.
27
(3) This section does not limit the power of the Federal Circuit and
28
Family Court of Australia (Division 2) to punish persons for
29
contempt of the Court, but a person must not be punished under
30
this section and for contempt of the Court in respect of the same
31
act or omission.
32
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Practice and procedure Part 6
Evidence Division 5
Section 167
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
139
Note:
See also Division 13A of Part VII, and Parts XIII and XIIIA, of the
1
Family Law Act 1975 in relation to family law or child support
2
proceedings.
3
(4) Chapter 2 of the Criminal Code applies to all offences against this
4
section.
5
Note:
Chapter 2 of the Criminal Code sets out the general principles of
6
criminal responsibility.
7
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 6 Practice and procedure
Division 6 Use of video links or audio links
Section 168
140
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Division 6--Use of video links or audio links
1
168 Testimony by video link or audio link
2
(1) The Federal Circuit and Family Court of Australia (Division 2) or a
3
Judge may, for the purposes of any proceeding, direct or allow
4
testimony to be given by video link or audio link.
5
Note:
See also section 171.
6
(2) The testimony must be given on oath or affirmation unless:
7
(a) the person giving the testimony is in a foreign country; and
8
(b) either:
9
(i) the law in force in that country does not permit the
10
person to give testimony on oath or affirmation for the
11
purposes of the proceeding; or
12
(ii) the law in force in that country would make it
13
inconvenient for the person to give testimony on oath or
14
affirmation for the purposes of the proceeding; and
15
(c) the Federal Circuit and Family Court of Australia
16
(Division 2) or a Judge is satisfied that it is appropriate for
17
the testimony to be given otherwise than on oath or
18
affirmation.
19
(3) If the testimony is given otherwise than on oath or affirmation, the
20
Federal Circuit and Family Court of Australia (Division 2) or the
21
Judge is to give the testimony such weight as the Court or the
22
Judge thinks fit in the circumstances.
23
(4) The power conferred on the Federal Circuit and Family Court of
24
Australia (Division 2) or a Judge by subsection (1) may be
25
exercised:
26
(a) on the application of a party to the proceedings concerned; or
27
(b) on the Court's own initiative or on the Judge's own initiative,
28
as the case may be.
29
(5) This section applies whether the person giving testimony is in or
30
outside Australia, but does not apply if the person giving testimony
31
is in New Zealand.
32
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Practice and procedure Part 6
Use of video links or audio links Division 6
Section 169
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
141
Note:
See Part 6 of the Trans-Tasman Proceedings Act 2010.
1
169 Appearance of persons by video link or audio link
2
(1) The Federal Circuit and Family Court of Australia (Division 2) or a
3
Judge may, for the purposes of any proceeding, direct or allow a
4
person to appear before the Court or the Judge by way of video
5
link or audio link.
6
Note:
See also section 171.
7
(2) The power conferred on the Federal Circuit and Family Court of
8
Australia (Division 2) or a Judge by subsection (1) may be
9
exercised:
10
(a) on the application of a party to the proceedings concerned; or
11
(b) on the Court's own initiative or on the Judge's own initiative,
12
as the case may be.
13
(3) This section applies whether the person appearing is in or outside
14
Australia, but does not apply if the person appearing is in New
15
Zealand.
16
Note:
See Part 6 of the Trans-Tasman Proceedings Act 2010.
17
170 Making of submissions by video link or audio link
18
(1) The Federal Circuit and Family Court of Australia (Division 2) or a
19
Judge may, for the purposes of any proceeding, direct or allow a
20
person to make a submission to the Court or the Judge by way of
21
video link or audio link.
22
Note:
See also section 171.
23
(2) The power conferred on the Federal Circuit and Family Court of
24
Australia (Division 2) or a Judge by subsection (1) may be
25
exercised:
26
(a) on the application of a party to the proceedings concerned; or
27
(b) on the Court's own initiative or on the Judge's own initiative,
28
as the case may be.
29
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 6 Practice and procedure
Division 6 Use of video links or audio links
Section 171
142
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(3) This section applies whether the person making the submission is
1
in or outside Australia, but does not apply if the person making the
2
submission is in New Zealand.
3
Note:
See Part 6 of the Trans-Tasman Proceedings Act 2010.
4
171 Conditions for use of video links and audio links
5
Video link
6
(1) The Federal Circuit and Family Court of Australia (Division 2) or a
7
Judge must not exercise the power conferred by subsection 168(1),
8
169(1) or 170(1) in relation to a video link unless the Court or the
9
Judge is satisfied that the following conditions are met in relation
10
to the video link:
11
(a) the courtroom or other place where the Court or the Judge is
12
sitting is equipped with facilities (for example, television
13
monitors) that enable all eligible persons present in that
14
courtroom or place to see and hear the person (the remote
15
person) who is:
16
(i) giving the testimony; or
17
(ii) appearing; or
18
(iii) making the submission;
19
as the case may be, by way of the video link;
20
(b) the place at which the remote person is located is equipped
21
with facilities (for example, television monitors) that enable
22
all eligible persons present in that place to see and hear each
23
eligible person who is present in the courtroom or other place
24
where the Court or the Judge is sitting;
25
(c) such other conditions (if any) as are prescribed by the Rules
26
of Court in relation to the video link;
27
(d) such other conditions (if any) as are imposed by the Court or
28
the Judge.
29
(2) The conditions that may be prescribed by the Rules of Court in
30
accordance with paragraph (1)(c) include conditions relating to:
31
(a) the form of the video link; and
32
(b) the equipment, or class of equipment, used to establish the
33
link; and
34
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Practice and procedure Part 6
Use of video links or audio links Division 6
Section 171
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
143
(c) the layout of cameras; and
1
(d) the standard of transmission; and
2
(e) the speed of transmission; and
3
(f) the quality of communication.
4
Audio link
5
(3) The Federal Circuit and Family Court of Australia (Division 2) or a
6
Judge must not exercise the power conferred by subsection 168(1),
7
169(1) or 170(1) in relation to an audio link unless the Court or the
8
Judge is satisfied that the following conditions are met in relation
9
to the audio link:
10
(a) the courtroom or other place where the Court or the Judge is
11
sitting is equipped with facilities (for example, loudspeakers)
12
that enable all eligible persons present in that courtroom or
13
place to hear the person (the remote person) who is:
14
(i) giving the testimony; or
15
(ii) appearing; or
16
(iii) making the submission;
17
as the case may be, by way of the audio link;
18
(b) the place at which the remote person is located is equipped
19
with facilities (for example, loudspeakers) that enable all
20
eligible persons present in that place to hear each eligible
21
person who is present in the courtroom or other place where
22
the Court or the Judge is sitting;
23
(c) such other conditions (if any) as are prescribed by the Rules
24
of Court in relation to the audio link;
25
(d) such other conditions (if any) as are imposed by the Court or
26
the Judge.
27
(4) The conditions that may be prescribed by the Rules of Court in
28
accordance with paragraph (3)(c) include conditions relating to:
29
(a) the form of the audio link; and
30
(b) the equipment, or class of equipment, used to establish the
31
audio link; and
32
(c) the standard of transmission; and
33
(d) the speed of transmission; and
34
(e) the quality of communication.
35
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 6 Practice and procedure
Division 6 Use of video links or audio links
Section 172
144
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Eligible persons
1
(5) For the purposes of the application of this section to a particular
2
proceeding, eligible persons are such persons as the Federal Circuit
3
and Family Court of Australia (Division 2) or a Judge considers
4
should be treated as eligible persons for the purposes of the
5
proceeding.
6
172 Putting documents to a person by video link or audio link
7
If, in the course of an examination or appearance of a person by
8
video link or audio link in accordance with this Division, it is
9
necessary to put a document to the person, the Federal Circuit and
10
Family Court of Australia (Division 2) or a Judge may direct or
11
allow the document to be put to the person:
12
(a) if the document is physically present in the courtroom or
13
other place where the Court or the Judge is sitting:
14
(i) by causing a copy of the document to be transmitted to
15
the place where the person is located; and
16
(ii) by causing the transmitted copy to be put to the person;
17
or
18
(b) if the document is physically present in the place where the
19
person is located:
20
(i) by causing the document to be put to the person; and
21
(ii) by causing a copy of the document to be transmitted to
22
the courtroom or other place where the Court or the
23
Judge is sitting.
24
173 Administration of oaths and affirmations
25
An oath to be sworn, or an affirmation to be made, by a person (the
26
remote person) who is to give testimony by video link or audio
27
link in accordance with this Division may be administered:
28
(a) by means of the video link or audio link, as the case may be,
29
in a way that, as nearly as practicable, corresponds to the way
30
in which the oath or affirmation would be administered if the
31
remote person were to give testimony in the courtroom or
32
other place where the Federal Circuit and Family Court of
33
Australia (Division 2) or the Judge is sitting; or
34
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Practice and procedure Part 6
Use of video links or audio links Division 6
Section 174
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
145
(b) if the Federal Circuit and Family Court of Australia
1
(Division 2) or the Judge allows another person who is
2
present at the place where the remote person is located to
3
administer the oath or affirmation--by that other person.
4
174 Expenses
5
(1) The Federal Circuit and Family Court of Australia (Division 2) or a
6
Judge may make such orders as the Court or the Judge thinks just
7
for the payment of expenses incurred in connection with:
8
(a) the giving of testimony by video link or audio link in
9
accordance with this Division; or
10
(b) the appearance of a person by video link or audio link in
11
accordance with this Division; or
12
(c) the making of submissions by video link or audio link in
13
accordance with this Division.
14
(2) Subsection (1) has effect subject to the regulations.
15
175 New Zealand proceedings
16
This Division does not affect the operation of the Trans-Tasman
17
Proceedings Act 2010.
18
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 6 Practice and procedure
Division 7 Orders and judgments
Section 176
146
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Division 7--Orders and judgments
1
176 Orders
2
(1) An order of the Federal Circuit and Family Court of Australia
3
(Division 2) must:
4
(a) be in writing; or
5
(b) be reduced to writing as soon as practicable.
6
(2) An order of the Federal Circuit and Family Court of Australia
7
(Division 2) may be authenticated in a manner specified in the
8
Rules of Court.
9
177 Reserved judgments etc.
10
(1) If:
11
(a) the Federal Circuit and Family Court of Australia
12
(Division 2) reserves judgment in a proceeding; and
13
(b) the Judge who heard the proceeding prepares orders and
14
reasons;
15
those orders and reasons may be made public by another Judge on
16
behalf of the Judge who heard the proceeding or as otherwise
17
provided for by the Rules of Court.
18
(2) If:
19
(a) the Federal Circuit and Family Court of Australia
20
(Division 2) reserves reasons for its decision in a proceeding;
21
and
22
(b) the Judge who heard the proceeding prepares reasons;
23
those reasons may be made public by another Judge on behalf of
24
the Judge who heard the proceeding or as otherwise provided for
25
by the Rules of Court.
26
178 Interest up to judgment
27
(1) This section does not apply to family law or child support
28
proceedings.
29
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Practice and procedure Part 6
Orders and judgments Division 7
Section 178
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
147
Note:
See section 117B of the Family Law Act 1975 in relation to family law
1
or child support proceedings.
2
Application for interest order
3
(2) A party to proceedings that are:
4
(a) in the Federal Circuit and Family Court of Australia
5
(Division 2); and
6
(b) for the recovery of any money (including any debt or
7
damages or the value of any goods) in respect of a particular
8
cause of action;
9
may apply to the Court or a Judge for an order under
10
subsection (3).
11
Interest order
12
(3) If:
13
(a) an application is made under subsection (2); and
14
(b) the Federal Circuit and Family Court of Australia
15
(Division 2) or the Judge is not satisfied that good cause has
16
been shown for not making an order under this subsection;
17
the Court or the Judge must either:
18
(c) order that there be included in the sum for which judgment is
19
given interest at such rate as the Court or the Judge thinks fit
20
on the whole or any part of the money for the whole or any
21
part of the period between:
22
(i) the date when the cause of action arose; and
23
(ii) the date as of which judgment is entered; or
24
(d) without proceeding to calculate interest in accordance with
25
paragraph (c), order that there be included in the sum for
26
which judgment is given a lump sum in lieu of any such
27
interest.
28
Exceptions
29
(4) Subsection (3) does not:
30
(a) authorise the giving of interest upon interest or of a sum in
31
lieu of such interest; or
32
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 6 Practice and procedure
Division 7 Orders and judgments
Section 178
148
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(b) apply in relation to any debt upon which interest is payable as
1
of right, whether by virtue of an agreement or otherwise; or
2
(c) affect the damages recoverable for the dishonour of a bill of
3
exchange; or
4
(d) limit the operation of any enactment or rule of law which,
5
apart from this section, provides for the award of interest; or
6
(e) authorise the giving of interest, or a sum in lieu of interest,
7
otherwise than by consent, upon any sum for which judgment
8
is given by consent.
9
(5) If:
10
(a) the sum for which judgment is given (the relevant sum)
11
includes; or
12
(b) the Federal Circuit and Family Court of Australia
13
(Division 2) in its absolute discretion, or a Judge in that
14
Judge's absolute discretion, determines that the relevant sum
15
includes;
16
any amount for:
17
(c) compensation in respect of liabilities incurred which do not
18
carry interest as against the person claiming interest or
19
claiming a sum in lieu of interest; or
20
(d) compensation for loss or damage to be incurred or suffered
21
after the date on which judgment is given; or
22
(e) exemplary or punitive damages;
23
interest, or a sum in lieu of interest, must not be given under
24
subsection (3) in respect of:
25
(f) any such amount; or
26
(g) so much of the relevant sum as, in the opinion of the Court or
27
the Judge, represents any such amount.
28
(6) Subsection (5) does not preclude:
29
(a) interest; or
30
(b) a sum in lieu of interest;
31
being given, under this section, upon compensation in respect of a
32
liability of the kind referred to in paragraph (5)(c), where that
33
liability has been met by the applicant, as from the date upon
34
which that liability was so met.
35
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Practice and procedure Part 6
Orders and judgments Division 7
Section 179
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
149
179 Interest on judgment
1
(1) This section does not apply to family law or child support
2
proceedings.
3
Note:
See section 117B of the Family Law Act 1975 in relation to family law
4
or child support proceedings.
5
(2) A judgment debt under a judgment of the Federal Circuit and
6
Family Court of Australia (Division 2) carries interest from the
7
date as of which the judgment is entered.
8
(3) Interest is payable:
9
(a) at such rate as is fixed by the Rules of Court; or
10
(b) if the Federal Circuit and Family Court of Australia
11
(Division 2), in a particular case, thinks that justice so
12
requires--at such lower rate as the Court determines.
13
180 Enforcement of judgment
14
(1) This section does not apply to family law or child support
15
proceedings.
16
Note:
See Division 13A of Part VII, and Parts XIII and XIIIA, of the Family
17
Law Act 1975 in relation to family law or child support proceedings.
18
(2) A person in whose favour a judgment of the Federal Circuit and
19
Family Court of Australia (Division 2) is given is entitled to the
20
same remedies for enforcement of the judgment in a State or
21
Territory, by execution or otherwise, as are allowed in like cases
22
by the laws of that State or Territory to persons in whose favour a
23
judgment of the Supreme Court of that State or Territory is given.
24
(3) Subsection (2) has effect subject to the Rules of Court.
25
(4) This section does not affect the operation of any provision made by
26
or under any other Act, or by the Rules of Court, for the execution
27
and enforcement of judgments of the Federal Circuit and Family
28
Court of Australia (Division 2).
29
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 6 Practice and procedure
Division 8 Costs
Section 181
150
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Division 8--Costs
1
181 Costs
2
(1) This section does not apply to:
3
(a) family law or child support proceedings; or
4
(b) proceedings in relation to a matter arising under:
5
(i) the Fair Work Act 2009; or
6
(ii) section 14, 15 or 16 of the Public Interest Disclosure
7
Act 2013.
8
Note 1:
Paragraph (a)--see section 117 of the Family Law Act 1975 in relation
9
to family law or child support proceedings.
10
Note 2:
Subparagraph (b)(i)--see section 570 of the Fair Work Act 2009 for
11
proceedings in relation to matters arising under that Act.
12
Note 3:
Subparagraph (b)(ii)--see section 18 of the Public Interest Disclosure
13
Act 2013 for proceedings in relation to matters arising under
14
section 14, 15 or 16 of that Act.
15
(2) The Federal Circuit and Family Court of Australia (Division 2) or a
16
Judge has jurisdiction to award costs in all proceedings before the
17
Court (including proceedings dismissed for want of jurisdiction)
18
other than proceedings in respect of which any other Act provides
19
that costs must not be awarded.
20
(3) Except as provided by the Rules of Court or any other Act, the
21
award of costs is in the discretion of the Federal Circuit and Family
22
Court of Australia (Division 2) or Judge.
23
Note:
For further provision about the award of costs, see Division 4 of Part 6
24
and paragraphs 159(4)(d) and (e).
25
182 Security for costs
26
(1) This section does not apply to family law or child support
27
proceedings.
28
Note:
See section 117 of the Family Law Act 1975 in relation to family law
29
or child support proceedings.
30
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Practice and procedure Part 6
Costs Division 8
Section 182
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
151
(2) The Federal Circuit and Family Court of Australia (Division 2) or a
1
Judge may order an applicant in a proceeding in the Court to give
2
security for the payment of costs that may be awarded against the
3
applicant.
4
(3) The security is to be of such amount, and given at such time and in
5
such manner and form, as the Federal Circuit and Family Court of
6
Australia (Division 2) or Judge directs.
7
(4) The Federal Circuit and Family Court of Australia (Division 2) or a
8
Judge may:
9
(a) reduce or increase the amount of security ordered to be
10
given; and
11
(b) vary the time at which, or manner or form in which, the
12
security is to be given.
13
(5) If security, or further security, is not given in accordance with an
14
order under this section, the Federal Circuit and Family Court of
15
Australia (Division 2) or a Judge may order that the proceeding be:
16
(a) dismissed; or
17
(b) stayed until security or further security is given in accordance
18
with the first-mentioned order.
19
(6) This section does not affect the operation of any provision made by
20
or under any other Act or by the Rules of Court for or in relation to
21
the giving of security.
22
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 6 Practice and procedure
Division 9 Common approaches with the Federal Circuit and Family Court of Australia
(Division 1)
Section 183
152
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Division 9--Common approaches with the Federal Circuit
1
and Family Court of Australia (Division 1)
2
183 Chief Judge to achieve common approaches with the Federal
3
Circuit and Family Court of Australia (Division 1)
4
For the purposes of ensuring the efficient resolution of family law
5
or child support proceedings, the Chief Judge must work
6
cooperatively with the Chief Justice with the aim of ensuring:
7
(a) common rules of court and forms; and
8
(b) common practices and procedures.
9
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Practice and procedure Part 6
Rules of Court Division 10
Section 184
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
153
Division 10--Rules of Court
1
184 Rules of Court
2
(1) The Chief Judge may make Rules of Court:
3
(a) providing for, or in relation to, the practice and procedure to
4
be followed in the Federal Circuit and Family Court of
5
Australia (Division 2) (including the practice and procedure
6
to be followed in registries of the Court); or
7
(b) providing for, or in relation to, all matters and things
8
incidental to any such practice or procedure, or necessary or
9
convenient to be prescribed for the conduct of any business
10
of the Federal Circuit and Family Court of Australia
11
(Division 2); or
12
(c) providing for, or in relation to, the time and manner of
13
institution of appeals in and to the Federal Circuit and Family
14
Court of Australia (Division 2); or
15
(d) prescribing penalties, not exceeding 50 penalty units, for
16
offences against the Rules of Court; or
17
(e) prescribing matters required or permitted by:
18
(i) any other provision of this Chapter; or
19
(ii) any other law of the Commonwealth;
20
to be prescribed by the Rules of Court.
21
(2) Rules of Court have effect subject to any provision made by
22
another Act, or by rules or regulations under another Act, with
23
respect to the practice and procedure of the Federal Circuit and
24
Family Court of Australia (Division 2) in particular matters.
25
(3) The Legislation Act 2003 (other than sections 8, 9, 10 and 16 of
26
that Act) applies in relation to Rules of Court made by the Chief
27
Judge under this Chapter or another Act:
28
(a) as if a reference to a legislative instrument were a reference
29
to a rule of court; and
30
(b) subject to such further modifications or adaptations as are
31
provided for in regulations made under section 249 of this
32
Act.
33
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 6 Practice and procedure
Division 10 Rules of Court
Section 185
154
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(4) Despite the fact that section 16 of the Legislation Act 2003 does
1
not apply to Rules of Court made by the Chief Judge under this
2
Chapter or another Act, the Office of Parliamentary Counsel
3
(established by subsection 2(1) of the Parliamentary Counsel Act
4
1970) may provide assistance in the drafting of any of those Rules
5
if the Chief Judge so desires.
6
185 Documents
7
(1) The Rules of Court may make provision for or in relation to:
8
(a) pleading; and
9
(b) appearance under protest; and
10
(c) interrogatories; and
11
(d) discovery, production and inspection of documents; and
12
(e) the making of applications for dissolution of marriage jointly
13
by both parties to the marriage; and
14
(f) the forms to be used for the purposes of proceedings in the
15
Federal Circuit and Family Court of Australia (Division 2).
16
(2) The Rules of Court may make provision for:
17
(a) the amendment of a document in a proceeding; or
18
(b) leave to amend a document in a proceeding;
19
even if the effect of the amendment would be to allow a person to
20
seek a remedy in respect of a legal or equitable claim that would
21
have been barred because of the expiry of a period of limitation if
22
the remedy had originally been sought at the time of the
23
amendment.
24
186 Service
25
The Rules of Court may make provision for or in relation to:
26
(a) the service and execution of the process of the Federal
27
Circuit and Family Court of Australia (Division 2), including:
28
(i) the manner in which and the extent to which the process
29
of the Court, or notice of any such process, may be
30
served out of the jurisdiction of the Court; and
31
(ii) dispensing with service; and
32
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Practice and procedure Part 6
Rules of Court Division 10
Section 187
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
155
(b) the issue by the Court of letters of request for the service in
1
another country of any process of the Court; and
2
(c) the service by officers of the Court, in Australia, of the
3
process of a court of another country or of a part of another
4
country, in accordance with:
5
(i) a request of that court or of an authority of that country
6
or of that part of that country; or
7
(ii) an arrangement in force between Australia and the
8
government of that other country or of that part of that
9
other country.
10
187 Evidence
11
The Rules of Court may make provision for or in relation to:
12
(a) subpoenas; and
13
(b) summonses; and
14
(c) the attendance of witnesses; and
15
(d) the administration of oaths and affirmations; and
16
(e) the means by which particular facts may be proved and the
17
mode in which evidence of particular facts may be given; and
18
(f) the reception from New Zealand of copies of documents sent
19
by fax; and
20
(g) the reception from New Zealand of evidence or submissions
21
by video link or audio link; and
22
(h) issuing subpoenas for service in New Zealand and the service
23
of such subpoenas; and
24
(i) the form to accompany a subpoena for service in New
25
Zealand.
26
188 Orders and judgments
27
The Rules of Court may make provision for or in relation to:
28
(a) the enforcement and execution of judgments of the Federal
29
Circuit and Family Court of Australia (Division 2); and
30
(b) the stay of proceedings in, or under judgments of, the Federal
31
Circuit and Family Court of Australia (Division 2) or another
32
court; and
33
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 6 Practice and procedure
Division 10 Rules of Court
Section 189
156
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(c) the stay of proceedings in, or under decisions of, tribunals;
1
and
2
(d) the procedure of the Federal Circuit and Family Court of
3
Australia (Division 2) exercising its powers (whether under
4
section 112AP of the Family Law Act 1975 or otherwise) to
5
deal with a person for contempt of the Court; and
6
(e) the form in which the Federal Circuit and Family Court of
7
Australia (Division 2) or a Judge is to give reasons for
8
decisions.
9
189 Costs
10
The Rules of Court may make provision for or in relation to:
11
(a) the giving of security; and
12
(b) the costs of proceedings in the Federal Circuit and Family
13
Court of Australia (Division 2); and
14
(c) the fees to be charged by practitioners practising in the
15
Federal Circuit and Family Court of Australia (Division 2)
16
for the work done by them in relation to proceedings in the
17
Court and the taxation of their bills of costs, either as
18
between party and party or as between solicitor and client;
19
and
20
(d) the kinds of proceedings or circumstances in which each
21
party is required to bear the party's own costs.
22
190 General
23
(1) The Rules of Court may make provision for or in relation to:
24
(a) the power, under subsection 158(3), to require a party's
25
lawyer to give the party an estimate of:
26
(i) the likely duration of a proceeding or part of a
27
proceeding; and
28
(ii) the likely amount of costs that the party will have to pay
29
in connection with the proceeding or part of the
30
proceeding; and
31
(b) the power, under subsection 159(1), to give directions about
32
the practice and procedure to be followed in relation to a
33
proceeding or part of a proceeding; and
34
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Practice and procedure Part 6
Rules of Court Division 10
Section 190
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
157
(c) the power, under subsection 159(3), to make such order or
1
direction as is appropriate when a party fails to comply with a
2
direction about the practice and procedure to be followed in
3
relation to a proceeding or part of a proceeding; and
4
(d) trial management; and
5
(e) the custody of convicted persons; and
6
(f) the prevention or termination of vexatious proceedings; and
7
(g) the summary disposal of proceedings; and
8
(h) authorising the Federal Circuit and Family Court of Australia
9
(Division 2) to refer to an officer of the Court, for
10
investigation, report and recommendation:
11
(i) claims for, or relating to, any matters before the Court;
12
or
13
(ii) applications for, or relating to, any matters before the
14
Court; and
15
(i) authorising an officer making an investigation mentioned in
16
paragraph (h) to:
17
(i) take evidence on oath or affirmation; and
18
(ii) receive in evidence a report from a family consultant
19
under section 55A or 62G of the Family Law Act 1975;
20
and
21
(iii) receive in evidence a report from a person who has had
22
dealings with a party to a matter under investigation
23
under section 65F, 65L, 65LA, 70NEB or 70NEG of the
24
Family Law Act 1975; and
25
(j) enabling the summoning of witnesses before an officer
26
making an investigation mentioned in paragraph (h) for the
27
purposes of giving evidence or producing books or
28
documents; and
29
(k) the procedure of the Federal Circuit and Family Court of
30
Australia (Division 2) on receiving a report of an officer who
31
has made an investigation referred to in paragraph (h); and
32
(l) the appointment, by the Minister, of a guardian ad litem for a
33
party in proceedings; and
34
(m) both:
35
(i) the forfeiture of recognisances; and
36
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 6 Practice and procedure
Division 10 Rules of Court
Section 191
158
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(ii) the recovery of any money that may be due to the
1
Commonwealth under such recognisances or from any
2
person who has become a surety; and
3
(n) the attachment of money payable by:
4
(i) the Commonwealth, a State, a Territory or the
5
Government of a Territory; or
6
(ii) an authority of the Commonwealth, of a State or of a
7
Territory; and
8
(o) the death of parties; and
9
(p) the duties of officers of the Federal Circuit and Family Court
10
of Australia (Division 2).
11
(2) The Rules of Court may make provision for or in relation to:
12
(a) attendance at family counselling by parties to proceedings
13
under the Family Law Act 1975; and
14
(b) attendance at family dispute resolution by parties to
15
proceedings under the Family Law Act 1975; and
16
(c) the giving of advice and assistance by family consultants to
17
people involved in proceedings under the Family Law Act
18
1975; and
19
(d) the participation by parties to proceedings under the Family
20
Law Act 1975 in courses, programs and other services that
21
the parties are ordered by the court to participate in; and
22
(e) the use, for the purposes of proceedings under the Family
23
Law Act 1975, by the Federal Circuit and Family Court of
24
Australia (Division 2) and officers of the Court in family law
25
or child support proceedings, of reports about the future
26
conduct of the proceedings that have been prepared by
27
persons who dealt with the parties in accordance with Rules
28
of Court made under paragraph (a), (b), (c) or (d).
29
191 Incidental matters
30
The Rules of Court may prescribe matters incidental to the matters
31
that, under:
32
(a) any other provision of this Chapter; or
33
(b) any other law of the Commonwealth;
34
are required or permitted to be prescribed by the Rules of Court.
35
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Suppression and non-publication orders Part 7
Introduction Division 1
Section 192
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
159
Part 7--Suppression and non-publication orders
1
Division 1--Introduction
2
192 Powers of Federal Circuit and Family Court of Australia
3
(Division 2) not affected
4
This Part does not limit or otherwise affect any powers that the
5
Federal Circuit and Family Court of Australia (Division 2) has
6
apart from this Part to regulate its proceedings or to deal with a
7
contempt of the Court.
8
193 Other laws not affected
9
This Part does not limit or otherwise affect the operation of a
10
provision made by or under any Act (other than this Act) that
11
prohibits or restricts, or authorises a court to prohibit or restrict, the
12
publication or other disclosure of information in connection with
13
proceedings.
14
194 This Part does not apply to proceedings under the Family Law
15
Act 1975
16
This Part applies to proceedings in the Federal Circuit Court and
17
Family Court of Australia (Division 2) other than proceedings
18
under the Family Law Act 1975.
19
Note:
Part XIA of the Family Law Act 1975 deals with suppression and
20
non-publication orders in proceedings under that Act.
21
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 7 Suppression and non-publication orders
Division 2 Suppression and non-publication orders
Section 195
160
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Division 2--Suppression and non-publication orders
1
195 Safeguarding public interest in open justice
2
In deciding whether to make a suppression order or
3
non-publication order, the Federal Circuit and Family Court of
4
Australia (Division 2) must take into account that a primary
5
objective of the administration of justice is to safeguard the public
6
interest in open justice.
7
196 Power to make orders
8
(1) The Federal Circuit and Family Court of Australia (Division 2)
9
may, by making a suppression order or non-publication order on
10
grounds permitted by this Part, prohibit or restrict the publication
11
or other disclosure of:
12
(a) information tending to reveal the identity of or otherwise
13
concerning any party to or witness in a proceeding before the
14
Court or any person who is related to or otherwise associated
15
with any party to or witness in a proceeding before the Court;
16
or
17
(b) information that relates to a proceeding before the Court and
18
is:
19
(i) information that comprises evidence or information
20
about evidence; or
21
(ii) information obtained by the process of discovery; or
22
(iii) information produced under a subpoena; or
23
(iv) information lodged with or filed in the Court.
24
(2) The Federal Circuit and Family Court of Australia (Division 2)
25
may make such orders as it thinks appropriate to give effect to an
26
order under subsection (1).
27
197 Grounds for making an order
28
(1) The Federal Circuit and Family Court of Australia (Division 2)
29
may make a suppression order or non-publication order on one or
30
more of the following grounds:
31
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Suppression and non-publication orders Part 7
Suppression and non-publication orders Division 2
Section 198
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
161
(a) the order is necessary to prevent prejudice to the proper
1
administration of justice;
2
(b) the order is necessary to prevent prejudice to the interests of
3
the Commonwealth or a State or Territory in relation to
4
national or international security;
5
(c) the order is necessary to protect the safety of any person;
6
(d) the order is necessary to avoid causing undue distress or
7
embarrassment to a party to or witness in a criminal
8
proceeding involving an offence of a sexual nature (including
9
an act of indecency).
10
(2) A suppression order or non-publication order must specify the
11
ground or grounds on which the order is made.
12
198 Procedure for making an order
13
(1) The Federal Circuit and Family Court of Australia (Division 2)
14
may make a suppression order or non-publication order on its own
15
initiative or on the application of:
16
(a) a party to the proceeding concerned; or
17
(b) any other person considered by the Court to have a sufficient
18
interest in the making of the order.
19
(2) Each of the following persons is entitled to appear and be heard by
20
the Federal Circuit and Family Court of Australia (Division 2) on
21
an application for a suppression order or non-publication order:
22
(a) the applicant for the order;
23
(b) a party to the proceeding concerned;
24
(c) the Government (or an agency of the Government) of the
25
Commonwealth or a State or Territory;
26
(d) a news publisher;
27
(e) any other person who, in the Court's opinion, has a sufficient
28
interest in the question of whether a suppression order or
29
non-publication order should be made.
30
(3) A suppression order or non-publication order may be made at any
31
time during a proceeding or after a proceeding has concluded.
32
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 7 Suppression and non-publication orders
Division 2 Suppression and non-publication orders
Section 199
162
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(4) A suppression order or non-publication order may be made subject
1
to such exceptions and conditions as the Federal Circuit and
2
Family Court of Australia (Division 2) thinks fit and specifies in
3
the order.
4
(5) A suppression order or non-publication order must specify the
5
information to which the order applies with sufficient particularity
6
to ensure that the court order is limited to achieving the purpose for
7
which it is made.
8
199 Interim orders
9
(1) If an application is made to the Federal Circuit and Family Court of
10
Australia (Division 2) for a suppression order or non-publication
11
order, the Court may, without determining the merits of the
12
application, make the order as an interim order to have effect,
13
subject to revocation by the Court, until the application is
14
determined.
15
(2) If an order is made as an interim order, the Federal Circuit and
16
Family Court of Australia (Division 2) must determine the
17
application as a matter of urgency.
18
200 Duration of orders
19
(1) A suppression order or non-publication order operates for the
20
period decided by the Federal Circuit and Family Court of
21
Australia (Division 2) and specified in the order.
22
(2) In deciding the period for which an order is to operate, the Federal
23
Circuit and Family Court of Australia (Division 2) is to ensure that
24
the order operates for no longer than is reasonably necessary to
25
achieve the purpose for which it is made.
26
(3) The period for which an order operates may be specified by
27
reference to a fixed or ascertainable period or by reference to the
28
occurrence of a specified future event.
29
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Suppression and non-publication orders Part 7
Suppression and non-publication orders Division 2
Section 201
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
163
201 Exception for court officials
1
A suppression order does not prevent a person from disclosing
2
information if the disclosure is not by publication and is in the
3
course of performing functions or duties or exercising powers in a
4
public official capacity:
5
(a) in connection with the conduct of a proceeding or the
6
recovery or enforcement of any penalty imposed in a
7
proceeding; or
8
(b) in compliance with any procedure adopted by the Federal
9
Circuit and Family Court of Australia (Division 2) for
10
informing a news publisher of the existence and content of a
11
suppression order or non-publication order made by the
12
Court.
13
202 Contravention of order
14
(1) A person commits an offence if:
15
(a) the person does an act or omits to do an act; and
16
(b) the act or omission contravenes an order made by the Federal
17
Circuit and Family Court of Australia (Division 2) under
18
section 196.
19
Penalty: Imprisonment for 12 months, 60 penalty units or both.
20
(2) An act or omission that constitutes an offence under this section
21
may be punished as a contempt of court even though it could be
22
punished as an offence.
23
(3) An act or omission that constitutes an offence under this section
24
may be punished as an offence even though it could be punished as
25
a contempt of court.
26
(4) If an act or omission constitutes both an offence under this section
27
and a contempt of court, the offender is not liable to be punished
28
twice.
29
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 8 Vexatious proceedings
Division 1 Introduction
Section 203
164
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Part 8--Vexatious proceedings
1
Division 1--Introduction
2
203 Meaning of a person acting in concert
3
A reference in this Part to a person acting in concert with another
4
person in instituting or conducting proceedings does not include a
5
reference to a person who is so acting as a legal practitioner or
6
representative of the other person.
7
204 Powers of the Federal Circuit and Family Court of Australia
8
(Division 2) not affected
9
This Part does not limit or otherwise affect any powers that the
10
Federal Circuit and Family Court of Australia (Division 2) has
11
apart from this Part to deal with vexatious proceedings.
12
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Vexatious proceedings Part 8
Vexatious proceedings orders Division 2
Section 205
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
165
Division 2--Vexatious proceedings orders
1
205 Making vexatious proceedings orders
2
(1) This section applies if the Federal Circuit and Family Court of
3
Australia (Division 2) is satisfied:
4
(a) a person has frequently instituted or conducted vexatious
5
proceedings in Australian courts or tribunals; or
6
(b) a person, acting in concert with another person who is subject
7
to a vexatious proceedings order or who is covered by
8
paragraph (a), has instituted or conducted a vexatious
9
proceeding in an Australian court or tribunal.
10
(2) The Federal Circuit and Family Court of Australia (Division 2)
11
may make any or all of the following orders:
12
(a) an order staying or dismissing all or part of any proceedings
13
in the Court already instituted by the person;
14
(b) an order prohibiting the person from instituting proceedings,
15
or proceedings of a particular type, in the Court;
16
(c) any other order the Court considers appropriate in relation to
17
the person.
18
Note:
Examples of an order under paragraph (c) are an order directing that
19
the person may only file documents by mail, an order to give security
20
for costs and an order for costs.
21
(3) Subsection (2) applies in relation to proceedings in the Federal
22
Circuit and Family Court of Australia (Division 2) other than
23
proceedings under the Family Law Act 1975.
24
Note:
Part XIB of the Family Law Act 1975 deals with vexatious
25
proceedings under that Act.
26
(4) The Federal Circuit and Family Court of Australia (Division 2)
27
may make a vexatious proceedings order on its own initiative or on
28
the application of any of the following:
29
(a) the Attorney-General of the Commonwealth or of a State or
30
Territory;
31
(b) the Chief Executive Officer;
32
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 8 Vexatious proceedings
Division 2 Vexatious proceedings orders
Section 206
166
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(c) a person against whom another person has instituted or
1
conducted a vexatious proceeding;
2
(d) a person who has a sufficient interest in the matter.
3
(5) The Federal Circuit and Family Court of Australia (Division 2)
4
must not make a vexatious proceedings order in relation to a
5
person without hearing the person or giving the person an
6
opportunity of being heard.
7
(6) An order made under paragraph (2)(a) or (b) is a final order.
8
(7) For the purposes of subsection (1), the Federal Circuit and Family
9
Court of Australia (Division 2) may have regard to:
10
(a) proceedings instituted (or attempted to be instituted) or
11
conducted in any Australian court or tribunal; and
12
(b) orders made by any Australian court or tribunal; and
13
(c) the person's overall conduct in proceedings conducted in any
14
Australian court or tribunal (including the person's
15
compliance with orders made by that court or tribunal);
16
including proceedings instituted (or attempted to be instituted) or
17
conducted, and orders made, before the commencement of this
18
section.
19
206 Notification of vexatious proceedings orders
20
(1) A person may request the Chief Executive Officer for a certificate
21
stating whether a person named in the request is or has been the
22
subject of a vexatious proceedings order.
23
(2) If a person makes a request under subsection (1) and the person
24
named in the request is or has been the subject of a vexatious
25
proceedings order, the Chief Executive Officer must issue to the
26
person making the request a certificate:
27
(a) specifying the date of the order; and
28
(b) specifying any other information prescribed by the Rules of
29
Court.
30
(3) This section is subject to any law of the Commonwealth, or order
31
of the Federal Circuit and Family Court of Australia (Division 2),
32
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Vexatious proceedings Part 8
Vexatious proceedings orders Division 2
Section 206
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
167
restricting the publication or disclosure of the name of a party to
1
proceedings in the Court.
2
Note:
Section 155 of the Evidence Act 1995 deals with adducing evidence of
3
Commonwealth records.
4
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 8 Vexatious proceedings
Division 3 Particular consequences of vexatious proceedings orders
Section 207
168
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Division 3--Particular consequences of vexatious
1
proceedings orders
2
207 Proceedings in contravention of vexatious proceedings order
3
(1) If the Federal Circuit and Family Court of Australia (Division 2)
4
makes a vexatious proceedings order prohibiting a person from
5
instituting proceedings, or proceedings of a particular type, in the
6
Court:
7
(a) the person must not institute proceedings, or proceedings of
8
that type, in the Court without the leave of the Court under
9
section 210; and
10
(b) another person must not, acting in concert with the person,
11
institute proceedings, or proceedings of that type, in the
12
Court without the leave of the Court under section 210.
13
(2) If a proceeding is instituted in contravention of subsection (1), the
14
proceeding is stayed.
15
(3) Without limiting subsection (2), the Federal Circuit and Family
16
Court of Australia (Division 2) may make:
17
(a) an order declaring a proceeding is a proceeding to which
18
subsection (2) applies; and
19
(b) any other order in relation to the stayed proceeding it
20
considers appropriate, including an order for costs.
21
(4) The Federal Circuit and Family Court of Australia (Division 2)
22
may make an order under subsection (3) on its own initiative or on
23
the application of any of the following:
24
(a) the Attorney-General of the Commonwealth or of a State or
25
Territory;
26
(b) the Chief Executive Officer;
27
(c) a person against whom another person has instituted or
28
conducted a vexatious proceeding;
29
(d) a person who has a sufficient interest in the matter.
30
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Vexatious proceedings Part 8
Particular consequences of vexatious proceedings orders Division 3
Section 208
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
169
208 Application for leave to institute proceedings
1
(1) This section applies to a person (the applicant) who is:
2
(a) subject to a vexatious proceedings order prohibiting the
3
person from instituting proceedings, or proceedings of a
4
particular type, in the Federal Circuit and Family Court of
5
Australia (Division 2); or
6
(b) acting in concert with another person who is subject to an
7
order mentioned in paragraph (a).
8
(2) The applicant may apply to the Federal Circuit and Family Court
9
of Australia (Division 2) for leave to institute a proceeding that is
10
subject to the order.
11
(3) The applicant must file an affidavit with the application that:
12
(a) lists all the occasions on which the applicant has applied for
13
leave under this section; and
14
(b) lists all other proceedings the applicant has instituted in any
15
Australian court or tribunal, including proceedings instituted
16
before the commencement of this section; and
17
(c) discloses all relevant facts about the application, whether
18
supporting or adverse to the application, that are known to
19
the applicant.
20
(4) The applicant must not serve a copy of the application or affidavit
21
on a person unless an order is made under paragraph 210(1)(a). If
22
the order is made, the applicant must serve the copy in accordance
23
with the order.
24
209 Dismissing application for leave
25
(1) The Federal Circuit and Family Court of Australia (Division 2) or a
26
Judge may make an order dismissing an application under
27
section 208 for leave to institute a proceeding if the Court or Judge
28
considers the affidavit does not substantially comply with
29
subsection 208(3).
30
(2) The Federal Circuit and Family Court of Australia (Division 2) or a
31
Judge must make an order dismissing an application under
32
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 8 Vexatious proceedings
Division 3 Particular consequences of vexatious proceedings orders
Section 210
170
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
section 208 for leave to institute a proceeding if the Court or Judge
1
considers the proceeding is a vexatious proceeding.
2
(3) The Federal Circuit and Family Court of Australia (Division 2) or a
3
Judge may dismiss the application without an oral hearing (either
4
with or without the consent of the applicant).
5
210 Granting application for leave
6
(1) Before the Federal Circuit and Family Court of Australia
7
(Division 2) makes an order granting an application under
8
section 208 for leave to institute a proceeding, it must:
9
(a) order that the applicant serve:
10
(i) the person against whom the applicant proposes to
11
institute the proceeding; and
12
(ii) any other person specified in the order;
13
with a copy of the application and affidavit and a notice that
14
the person is entitled to be heard on the application; and
15
(b) give the applicant and each person described in
16
subparagraph (a)(i) or (ii), on appearance, an opportunity to
17
be heard at the hearing of the application.
18
(2) At the hearing of the application, the Federal Circuit and Family
19
Court of Australia (Division 2) may receive as evidence any record
20
of evidence given, or affidavit filed, in any proceeding in any
21
Australian court or tribunal in which the applicant is, or at any time
22
was, involved either as a party or as a person acting in concert with
23
a party.
24
(3) The Federal Circuit and Family Court of Australia (Division 2)
25
may make an order granting the application. The order may be
26
made subject to the conditions the Court considers appropriate.
27
(4) The Federal Circuit and Family Court of Australia (Division 2)
28
may grant leave only if it is satisfied the proceeding is not a
29
vexatious proceeding.
30
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Management and administration Part 9
Management responsibilities of the Chief Judge and the Chief Executive Officer
Division 1
Section 211
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
171
Part 9--Management and administration
1
Division 1--Management responsibilities of the Chief
2
Judge and the Chief Executive Officer
3
211 Management of administrative affairs of the Federal Circuit
4
and Family Court of Australia (Division 2)
5
(1) The Chief Judge is responsible for managing the administrative
6
affairs of the Federal Circuit and Family Court of Australia
7
(Division 2).
8
(2) The administrative affairs of the Federal Circuit and Family Court
9
of Australia (Division 2) do not include the corporate services of
10
the Court.
11
(3) The following matters relating to the Federal Circuit and Family
12
Court of Australia (Division 2) are the corporate services of the
13
Court:
14
(a) communications;
15
(b) finance;
16
(c) human resources;
17
(d) information technology;
18
(e) libraries;
19
(f) records management;
20
(g) administrative matters relating to judgments, to the extent
21
that such matters do not involve the exercise of judicial
22
power;
23
(h) procurement and contract management;
24
(i) property;
25
(j) risk oversight and management;
26
(k) court security;
27
(l) statistics;
28
(m) any other matter prescribed by a determination under
29
subsection (7).
30
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 9 Management and administration
Division 1 Management responsibilities of the Chief Judge and the Chief Executive
Officer
Section 212
172
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(4) For the purpose mentioned in subsection (1), the Chief Judge has
1
power to do all things that are necessary or convenient to be done,
2
including, on behalf of the Commonwealth:
3
(a) entering into contracts; and
4
(b) acquiring or disposing of real and personal property.
5
(5) The Chief Judge's powers under subsection (4) are in addition to
6
any powers given to the Chief Judge by this Chapter or any other
7
Act.
8
(6) Despite subsection (4), the Chief Judge must not enter into a
9
contract under which the Commonwealth is to pay or receive an
10
amount exceeding:
11
(a) $1 million; or
12
(b) if a higher amount is prescribed--that higher amount;
13
except with the approval of the Minister.
14
(7) The Minister may, by legislative instrument, determine matters that
15
are the corporate services of the Court (see paragraph (3)(m)).
16
Note 1:
See Part IIB of the Federal Court of Australia Act 1976 for provisions
17
relating to the corporate services of the Federal Circuit and Family
18
Court of Australia (Division 2).
19
Note 2:
For the purposes of the finance law (within the meaning of the Public
20
Governance, Performance and Accountability Act 2013), the officers
21
and staff of the Federal Circuit and Family Court of Australia
22
(Division 2) are officials of the listed entity mentioned in
23
section 18ZB of the Federal Court of Australia Act 1976.
24
Note 3:
For the purposes of the Public Service Act 1999, the APS employees
25
mentioned in section 219, subsections 226(1), 227(1), 228(1) and
26
229(1) and sections 230 and 231 of this Act are part of the Statutory
27
Agency declared under section 18ZE of the Federal Court of
28
Australia Act 1976.
29
212 Arrangements with other courts
30
(1) The Chief Judge may arrange with the chief judicial officer
31
(however described) of another Australian court for an officer or
32
officers of that court to perform on behalf of the Federal Circuit
33
and Family Court of Australia (Division 2) any or all of the
34
following functions:
35
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Management and administration Part 9
Management responsibilities of the Chief Judge and the Chief Executive Officer
Division 1
Section 213
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
173
(a) the receipt of documents to be lodged with or filed in the
1
Court;
2
(b) the signing and issuing of writs, commissions and process for
3
the purposes of any proceedings in the Court;
4
(c) the authentication of orders of the Court;
5
(d) the administration of oaths and affirmations, and the
6
witnessing of affidavits, for the purposes of any proceedings
7
in the Court;
8
(e) such other non-judicial functions as are permitted by the
9
Rules of Court to be performed under such an arrangement;
10
(f) such other non-judicial functions as the Chief Judge
11
considers appropriate.
12
(2) If an arrangement under subsection (1) is in force in relation to the
13
performance by an officer of an Australian court of a function on
14
behalf of the Federal Circuit and Family Court of Australia
15
(Division 2), the officer may perform that function despite:
16
(a) any other provision of this Chapter; or
17
(b) any other law of the Commonwealth.
18
(3) A function performed on behalf of the Federal Circuit and Family
19
Court of Australia (Division 2) in accordance with an arrangement
20
under subsection (1) has effect as if the function had been
21
performed by the Court.
22
(4) Copies of an arrangement under subsection (1) are to be made
23
available for inspection by members of the public.
24
(5) For the purposes of this section, a member of the staff of an
25
Australian court is taken to be an officer of that court.
26
213 Arrangements with agencies or organisations
27
(1) The Chief Judge may arrange with the chief executive officer
28
(however described) of:
29
(a) an agency of the Commonwealth, a State or a Territory; or
30
(b) another organisation;
31
for an employee or employees of the agency or organisation to:
32
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 9 Management and administration
Division 1 Management responsibilities of the Chief Judge and the Chief Executive
Officer
Section 214
174
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(c) receive, on behalf of the Federal Circuit and Family Court of
1
Australia (Division 2), documents to be lodged with or filed
2
in the Court; or
3
(d) perform, on behalf of the Federal Circuit and Family Court of
4
Australia (Division 2), other non-judicial functions of the
5
Court.
6
(2) If an arrangement under subsection (1) is in force in relation to the
7
performance by an employee of an agency or organisation of a
8
function on behalf of the Federal Circuit and Family Court of
9
Australia (Division 2), the employee may perform that function
10
despite:
11
(a) any other provision of this Chapter; or
12
(b) any other law of the Commonwealth.
13
(3) A function performed on behalf of the Federal Circuit and Family
14
Court of Australia (Division 2) in accordance with an arrangement
15
under subsection (1) has effect as if the function had been
16
performed by the Court.
17
(4) Copies of an arrangement under subsection (1) are to be made
18
available for inspection by members of the public.
19
214 Arrangements for sharing courtrooms and other facilities
20
The Chief Judge may make arrangements with the chief judicial
21
officer (however described) of another Australian court for:
22
(a) the Federal Circuit and Family Court of Australia
23
(Division 2) to sit in rooms of the other court; and
24
(b) the Court to share registry facilities and other facilities with
25
the other court.
26
215 Advisory committees
27
(1) The Federal Circuit and Family Court of Australia (Division 2)
28
may appoint committees consisting of Judges, or of Judges and
29
other persons, for the purpose of advising the Court in relation to
30
the exercise of the powers of the Court under this Chapter.
31
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Management and administration Part 9
Management responsibilities of the Chief Judge and the Chief Executive Officer
Division 1
Section 215
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
175
(2) The Chief Judge may appoint committees consisting of Judges, or
1
of Judges and other persons, for the purpose of advising the Chief
2
Judge in relation to:
3
(a) the making of the Rules of Court; or
4
(b) the management of the administrative affairs of the Federal
5
Circuit and Family Court of Australia (Division 2).
6
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 9 Management and administration
Division 2 Chief Executive Officer
Section 216
176
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Division 2--Chief Executive Officer
1
216 Chief Executive Officer
2
In managing the administrative affairs of the Federal Circuit and
3
Family Court of Australia (Division 2), the Chief Judge is assisted
4
by the Chief Executive Officer.
5
217 Powers of Chief Executive Officer
6
(1) The Chief Executive Officer has the power to do all things
7
necessary or convenient to be done for the purpose of assisting the
8
Chief Judge under section 216.
9
(2) In particular, the Chief Executive Officer may act on behalf of the
10
Chief Judge in relation to the administrative affairs of the Federal
11
Circuit and Family Court of Australia (Division 2).
12
(3) The Chief Judge may give the Chief Executive Officer directions
13
relating to the exercise of the Chief Executive Officer's powers
14
under:
15
(a) this Chapter; or
16
(b) Chapter 5, to the extent that the provisions of that Chapter
17
apply to the Federal Circuit and Family Court of Australia
18
(Division 2).
19
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Management and administration Part 9
Registries and registrars Division 3
Section 218
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
177
Division 3--Registries and registrars
1
218 Registries
2
The Minister must cause such Registries of the Federal Circuit and
3
Family Court of Australia (Division 2) to be established as the
4
Minister thinks fit.
5
219 Registrars
6
The Registrars of the Federal Circuit and Family Court of Australia
7
(Division 2) are to be persons engaged under the Public Service
8
Act 1999.
9
220 Powers exercisable by Chief Executive Officer and Registrars
10
(1) The object of this section is to allow certain powers of the Federal
11
Circuit and Family Court of Australia (Division 2) to be exercised
12
by:
13
(a) the Chief Executive Officer; or
14
(b) a Registrar.
15
Note:
The Chief Executive Officer and a Registrar may be delegates of the
16
Federal Circuit and Family Court of Australia (Division 2): see the
17
definition of delegate in subsection 7(1).
18
(2) The following powers of the Federal Circuit and Family Court of
19
Australia (Division 2) may, if the Court or a Judge so directs, be
20
exercised by a delegate:
21
(a) the power to make an order transferring family law or child
22
support proceedings to the Federal Circuit and Family Court
23
of Australia (Division 1) under section 117;
24
(b) the power, under subsection 158(3), to require a party's
25
lawyer to give the party an estimate of:
26
(i) the likely duration of a proceeding or part of a
27
proceeding; and
28
(ii) the likely amount of costs that the party will have to pay
29
in connection with the proceeding or part of the
30
proceeding;
31
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 9 Management and administration
Division 3 Registries and registrars
Section 220
178
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(c) the power, under subsection 159(1), to give directions about
1
the practice and procedure to be followed in relation to a
2
proceeding or part of a proceeding;
3
(d) the power, under subsection 159(3), to make such order or
4
direction as is appropriate when a party fails to comply with a
5
direction about the practice and procedure to be followed in
6
relation to a proceeding or part of a proceeding;
7
(e) the power to dispense with the service of any process of the
8
Court;
9
(f) the power to make orders in relation to substituted service;
10
(g) the power to make orders in relation to discovery, inspection
11
and production of documents in the possession, power or
12
custody of a party to proceedings in the Court or of any other
13
person;
14
(h) the power to make orders in relation to interrogatories;
15
(i) the power, in proceedings in the Court, to make an order
16
adjourning the hearing of the proceedings;
17
(j) the power to make an order as to costs;
18
(k) the power to make an order about security for costs;
19
(l) the power to make an order exempting a party to proceedings
20
in the Court from compliance with a provision of the Rules of
21
Court;
22
(m) a power of the Court prescribed by the Rules of Court;
23
(n) the power, in family law or child support proceedings, to
24
direct a party to the proceedings to answer particular
25
questions;
26
(o) the power to make orders under the following provisions of
27
the Family Law Act 1975:
28
(i) sections 11F and 11G;
29
(ii) sections 13C and 13D;
30
(iii) subsection 65LA(1);
31
(iv) paragraph 70NEB(1)(a);
32
(p) the power to direct a family consultant to give a report under
33
section 62G of the Family Law Act 1975;
34
(q) the power, in family law or child support proceedings, to
35
make:
36
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(i) an order under section 66Q, 67E, 77 or 90SG of the
1
Family Law Act 1975; or
2
(ii) an order for the payment of maintenance pending the
3
disposal of the proceedings;
4
(r) the power to make an order the terms of which have been
5
agreed upon by all the parties to the proceedings;
6
(s) the power to make orders (including an order for
7
garnishment, seizure of property or sequestration) for the
8
enforcement of maintenance orders under the Family Law
9
Act 1975;
10
(t) the power to make an order exempting a party to family law
11
or child support proceedings from compliance with a
12
provision of regulations made under the Family Law Act
13
1975.
14
(3) Despite subsection (2), the powers of the Federal Circuit and
15
Family Court of Australia (Division 2) in respect of which the
16
Court or a Judge may not give a direction include the following:
17
(a) the power to make a divorce order in proceedings that are
18
defended;
19
(b) the power to make a decree of nullity of marriage;
20
(c) the power to make a declaration as to the validity of:
21
(i) a marriage; or
22
(ii) a divorce; or
23
(iii) the annulment of a marriage;
24
(d) the power to make an excluded child order;
25
(e) the power to make an order setting aside a registered award
26
under section 13K of the Family Law Act 1975.
27
Costs
28
(4) A delegate must not exercise the powers referred to in
29
paragraph (2)(j) except in relation to costs of, or in connection
30
with, an application heard by a delegate.
31
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Division 3 Registries and registrars
Section 221
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Orders made as a matter of urgency
1
(5) A delegate must not exercise the power referred to in
2
paragraph (2)(q) on application by a party to proceedings under the
3
Family Law Act 1975 unless:
4
(a) the other party to the proceedings appears at the hearing of
5
the application; or
6
(b) the delegate is satisfied that notice of the intention of the
7
party to make the application has been served on the other
8
party.
9
Application of laws
10
(6) The provisions of this Act, the Rules of Court and any other law of
11
the Commonwealth that relate to the exercise by the Federal
12
Circuit and Family Court of Australia (Division 2) of a power that
13
is, because of subsection (2), exercisable by a delegate, apply in
14
relation to an exercise of the power by a delegate under this section
15
as if references in those provisions to the Federal Circuit and
16
Family Court of Australia (Division 2) (expressly or otherwise)
17
were references to the delegate.
18
221 Delegation
19
Delegation of powers
20
(1) The Chief Judge may make Rules of Court delegating any of the
21
powers of the Federal Circuit and Family Court of Australia
22
(Division 2), including any of the powers mentioned in
23
subsection 220(2), to a delegate.
24
Note:
For the definition of delegate, see subsection 7(1).
25
(2) Despite subsection (1), the powers of the Federal Circuit and
26
Family Court of Australia (Division 2) that may not be delegated
27
include the following:
28
(a) the power to make a divorce order in proceedings that are
29
defended;
30
(b) the power to make a decree of nullity of marriage;
31
(c) the power to make a declaration as to the validity of:
32
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(i) a marriage; or
1
(ii) a divorce; or
2
(iii) the annulment of a marriage;
3
(d) the power to make an excluded child order;
4
(e) the power to make an order setting aside a registered award
5
under section 13K of the Family Law Act 1975.
6
Effect of delegation
7
(3) A power delegated by the Rules of Court, when exercised by a
8
delegate, is taken, for all purposes, to have been exercised by the
9
Federal Circuit and Family Court of Australia (Division 2) or a
10
Judge of the Court.
11
(4) The delegation of a power by the Rules of Court does not prevent
12
the exercise of the power by the Federal Circuit and Family Court
13
of Australia (Division 2) or a Judge of the Court.
14
Costs
15
(5) If the power referred to in paragraph 220(2)(j) is delegated by the
16
Rules of Court, a delegate must not exercise the power except in
17
relation to costs of, or in connection with, an application heard by a
18
delegate.
19
Orders made as a matter of urgency
20
(6) If the power referred to in paragraph 220(2)(q) is delegated by the
21
Rules of Court, a delegate must not exercise the power on
22
application by a party to proceedings under the Family Law Act
23
1975 unless:
24
(a) the other party to the proceedings appears at the hearing of
25
the application; or
26
(b) the delegate is satisfied that notice of the intention of the
27
party to make the application has been served on the other
28
party.
29
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Part 9 Management and administration
Division 3 Registries and registrars
Section 222
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No. , 2018
Application of laws
1
(7) The provisions of this Act, the Rules of Court and any other law of
2
the Commonwealth that relate to the exercise by the Federal
3
Circuit and Family Court of Australia (Division 2) of a power that
4
is, because of a delegation under subsection (1), exercisable by a
5
delegate, apply in relation to an exercise of the power by a delegate
6
under the delegation as if references in those provisions to the
7
Federal Circuit and Family Court of Australia (Division 2)
8
(expressly or otherwise) were references to the delegate.
9
222 Independence of delegates
10
Despite any other provision of this Chapter and any provision of
11
the Public Service Act 1999 or of any other law, a delegate is not
12
subject to the direction or control of any person or body in relation
13
to the way in which the delegate exercises powers under
14
subsection 220(2) or under a delegation under subsection 221(1).
15
223 Review of power exercised by delegate
16
(1) A party to proceedings in which a delegate has exercised any of the
17
powers of the Federal Circuit and Family Court of Australia
18
(Division 2) under subsection 220(2) or under a delegation under
19
subsection 221(1) may:
20
(a) within the time prescribed by the Rules of Court; or
21
(b) within any further time allowed in accordance with the Rules
22
of Court;
23
apply to the Court for review of that exercise of power.
24
(2) The Federal Circuit and Family Court of Australia (Division 2)
25
may, on application under subsection (1) or on its own initiative,
26
review an exercise of power by a delegate under subsection 220(2)
27
or under a delegation under subsection 221(1), and may make any
28
order or orders it thinks fit in relation to the matter in respect of
29
which the power was exercised.
30
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Registries and registrars Division 3
Section 224
No. , 2018
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183
Referral to Court by delegates
1
(3) If an application for the exercise of a power referred to in
2
subsection 220(2) or under a delegation under subsection 221(1) is
3
to be, or is being, heard by a delegate, and:
4
(a) the delegate considers that it is not appropriate for the
5
application to be determined by a delegate acting under
6
section 220 or under a delegation under subsection 221(1); or
7
(b) an application is made to the delegate to arrange for the
8
first-mentioned application to be determined by a Judge;
9
the delegate must not hear, or continue to hear, the application and
10
must make appropriate arrangements for the application to be
11
heard by a Judge.
12
224 Oath or affirmation of office
13
(1) Before proceeding to discharge the duties of office, a Registrar
14
must take before a Judge an oath or affirmation in accordance with
15
the form set out in whichever of subsection (2) or (3) is applicable.
16
Oath
17
(2) This is the form of oath for the purposes of subsection (1):
18
I,
, do swear that I will well and truly serve in the office
19
of Registrar of the Federal Circuit and Family Court of Australia
20
(Division 2) and that I will do right to all manner of people
21
according to law without fear or favour, affection or ill-will. So
22
help me God!
23
Affirmation
24
(3) This is the form of affirmation for the purposes of subsection (1):
25
I,
, do solemnly and sincerely promise and declare that I
26
will well and truly serve in the office of Registrar of the Federal
27
Circuit and Family Court of Australia (Division 2) and that I will
28
do right to all manner of people according to law without fear or
29
favour, affection or ill-will.
30
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 9 Management and administration
Division 4 Other officers and staff
Section 225
184
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
Division 4--Other officers and staff
1
Subdivision A--Officers and staff
2
225 Officers of the Federal Circuit and Family Court of Australia
3
(Division 2)
4
(1) In addition to the Chief Executive Officer, there are to be the
5
following officers of the Federal Circuit and Family Court of
6
Australia (Division 2):
7
(a) the Registrars of the Court;
8
(b) such Registry Managers of the Court as are necessary;
9
(c) the Sheriff of the Court;
10
(d) such Deputy Sheriffs of the Court as are necessary;
11
(e) the Marshal of the Court;
12
(f) such Deputy Marshals of the Court as are necessary;
13
(g) such family consultants as are necessary.
14
(2) The officers of the Federal Circuit and Family Court of Australia
15
(Division 2), other than the Chief Executive Officer, have such
16
duties, powers and functions as are given to them by:
17
(a) by or under:
18
(i) this Chapter or Chapter 5; or
19
(ii) the Family Law Act 1975; or
20
(iii) the Rules of Court; or
21
(b) by the Chief Judge or the Court.
22
226 Sheriff
23
(1) The Sheriff of the Federal Circuit and Family Court of Australia
24
(Division 2) is to be a person engaged under the Public Service Act
25
1999.
26
(2) The Sheriff of the Federal Circuit and Family Court of Australia
27
(Division 2) is responsible for the service and execution of all
28
process of the Court directed to the Sheriff.
29
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Management and administration Part 9
Other officers and staff Division 4
Section 227
No. , 2018
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185
(3) The Sheriff of the Federal Circuit and Family Court of Australia
1
(Division 2) is also responsible for dealing, on behalf of the Court,
2
with:
3
(a) the Australian Federal Police; and
4
(b) the police forces of the States and Territories;
5
in relation to the service and execution of process of the Court
6
directed to members of any of those police forces.
7
227 Deputy Sheriffs
8
(1) The Deputy Sheriffs of the Federal Circuit and Family Court of
9
Australia (Division 2) may be persons engaged under the Public
10
Service Act 1999.
11
(2) A Deputy Sheriff may, subject to any directions of the Sheriff,
12
exercise or perform any of the powers or functions of the Sheriff.
13
228 Marshal
14
(1) The Marshal of the Federal Circuit and Family Court of Australia
15
(Division 2) is to be a person engaged under the Public Service Act
16
1999.
17
(2) The Marshal is responsible for:
18
(a) the security of the Federal Circuit and Family Court of
19
Australia (Division 2); and
20
(b) the personal security of the Judges, officers and staff of the
21
Court.
22
(3) The Marshal is also responsible for:
23
(a) taking, receiving and detaining all persons committed to the
24
Marshal's custody by the Federal Circuit and Family Court of
25
Australia (Division 2); and
26
(b) discharging such persons when so directed by the Court or
27
otherwise required by law.
28
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 9 Management and administration
Division 4 Other officers and staff
Section 229
186
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
229 Deputy Marshals
1
(1) The Deputy Marshals of the Federal Circuit and Family Court of
2
Australia (Division 2) may be persons engaged under the Public
3
Service Act 1999.
4
(2) A Deputy Marshal may, subject to any directions of the Marshal,
5
exercise or perform any of the powers or functions of the Marshal.
6
230 Family consultants
7
Family consultants who are officers of the Federal Circuit and
8
Family Court of Australia (Division 2) are to be persons engaged
9
under the Public Service Act 1999.
10
Note:
Family consultants who are not officers of the Federal Circuit and
11
Family Court of Australia (Division 2) may be appointed under
12
regulations made under the Family Law Act 1975: see
13
paragraph 11B(c) of that Act.
14
231 Staff of the Federal Circuit and Family Court of Australia
15
(Division 2)
16
(1) There are to be such staff of the Federal Circuit and Family Court
17
of Australia (Division 2) as necessary.
18
(2) The staff of the Federal Circuit and Family Court of Australia
19
(Division 2) are to consist of persons engaged under the Public
20
Service Act 1999.
21
Subdivision B--Provisions relating to officers and staff
22
232 Arrangements relating to Commonwealth staff
23
The Chief Executive Officer may, on behalf of the Chief Judge,
24
arrange with:
25
(a) an Agency Head; or
26
(b) an authority of the Commonwealth;
27
for the services of officers or employees of the Agency or authority
28
to be made available for the purposes of the administrative affairs
29
of the Federal Circuit and Family Court of Australia (Division 2).
30
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Other officers and staff Division 4
Section 233
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
187
233 Delegation by Registry Managers
1
(1) A Registry Manager of the Federal Circuit and Family Court of
2
Australia (Division 2) may delegate all or any of a Registry
3
Manager's functions or powers under the Family Law Act 1975 to
4
a person whom the Registry Manager considers is an appropriate
5
officer or staff member of the Court.
6
(2) In performing a delegated function or exercising a delegated
7
power, the person must comply with any written directions of the
8
relevant Registry Manager.
9
234 Authorised persons to assist the Sheriff or Deputy Sheriffs
10
(1) The Sheriff may authorise persons to assist the Sheriff in
11
exercising powers or performing functions as the Sheriff.
12
(2) A Deputy Sheriff may authorise persons to assist the Deputy
13
Sheriff in exercising powers or performing functions as the Deputy
14
Sheriff.
15
235 Authorised persons to assist the Marshal or Deputy Marshals
16
(1) The Marshal may authorise persons to assist the Marshal in
17
exercising powers or performing functions as the Marshal.
18
(2) A Deputy Marshal may authorise persons to assist the Deputy
19
Marshal in exercising powers or performing functions as the
20
Deputy Marshal.
21
236 Actions by or against Sheriff or Marshal
22
(1) If the Sheriff or a Deputy Sheriff is a party to a proceeding in the
23
Federal Circuit and Family Court of Australia (Division 2):
24
(a) all writs, summonses, orders, warrants, precepts, process and
25
commands in the proceeding which should, in the ordinary
26
course, be directed to the Sheriff must be directed to such
27
disinterested person as the Court or a Judge appoints; and
28
(b) the person so appointed may execute and return them.
29
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 9 Management and administration
Division 4 Other officers and staff
Section 237
188
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(2) If the Marshal or a Deputy Marshal is a party to a proceeding in the
1
Federal Circuit and Family Court of Australia (Division 2):
2
(a) all writs, summonses, orders, warrants, precepts, process and
3
commands in the proceeding which should, in the ordinary
4
course, be directed to the Marshal must be directed to such
5
disinterested person as the Court or a Judge appoints; and
6
(b) the person so appointed may execute and return them.
7
237 Making arrests under this Chapter or warrants
8
Application
9
(1) This section applies to any of the following persons (the arrester)
10
who is authorised by this Chapter, or a warrant issued under this
11
Chapter or the Rules of Court, to arrest another person (the
12
arrestee):
13
(a) the Sheriff of the Federal Circuit and Family Court of
14
Australia (Division 2);
15
(b) a Deputy Sheriff of the Federal Circuit and Family Court of
16
Australia (Division 2);
17
(c) the Sheriff of a court of a State or Territory;
18
(d) a Deputy Sheriff of a court of a State or Territory;
19
(e) a police officer.
20
Power to enter premises
21
(2) If the arrester reasonably believes the arrestee is on premises, the
22
arrester may enter the premises, using such force as is necessary
23
and reasonable in the circumstances, at any time of the day or night
24
for the purpose of searching the premises for the arrestee or
25
arresting the arrestee.
26
(3) However, the arrester must not enter a dwelling house between 9
27
pm one day and 6 am the next day unless the arrester reasonably
28
believes that it would not be practicable to arrest the arrestee there
29
or elsewhere at another time.
30
Use of force
31
(4) In the course of arresting the arrestee, the arrester:
32
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Other officers and staff Division 4
Section 238
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
189
(a) must not use more force, or subject the arrestee to greater
1
indignity, than is necessary and reasonable to make the arrest
2
or to prevent the arrestee's escape after the arrest; and
3
(b) must not do anything that is likely to cause the death of, or
4
grievous bodily harm to, the arrestee unless the arrester
5
reasonably believes that doing that thing is necessary to
6
protect life or prevent serious injury to another person
7
(including the arrester); and
8
(c) if the arrestee is attempting to escape arrest by fleeing--must
9
not do a thing described in paragraph (b) unless:
10
(i) the arrester reasonably believes that doing that thing is
11
necessary to protect life or prevent serious injury to
12
another person (including the arrester); and
13
(ii) the arrestee has, if practicable, been called on to
14
surrender and the arrester reasonably believes that the
15
arrestee cannot be arrested in any other way.
16
Informing the arrestee of grounds for arrest
17
(5) When arresting the arrestee, the arrester must inform the arrestee of
18
the grounds for the arrest.
19
(6) It is sufficient if the arrestee is informed of the substance of those
20
grounds, not necessarily in precise or technical language.
21
(7) Subsection (5) does not apply if:
22
(a) the arrestee should, in the circumstances, know the substance
23
of the grounds for the arrest; or
24
(b) the arrestee's actions make it impracticable for the arrester to
25
inform the arrestee of those grounds.
26
238 Receivers
27
(1) The Federal Circuit and Family Court of Australia (Division 2)
28
may, at any stage of a proceeding, on such terms and conditions as
29
the Court thinks fit, appoint a receiver by interlocutory order in any
30
case in which it appears to the Court to be just or convenient to do
31
so.
32
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 9 Management and administration
Division 4 Other officers and staff
Section 238
190
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(2) A receiver of any property appointed by the Federal Circuit and
1
Family Court of Australia (Division 2) may, without the previous
2
leave of the Court, be sued in respect of an act or transaction done
3
or entered into by the receiver in carrying on the business
4
connected with the property.
5
(3) When, in any cause pending in the Federal Circuit and Family
6
Court of Australia (Division 2), a receiver appointed by the Court
7
is in possession of property, the receiver must manage and deal
8
with the property:
9
(a) according to the requirements of the laws of the State or
10
Territory in which the property is situated; and
11
(b) in the same manner as that in which the owner or possessor
12
of the property would be bound to do if in possession of the
13
property.
14
Federal Circuit and Family Court of Australia (Division 2) Chapter 4
Management and administration Part 9
Miscellaneous administrative matters Division 5
Section 239
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
191
Division 5--Miscellaneous administrative matters
1
239 Procedural information to be given to unrepresented parties
2
The Chief Executive Officer may give directions and issue
3
guidelines to officers and staff of the Federal Circuit and Family
4
Court of Australia (Division 2) in relation to the procedural
5
information to be given to parties (and, in particular, unrepresented
6
parties) to enable them to formulate and present their cases.
7
240 Annual report
8
(1) As soon as practicable after 30 June in each financial year, the
9
Chief Judge must prepare a report of the management of the
10
administrative affairs of the Federal Circuit and Family Court of
11
Australia (Division 2) during the financial year.
12
(2) A report prepared after 30 June in a year must be given to the
13
Minister by 15 October of that year.
14
(3) The Minister must cause a copy of the report to be tabled in each
15
House of the Parliament as soon as practicable.
16
(4) A report prepared under this section may be included in a report
17
prepared and given to the Minister under section 46 of the Public
18
Governance, Performance and Accountability Act 2013 in relation
19
to the listed entity mentioned in section 18ZB of the Federal Court
20
of Australia Act 1976.
21
241 Delegation of the administrative powers of the Chief Judge
22
The Chief Judge may, in writing, delegate all or any of the Chief
23
Judge's powers under section 211 to any one or more of the
24
Judges.
25
Chapter 4 Federal Circuit and Family Court of Australia (Division 2)
Part 9 Management and administration
Division 5 Miscellaneous administrative matters
Section 242
192
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
242 Proceedings arising out of administrative affairs of the Federal
1
Circuit and Family Court of Australia (Division 2)
2
Any judicial or other proceeding relating to a matter arising out of
3
the management of the administrative affairs of the Federal Circuit
4
and Family Court of Australia (Division 2) under this Part,
5
including any proceeding relating to anything done by the Chief
6
Executive Officer under this Part, may be instituted by or against
7
the Commonwealth.
8
243 Protection of persons involved in handling etc. complaints
9
(1) In exercising powers or performing functions under
10
paragraph 112(2)(d) and subsection 113(1), or assisting in
11
exercising those powers or performing those functions, a complaint
12
handler has the same protection and immunity as a Justice of the
13
High Court.
14
(2) In authorising a person or body under subsection 113(2), the Chief
15
Judge has the same protection and immunity as a Justice of the
16
High Court.
17
(3) A witness requested to attend, or appearing, before a complaint
18
handler handling a complaint has the same protection, and is
19
subject to the same liabilities in a proceeding, as a witness in a case
20
tried by the High Court.
21
(4) A legal practitioner assisting, or appearing on behalf of a person
22
before, a complaint handler handling a complaint has the same
23
protection and immunity as a barrister has in appearing for a party
24
in proceedings in the High Court.
25
Miscellaneous Chapter 5
Administration of family services Part 1
Section 244
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
193
Chapter 5--Miscellaneous
1
Part 1--Administration of family services
2
3
244 Chief Executive Officer has functions of family consultants
4
(1) The Chief Executive Officer has all of the functions conferred on
5
family consultants by section 11A of the Family Law Act 1975, and
6
any associated powers and duties.
7
(2) Without limiting subsection (1), sections 11C (admissibility of
8
communications with family consultants) and 11D (immunity of
9
family consultants) of that Act apply to the Chief Executive Officer
10
while the Chief Executive Officer is performing the functions of a
11
family consultant.
12
(3) The Chief Executive Officer is responsible for administering the
13
functions of family consultants appointed by the Chief Executive
14
Officer.
15
245 Chief Executive Officer may delegate powers and functions that
16
relate to family consultants
17
(1) The Chief Executive Officer may, in writing, delegate to a family
18
consultant any of the Chief Executive Officer's powers, functions
19
and duties in relation to the functions of family consultants
20
mentioned in section 11A of the Family Law Act 1975.
21
(2) A delegate is, in the exercise of a delegated power, function or
22
duty, subject to the directions of the Chief Executive Officer.
23
246 Chief Executive Officer may give directions that relate to family
24
services functions
25
The Chief Executive Officer may give directions that relate to:
26
(a) the functions of an officer of the Federal Circuit and Family
27
Court of Australia as a family consultant; or
28
Chapter 5 Miscellaneous
Part 1 Administration of family services
Section 247
194
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(b) the functions of an officer or staff member of the Federal
1
Circuit and Family Court of Australia as a family counsellor
2
or family dispute resolution practitioner.
3
247 Chief Executive Officer may authorise officers or staff members
4
to act as family counsellor or family dispute resolution
5
practitioner
6
(1) The Chief Executive Officer may authorise an officer or staff
7
member of the Federal Circuit and Family Court of Australia to
8
provide family counselling under the Family Law Act 1975.
9
(2) The Chief Executive Officer may authorise an officer or staff
10
member of the Federal Circuit and Family Court of Australia to
11
provide family dispute resolution under the Family Law Act 1975.
12
(3) If an officer who is a family consultant also becomes a family
13
counsellor, or family dispute resolution practitioner, because of an
14
authorisation under this section:
15
(a) section 11C of the Family Law Act 1975 (admissibility of
16
communications with family consultants) does not apply to
17
the officer at any time while the officer is acting as a family
18
counsellor or family dispute resolution practitioner; and
19
(b) the officer must not perform the functions of a family
20
consultant in relation to particular proceedings, if the officer
21
has conducted family counselling or family dispute resolution
22
with a party to those proceedings.
23
Miscellaneous Chapter 5
Miscellaneous Part 2
Section 248
No. , 2018
Federal Circuit and Family Court of Australia Bill 2018
195
Part 2--Miscellaneous
1
2
248 References in other laws to a Judge of the Federal Circuit and
3
Family Court of Australia
4
(1) A reference in a law of the Commonwealth (other than this Act) to
5
a Judge of the Federal Circuit and Family Court of Australia
6
(Division 1) includes a reference to the Chief Justice, the Deputy
7
Chief Justice and a Senior Judge of the Court.
8
(2) A reference in a law of the Commonwealth (other than this Act) to
9
a Judge of the Federal Circuit and Family Court of Australia
10
(Division 2) includes a reference to the Chief Judge and Deputy
11
Chief Judge of the Court.
12
249 Regulations
13
(1) The Governor-General may make regulations prescribing matters:
14
(a) required or permitted by this Act to be prescribed; or
15
(b) necessary or convenient to be prescribed for carrying out or
16
giving effect to this Act.
17
(2) Without limiting subsection (1), the regulations may provide for,
18
on in relation to, the following:
19
(a) penalties, not exceeding 60 penalty units, for offences against
20
the regulations;
21
(b) fees to be paid in respect of all or any following:
22
(i) proceedings in the Federal Circuit and Family Court of
23
Australia;
24
(ii) the service or the execution of the process of the Federal
25
Circuit and Family Court of Australia (Division 1) by
26
officers of the Court;
27
(iii) the service or the execution of the process of the Federal
28
Circuit and Family Court of Australia (Division 2) by
29
officers of the Court;
30
Chapter 5 Miscellaneous
Part 2 Miscellaneous
Section 249
196
Federal Circuit and Family Court of Australia Bill 2018
No. , 2018
(iv) services provided by the Federal Circuit and Family
1
Court of Australia in circumstances other than where a
2
court orders or directs the provision of the services;
3
(c) exemptions from fees covered by paragraph (b);
4
(d) the waiver, remission or refund of fees covered by
5
paragraph (b);
6
(e) the authorisation of:
7
(i) officers or staff members of the Federal Circuit and
8
Family Court of Australia as family counsellors under
9
subsection 247(1); and
10
(ii) officers or staff members of the Federal Circuit and
11
Family Court of Australia as family dispute resolution
12
practitioners under subsection 247(2).
13
(3) The regulations may make provision modifying or adapting
14
provisions of the Legislation Act 2003 (other than the provisions of
15
Part 2 of Chapter 3 of that Act or any other provisions whose
16
modifications or adaptation would affect the operation of that Part)
17
in their application to the Federal Circuit and Family Court of
18
Australia.
19
(4) To the extent of any inconsistency between regulations and Rules
20
of Court made under Chapter 3 or 4, the regulations prevail.
21