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This is a Bill, not an Act. For current law, see the Acts databases.
2019
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Federal Circuit and Family Court of
Australia Bill 2019
No. , 2019
(Attorney-General)
A Bill for an Act relating to the Federal Circuit and
Family Court of Australia, and for other purposes
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
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
18
8
Federal Circuit and Family Court of Australia ................................ 18
9
Federal Circuit and Family Court of Australia (Division 1) ............ 18
10
Federal Circuit and Family Court of Australia (Division 2) ............ 18
Chapter 3--Federal Circuit and Family Court of
Australia (Division 1)
20
Part 1--Constitution
20
Division 1--Constitution
20
11
Appointment of Judges .................................................................... 20
12
Judges to be assigned to particular location ..................................... 20
13
Authorised Judges may manage classes of proceedings .................. 21
14
Style ................................................................................................. 21
15
Seniority .......................................................................................... 22
16
Oath or affirmation of allegiance and office .................................... 22
17
Constitution of a Full Court ............................................................. 23
Division 2--Terms and conditions of judges
25
18
Remuneration .................................................................................. 25
19
Resignation from office ................................................................... 25
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Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
20
Removal from office ........................................................................ 25
Division 3--Judges of 2 or more courts
26
21
Dual appointments ........................................................................... 26
22
Judge also holding office of a prescribed court ............................... 26
23
Judge also holding office of a State Family Court ........................... 27
Division 4--Acting Chief Justice
28
24
Acting Chief Justice ........................................................................ 28
Part 2--Jurisdiction
29
Division 1--Original jurisdiction
29
25
Original jurisdiction ......................................................................... 29
Division 2--Appellate jurisdiction
30
26
Appeals ............................................................................................ 30
27
Family law regulations to be sole source of certain appellate
jurisdiction ....................................................................................... 32
28
Leave to appeal needed for some family law or child support
proceedings ...................................................................................... 32
Division 3--Associated matters
35
29
Jurisdiction in associated matters .................................................... 35
Division 4--Exercise of jurisdiction
36
Subdivision A--Original jurisdiction
36
30
Exercise of original jurisdiction ....................................................... 36
Subdivision B--Appellate jurisdiction (other than relating to
courts of summary jurisdiction)
36
31
Application ...................................................................................... 36
32
Exercise of appellate jurisdiction ..................................................... 36
33
Appeal may be determined without an oral hearing ........................ 39
34
Cases stated and questions reserved ................................................ 39
35
Evidence on appeal .......................................................................... 40
36
Form of judgment on appeal ............................................................ 41
37
Court divided in opinion .................................................................. 42
38
Stay of proceedings and suspension of orders ................................. 42
39
Appeals relating to court security orders ......................................... 43
40
Exercise of certain appellate jurisdiction under family law
regulations ....................................................................................... 43
Subdivision C--Appellate jurisdiction relating to courts of
summary jurisdiction
44
41
Application ...................................................................................... 44
42
Exercise of appellate jurisdiction ..................................................... 44
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Federal Circuit and Family Court of Australia Bill 2019
iii
Subdivision D--Miscellaneous
44
43
Determination of matter completely and finally .............................. 44
Division 5--Certain powers relating to matters of jurisdiction
46
44
Making of orders and issuing writs.................................................. 46
45
Contempt of court ............................................................................ 46
46
Summary judgment ......................................................................... 46
Division 6--Administration
48
47
Arrangement of business ................................................................. 48
48
Complaints ...................................................................................... 49
49
Protection for the Chief Justice and Deputy Chief Justice ............... 50
Part 3--Certain proceedings not to be instituted in Federal
Circuit and Family Court of Australia (Division 1)
52
50
Prohibition on instituting first instance family law or child
support proceedings ......................................................................... 52
Part 4--Transfer of proceedings
53
51
Discretionary transfer of proceedings from the Federal
Circuit and Family Court of Australia (Division 2) ......................... 53
52
Discretionary transfer of proceedings to the Federal Circuit
and Family Court of Australia (Division 2) ..................................... 54
53
Rules of Court ................................................................................. 54
54
Delegation ....................................................................................... 55
Part 5--Appeals
56
55
Appeals to the High Court ............................................................... 56
Part 6--Practice and procedure
58
Division 1--General
58
56
Practice and procedure..................................................................... 58
57
Representation ................................................................................. 58
Division 2--Documents filed in the Federal Circuit and Family
Court of Australia (Division 1)
60
58
Filing of documents in the Federal Circuit and Family Court
of Australia (Division 1) .................................................................. 60
59
Seal of the Federal Circuit and Family Court of Australia
(Division 1) ..................................................................................... 60
60
Federal Circuit and Family Court of Australia (Division 1)
stamps .............................................................................................. 61
61
Writs etc. ......................................................................................... 61
62
Proceedings may be instituted by application .................................. 62
63
Limits on length of documents ........................................................ 62
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Federal Circuit and Family Court of Australia Bill 2019
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Division 3--Conduct of proceedings
63
64
Place of sitting ................................................................................. 63
65
Change of venue .............................................................................. 63
66
Formal defects not to invalidate ...................................................... 63
Division 4--Case management
64
67
Overarching purpose of family law practice and procedure
provisions ........................................................................................ 64
68
Parties to act consistently with the overarching purpose ................. 65
69
Power of the Federal Circuit and Family Court of Australia
(Division 1) to give directions about practice and procedure
in a civil proceeding ........................................................................ 66
70
Chief Justice to achieve common approaches to case
management with the Federal Circuit and Family Court of
Australia (Division 2) ...................................................................... 67
Division 5--Evidence
68
71
Oaths and affirmations..................................................................... 68
72
Swearing of affidavits etc. ............................................................... 68
73
Orders and commissions for examination of witnesses ................... 70
Division 6--Judgments
71
74
Reserved judgments etc. .................................................................. 71
Division 7--Common approaches with the Federal Circuit and
Family Court of Australia (Division 2)
72
75
Chief Justice to achieve common approaches with the
Federal Circuit and Family Court of Australia (Division 2) ............ 72
Division 8--Rules of Court
73
76
Rules of Court ................................................................................. 73
77
Consultation..................................................................................... 74
Part 7--Management and administration
76
Division 1--Management responsibilities of the Chief Justice
76
78
Management of administrative affairs of the Federal Circuit
and Family Court of Australia (Division 1) ..................................... 76
79
Arrangements with other courts ....................................................... 77
80
Arrangements with agencies or organisations ................................. 78
81
Arrangements for sharing courtrooms and other facilities ............... 79
82
Advisory committees ....................................................................... 79
Division 2--Chief Executive Officer
81
Subdivision A--Functions and powers
81
83
Chief Executive Officer ................................................................... 81
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84
Function of Chief Executive Officer ............................................... 81
85
Powers of Chief Executive Officer .................................................. 81
Subdivision B--Terms and conditions of appointment
82
86
Appointment .................................................................................... 82
87
Term of appointment ....................................................................... 82
88
Remuneration and allowances ......................................................... 82
89
Leave of absence ............................................................................. 82
90
Outside employment ........................................................................ 83
91
Disclosure of interests ..................................................................... 83
92
Other terms and conditions .............................................................. 83
93
Resignation ...................................................................................... 83
94
Termination of appointment ............................................................ 84
95
Acting Chief Executive Officer ....................................................... 85
Division 3--Registries and registrars
87
96
Registries ......................................................................................... 87
97
Senior Registrars and Registrars ...................................................... 87
98
Delegation ....................................................................................... 87
99
Independence of delegates ............................................................... 90
100
Review of power exercised by delegate........................................... 91
101
Protection for Registrars .................................................................. 91
102
Oath or affirmation of office............................................................ 92
Division 4--Other officers and staff
93
103
Officers of the Federal Circuit and Family Court of Australia
(Division 1) ..................................................................................... 93
104
Marshal ............................................................................................ 94
105
Delegation by Registry Managers.................................................... 95
Division 5--Miscellaneous administrative matters
96
106
Procedural information to be given to unrepresented parties ........... 96
107
Annual report ................................................................................... 96
108
Delegation of administrative powers of Chief Justice ..................... 96
109
Proceedings arising out of administration of the Federal
Circuit and Family Court of Australia (Division 1) ......................... 96
110
Protection of persons involved in handling etc. complaints ............. 97
Chapter 4--Federal Circuit and Family Court of
Australia (Division 2)
98
Part 1--Constitution
98
Division 1--Constitution
98
111
Appointment of Judges .................................................................... 98
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112
Assignment of Judges to Divisions .................................................. 99
113
Authorised Judges may manage classes of proceedings .................. 99
114
Style ................................................................................................. 99
115
Oath or affirmation of office.......................................................... 100
Division 2--Terms and conditions of serving Judges
102
116
Remuneration ................................................................................ 102
117
Leave ............................................................................................. 102
118
Outside work ................................................................................. 102
119
Other terms and conditions ............................................................ 103
120
Resignation from office ................................................................. 103
121
Removal from office ...................................................................... 103
Division 3--Disability and death benefits
104
122
Certification of retired disabled Judges ......................................... 104
123
Pensions for retired disabled Judges .............................................. 104
124
Superannuation for retired disabled Judges ................................... 105
125
Death benefits ................................................................................ 106
126
Relationship definitions ................................................................. 108
127
Meaning of
eligible child
............................................................... 110
128
Appropriation ................................................................................ 111
Division 4--Judges of 2 or more courts
112
129
Dual appointments ......................................................................... 112
Division 5--Acting Chief Judge
113
130
Acting Chief Judge ........................................................................ 113
Part 2--Jurisdiction
115
Division 1--Original jurisdiction
115
131
Original jurisdiction--general ....................................................... 115
132
Original jurisdiction--family law or child support matters ........... 115
133
Original jurisdiction--Commonwealth tenancy disputes .............. 116
Division 2--Associated matters
118
134
Jurisdiction in associated matters .................................................. 118
Division 3--Exercise of jurisdiction
119
135
General and Fair Work Divisions of the Federal Circuit and
Family Court of Australia (Division 2) .......................................... 119
136
Exercise of jurisdiction--open court or in Chambers .................... 120
137
Exercise of jurisdiction .................................................................. 121
138
Decisions to be final ...................................................................... 122
139
Determination of matter completely and finally ............................ 122
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Division 4--Certain powers relating to matters of jurisdiction
123
140
Making of orders and issue of writs............................................... 123
141
Declarations of right ...................................................................... 123
142
Contempt of court .......................................................................... 123
143
Summary judgment ....................................................................... 124
Division 5--Administration
125
144
Arrangement of business ............................................................... 125
145
Complaints .................................................................................... 126
146
Exercise of powers of General and Fair Work Divisions of
the Federal Circuit and Family Court of Australia
(Division 2) ................................................................................... 127
147
Assignment of Judges to locations or registries ............................. 128
148
Protection for Chief Judge and Deputy Chief Judge ...................... 128
Part 3--Transfer of proceedings
130
Division 1--Transfer of proceedings to the Federal Circuit and
Family Court of Australia (Division 1)
130
149
Discretionary transfer of proceedings ............................................ 130
150
Transferred proceedings returned to the Federal Circuit and
Family Court of Australia (Division 2) .......................................... 131
151
Rules of Court ............................................................................... 131
152
Delegation ..................................................................................... 132
Division 2--Transfer of proceedings to the Federal Court
133
153
Discretionary transfer of proceedings ............................................ 133
154
Rules of Court ............................................................................... 134
Part 4--Appeals
135
155
Appeals to the High Court may not be brought ............................. 135
Part 5--Dispute resolution for proceedings other than
proceedings under the Family Law Act 1975
136
Division 1--General
136
156
This Part does not apply to proceedings under the
Family
Law Act 1975
................................................................................. 136
157
Federal Circuit and Family Court of Australia (Division 2) to
consider whether to advise people to use dispute resolution
processes ........................................................................................ 136
158
Federal Circuit and Family Court of Australia (Division 2) to
advise people to use dispute resolution processes.......................... 136
159
Duty of legal practitioners to consider whether to advise
people to use dispute resolution processes ..................................... 137
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Federal Circuit and Family Court of Australia Bill 2019
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Officers of the Federal Circuit and Family Court of Australia
(Division 2) to advise people about dispute resolution
processes ........................................................................................ 137
161
Conciliation ................................................................................... 138
162
Referral of question of law--dispute resolution process
(other than arbitration) ................................................................... 138
163
Rules of Court about dispute resolution processes ........................ 139
164
Regulations about dispute resolution processes ............................. 139
165
Rules of Court about costs of dispute resolution processes ........... 140
166
Rules of Court about dispute resolution processes under the
Family Law Act 1975
..................................................................... 140
167
Consent orders ............................................................................... 140
Division 2--Proceedings other than family law or child support
proceedings
141
168
Scope of Division .......................................................................... 141
169
Mediation ...................................................................................... 141
170
Arbitration ..................................................................................... 142
171
Power of arbitrator to refer question of law to the Federal
Circuit and Family Court of Australia (Division 2) ....................... 142
172
Review of arbitration award on a question of law etc. ................... 143
173
Arbitration awards ......................................................................... 144
Part 6--Practice and procedure
145
Division 1--General
145
174
Practice and procedure................................................................... 145
175
Representation ............................................................................... 146
176
Interrogatories and discovery ........................................................ 146
Division 2--Documents filed in the Federal Circuit and Family
Court of Australia (Division 2)
147
177
Filing of documents in the Federal Circuit and Family Court
of Australia (Division 2) ................................................................ 147
178
Seal of the Federal Circuit and Family Court of Australia
(Division 2) ................................................................................... 147
179
Federal Circuit and Family Court of Australia (Division 2)
stamps ............................................................................................ 148
180
Writs etc. ....................................................................................... 148
181
Proceedings may be instituted by application ................................ 149
182
Limits on length of documents ...................................................... 149
Division 3--Conduct of proceedings
150
183
Place of sitting ............................................................................... 150
184
Change of venue ............................................................................ 150
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Federal Circuit and Family Court of Australia Bill 2019
ix
185
Determination of proceedings without a jury ................................ 150
186
Decisions without oral hearing ...................................................... 150
187
Limits on the length of oral argument ........................................... 150
188
Written submissions ...................................................................... 151
189
Formal defects not to invalidate .................................................... 151
Division 4--Case management
152
190
Overarching purpose of civil practice and procedure
provisions ...................................................................................... 152
191
Parties to act consistently with the overarching purpose ............... 153
192
Power of the Federal Circuit and Family Court of Australia
(Division 2) to give directions about practice and procedure
in a civil proceeding ...................................................................... 154
193
Chief Judge to achieve common approaches to case
management with the Federal Circuit and Family Court of
Australia (Division 1) .................................................................... 155
Division 5--Evidence
156
194
Oaths and affirmations................................................................... 156
195
Swearing of affidavits etc. ............................................................. 156
196
Orders and commissions for examination of witnesses ................. 158
197
Time limits on giving of testimony................................................ 158
198
Federal Circuit and Family Court of Australia (Division 2)
may question witnesses ................................................................. 158
199
Evidence may be given orally or by affidavit ................................ 159
200
Offences by witness ....................................................................... 160
Division 6--Use of video links or audio links
162
201
Testimony by video link or audio link ........................................... 162
202
Appearance of persons by video link or audio link........................ 163
203
Making of submissions by video link or audio link ....................... 163
204
Conditions for use of video links and audio links .......................... 164
205
Putting documents to a person by video link or audio link ............ 166
206
Administration of oaths and affirmations ...................................... 166
207
Expenses ........................................................................................ 167
208
New Zealand proceedings ............................................................. 167
Division 7--Orders and judgments
168
209
Orders ............................................................................................ 168
210
Reserved judgments etc. ................................................................ 168
211
Interest up to judgment .................................................................. 168
212
Interest on judgment ...................................................................... 171
213
Enforcement of judgment .............................................................. 171
Division 8--Costs
172
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214
Costs .............................................................................................. 172
215
Security for costs ........................................................................... 172
Division 9--Common approaches with the Federal Circuit and
Family Court of Australia (Division 1)
174
216
Chief Judge to achieve common approaches with the Federal
Circuit and Family Court of Australia (Division 1) ....................... 174
Division 10--Rules of Court
175
217
Rules of Court ............................................................................... 175
218
Consultation................................................................................... 176
219
Documents ..................................................................................... 176
220
Service ........................................................................................... 177
221
Evidence ........................................................................................ 177
222
Orders and judgments .................................................................... 178
223
Costs .............................................................................................. 178
224
General .......................................................................................... 179
225
Incidental matters .......................................................................... 181
Part 7--Suppression and non-publication orders
182
Division 1--Introduction
182
226
Powers of Federal Circuit and Family Court of Australia
(Division 2) not affected ................................................................ 182
227
Other laws not affected .................................................................. 182
228
This Part does not apply to proceedings under the
Family
Law Act 1975
................................................................................. 182
Division 2--Suppression and non-publication orders
183
229
Safeguarding public interest in open justice .................................. 183
230
Power to make orders .................................................................... 183
231
Grounds for making an order ......................................................... 183
232
Procedure for making an order ...................................................... 184
233
Interim orders ................................................................................ 185
234
Duration of orders.......................................................................... 185
235
Exception for court officials .......................................................... 186
236
Contravention of order................................................................... 186
Part 8--Vexatious proceedings
187
Division 1--Introduction
187
237
Meaning of a person
acting in concert
.......................................... 187
238
Powers of the Federal Circuit and Family Court of Australia
(Division 2) not affected ................................................................ 187
Division 2--Vexatious proceedings orders
188
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Federal Circuit and Family Court of Australia Bill 2019
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239
Making vexatious proceedings orders ........................................... 188
240
Notification of vexatious proceedings orders ................................ 189
Division 3--Particular consequences of vexatious proceedings
orders
191
241
Proceedings in contravention of vexatious proceedings order ....... 191
242
Application for leave to institute proceedings ............................... 192
243
Dismissing application for leave ................................................... 192
244
Granting application for leave ....................................................... 193
Part 9--Management and administration
194
Division 1--Management responsibilities of the Chief Judge and
the Chief Executive Officer
194
245
Management of administrative affairs of the Federal Circuit
and Family Court of Australia (Division 2) ................................... 194
246
Arrangements with other courts ..................................................... 195
247
Arrangements with agencies or organisations ............................... 196
248
Arrangements for sharing courtrooms and other facilities ............. 197
249
Advisory committees ..................................................................... 197
Division 2--Chief Executive Officer
199
250
Function of Chief Executive Officer ............................................. 199
251
Powers of Chief Executive Officer ................................................ 199
Division 3--Registries and registrars
200
252
Registries ....................................................................................... 200
253
Senior Registrars and Registrars .................................................... 200
254
Delegation ..................................................................................... 200
255
Independence of delegates ............................................................. 204
256
Review of power exercised by delegate......................................... 204
257
Protection for Registrars ................................................................ 204
258
Oath or affirmation of office.......................................................... 205
Division 4--Other officers and staff
206
Subdivision A--Officers and staff
206
259
Officers of the Federal Circuit and Family Court of Australia
(Division 2) ................................................................................... 206
260
Sheriff ............................................................................................ 206
261
Deputy Sheriffs .............................................................................. 207
262
Marshal .......................................................................................... 207
263
Deputy Marshals ............................................................................ 208
264
Family consultants ......................................................................... 208
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Staff of the Federal Circuit and Family Court of Australia
(Division 2) ................................................................................... 208
Subdivision B--Provisions relating to officers and staff
208
266
Arrangements relating to Commonwealth staff ............................. 208
267
Delegation by Registry Managers.................................................. 209
268
Authorised persons to assist the Sheriff or Deputy Sheriffs .......... 209
269
Authorised persons to assist the Marshal or Deputy Marshals ...... 209
270
Actions by or against Sheriff or Marshal ....................................... 209
271
Making arrests under this Chapter or warrants .............................. 210
272
Receivers ....................................................................................... 211
Division 5--Miscellaneous administrative matters
213
273
Procedural information to be given to unrepresented parties ......... 213
274
Annual report ................................................................................. 213
275
Delegation of the administrative powers of the Chief Judge ......... 213
276
Proceedings arising out of administrative affairs of the
Federal Circuit and Family Court of Australia (Division 2) .......... 214
277
Protection of persons involved in handling etc. complaints ........... 214
Chapter 5--Miscellaneous
215
Part 1--Administration of family services
215
278
Chief Executive Officer has functions of family consultants......... 215
279
Chief Executive Officer may delegate powers and functions
that relate to family consultants ..................................................... 215
280
Chief Executive Officer may give directions that relate to
family services functions ............................................................... 215
281
Chief Executive Officer may authorise officers or staff
members to act as family counsellor or family dispute
resolution practitioner .................................................................... 216
Part 2--Miscellaneous
217
282
References in other laws to a Judge of the Federal Circuit
and Family Court of Australia ....................................................... 217
283
References in other laws to a Registrar of the Federal Circuit
and Family Court of Australia ....................................................... 217
284
Review of operation of this Act ..................................................... 217
285
Regulations .................................................................................... 218
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
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 2019
No. , 2019
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
2019.
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. The whole of
this Act
A single day to be fixed by Proclamation.
However, if the provisions do not commence
within the period of 6 months beginning on
the day this Act receives the Royal Assent,
they commence on the day after the end of
that period.
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. , 2019
Federal Circuit and Family Court of Australia Bill 2019
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 2019
No. , 2019
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. , 2019
Federal Circuit and Family Court of Australia Bill 2019
5
Division 3--Simplified outline of this Act
1
6 Simplified outline of this Act
2
The federal court known as the Family Court of Australia
3
continues in existence as the Federal Circuit and Family Court of
4
Australia (Division 1). The Court consists of the Chief Justice, the
5
Deputy Chief Justice, Senior Judges and other Judges. The Court
6
has original jurisdiction in matters that are the subject of family
7
law or child support proceedings transferred from the Federal
8
Circuit and Family Court of Australia (Division 2) or as conferred
9
by another law of the Commonwealth, and has appellate
10
jurisdiction in family law and child support matters.
11
The federal court known as the Federal Circuit Court of Australia
12
continues in existence as the Federal Circuit and Family Court of
13
Australia (Division 2). The Court consists of the Chief Judge, 2
14
Deputy Chief Judges and other Judges. The Court has original
15
jurisdiction in general federal law matters, as well as family law
16
and child support matters.
17
All proceedings before the Federal Circuit and Family Court of
18
Australia are subject to case management. The overarching
19
purpose of case management is to facilitate the just resolution of
20
disputes according to law as quickly, inexpensively and efficiently
21
as possible. Judges may be authorised to manage classes of
22
proceedings. The parties and their lawyers are required to
23
cooperate with the Federal Circuit and Family Court of Australia,
24
and among themselves, to assist in achieving the overarching
25
purpose.
26
The Chief Executive Officer is to assist the Chief Justice and the
27
Chief Judge in managing the administrative affairs of the Federal
28
Circuit and Family Court of Australia.
29
Registrars and other officers of the Federal Circuit and Family
30
Court of Australia may hold appointments as officers of more than
31
one of the following courts:
32
Chapter 1
Introduction
Part 1
Introduction
Division 3
Simplified outline of this Act
Section 6
6
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(a)
the Federal Circuit and Family Court of Australia
1
(Division 1);
2
(b)
the Federal Circuit and Family Court of Australia
3
(Division 2);
4
(c)
the Federal Court.
5
Introduction
Chapter 1
Definitions
Part 2
Section 7
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
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 78(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 245(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 125, has the
23
meaning given by subsection 125(4).
24
Chief Executive Officer
means the Chief Executive Officer and
25
Principal Registrar of the Federal Circuit and Family Court of
26
Australia (Division 1).
27
Chief Judge
means the Chief Judge of the Federal Circuit and
28
Family Court of Australia (Division 2).
29
Chapter 1
Introduction
Part 2
Definitions
Section 7
8
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
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 190(4).
9
commencement day
means the day this Act commences.
10
Commonwealth officer or employee
means a person who:
11
(a) is appointed or engaged under the
Public Service Act 1999
;
12
or
13
(b) is appointed under another law of the Commonwealth; or
14
(c) holds an office established by a law of the Commonwealth;
15
or
16
(d) is employed by a public authority of the Commonwealth; or
17
(e) is a member of the Australian Defence Force; or
18
(f) is the Commissioner of the Australian Federal Police, a
19
Deputy Commissioner of the Australian Federal Police, an
20
AFP employee or a special member of the Australian Federal
21
Police (all within the meaning of the
Australian Federal
22
Police Act 1979
).
23
Commonwealth superannuation contribution
, in respect of a
24
Judge or retired disabled Judge of the Federal Circuit and Family
25
Court of Australia (Division 2), means a Commonwealth
26
contribution to the Judge's choice of:
27
(a) a complying superannuation fund (within the meaning of
28
section 45 of the
Superannuation Industry (Supervision) Act
29
1993
); or
30
(b) a retirement savings account (within the meaning of section 8
31
of the
Retirement Savings Accounts Act 1997
).
32
Commonwealth tenancy dispute
means a matter:
33
Introduction
Chapter 1
Definitions
Part 2
Section 7
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
9
(a) involving a lease, licence or other arrangement to possess,
1
occupy or use land and a dispute about:
2
(i) the recovery of rent or other payments payable under or
3
in relation to the lease, licence or other arrangement; or
4
(ii) the termination of the lease, licence or other
5
arrangement; or
6
(iii) the possession, occupation or use of the land; and
7
(b) in which the Commonwealth, or a person suing or being sued
8
on behalf of the Commonwealth, is a party.
9
complaint
:
10
(a) in Chapter 3, means a complaint mentioned in
11
paragraph 47(2)(d); and
12
(b) in Chapter 4, means a complaint mentioned in
13
paragraph 144(2)(d).
14
complaint handler
:
15
(a) in Chapter 3, means any of the following persons:
16
(i) the Chief Justice;
17
(ii) a person who is authorised by the Chief Justice under
18
subsection 48(2);
19
(iii) a person who is a member of a body that is authorised
20
by the Chief Justice under subsection 48(2); and
21
(b) in Chapter 4, means any of the following persons:
22
(i) the Chief Judge;
23
(ii) a person who is authorised by the Chief Judge under
24
subsection 145(2);
25
(iii) a person who is a member of a body that is authorised
26
by the Chief Judge under subsection 145(2).
27
conveyance
includes a vehicle, a vessel and an aircraft.
28
corporate services
:
29
(a) in relation to the Federal Circuit and Family Court of
30
Australia (Division 1), has the meaning given by
31
subsection 78(3); and
32
Chapter 1
Introduction
Part 2
Definitions
Section 7
10
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(b) in relation to the Federal Circuit and Family Court of
1
Australia (Division 2), has the meaning given by
2
subsection 245(3).
3
CSC
(short for Commonwealth Superannuation Corporation) has
4
the same meaning as in the
Governance of Australian Government
5
Superannuation Schemes Act 2011
.
6
delegate
:
7
(a) in Chapter 3, means:
8
(i) the Chief Executive Officer; or
9
(ii) a Senior Registrar or Registrar of the Federal Circuit
10
and Family Court of Australia (Division 1); and
11
(b) in Chapter 4, means:
12
(i) the Chief Executive Officer; or
13
(ii) a Senior Registrar or Registrar of the Federal Circuit
14
and Family Court of Australia (Division 2).
15
Deputy Chief Judge
means the Deputy Chief Judge (Family Law)
16
or the Deputy Chief Judge (General and Fair Work) of the Federal
17
Circuit and Family Court of Australia (Division 2).
18
Deputy Chief Judge (Family Law)
means the Deputy Chief Judge
19
(Family Law) of the Federal Circuit and Family Court of Australia
20
(Division 2).
21
Deputy Chief Judge (General and Fair Work)
means the Deputy
22
Chief Judge (General and Fair Work) of the Federal Circuit and
23
Family Court of Australia (Division 2).
24
Deputy Chief Justice
means the Deputy Chief Justice of the
25
Federal Circuit and Family Court of Australia (Division 1).
26
dispute resolution processes
means procedures and services for the
27
resolution of disputes otherwise than by way of the exercise of the
28
judicial power of the Commonwealth, and includes:
29
(a) counselling; and
30
(b) mediation; and
31
(c) arbitration; and
32
(d) neutral evaluation; and
33
Introduction
Chapter 1
Definitions
Part 2
Section 7
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
11
(e) case appraisal; and
1
(f) conciliation.
2
Division
means the General Division or the Fair Work Division of
3
the Federal Circuit and Family Court of Australia (Division 2).
4
dwelling house
includes a conveyance, or a room in
5
accommodation, in which people ordinarily retire for the night.
6
electronic signature
of a person means the person's unique
7
identification in an electronic form that is approved by the Chief
8
Executive Officer.
9
eligible child
has the meaning given by section 127.
10
eligible spouse
has the meaning given by section 126.
11
excluded child order
means:
12
(a) a parenting order to the extent to which it provides that:
13
(i) a child is to live with a person; or
14
(ii) a child is to spend time with a person; or
15
(iii) a child is to communicate with a person; or
16
(iv) a person is to have parental responsibility for a child; or
17
(b) an order in relation to the welfare of a child;
18
other than:
19
(c) an order made until further order; or
20
(d) an order made in undefended proceedings; or
21
(e) an order made with the consent of all the parties to the
22
proceedings.
23
Family Law Act 1975
includes regulations made under that Act.
24
family law or child support proceedings
means proceedings in
25
respect of which the Federal Circuit and Family Court of Australia
26
(Division 2) has original jurisdiction under section 132.
27
family law practice and procedure provisions
, in relation to the
28
Federal Circuit and Family Court of Australia (Division 1), has the
29
meaning given by subsection 67(4).
30
Federal Circuit and Family Court of Australia
means:
31
Chapter 1
Introduction
Part 2
Definitions
Section 7
12
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(a) the Federal Circuit and Family Court of Australia
1
(Division 1); or
2
(b) the Federal Circuit and Family Court of Australia
3
(Division 2).
4
Federal Court
means the Federal Court of Australia.
5
Full Court
means a Full Court of the Federal Circuit and Family
6
Court of Australia (Division 1) constituted in accordance with
7
section 17.
8
handle
a complaint means do one or more of the following acts
9
relating to the complaint:
10
(a) consider the complaint;
11
(b) investigate the complaint;
12
(c) report on an investigation of the complaint;
13
(d) deal with a report of an investigation of the complaint;
14
(e) dispose of the complaint;
15
(f) refer the complaint to a person or body.
16
information
includes any document.
17
institute
, in relation to proceedings and the power of the Federal
18
Circuit and Family Court of Australia (Division 2) to deal with
19
vexatious proceedings, includes:
20
(a) for civil proceedings--the taking of a step or the making of
21
an application that may be necessary before proceedings can
22
be started against a party; and
23
(b) for proceedings before a tribunal--the taking of a step or the
24
making of an application that may be necessary before
25
proceedings can be started before the tribunal; and
26
(c) for criminal proceedings--the making of a complaint or the
27
obtaining of a warrant for the arrest of an alleged offender;
28
and
29
(d) for civil or criminal proceedings or proceedings before a
30
tribunal--the taking of a step or the making of an application
31
that may be necessary to start an appeal in relation to the
32
proceedings or to a decision made in the course of the
33
proceedings.
34
Introduction
Chapter 1
Definitions
Part 2
Section 7
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
13
Judge
:
1
(a) in Chapter 3, means a person holding office as a Judge of the
2
Federal Circuit and Family Court of Australia (Division 1),
3
including the Chief Justice, Deputy Chief Justice and a
4
Senior Judge; and
5
(b) in Chapter 4, means a person holding office as a Judge of the
6
Federal Circuit and Family Court of Australia (Division 2),
7
including the Chief Judge and a Deputy Chief Judge.
8
judgment
means a judgment, decree or order, whether final or
9
interlocutory, a decision or a sentence, and includes a decree within
10
the meaning of the
Family Law Act 1975
.
11
living with
a person has the meaning given by subsection 126(8).
12
Magistrates Court of Western Australia
means the Magistrates
13
Court of Western Australia constituted by a Family Law
14
Magistrate of Western Australia.
15
marital or couple relationship
has the meaning given by
16
subsection 126(5).
17
news publisher
means a person engaged in the business of
18
publishing news or a public or community broadcasting service
19
engaged in the publishing of news through a public news medium.
20
non-publication order
means an order that prohibits or restricts the
21
publication of information (but that does not otherwise prohibit or
22
restrict the disclosure of information).
23
overarching purpose
:
24
(a) of the family law practice and procedure provisions in
25
relation to the Federal Circuit and Family Court of Australia
26
(Division 1), means the overarching purpose set out in
27
subsection 67(1); and
28
(b) of the civil practice and procedure provisions in relation to
29
the Federal Circuit and Family Court of Australia
30
(Division 2), means the overarching purpose set out in
31
subsection 190(1).
32
Chapter 1
Introduction
Part 2
Definitions
Section 7
14
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
paid work
means work for financial gain or reward (whether as an
1
employee, a self-employed person or otherwise).
2
partner
: a person is the
partner
of another person if the 2 persons
3
have a relationship as a couple (whether the persons are the same
4
sex or different sexes).
5
party
to a proceeding, in the context of a decision by the Federal
6
Circuit and Family Court of Australia (Division 2) about whether
7
to make a suppression order or non-publication order, includes the
8
complainant or victim (or alleged victim) in a criminal proceeding
9
and any person named in evidence given in a proceeding and, in
10
relation to a proceeding that has concluded, means a person who
11
was a party to the proceeding before the proceeding concluded.
12
police officer
means a member or special member of the Australian
13
Federal Police or a member of the police force or police service of
14
a State or Territory.
15
premises
includes a place and a conveyance.
16
prior judicial service
, in relation to a retired disabled Judge of the
17
Federal Circuit and Family Court of Australia (Division 2), means
18
service, prior to the Judge's appointment as a Judge of the Court
19
(and in the case of more than one appointment as a Judge of the
20
Court, the Judge's most recent appointment), as one of the
21
following:
22
(a) a Justice or Judge of a federal court;
23
(b) the holder of an office, being an office the holder of which
24
has, by virtue of an Act, the same status as a Justice or Judge
25
of a federal court;
26
(c) a Judge of the Federal Circuit and Family Court of Australia
27
(Division 2);
28
(d) a Judge or acting Judge of a court of a State or Territory;
29
(e) a magistrate of a State or Territory;
30
(f) in the case of a State or Territory office that qualifies the
31
holder of the office for a pension or retiring allowance under
32
a law of the State or Territory relating to pensions or retiring
33
allowances payable to retired Judges--a holder of the office
34
(including an acting holder).
35
Introduction
Chapter 1
Definitions
Part 2
Section 7
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
15
proceeding
:
1
(a) in relation to a court--means a proceeding in a court,
2
whether between parties or not, and includes an incidental
3
proceeding in the course of, or in connection with, a
4
proceeding, and also includes an appeal; and
5
(b) in relation to a tribunal--means a proceeding in the tribunal,
6
whether between parties or not, and includes an incidental
7
proceeding in the course of, or in connection with, a
8
proceeding.
9
proceedings of a particular type
includes:
10
(a) proceedings in relation to a particular matter; and
11
(b) proceedings against a particular person.
12
public authority of the Commonwealth
means:
13
(a) a body incorporated, whether before or after the
14
commencement of this definition, for a public purpose by a
15
law of the Commonwealth, being a body corporate
16
employing staff on its own behalf; or
17
(b) an authority or body, not being a body corporate, established,
18
whether before or after the commencement of this definition,
19
for a public purpose by, or in accordance with the provisions
20
of, a law of the Commonwealth, being an authority or body
21
employing staff on its own behalf; or
22
(c) an incorporated company over which the Commonwealth, or
23
a body or authority mentioned in paragraph (a) or (b), is in a
24
position to exercise control.
25
publish
, in relation to a news publisher, means disseminate or
26
provide access to the public or a section of the public by any
27
means, including by:
28
(a) publication in a book, newspaper, magazine or other written
29
publication; or
30
(b) broadcast by radio or television; or
31
(c) public exhibition; or
32
(d) broadcast or publication by means of the internet.
33
Registrar
:
34
Chapter 1
Introduction
Part 2
Definitions
Section 7
16
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(a) in Chapter 3, means a Senior Registrar or Registrar of the
1
Federal Circuit and Family Court of Australia (Division 1);
2
and
3
(b) in Chapter 4, means a Senior Registrar or Registrar of the
4
Federal Circuit and Family Court of Australia (Division 2).
5
Registry Manager
:
6
(a) in Chapter 3, means a Registry Manager of the Federal
7
Circuit and Family Court of Australia (Division 1); and
8
(b) in Chapter 4, means a Registry Manager of the Federal
9
Circuit and Family Court of Australia (Division 2).
10
relevant belief
:
11
(a) in relation to the Federal Circuit and Family Court of
12
Australia (Division 1), has the meaning given by
13
subsection 48(4); and
14
(b) in relation to the Federal Circuit and Family Court of
15
Australia (Division 2), has the meaning given by
16
subsection 145(4).
17
retired disabled Judge
of the Federal Circuit and Family Court of
18
Australia (Division 2) means a person certified by the Minister to
19
be a retired disabled Judge under paragraph 122(2)(a).
20
retires
, in relation to a Judge of the Federal Circuit and Family
21
Court of Australia (Division 2), means ceases, otherwise than by
22
death, to hold any office as a Judge.
23
Rules of Court
:
24
(a) in relation to the Federal Circuit and Family Court of
25
Australia (Division 1), means Rules of Court made under
26
Chapter 3; and
27
(b) in relation to the Federal Circuit and Family Court of
28
Australia (Division 2), means Rules of Court made under
29
Chapter 4.
30
suppression order
means an order that prohibits or restricts the
31
disclosure of information (by publication or otherwise).
32
vexatious proceeding
includes:
33
Introduction
Chapter 1
Definitions
Part 2
Section 7
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
17
(a) a proceeding that is an abuse of the process of a court or
1
tribunal; and
2
(b) a proceeding instituted in a court or tribunal to harass or
3
annoy, to cause delay or detriment, or for another wrongful
4
purpose; and
5
(c) a proceeding instituted or pursued in a court or tribunal
6
without reasonable ground; and
7
(d) a proceeding conducted in a court or tribunal in a way so as
8
to harass or annoy, cause delay or detriment, or achieve
9
another wrongful purpose.
10
vexatious proceedings order
means an order made under
11
subsection 239(2).
12
video link
means facilities (for example, closed-circuit television
13
facilities) that enable audio and visual communication between
14
persons in different places.
15
(2) An expression has the same meaning in this Act as it has in the
16
Family Law Act 1975
(other than the expression "this Act").
17
(3) To the extent of any inconsistency between the meaning of an
18
expression defined in this Act and the
Family Law Act 1975
, the
19
meaning of the expression in this Act prevails.
20
Chapter 2
Federal Circuit and Family Court of Australia
Section 8
18
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
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 the commencement
6
day as the Family Court of Australia is continued in existence as
7
the Federal Circuit and Family Court of Australia (Division 1).
8
(2) The federal court known immediately before the commencement
9
day as the Federal Circuit Court of Australia is continued in
10
existence as the Federal Circuit and Family Court of Australia
11
(Division 2).
12
Note:
The Parliament may create federal courts under Chapter III of the
13
Constitution.
14
9 Federal Circuit and Family Court of Australia (Division 1)
15
(1) The Federal Circuit and Family Court of Australia (Division 1) is:
16
(a) a superior court of record; and
17
(b) a court of law and equity.
18
(2) The Federal Circuit and Family Court of Australia (Division 1)
19
consists of the following:
20
(a) a Chief Justice;
21
(b) a Deputy Chief Justice;
22
(c) such Senior Judges and other Judges as from time to time
23
hold office in accordance with this Act.
24
(3) For the purposes of paragraph (2)(c), the regulations may prescribe
25
a minimum number of Judges (whether appointed as Senior Judges
26
or Judges) that are to hold office in accordance with this Act.
27
10 Federal Circuit and Family Court of Australia (Division 2)
28
(1) The Federal Circuit and Family Court of Australia (Division 2) is:
29
(a) a court of record; and
30
Federal Circuit and Family Court of Australia
Chapter 2
Section 10
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
19
(b) a court of law and equity.
1
(2) The Federal Circuit and Family Court of Australia (Division 2)
2
consists of the following:
3
(a) a Chief Judge;
4
(b) 2 Deputy Chief Judges;
5
(c) such other Judges as from time to time hold office in
6
accordance with this Act.
7
Chapter 3
Federal Circuit and Family Court of Australia (Division 1)
Part 1
Constitution
Division 1
Constitution
Section 11
20
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
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 knowledge, skills, experience and aptitude, the
15
person is a suitable person to deal with family law matters,
16
including matters involving family violence.
17
(3) A person must not be appointed as a Judge if the person has
18
attained the age of 70 years.
19
(4) The appointment of a Judge (including by way of promotion or to
20
another judicial office) is to be for a term expiring upon the Judge
21
attaining the age of 70 years.
22
Note 1:
Section 72 of the Constitution sets out requirements relating to the
23
appointment and tenure of Judges.
24
Note 2:
Division 2 of this Part deals with terms and conditions of appointment.
25
12 Judges to be assigned to particular location
26
(1) The commission of appointment of a Judge must assign the Judge
27
to a particular location. The Judge:
28
Federal Circuit and Family Court of Australia (Division 1)
Chapter 3
Constitution
Part 1
Constitution
Division 1
Section 13
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
21
(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
Chapter 3
Federal Circuit and Family Court of Australia (Division 1)
Part 1
Constitution
Division 1
Constitution
Section 15
22
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
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
Federal Circuit and Family Court of Australia (Division 1)
Chapter 3
Constitution
Part 1
Constitution
Division 1
Section 17
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
23
(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
17 Constitution of a Full Court
23
(1) A Full Court of the Federal Circuit and Family Court of Australia
24
(Division 1) consists of 3 or more Judges sitting together or, to the
25
extent allowed by subsection (2), of 2 Judges sitting together.
26
(2) If, after a Full Court has started the hearing, or further hearing, of a
27
proceeding and before the proceeding has been determined, one of
28
the Judges constituting the Full Court dies, resigns the Judge's
29
office or otherwise becomes unable to continue as a member of the
30
Full Court for the purposes of the proceeding, then the hearing and
31
Chapter 3
Federal Circuit and Family Court of Australia (Division 1)
Part 1
Constitution
Division 1
Constitution
Section 17
24
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
determination, or the determination, of the proceeding may be
1
completed by a Full Court constituted by the remaining Judges, if:
2
(a) at least 3 Judges remain; or
3
(b) 2 Judges remain and the parties consent.
4
(3) A Full Court of the Federal Circuit and Family Court of Australia
5
(Division 1) constituted in accordance with subsection (2) may
6
have regard to any evidence given or received, and arguments
7
adduced, by or before the Full Court as previously constituted.
8
Federal Circuit and Family Court of Australia (Division 1)
Chapter 3
Constitution
Part 1
Terms and conditions of judges
Division 2
Section 18
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
25
Division 2--Terms and conditions of judges
1
18 Remuneration
2
(1) A Judge is to receive salary, annual allowances and travelling
3
allowances at such respective rates as are fixed from time to time
4
by the Parliament.
5
(2) The salary and annual allowances of a Judge:
6
(a) accrue from day to day; and
7
(b) are payable monthly.
8
(3) The Consolidated Revenue Fund is appropriated to the extent
9
necessary for payment of salaries and annual allowances in
10
accordance with this section.
11
Note 1:
A Judge's remuneration may not be diminished during the Judge's
12
continuance in office: see paragraph 72(iii) of the Constitution.
13
Note 2:
Under subsection 7(4) of the
Remuneration Tribunal Act 1973
, the
14
Remuneration Tribunal may determine any matter significantly related
15
to the remuneration of Judges.
16
19 Resignation from office
17
(1) A Judge may resign office by delivering a written resignation to
18
the Governor-General.
19
(2) The resignation takes effect on the day it is received by the
20
Governor-General or, if a later day is specified in the resignation,
21
on that later day.
22
20 Removal from office
23
A Judge must not be removed from office except by the
24
Governor-General, on an address from both Houses of the
25
Parliament in the same session, praying for the Judge's removal on
26
the ground of proved misbehaviour or incapacity.
27
Chapter 3
Federal Circuit and Family Court of Australia (Division 1)
Part 1
Constitution
Division 3
Judges of 2 or more courts
Section 21
26
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Division 3--Judges of 2 or more courts
1
21 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 the
12
Deputy Chief Judge (Family Law) of the Federal Circuit and
13
Family Court of Australia (Division 2).
14
22 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 23
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
27
23 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 24
28
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Division 4--Acting Chief Justice
1
24 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 25
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
29
Part 2--Jurisdiction
1
Division 1--Original jurisdiction
2
25 Original jurisdiction
3
(1) The Federal Circuit and Family Court of Australia (Division 1) has
4
original jurisdiction:
5
(a) if a matter, being the subject of a family law or child support
6
proceeding, is transferred to the Court by the Court under
7
section 51--as set out in paragraphs 132(1)(a), (b), (c) and
8
(d); or
9
(b) if a matter, being the subject of a family law or child support
10
proceeding, is transferred to the Court by the Federal Circuit
11
and Family Court of Australia (Division 2) under
12
section 149--as set out in paragraphs 132(1)(a), (b), (c) and
13
(d); or
14
(c) as is conferred on the Court, or in respect of which
15
proceedings may be instituted in the Court, by any other Act.
16
(2) Subject to such restrictions and conditions (if any) in:
17
(a) section 111AA of the
Family Law Act 1975
; or
18
(b) regulations made under that Act; or
19
(c) the Rules of Court made under this Chapter;
20
the jurisdiction of the Federal Circuit and Family Court of
21
Australia (Division 1) may be exercised in relation to persons or
22
things outside Australia.
23
Note:
Division 4 of Part XIIIAA of the
Family Law Act 1975
(international
24
protection of children) may affect the jurisdiction of the Federal
25
Circuit and Family Court of Australia (Division 1).
26
Chapter 3
Federal Circuit and Family Court of Australia (Division 1)
Part 2
Jurisdiction
Division 2
Appellate jurisdiction
Section 26
30
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Division 2--Appellate jurisdiction
1
26 Appeals
2
Appeals generally
3
(1) Subject to section 28, the Federal Circuit and Family Court of
4
Australia (Division 1) has jurisdiction to hear and determine
5
appeals from:
6
(a) a judgment of a single Judge of the Federal Circuit and
7
Family Court of Australia (Division 1) exercising appellate
8
jurisdiction in relation to a judgment mentioned in
9
paragraph (e); and
10
(b) a judgment of the Federal Circuit and Family Court of
11
Australia (Division 1) exercising original jurisdiction; and
12
(c) a judgment of the Federal Circuit and Family Court of
13
Australia (Division 2) exercising the original jurisdiction
14
mentioned in section 132; and
15
(d) a judgment of:
16
(i) a Family Court of a State; or
17
(ii) a Supreme Court of a State or Territory constituted by a
18
single Judge;
19
exercising original or appellate jurisdiction under the
Family
20
Law Act 1975
, the
Child Support (Assessment) Act 1989
or
21
the
Child Support (Registration and Collection) Act 1988
;
22
and
23
(e) a judgment of a court of summary jurisdiction of a State or
24
Territory (other than the Magistrates Court of Western
25
Australia) exercising original jurisdiction under:
26
(i) the
Family Law Act 1975
; or
27
(ii) the
Child Support (Assessment) Act 1989
; or
28
(iii) the
Child Support (Registration and Collection) Act
29
1988
; and
30
(f) a judgment of the Magistrates Court of Western Australia
31
exercising original jurisdiction under:
32
(i) the
Family Law Act 1975
; or
33
Federal Circuit and Family Court of Australia (Division 1)
Chapter 3
Jurisdiction
Part 2
Appellate jurisdiction
Division 2
Section 26
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
31
(ii) the
Child Support (Assessment) Act 1989
; or
1
(iii) the
Child Support (Registration and Collection) Act
2
1988
; and
3
(g) a judgment of a court exercising jurisdiction in section 69GA
4
proceedings; and
5
(h) a judgment or decision of a Judge or Magistrate exercising
6
jurisdiction, as mentioned in paragraph (a), (b), (c), (d), (f) or
7
(g), rejecting an application that the Judge or Magistrate
8
disqualify himself or herself from further hearing a matter.
9
Note 1:
Paragraphs (e) and (g)--an appeal from a judgment of a court of
10
summary jurisdiction, or of a court exercising jurisdiction in
11
section 69GA proceedings, may be made to the Federal Circuit and
12
Family Court of Australia (Division 1) under the
Family Law Act
13
1975
: see section 47A of that Act.
14
Note 2:
This section also applies to appeals from the making, variation and
15
revocation of court security orders under the
Court Security Act 2013
16
as described in section 39 of this Act.
17
Certain kinds of appeals prohibited
18
(2) An appeal must not be brought from a judgment referred to in
19
subsection (1) if the judgment is:
20
(a) a determination of an application:
21
(i) for leave or special leave to institute proceedings in the
22
Federal Circuit and Family Court of Australia
23
(Division 1); or
24
(ii) for an extension of time within which to institute
25
proceedings in the Federal Circuit and Family Court of
26
Australia (Division 1); or
27
(iii) for leave to amend the grounds of an application or
28
appeal to the Federal Circuit and Family Court of
29
Australia (Division 1); or
30
(b) a decision to do, or not to do, any of the following:
31
(i) join or remove a party;
32
(ii) adjourn or expedite a hearing;
33
(iii) vacate a hearing date.
34
Chapter 3
Federal Circuit and Family Court of Australia (Division 1)
Part 2
Jurisdiction
Division 2
Appellate jurisdiction
Section 27
32
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
27 Family law regulations to be sole source of certain appellate
1
jurisdiction
2
Despite section 26, the Federal Circuit and Family Court of
3
Australia (Division 1) has appellate jurisdiction in relation to a
4
matter arising under regulations made for the purposes of
5
section 111C of the
Family Law Act 1975
only as provided by
6
those regulations.
7
28 Leave to appeal needed for some family law or child support
8
proceedings
9
Appeals from judgments of the Federal Circuit and Family Court
10
of Australia (Division 2) or the Magistrates Court of Western
11
Australia
12
(1) Leave of the Federal Circuit and Family Court of Australia
13
(Division 1) is required to appeal to the Court from:
14
(a) a judgment of the Federal Circuit and Family Court of
15
Australia (Division 2) or the Magistrates Court of Western
16
Australia exercising original jurisdiction under:
17
(i) the
Child Support (Assessment) Act 1989
; or
18
(ii) the
Child Support (Registration and Collection) Act
19
1988
; or
20
(b) a prescribed judgment of the Federal Circuit and Family
21
Court of Australia (Division 2) or the Magistrates Court of
22
Western Australia; or
23
(c) a judgment or decision of a Judge or Magistrate exercising
24
jurisdiction, as mentioned in paragraph (a), rejecting an
25
application that the Judge or Magistrate disqualify himself or
26
herself from further hearing a matter.
27
(2) An application for leave of the Federal Circuit and Family Court of
28
Australia (Division 1) under subsection (1) is to be heard and
29
determined by a single Judge unless the Chief Justice directs that
30
the application be heard and determined by a Full Court.
31
Federal Circuit and Family Court of Australia (Division 1)
Chapter 3
Jurisdiction
Part 2
Appellate jurisdiction
Division 2
Section 28
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
33
Appeal from judgments of other courts
1
(3) Leave of a Full Court of the Federal Circuit and Family Court of
2
Australia (Division 1) is required to appeal to the Court from:
3
(a) a judgment of the Federal Circuit and Family Court of
4
Australia (Division 1) constituted by a single Judge
5
exercising appellate jurisdiction in relation to a judgment
6
mentioned in subparagraph 26(1)(e)(ii) or (iii); or
7
(b) a judgment of the Federal Circuit and Family Court of
8
Australia (Division 1) constituted by a single Judge
9
exercising original jurisdiction under:
10
(i) the
Child Support (Assessment) Act 1989
; or
11
(ii) the
Child Support (Registration and Collection) Act
12
1988
; or
13
(c) a judgment of a Family Court of a State exercising original or
14
appellate jurisdiction under:
15
(i) the
Child Support (Assessment) Act 1989
; or
16
(ii) the
Child Support (Registration and Collection) Act
17
1988
; or
18
(d) a judgment of a Supreme Court of a State or Territory
19
constituted by a single Judge exercising original or appellate
20
jurisdiction under:
21
(i) the
Child Support (Assessment) Act 1989
; or
22
(ii) the
Child Support (Registration and Collection) Act
23
1988
; or
24
(e) the following judgments:
25
(i) a prescribed judgment of the Federal Circuit and Family
26
Court of Australia (Division 1) constituted by a single
27
Judge;
28
(ii) a prescribed judgment of the Family Court of a State;
29
(iii) a prescribed judgment of a Supreme Court of a State or
30
Territory constituted by a single Judge; or
31
(f) a judgment or decision of a Judge exercising original or
32
appellate jurisdiction, as mentioned in paragraph (a), (b), (c)
33
or (d), rejecting an application that the Judge disqualify
34
himself or herself from further hearing a matter.
35
Chapter 3
Federal Circuit and Family Court of Australia (Division 1)
Part 2
Jurisdiction
Division 2
Appellate jurisdiction
Section 28
34
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Note:
Leave of a single Judge of the Federal Circuit and Family Court of
1
Australia (Division 1) is required for an appeal from a court of
2
summary jurisdiction of a State or Territory: see sections 47A and 47B
3
of the
Family Law Act 1975
.
4
Rules of Court
5
(4) The Rules of Court may make provision for enabling applications
6
for leave to be dealt with, subject to conditions prescribed by the
7
Rules, without an oral hearing.
8
Federal Circuit and Family Court of Australia (Division 1)
Chapter 3
Jurisdiction
Part 2
Associated matters
Division 3
Section 29
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
35
Division 3--Associated matters
1
29 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 30
36
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Division 4--Exercise of jurisdiction
1
Subdivision A--Original jurisdiction
2
30 Exercise of original jurisdiction
3
(1) The original jurisdiction of the Federal Circuit and Family Court of
4
Australia (Division 1) is to be exercised by the Court constituted
5
by a single Judge.
6
(2) In a matter before, or coming before, the Federal Circuit and
7
Family Court of Australia (Division 1), a Judge may give
8
directions under subsection 69(1).
9
Subdivision B--Appellate jurisdiction (other than relating to
10
courts of summary jurisdiction)
11
31 Application
12
(1) This Subdivision applies to the appellate jurisdiction of the Federal
13
Circuit and Family Court of Australia (Division 1) in relation to a
14
judgment of a court other than a court of summary jurisdiction of a
15
State or Territory.
16
Note:
For the exercise of the appellate jurisdiction of the Federal Circuit and
17
Family Court of Australia (Division 1) in relation to a court of
18
summary jurisdiction, see Subdivision C.
19
(2) For the purposes of subsection (1), the following courts are not
20
courts of summary jurisdiction:
21
(a) a Family Court of a State;
22
(b) the Magistrates Court of Western Australia.
23
32 Exercise of appellate jurisdiction
24
Appeals heard by Full Court or a single Judge
25
(1) Subject to this section, the appellate jurisdiction of the Federal
26
Circuit and Family Court of Australia (Division 1) is to be
27
exercised by:
28
Federal Circuit and Family Court of Australia (Division 1)
Chapter 3
Jurisdiction
Part 2
Exercise of jurisdiction
Division 4
Section 32
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
37
(a) in relation to a judgment of the Federal Circuit and Family
1
Court of Australia (Division 2) or the Magistrates Court of
2
Western Australia:
3
(i) a single Judge; or
4
(ii) if the Chief Justice considers that it is appropriate for
5
the appellate jurisdiction of the Federal Circuit and
6
Family Court of Australia (Division 1) in relation to the
7
appeal to be exercised by a Full Court--a Full Court;
8
and
9
(b) in relation to a judgment of any other court--a Full Court.
10
Certain applications etc. generally heard by a single Judge
11
(2) Applications:
12
(a) for an extension of time within which to institute an appeal to
13
the Federal Circuit and Family Court of Australia
14
(Division 1); or
15
(b) for an extension of time within which to file an application
16
for leave to appeal to the Federal Circuit and Family Court of
17
Australia (Division 1); or
18
(c) for leave to amend the grounds of an appeal to the Federal
19
Circuit and Family Court of Australia (Division 1); or
20
(d) to stay an order of the Federal Circuit and Family Court of
21
Australia (Division 1) made in the exercise of its appellate
22
jurisdiction; or
23
(e) for security for costs in relation to an appeal to the Federal
24
Circuit and Family Court of Australia (Division 1);
25
must be heard and determined by a single Judge unless:
26
(f) the Chief Justice directs that the application be heard and
27
determined by a Full Court; or
28
(g) the application is made in a proceeding that has already been
29
assigned to a Full Court and the Full Court considers it is
30
appropriate for it to hear and determine the application.
31
(3) A single Judge (sitting in Chambers or in open court) or a Full
32
Court of the Federal Circuit and Family Court of Australia
33
(Division 1) may:
34
(a) join or remove a party to an appeal to the Court; or
35
Chapter 3
Federal Circuit and Family Court of Australia (Division 1)
Part 2
Jurisdiction
Division 4
Exercise of jurisdiction
Section 32
38
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(b) give summary judgment; or
1
(c) make an interlocutory order pending, or after, the
2
determination of an appeal to the Court; or
3
(d) make an order by consent disposing of an appeal to the Court
4
(including an order for costs); or
5
(e) make an order that an appeal to the Court be dismissed for
6
want of prosecution; or
7
(f) make an order that an appeal to the Court be dismissed for:
8
(i) failure to comply with a direction of the Court; or
9
(ii) failure of the appellant to attend a hearing relating to the
10
appeal; or
11
(g) vary or set aside an order under paragraph (c), (e) or (f); or
12
(h) give directions under subsection 69(1); or
13
(i) give other directions about the conduct of an appeal to the
14
Court, including directions about:
15
(i) the use of written submissions; and
16
(ii) limiting the time for oral argument.
17
Note:
For paragraphs (d) and (i), see also subsection (8).
18
(4) In subsection (3), a reference to an appeal includes a reference to
19
an application of the kind mentioned in subsection (2).
20
(5) An application for the exercise of a power mentioned in
21
subsection (3) must be heard and determined by a single Judge
22
unless:
23
(a) the Chief Justice directs that the application be heard and
24
determined by a Full Court; or
25
(b) the application is made in a proceeding that has already been
26
assigned to a Full Court and the Full Court considers it is
27
appropriate for it to hear and determine the application.
28
Cases stated and questions reserved
29
(6) The Federal Circuit and Family Court of Australia (Division 1)
30
constituted by a single Judge may state any case or reserve any
31
question concerning a matter (whether or not an appeal would lie
32
from a judgment of the Judge to a Full Court of the Court on the
33
Federal Circuit and Family Court of Australia (Division 1)
Chapter 3
Jurisdiction
Part 2
Exercise of jurisdiction
Division 4
Section 33
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
39
matter) for the consideration of a Full Court and the Full Court has
1
jurisdiction to hear and determine the case or question.
2
Rules of Court
3
(7) The Rules of Court may make provision enabling matters of the
4
kind mentioned in subsections (2) and (3) to be dealt with, subject
5
to conditions prescribed by the Rules, without an oral hearing
6
either with or without the consent of the parties.
7
Certain orders and directions not appellable
8
(8) No appeal lies under this section from an order or direction of a
9
kind mentioned in paragraph (3)(d) or (i) given by a single Judge
10
or a Full Court of the Federal Circuit and Family Court of Australia
11
(Division 1).
12
33 Appeal may be determined without an oral hearing
13
(1) An appeal under subsection 26(1) may be dealt with by the Federal
14
Circuit and Family Court of Australia (Division 1) without an oral
15
hearing if the parties to the appeal consent to the appeal being dealt
16
with in that way.
17
(2) A consent given in relation to an appeal, as mentioned in
18
subsection (1), may only be withdrawn with the leave of the
19
Federal Circuit and Family Court of Australia (Division 1).
20
34 Cases stated and questions reserved
21
(1) The following have effect:
22
(a) a court from which appeals lie to the Federal Circuit and
23
Family Court of Australia (Division 1) may state any case or
24
reserve any question concerning a matter with respect to
25
which such an appeal would lie from a judgment of the
26
first-mentioned court for the consideration of the Federal
27
Circuit and Family Court of Australia (Division 1);
28
(b) the Federal Circuit and Family Court of Australia
29
(Division 1) has jurisdiction to hear and determine the case or
30
question.
31
Chapter 3
Federal Circuit and Family Court of Australia (Division 1)
Part 2
Jurisdiction
Division 4
Exercise of jurisdiction
Section 35
40
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(2) The jurisdiction of the Federal Circuit and Family Court of
1
Australia (Division 1) under subsection (1):
2
(a) if the court stating the case or reserving the question is not
3
the Federal Circuit and Family Court of Australia
4
(Division 2) or the Magistrates Court of Western Australia--
5
must be exercised by a Full Court; or
6
(b) if the court stating the case or reserving the question is the
7
Federal Circuit and Family Court of Australia (Division 2) or
8
the Magistrates Court of Western Australia--must be
9
exercised by:
10
(i) a single Judge; or
11
(ii) if the Chief Justice considers that it is appropriate for
12
the jurisdiction of the Court in relation to the matter to
13
be exercised by a Full Court--a Full Court.
14
(3) Subject to any other Act, the Federal Circuit and Family Court of
15
Australia (Division 1) may draw from the facts and the documents
16
any inference, whether of fact or of law, which could have been
17
drawn from them by the court stating the case or reserving the
18
question.
19
(4) A court referred to in subsection (1) must not state a case or
20
reserve a question concerning a matter referred to in that
21
subsection to a court other than the Federal Circuit and Family
22
Court of Australia (Division 1).
23
35 Evidence on appeal
24
In an appeal, the Federal Circuit and Family Court of Australia
25
(Division 1):
26
(a) must have regard to the evidence given in the proceedings
27
out of which the appeal arose; and
28
(b) has the power to draw inferences of fact and, in its discretion,
29
to receive further evidence, which evidence may be given:
30
(i) as provided for in Division 2 of Part XI of the
Family
31
Law Act 1975
; or
32
(ii) by oral examination before the Court or a Judge; or
33
(iii) otherwise in accordance with section 73 of this Act.
34
Federal Circuit and Family Court of Australia (Division 1)
Chapter 3
Jurisdiction
Part 2
Exercise of jurisdiction
Division 4
Section 36
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
41
36 Form of judgment on appeal
1
(1) Subject to any other Act, the Federal Circuit and Family Court of
2
Australia (Division 1) may, in the exercise of its appellate
3
jurisdiction:
4
(a) affirm, reverse or vary the judgment appealed from; or
5
(b) give such judgment or make such order as, in all the
6
circumstances, it thinks fit, or refuse to make an order; or
7
(c) set aside the judgment appealed from, in whole or in part, and
8
remit the proceeding to the court from which the appeal was
9
brought for further hearing and determination, subject to such
10
directions as the Court thinks fit; or
11
(d) award execution from the Court or, in the case of an appeal
12
from another court, award execution from the Court or remit
13
the cause to that other court, or to a court from which a
14
previous appeal was brought, for the execution of the
15
judgment of the Court.
16
(2) If, in dismissing an appeal under subsection 26(1), the Federal
17
Circuit and Family Court of Australia (Division 1) is of the opinion
18
that the appeal does not raise any question of general principle, it
19
may give reasons for its decision in short form.
20
(3) It is the duty of a court to which a cause is remitted in accordance
21
with paragraph (1)(d) to execute the judgment of the Federal
22
Circuit and Family Court of Australia (Division 1) in the same
23
manner as if it were its own judgment.
24
(4) The powers specified in subsection (1) may be exercised by the
25
Federal Circuit and Family Court of Australia (Division 1) even if
26
the notice of appeal asks that part only of the decision be reversed
27
or varied, and may be exercised in favour of all or any of the
28
respondents or parties, including respondents or parties who have
29
not appealed from or complained of the decision.
30
(5) An interlocutory judgment or order from which there has been no
31
appeal does not operate to prevent the Federal Circuit and Family
32
Court of Australia (Division 1), upon hearing an appeal, from
33
giving such decision upon the appeal as is just.
34
Chapter 3
Federal Circuit and Family Court of Australia (Division 1)
Part 2
Jurisdiction
Division 4
Exercise of jurisdiction
Section 37
42
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
37 Court divided in opinion
1
If the Judges constituting a Full Court of the Federal Circuit and
2
Family Court of Australia (Division 1) for the purposes of any
3
proceeding are divided in opinion as to the judgment to be
4
pronounced:
5
(a) if there is a majority--judgment is to be pronounced
6
according to the opinion of the majority; or
7
(b) if the Judges are equally divided in opinion:
8
(i) in a case of an appeal from a judgment of the Federal
9
Circuit and Family Court of Australia (Division 1), a
10
Family Court of a State or the Supreme Court of a State
11
or Territory--the judgment appealed from is to be
12
affirmed; and
13
(ii) in any other case--the opinion of the Chief Justice or, if
14
the Chief Justice is not a member of the Full Court, the
15
opinion of the most senior Judge who is a member of
16
the Full Court, is to prevail.
17
38 Stay of proceedings and suspension of orders
18
(1) If an appeal to the Federal Circuit and Family Court of Australia
19
(Division 1) from another court has been instituted:
20
(a) the Federal Circuit and Family Court of Australia
21
(Division 1) or a Judge, or a judge of that other court (not
22
being the Federal Circuit and Family Court of Australia
23
(Division 2) or the Magistrates Court of Western Australia),
24
may order, on such conditions (if any) as either court or a
25
judge thinks fit, a stay of all or any proceedings under the
26
judgment appealed from; and
27
(b) the Federal Circuit and Family Court of Australia
28
(Division 1) or a Judge may, by order, on such conditions (if
29
any) as the Court or Judge thinks fit, suspend the operation of
30
an injunction or other order to which the appeal, in whole or
31
in part, relates.
32
(2) This section does not affect the operation of any provision made by
33
or under any other Act or by the Rules of Court for or in relation to
34
the stay of proceedings.
35
Federal Circuit and Family Court of Australia (Division 1)
Chapter 3
Jurisdiction
Part 2
Exercise of jurisdiction
Division 4
Section 39
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
43
39 Appeals relating to court security orders
1
(1) This section deals with the application of this Subdivision in
2
relation to the making, variation or revocation of a court security
3
order under Part 4 of the
Court Security Act 2013
by a member (as
4
defined in that Act) of:
5
(a) the Federal Circuit and Family Court of Australia; or
6
(b) the Family Court of Western Australia.
7
(2) This Subdivision applies as if the making, variation or revocation
8
were a judgment of the member's court in the exercise of original
9
jurisdiction under the
Family Law Act 1975
.
10
Note:
As a result, an appeal from the making, variation or revocation lies
11
under subsection 26(1).
12
(3) However, if the member is a member of the Family Court of
13
Western Australia because the member is a Family Law Magistrate
14
of Western Australia, this Subdivision applies as if:
15
(a) the making, variation or revocation were a judgment of the
16
Magistrates Court of Western Australia constituted by a
17
Family Law Magistrate of Western Australia exercising
18
original jurisdiction under the
Family Law Act 1975
; and
19
(b) proceedings for the making, variation or revocation were
20
proceedings in the Magistrates Court of Western Australia
21
constituted by a Family Law Magistrate of Western
22
Australia.
23
Note:
As a result, an appeal from the making, variation or revocation by the
24
member lies under subsection 26(1) and, generally, the jurisdiction of
25
the Federal Circuit and Family Court of Australia (Division 1) in
26
relation to the appeal is to be exercised by a single Judge: see
27
paragraph 32(1)(a).
28
40 Exercise of certain appellate jurisdiction under family law
29
regulations
30
Despite the provisions of this Subdivision, the exercise of the
31
appellate jurisdiction of the Federal Circuit and Family Court of
32
Australia (Division 1) in relation to a matter arising under
33
regulations made for the purposes of section 111C of the
Family
34
Law Act 1975
is as provided by those regulations.
35
Chapter 3
Federal Circuit and Family Court of Australia (Division 1)
Part 2
Jurisdiction
Division 4
Exercise of jurisdiction
Section 41
44
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Subdivision C--Appellate jurisdiction relating to courts of
1
summary jurisdiction
2
41 Application
3
(1) This Subdivision applies to the appellate jurisdiction of the Federal
4
Circuit and Family Court of Australia (Division 1) in relation to a
5
judgment of a court of summary jurisdiction of a State or Territory.
6
Note 1:
For the definition of
court of summary jurisdiction
, see section 2B of
7
the
Acts Interpretation Act 1901
.
8
Note 2:
See section 47A of the
Family Law Act 1975
.
9
(2) For the purposes of subsection (1), the following courts are not
10
courts of summary jurisdiction:
11
(a) a Family Court of a State;
12
(b) the Magistrates Court of Western Australia.
13
42 Exercise of appellate jurisdiction
14
(1) The appellate jurisdiction of the Federal Circuit and Family Court
15
of Australia (Division 1) is to be exercised by the Court constituted
16
by a single Judge.
17
(2) In a matter before, or coming before, the Federal Circuit and
18
Family Court of Australia (Division 1), a Judge may give
19
directions under subsection 69(1).
20
Subdivision D--Miscellaneous
21
43 Determination of matter completely and finally
22
In every matter before the Federal Circuit and Family Court of
23
Australia (Division 1), the Court must grant, either:
24
(a) absolutely; or
25
(b) on such terms and conditions as the Court thinks just;
26
all remedies to which any of the parties appears to be entitled in
27
respect of a legal or equitable claim properly brought forward by a
28
party in the matter, so that, as far as possible:
29
Federal Circuit and Family Court of Australia (Division 1)
Chapter 3
Jurisdiction
Part 2
Exercise of jurisdiction
Division 4
Section 43
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
45
(c) all matters in controversy between the parties may be
1
completely and finally determined; and
2
(d) all multiplicity of proceedings concerning any of those
3
matters may be avoided.
4
Chapter 3
Federal Circuit and Family Court of Australia (Division 1)
Part 2
Jurisdiction
Division 5
Certain powers relating to matters of jurisdiction
Section 44
46
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Division 5--Certain powers relating to matters of
1
jurisdiction
2
44 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
45 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
46 Summary judgment
21
(1) The Federal Circuit and Family Court of Australia (Division 1)
22
may give judgment for one party against another in relation to the
23
whole or any part of a proceeding if:
24
(a) the first party is prosecuting the proceeding or that part of the
25
proceeding; and
26
(b) the Court is satisfied that the other party has no reasonable
27
prospect of successfully defending the proceeding or that part
28
of the proceeding.
29
Federal Circuit and Family Court of Australia (Division 1)
Chapter 3
Jurisdiction
Part 2
Certain powers relating to matters of jurisdiction
Division 5
Section 46
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
47
(2) The Federal Circuit and Family Court of Australia (Division 1)
1
may give judgment for one party against another in relation to the
2
whole or any part of a proceeding if:
3
(a) the first party is defending the proceeding or that part of the
4
proceeding; and
5
(b) the Court is satisfied that the other party has no reasonable
6
prospect of successfully prosecuting the proceeding or that
7
part of the proceeding.
8
(3) For the purposes of this section, a defence or a proceeding or part
9
of a proceeding need not be:
10
(a) hopeless; or
11
(b) bound to fail;
12
for it to have no reasonable prospect of success.
13
(4) This section does not limit any powers that the Federal Circuit and
14
Family Court of Australia (Division 1) has apart from this section.
15
Chapter 3
Federal Circuit and Family Court of Australia (Division 1)
Part 2
Jurisdiction
Division 6
Administration
Section 47
48
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Division 6--Administration
1
47 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 48, 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 48
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
49
48 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 49
50
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(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
49 Protection for the Chief Justice and Deputy Chief Justice
18
(1) In exercising the functions or powers mentioned in
19
paragraph 47(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 110.
24
(2) In assisting in the exercise of the functions or powers mentioned in
25
paragraph 47(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 110.
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 49
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
51
(a) the exercise by the Chief Justice of the functions or powers
1
mentioned in subsection 47(2) or section 48; or
2
(b) the assisting in the exercise by the Deputy Chief Justice of
3
the functions or powers mentioned in subsection 47(2) or
4
section 48.
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
Certain proceedings not to be instituted in Federal Circuit and Family Court of
Australia (Division 1)
Section 50
52
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Part 3--Certain proceedings not to be instituted in
1
Federal Circuit and Family Court of
2
Australia (Division 1)
3
4
50 Prohibition on instituting first instance family law or child
5
support proceedings
6
(1) A person must not institute family law or child support proceedings
7
(other than appellate proceedings) in the Federal Circuit and
8
Family Court of Australia (Division 1).
9
Note:
For the institution of proceedings other than family law or child
10
support proceedings, see section 62.
11
(2) If proceedings are instituted in the Federal Circuit and Family
12
Court of Australia (Division 1) in contravention of subsection (1),
13
then:
14
(a) unless the proceedings are transferred to the Federal Court,
15
the proceedings are, by force of this subsection, transferred to
16
the Federal Circuit and Family Court of Australia
17
(Division 2); and
18
(b) the proceedings are taken to be as valid as they would have
19
been if subsection (1) had not been enacted.
20
Federal Circuit and Family Court of Australia (Division 1)
Chapter 3
Transfer of proceedings
Part 4
Section 51
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
53
Part 4--Transfer of proceedings
1
2
51 Discretionary transfer of proceedings from the Federal Circuit
3
and Family Court of Australia (Division 2)
4
(1) If:
5
(a) a proceeding is pending in the Federal Circuit and Family
6
Court of Australia (Division 2); and
7
(b) the proceeding is a family law or child support proceeding;
8
the Chief Justice may, by order, transfer the proceeding from the
9
Federal Circuit and Family Court of Australia (Division 2) to the
10
Federal Circuit and Family Court of Australia (Division 1).
11
(2) The Chief Justice may transfer a proceeding:
12
(a) on the application of a party to the proceeding; or
13
(b) on the Chief Justice's own initiative.
14
(3) In deciding whether to transfer a proceeding, the Chief Justice
15
must have regard to:
16
(a) any Rules of Court made for the purposes of
17
subsection 53(2); and
18
(b) whether proceedings in respect of an associated matter are
19
pending in the Federal Circuit and Family Court of Australia
20
(Division 1); and
21
(c) whether the resources of the Federal Circuit and Family
22
Court of Australia (Division 1) are sufficient to hear and
23
determine the proceeding; and
24
(d) the interests of the administration of justice.
25
(4) An appeal does not lie from a decision of the Chief Justice in
26
relation to the transfer of a proceeding under this section.
27
(5) This section does not apply to proceedings of a kind specified in
28
the regulations.
29
Chapter 3
Federal Circuit and Family Court of Australia (Division 1)
Part 4
Transfer of proceedings
Section 52
54
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
52 Discretionary transfer of proceedings to the Federal Circuit and
1
Family Court of Australia (Division 2)
2
(1) If:
3
(a) a proceeding is pending in the Federal Circuit and Family
4
Court of Australia (Division 1); and
5
(b) the proceeding is a family law or child support proceeding;
6
the Chief Justice may, by order, transfer the proceeding from the
7
Federal Circuit and Family Court of Australia (Division 1) to the
8
Federal Circuit and Family Court of Australia (Division 2).
9
(2) The Chief Justice may transfer a proceeding:
10
(a) on the application of a party to the proceeding; or
11
(b) on the Chief Justice's own initiative.
12
(3) In deciding whether to transfer a proceeding, the Chief Justice
13
must have regard to:
14
(a) any Rules of Court made for the purposes of
15
subsection 53(2); and
16
(b) whether proceedings in respect of an associated matter are
17
pending in the Federal Circuit and Family Court of Australia
18
(Division 2); and
19
(c) whether the resources of the Federal Circuit and Family
20
Court of Australia (Division 2) are sufficient to hear and
21
determine the proceeding; and
22
(d) the interests of the administration of justice.
23
(4) An appeal does not lie from a decision of the Chief Justice in
24
relation to the transfer of a proceeding under this section.
25
(5) This section does not apply to proceedings of a kind specified in
26
the regulations.
27
53 Rules of Court
28
(1) The Rules of Court may make provision in relation to:
29
(a) transfers of proceedings from the Federal Circuit and Family
30
Court of Australia (Division 2) under subsection 51(1); or
31
Federal Circuit and Family Court of Australia (Division 1)
Chapter 3
Transfer of proceedings
Part 4
Section 54
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
55
(b) transfers of proceedings to the Federal Circuit and Family
1
Court of Australia (Division 2) under subsection 52(1);
2
including in relation to the scale of costs that applies to any order
3
made in respect of proceedings that are transferred.
4
(2) In particular, the Rules of Court may specify:
5
(a) in relation to a proceeding to be transferred from the Federal
6
Circuit and Family Court of Australia (Division 2)--matters
7
to which the Chief Justice must have regard in deciding
8
whether to transfer a proceeding under subsection 51(1); or
9
(b) in relation to a proceeding to be transferred to the Federal
10
Circuit and Family Court of Australia (Division 2)--matters
11
to which the Chief Justice must have regard in deciding
12
whether to transfer a proceeding under subsection 52(1).
13
(3) Before Rules of Court are made for the purposes of this section, the
14
Chief Justice of the Federal Circuit and Family Court of Australia
15
(Division 1) must consult the Chief Judge of the Federal Circuit
16
and Family Court of Australia (Division 2).
17
54 Delegation
18
The Chief Justice may, in writing, delegate the Chief Justice's
19
powers under section 51 or 52 to any one or more of the Judges.
20
Chapter 3
Federal Circuit and Family Court of Australia (Division 1)
Part 5
Appeals
Section 55
56
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Part 5--Appeals
1
2
55 Appeals to the High Court
3
(1) An appeal must not be brought directly to the High Court from:
4
(a) a judgment of a single Judge of the Federal Circuit and
5
Family Court of Australia (Division 1) in the exercise of its
6
appellate jurisdiction in relation to a judgment mentioned in
7
paragraph 26(1)(e); or
8
(b) a judgment of the Federal Circuit and Family Court of
9
Australia (Division 1) in the exercise of its original
10
jurisdiction.
11
Note:
See also subsection (6).
12
(2) An appeal must not be brought directly to the High Court from a
13
judgment of the Federal Circuit and Family Court of Australia
14
(Division 1), whether constituted by a Full Court or a single Judge,
15
in the exercise of its appellate jurisdiction (other than a judgment
16
mentioned in paragraph (1)(a)), except by special leave of the High
17
Court.
18
(3) An appeal must not be brought to the High Court from a judgment
19
of the Federal Circuit and Family Court of Australia (Division 1),
20
whether constituted by a Full Court or a single Judge, in the
21
exercise of its appellate jurisdiction if the judgment is:
22
(a) a determination of an application of the kind mentioned in
23
subsection 32(2); or
24
(b) an order under section 38; or
25
(c) a decision to do, or not to do, any of the following:
26
(i) join or remove a party;
27
(ii) grant leave to defend a proceeding;
28
(iii) reinstate an appeal that was taken to have been
29
abandoned or dismissed;
30
(iv) extend the time for making an application for leave to
31
appeal;
32
(v) adjourn or expedite a hearing;
33
Federal Circuit and Family Court of Australia (Division 1)
Chapter 3
Appeals
Part 5
Section 55
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
57
(vi) vacate a hearing date.
1
(4) The fact that there has been, or can be, no appeal to the High Court
2
from an interlocutory judgment of the Federal Circuit and Family
3
Court of Australia (Division 1) in a proceeding does not prevent:
4
(a) a party from founding an appeal from a final judgment in the
5
proceeding on the interlocutory judgment; or
6
(b) the High Court from taking account of the interlocutory
7
judgment in determining:
8
(i) an appeal from a final judgment in the proceeding; or
9
(ii) an application for special leave to appeal from a final
10
judgment in the proceeding.
11
(5) The jurisdiction of the High Court to hear and determine an appeal
12
in accordance with this section shall be exercised by a Full Court
13
of the High Court consisting of not less than 3 Justices.
14
(6) If, apart from this subsection, subsection (1) is to any extent
15
inconsistent with section 73 of the Constitution, this Act has effect
16
as if the words ", except by special leave of the High Court" were
17
added at the end of subsection (1).
18
Chapter 3
Federal Circuit and Family Court of Australia (Division 1)
Part 6
Practice and procedure
Division 1
General
Section 56
58
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Part 6--Practice and procedure
1
Division 1--General
2
56 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
57 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 6
General
Division 1
Section 57
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
59
(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 6
Practice and procedure
Division 2
Documents filed in the Federal Circuit and Family Court of Australia
(Division 1)
Section 58
60
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Division 2--Documents filed in the Federal Circuit and
1
Family Court of Australia (Division 1)
2
58 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 79 or
9
80; 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
59 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 6
Documents filed in the Federal Circuit and Family Court of Australia (Division 1)
Division 2
Section 60
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
61
60 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
61 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 Senior Registrar; or
23
(iv) a 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 79.
29
Note:
See paragraph 79(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 6
Practice and procedure
Division 2
Documents filed in the Federal Circuit and Family Court of Australia
(Division 1)
Section 62
62
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
62 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
63 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 6
Conduct of proceedings
Division 3
Section 64
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
63
Division 3--Conduct of proceedings
1
64 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
65 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
66 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 6
Practice and procedure
Division 4
Case management
Section 67
64
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Division 4--Case management
1
67 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 6
Case management
Division 4
Section 68
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
65
68 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 6
Practice and procedure
Division 4
Case management
Section 69
66
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(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
69 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 6
Case management
Division 4
Section 70
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
67
(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
70 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 6
Practice and procedure
Division 5
Evidence
Section 71
68
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Division 5--Evidence
1
71 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 Senior Registrar or 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 79(1)(d).
16
72 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 Senior Registrar; or
23
(d) a 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 6
Evidence
Division 5
Section 72
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
69
(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 6
Practice and procedure
Division 5
Evidence
Section 73
70
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
73 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 6
Judgments
Division 6
Section 74
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
71
Division 6--Judgments
1
74 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) a Judge who heard the proceeding, whether as a single Judge
6
or as a member of a Full Court, prepares orders and 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) a Judge who heard the proceeding, whether as a single Judge
15
or as a member of a Full Court, prepares reasons;
16
those reasons may be made public by another Judge on behalf of
17
the Judge who heard the proceeding or as otherwise provided for
18
by the Rules of Court.
19
Chapter 3
Federal Circuit and Family Court of Australia (Division 1)
Part 6
Practice and procedure
Division 7
Common approaches with the Federal Circuit and Family Court of Australia
(Division 2)
Section 75
72
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Division 7--Common approaches with the Federal Circuit
1
and Family Court of Australia (Division 2)
2
75 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 6
Rules of Court
Division 8
Section 76
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
73
Division 8--Rules of Court
1
76 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
Note:
The power to make Rules of Court under this section will be amended
31
2 years after this section commences, to provide for the Rules to be
32
made by the Judges, or a majority of them (see Part 4 of Schedule 1 to
33
the
Federal Circuit and Family Court of Australia (Consequential
34
Amendments and Transitional Provisions) Act 2019
).
35
Chapter 3
Federal Circuit and Family Court of Australia (Division 1)
Part 6
Practice and procedure
Division 8
Rules of Court
Section 77
74
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(2) The Rules of Court may make provision for:
1
(a) the amendment of a document in a proceeding; or
2
(b) leave to amend a document in a proceeding;
3
even if the effect of the amendment would be to allow a person to
4
seek a remedy in respect of a legal or equitable claim that would
5
have been barred because of the expiry of a period of limitation if
6
the remedy had originally been sought at the time of the
7
amendment.
8
(3) Rules of Court have effect subject to any provision made by
9
another Act, or by rules or regulations under another Act, with
10
respect to the practice and procedure in particular matters.
11
(4) The
Legislation Act 2003
(other than sections 8, 9, 10 and 16 and
12
Part 4 of Chapter 3 of that Act) applies in relation to Rules of Court
13
made by the Chief Justice under this Chapter or another Act (other
14
than the
Family Law Act 1975
):
15
(a) as if a reference to a legislative instrument (other than in
16
subparagraph 14(1)(a)(ii) and subsection 14(3) of the
17
Legislation Act 2003
) were a reference to a Rule of Court;
18
and
19
(b) subject to such further modifications or adaptations as are
20
provided for in regulations made under section 284 of this
21
Act.
22
(5) Despite the fact that section 16 of the
Legislation Act 2003
does
23
not apply to Rules of Court made by the Chief Justice under this
24
Chapter or another Act, the Office of Parliamentary Counsel
25
(established by subsection 2(1) of the
Parliamentary Counsel Act
26
1970
) may provide assistance in the drafting of any of those Rules
27
if the Chief Justice so desires.
28
77 Consultation
29
(1) Before making Rules of Court, the Chief Justice must be satisfied
30
that there has been appropriate consultation with other Judges.
31
(2) The fact that consultation does not occur does not affect the
32
validity or enforceability of a Rule of Court.
33
Federal Circuit and Family Court of Australia (Division 1)
Chapter 3
Practice and procedure
Part 6
Rules of Court
Division 8
Section 77
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
75
(3) To avoid doubt, this section does not limit section 17 of the
1
Legislation Act 2003
.
2
Chapter 3
Federal Circuit and Family Court of Australia (Division 1)
Part 7
Management and administration
Division 1
Management responsibilities of the Chief Justice
Section 78
76
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Part 7--Management and administration
1
Division 1--Management responsibilities of the Chief
2
Justice
3
78 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
Federal Circuit and Family Court of Australia (Division 1)
Chapter 3
Management and administration
Part 7
Management responsibilities of the Chief Justice
Division 1
Section 79
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
77
(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 103 of this Act are part of the Statutory Agency
25
declared under section 18ZE of the
Federal Court of Australia Act
26
1976
.
27
79 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
Chapter 3
Federal Circuit and Family Court of Australia (Division 1)
Part 7
Management and administration
Division 1
Management responsibilities of the Chief Justice
Section 80
78
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(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
80 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
Federal Circuit and Family Court of Australia (Division 1)
Chapter 3
Management and administration
Part 7
Management responsibilities of the Chief Justice
Division 1
Section 81
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
79
(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
81 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
82 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
Chapter 3
Federal Circuit and Family Court of Australia (Division 1)
Part 7
Management and administration
Division 1
Management responsibilities of the Chief Justice
Section 82
80
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(b) the management of the administrative affairs of the Federal
1
Circuit and Family Court of Australia (Division 1).
2
Federal Circuit and Family Court of Australia (Division 1)
Chapter 3
Management and administration
Part 7
Chief Executive Officer
Division 2
Section 83
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
81
Division 2--Chief Executive Officer
1
Subdivision A--Functions and powers
2
83 Chief Executive Officer
3
There is to be a Chief Executive Officer and Principal Registrar of
4
the Federal Circuit and Family Court of Australia (Division 1).
5
84 Function of Chief Executive Officer
6
The Chief Executive Officer's function is to assist the Chief Justice
7
in managing the administrative affairs of the Federal Circuit and
8
Family Court of Australia (Division 1).
9
Note:
In relation to the Federal Circuit and Family Court of Australia
10
(Division 2), see section 250.
11
85 Powers of Chief Executive Officer
12
(1) The Chief Executive Officer has power to do all things necessary
13
or convenient to be done for the purpose of assisting the Chief
14
Justice under section 84.
15
(2) In particular, the Chief Executive Officer may act on behalf of the
16
Chief Justice in relation to the administrative affairs of the Federal
17
Circuit and Family Court of Australia (Division 1).
18
(3) The Chief Justice may give the Chief Executive Officer directions
19
regarding the exercise of the Chief Executive Officer's powers
20
under:
21
(a) this Chapter; or
22
(b) Chapter 5, to the extent that the provisions of that Chapter
23
apply to the Federal Circuit and Family Court of Australia
24
(Division 1).
25
Note:
In relation to the Federal Circuit and Family Court of Australia
26
(Division 2), see section 251.
27
Chapter 3
Federal Circuit and Family Court of Australia (Division 1)
Part 7
Management and administration
Division 2
Chief Executive Officer
Section 86
82
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Subdivision B--Terms and conditions of appointment
1
86 Appointment
2
The Chief Executive Officer is to be appointed, on a full-time
3
basis, by the Governor-General by written instrument on the
4
nomination of the Chief Justice.
5
Note:
The Chief Executive Officer is eligible for reappointment: see
6
section 33AA of the
Acts Interpretation Act 1901
.
7
87 Term of appointment
8
The Chief Executive Officer holds office for the period specified in
9
the instrument of appointment. The period must not exceed 5 years.
10
88 Remuneration and allowances
11
(1) The Chief Executive Officer is to be paid the remuneration that is
12
determined by the Remuneration Tribunal. If no determination of
13
that remuneration by the Tribunal is in operation, the Chief
14
Executive Officer is to be paid the remuneration that is prescribed
15
by the regulations.
16
(2) The Chief Executive Officer is to be paid the allowances that are
17
prescribed by the regulations.
18
(3) This section has effect subject to the
Remuneration Tribunal Act
19
1973
.
20
89 Leave of absence
21
(1) The Chief Executive Officer has the recreation leave entitlements
22
that are determined by the Remuneration Tribunal.
23
(2) The Chief Justice may grant to the Chief Executive Officer leave
24
of absence, other than recreation leave, on such terms and
25
conditions as to remuneration or otherwise that the Chief Justice,
26
with the approval of the Minister, determines.
27
Federal Circuit and Family Court of Australia (Division 1)
Chapter 3
Management and administration
Part 7
Chief Executive Officer
Division 2
Section 90
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
83
90 Outside employment
1
(1) The Chief Executive Officer must not engage in paid employment
2
outside the duties of the Chief Executive Officer's office without
3
the Chief Justice's approval.
4
(2) For the purposes of subsection (1), paid employment does not
5
include service in the Australian Defence Force.
6
91 Disclosure of interests
7
(1) The Chief Executive Officer must give written notice to the Chief
8
Justice of all direct or indirect pecuniary interests that the Chief
9
Executive Officer has or acquires in any business or in any body
10
corporate carrying on a business.
11
(2) The Chief Executive Officer must give written notice to the Chief
12
Justice of all material personal interests that the Chief Executive
13
Officer has that relate to the affairs of the Federal Circuit and
14
Family Court of Australia (Division 1).
15
(3) Subsections (1) and (2) apply in addition to section 29 of the
16
Public Governance, Performance and Accountability Act 2013
17
(which deals with the duty to disclose interests).
18
92 Other terms and conditions
19
The Chief Executive Officer holds office on the terms and
20
conditions (if any) in relation to matters not covered by this Act
21
that are determined, in writing, by the Chief Justice.
22
93 Resignation
23
(1) The Chief Executive Officer may resign the Chief Executive
24
Officer's appointment by giving the Governor-General a signed
25
notice of resignation.
26
(2) The resignation takes effect on the day it is received by the
27
Governor-General or, if a later day is specified in the resignation,
28
on that later day.
29
Chapter 3
Federal Circuit and Family Court of Australia (Division 1)
Part 7
Management and administration
Division 2
Chief Executive Officer
Section 94
84
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
94 Termination of appointment
1
(1) The Governor-General may terminate the appointment of the Chief
2
Executive Officer:
3
(a) for misbehaviour; or
4
(b) if the Chief Executive Officer is unable to perform the duties
5
of the Chief Executive Officer's office because of physical or
6
mental incapacity.
7
(2) The Governor-General must terminate the appointment of the
8
Chief Executive Officer if:
9
(a) the Chief Executive Officer:
10
(i) becomes bankrupt; or
11
(ii) applies to take the benefit of any law for the relief of
12
bankrupt or insolvent debtors; or
13
(iii) compounds with creditors; or
14
(iv) makes an assignment of remuneration for their benefit;
15
or
16
(b) the Chief Executive Officer is absent from duty, except on
17
leave of absence, for 14 consecutive days or for 28 days in
18
any 12 months; or
19
(c) the Chief Executive Officer engages, except with the Chief
20
Justice's approval, in paid work contrary to section 90; or
21
(d) fails, without reasonable excuse, to comply with section 91;
22
or
23
(e) fails, without reasonable excuse, to comply with section 29 of
24
the
Public Governance, Performance and Accountability Act
25
2013
(which deals with the duty to disclose interests) or rules
26
made for the purposes of that section.
27
(3) The Governor-General may, with the consent of the Chief
28
Executive Officer who is:
29
(a) an eligible employee for the purposes of the
Superannuation
30
Act 1976
; or
31
(b) a member of the superannuation scheme established by deed
32
under the
Superannuation Act 1990
; or
33
(c) an ordinary employer-sponsored member of PSSAP, within
34
the meaning of the
Superannuation Act 2005
;
35
Federal Circuit and Family Court of Australia (Division 1)
Chapter 3
Management and administration
Part 7
Chief Executive Officer
Division 2
Section 95
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
85
retire the Chief Executive Officer from office on the ground of
1
incapacity.
2
(4) Despite subsections (1) to (3), if the Chief Executive Officer:
3
(a) is an eligible employee for the purposes of the
4
Superannuation Act 1976
; and
5
(b) has not reached the Chief Executive Officer's maximum
6
retiring age (within the meaning of that Act);
7
the Chief Executive Officer is not capable of being retired from
8
office on the ground of invalidity (within the meaning of Part IVA
9
of that Act) unless CSC has given a certificate under section 54C
10
of that Act.
11
(5) Despite subsections (1) to (3), if the Chief Executive Officer:
12
(a) is a member of the superannuation scheme established by
13
deed under the
Superannuation Act 1990
; and
14
(b) is under 60 years of age;
15
the Chief Executive Officer is not capable of being retired from
16
office on the ground of invalidity (within the meaning of that Act)
17
unless CSC has given a certificate under section 13 of that Act.
18
(6) Despite subsections (1) to (3), if the Chief Executive Officer:
19
(a) is an ordinary employer-sponsored member of PSSAP,
20
within the meaning of the
Superannuation Act 2005
; and
21
(b) is under 60 years of age;
22
the Chief Executive Officer is not capable of being retired from
23
office on the ground of invalidity (within the meaning of that Act)
24
unless CSC has given an approval and certificate under section 43
25
of that Act.
26
95 Acting Chief Executive Officer
27
The Chief Justice may, by written instrument, appoint a person to
28
act as the Chief Executive Officer:
29
(a) during a vacancy in the office of Chief Executive Officer
30
(whether or not an appointment has previously been made to
31
that office); or
32
(b) during any period, or during all periods, when the Chief
33
Executive Officer:
34
Chapter 3
Federal Circuit and Family Court of Australia (Division 1)
Part 7
Management and administration
Division 2
Chief Executive Officer
Section 95
86
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(i) is absent from duty or from Australia; or
1
(ii) is, for any other reason, unable to perform the duties of
2
the office.
3
Note:
For rules that apply to acting appointments, see sections 33AB and
4
33A of the
Acts Interpretation Act 1901
.
5
Federal Circuit and Family Court of Australia (Division 1)
Chapter 3
Management and administration
Part 7
Registries and registrars
Division 3
Section 96
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
87
Division 3--Registries and registrars
1
96 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
97 Senior Registrars and Registrars
6
The Federal Circuit and Family Court of Australia (Division 1) is
7
to have such Senior Registrars and Registrars as are necessary.
8
98 Delegation
9
Delegation of powers
10
(1) The Chief Justice may make Rules of Court delegating any of the
11
powers of the Federal Circuit and Family Court of Australia
12
(Division 1) to a delegate or a prescribed class of delegate.
13
Note:
For the definition of
delegate
, see subsection 7(1).
14
(2) The kinds of powers of the Federal Circuit and Family Court of
15
Australia (Division 1) that the Rules of Court may delegate include
16
the following:
17
(a) the power, under subsection 68(3), to require a party's lawyer
18
to give the party an estimate of:
19
(i) the likely duration of a proceeding or part of a
20
proceeding; and
21
(ii) the likely amount of costs that the party will have to pay
22
in connection with the proceeding or part of the
23
proceeding;
24
(b) the power, under subsection 69(1), to give directions about
25
the practice and procedure to be followed in relation to a
26
proceeding or part of a proceeding;
27
(c) the power, under subsection 69(3), to make such order or
28
direction as is appropriate when a party fails to comply with a
29
Chapter 3
Federal Circuit and Family Court of Australia (Division 1)
Part 7
Management and administration
Division 3
Registries and registrars
Section 98
88
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
direction about the practice and procedure to be followed in
1
relation to a proceeding or part of a proceeding;
2
(d) the power to dispense with the service of any process of the
3
Court;
4
(e) the power to make orders in relation to substituted service;
5
(f) the power to make orders in relation to discovery, inspection
6
and production of documents in the possession, power or
7
custody of a party to proceedings in the Court or of any other
8
person;
9
(g) the power to make orders in relation to interrogatories;
10
(h) the power, in proceedings in the Court, to make an order
11
adjourning the hearing of the proceedings;
12
(i) the power to make an order as to costs;
13
(j) the power to make an order about security for costs;
14
(k) the power to make an order exempting a party to proceedings
15
in the Court from compliance with a provision of the Rules of
16
Court;
17
(l) a power of the Court prescribed by the Rules of Court;
18
(m) the power, in family law or child support proceedings, to
19
direct a party to the proceedings to answer particular
20
questions;
21
(n) the power to make orders under the following provisions of
22
the
Family Law Act 1975
:
23
(i) sections 11F and 11G;
24
(ii) sections 13C and 13D;
25
(iii) subsection 65LA(1);
26
(iv) paragraph 70NEB(1)(a);
27
(o) the power to direct a family consultant to give a report under
28
section 62G of the
Family Law Act 1975
;
29
(p) the power, in family law or child support proceedings, to
30
make:
31
(i) an order under section 66Q, 67E, 77 or 90SG of the
32
Family Law Act 1975
; or
33
(ii) an order for the payment of maintenance pending the
34
disposal of the proceedings;
35
Federal Circuit and Family Court of Australia (Division 1)
Chapter 3
Management and administration
Part 7
Registries and registrars
Division 3
Section 98
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
89
(q) the power to make an order the terms of which have been
1
agreed upon by all the parties to the proceedings;
2
(r) the power to make orders (including an order for
3
garnishment, seizure of property or sequestration) for the
4
enforcement of maintenance orders under the
Family Law
5
Act 1975
;
6
(s) the power to make an order exempting a party to family law
7
or child support proceedings from compliance with a
8
provision of regulations made under the
Family Law Act
9
1975
.
10
Powers that may not be delegated
11
(3) Despite subsection (1), the powers of the Federal Circuit and
12
Family Court of Australia (Division 1) that the Rules of Court may
13
not delegate are the following:
14
(a) the power to make a divorce order in proceedings that are
15
defended;
16
(b) the power to make a decree of nullity of marriage;
17
(c) the power to make a declaration as to the validity of:
18
(i) a marriage; or
19
(ii) a divorce; or
20
(iii) the annulment of a marriage;
21
(d) the power to make an excluded child order;
22
(e) the power to make an order setting aside a registered award
23
under section 13K of the
Family Law Act 1975
.
24
Effect of delegation
25
(4) A power delegated by the Rules of Court, when exercised by a
26
delegate, is taken, for all purposes, to have been exercised by the
27
Federal Circuit and Family Court of Australia (Division 1) or a
28
Judge of the Court.
29
(5) The delegation of a power by the Rules of Court does not prevent
30
the exercise of the power by the Federal Circuit and Family Court
31
of Australia (Division 1) or a Judge of the Court.
32
Chapter 3
Federal Circuit and Family Court of Australia (Division 1)
Part 7
Management and administration
Division 3
Registries and registrars
Section 99
90
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Costs
1
(6) Despite the Rules of Court, a delegate must not exercise the power
2
referred to in paragraph (2)(i) except in relation to costs of, or in
3
connection with, an application heard by a delegate.
4
Orders made as a matter of urgency
5
(7) Despite the Rules of Court, a delegate must not exercise the power
6
referred to in paragraph (2)(p) on application by a party to
7
proceedings under the
Family Law Act 1975
unless:
8
(a) the other party to the proceedings appears at the hearing of
9
the application; or
10
(b) the delegate is satisfied that notice of the intention of the
11
party to make the application has been served on the other
12
party.
13
Exercise of delegable power may be limited
14
(8) The Rules of Court may, in relation to a power delegated by the
15
Rules of Court, limit or specify the circumstances in which the
16
power may be exercised by a delegate.
17
Application of laws
18
(9) The provisions of this Act, the Rules of Court and any other law of
19
the Commonwealth that relate to the exercise by the Federal
20
Circuit and Family Court of Australia (Division 1) of a power that
21
is, because of the Rules of Court, exercisable by a delegate, apply
22
in relation to an exercise of the power by a delegate under this
23
section as if references in those provisions to the Federal Circuit
24
and Family Court of Australia (Division 1) (expressly or
25
otherwise) were references to the delegate.
26
99 Independence of delegates
27
Despite any other provision of this Chapter and any provision of
28
the
Public Service Act 1999
or of any other law, a delegate is not
29
subject to the direction or control of any person or body in relation
30
to the way in which the delegate exercises powers under
31
section 98.
32
Federal Circuit and Family Court of Australia (Division 1)
Chapter 3
Management and administration
Part 7
Registries and registrars
Division 3
Section 100
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
91
100 Review of power exercised by delegate
1
(1) A party to proceedings in which a delegate has exercised any of the
2
powers of the Federal Circuit and Family Court of Australia
3
(Division 1) under section 98 may:
4
(a) within the time prescribed by the Rules of Court; or
5
(b) within any further time allowed in accordance with the Rules
6
of Court;
7
apply to the Court for review of that exercise of power.
8
(2) The Federal Circuit and Family Court of Australia (Division 1)
9
may, on application under subsection (1) or on its own initiative,
10
review an exercise of power by a delegate under section 98, and
11
may make any order or orders it thinks fit in relation to the matter
12
in respect of which the power was exercised.
13
Referral to Court by delegates
14
(3) If:
15
(a) an application for the exercise of a power referred to in
16
section 98 is to be, or is being, heard by a delegate; and
17
(b) the delegate considers that it is not appropriate for the
18
application to be determined by a delegate acting under
19
section 98;
20
the delegate must not hear, or continue to hear, the application and
21
must make appropriate arrangements for the application to be
22
heard by a Judge.
23
101 Protection for Registrars
24
(1) In the following cases:
25
(a) in conducting a conference that:
26
(i) is with the parties to property settlement proceedings;
27
and
28
(ii) relates to the matter to which the proceedings relate;
29
(b) in exercising a power of the Federal Circuit and Family Court
30
of Australia (Division 1) referred to in section 98;
31
Chapter 3
Federal Circuit and Family Court of Australia (Division 1)
Part 7
Management and administration
Division 3
Registries and registrars
Section 102
92
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
the Chief Executive Officer, or a Senior Registrar or Registrar of
1
the Court, has the same protection and immunity as a Judge of the
2
Court has in performing the functions of a Judge.
3
(2) This section does not limit any other protection or immunity the
4
Chief Executive Officer, or such a Senior Registrar or Registrar
5
has (in relation to such a conference or otherwise).
6
102 Oath or affirmation of office
7
(1) Before proceeding to discharge the duties of office, a Senior
8
Registrar or Registrar must take an oath or affirmation in the form
9
set out in whichever of subsection (3) or (4) is applicable.
10
(2) The oath or affirmation must be taken before the Chief Justice or
11
another Judge of the Federal Circuit and Family Court of Australia
12
(Division 1).
13
Oath
14
(3) This is the form of oath for the purposes of subsection (1):
15
I,
, do swear that I will well and truly serve in the office
16
of (
Senior Registrar or Registrar
,
as the case may be) of the
17
Federal Circuit and Family Court of Australia (Division 1) and that
18
I will do right to all manner of people according to law, without
19
fear or favour, affection or ill-will. So help me God!
20
Affirmation
21
(4) This is the form of affirmation for the purposes of subsection (1):
22
I,
, do solemnly and sincerely promise and declare that I
23
will well and truly serve in the office of (
Senior Registrar or
24
Registrar
, as the case may be) of the Federal Circuit and Family
25
Court of Australia (Division 1) and that I will do right to all
26
manner of people according to law, without fear or favour,
27
affection or ill-will.
28
Federal Circuit and Family Court of Australia (Division 1)
Chapter 3
Management and administration
Part 7
Other officers and staff
Division 4
Section 103
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
93
Division 4--Other officers and staff
1
103 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) such Senior Registrars and Registrars of the Court as are
7
necessary;
8
(b) such Registry Managers of the Court as are necessary;
9
(c) the Marshal of the Court;
10
(d) such Deputy Marshals of the Court as are necessary;
11
(e) such family consultants as are necessary.
12
(2) The officers of the Federal Circuit and Family Court of Australia
13
(Division 1), other than the Chief Executive Officer, have such
14
duties, powers and functions as are given to them:
15
(a) by or under:
16
(i) this Chapter or Chapter 5; or
17
(ii) the
Family Law Act 1975
; or
18
(iii) the Rules of Court; or
19
(b) by the Chief Justice or the Court.
20
(3) The officers of the Federal Circuit and Family Court of Australia
21
(Division 1), other than the Chief Executive Officer and the
22
Deputy Marshals, are to be persons engaged under the
Public
23
Service Act 1999
.
24
(4) The Deputy Marshals may be persons engaged under the
Public
25
Service Act 1999
.
26
(5) The Chief Executive Officer may, on behalf of the Chief Justice,
27
arrange with an Agency Head, or with an authority of the
28
Commonwealth, for the services of officers or employees of the
29
Agency or authority to be made available for the purposes of the
30
administrative affairs of the Federal Circuit and Family Court of
31
Australia (Division 1).
32
Chapter 3
Federal Circuit and Family Court of Australia (Division 1)
Part 7
Management and administration
Division 4
Other officers and staff
Section 104
94
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(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
104 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 7
Other officers and staff
Division 4
Section 105
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
95
105 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 7
Management and administration
Division 5
Miscellaneous administrative matters
Section 106
96
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Division 5--Miscellaneous administrative matters
1
106 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
107 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
108 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 78 to any one or more of the Judges.
24
109 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 7
Miscellaneous administrative matters
Division 5
Section 110
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
97
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
110 Protection of persons involved in handling etc. complaints
5
(1) In exercising powers or performing functions under
6
paragraph 47(2)(d) and subsection 48(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 48(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 111
98
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Chapter 4--Federal Circuit and Family
1
Court of Australia (Division 2)
2
Part 1--Constitution
3
Division 1--Constitution
4
111 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) by reason of knowledge, skills, experience and aptitude, the
12
person is a suitable person to deal with the kinds of matters
13
that may be expected to come before the person as a Judge of
14
the Federal Circuit and Family Court of Australia
15
(Division 2).
16
(3) To avoid doubt, for the purposes of paragraph (2)(b), if the kinds of
17
matters that may be expected to come before a person as a Judge of
18
the Federal Circuit and Family Court of Australia (Division 2) are
19
family law matters, the person, by reason of their knowledge,
20
skills, experience and aptitude, is a suitable person to deal with
21
those matters, including matters involving family violence.
22
(4) A person must not be appointed as a Judge if the person has
23
attained the age of 70 years.
24
(5) The appointment of a Judge (including by way of promotion or to
25
another judicial office) is to be for a term expiring upon the Judge
26
attaining the age of 70 years.
27
Note 1:
Section 72 of the Constitution sets out requirements relating to the
28
appointment and tenure of Judges.
29
Note 2:
Division 2 of this Part deals with terms and conditions of appointment.
30
Federal Circuit and Family Court of Australia (Division 2)
Chapter 4
Constitution
Part 1
Constitution
Division 1
Section 112
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
99
112 Assignment of Judges to Divisions
1
The Governor-General may:
2
(a) assign a Judge (other than the Chief Judge and a Deputy
3
Chief Judge) to one of the Divisions either:
4
(i) in the commission of appointment of the Judge; or
5
(ii) at a later time, with the consent of the Judge; and
6
(b) vary any such assignment, with the consent of the Judge.
7
Note:
A Judge (including the Chief Judge and a Deputy Chief Judge) who is
8
not assigned to any Division of the Federal Circuit and Family Court
9
of Australia (Division 2) may exercise the powers of the Court in all
10
Divisions (see subsection 146(3)).
11
113 Authorised Judges may manage classes of proceedings
12
(1) The Chief Judge may, by written instrument, authorise a Judge to
13
manage such class or classes of proceedings as may be specified:
14
(a) in the instrument; or
15
(b) by the Rules of Court.
16
(2) In managing a class or classes of proceedings, a Judge is subject to
17
any direction from the Chief Judge.
18
(3) A Judge may be authorised even though the Judge is not assigned
19
to a Division.
20
(4) The authorisation of a Judge does not affect the rank, title, status
21
and precedence as a Judge that the Judge had immediately before
22
any such authorisation.
23
(5) If a direction under subsection (2) is given in writing, the direction
24
is not a legislative instrument.
25
114 Style
26
Chief Judge
27
(1) The Chief Judge is to be styled "His Honour Chief Judge
(name)
of
28
the Federal Circuit and Family Court of Australia (Division 2)" or
29
Chapter 4
Federal Circuit and Family Court of Australia (Division 2)
Part 1
Constitution
Division 1
Constitution
Section 115
100
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
"Her Honour Chief Judge
(name)
of the Federal Circuit and Family
1
Court of Australia (Division 2)".
2
Deputy Chief Judge (Family Law)
3
(2) The Deputy Chief Judge (Family Law) is to be styled "His Honour
4
Deputy Chief Judge (Family Law)
(name)
of the Federal Circuit
5
and Family Court of Australia (Division 2)" or "Her Honour
6
Deputy Chief Judge (Family Law)
(name)
of the Federal Circuit
7
and Family Court of Australia (Division 2)".
8
Deputy Chief Judge (General and Fair Work)
9
(3) The Deputy Chief Judge (General and Fair Work) is to be styled
10
"His Honour Deputy Chief Judge (General and Fair Work)
(name)
11
of the Federal Circuit and Family Court of Australia (Division 2)"
12
or "Her Honour Deputy Chief Judge (General and Fair Work)
13
(name)
of the Federal Circuit and Family Court of Australia
14
(Division 2)".
15
Other Judges
16
(4) A Judge (other than the Chief Judge and a Deputy Chief Judge) is
17
to be styled "His Honour Judge
(name)
" or "Her Honour Judge
18
(name)
".
19
115 Oath or affirmation of office
20
(1) Before proceeding to discharge the duties of office, a Judge must
21
take an oath or affirmation in accordance with the form set out in
22
whichever of subsection (3) or (4) is applicable.
23
(2) The oath or affirmation must be taken before:
24
(a) the Governor-General; or
25
(b) a Justice of the High Court; or
26
(c) a Judge of the Federal Court; or
27
(d) a Judge of the Federal Circuit and Family Court of Australia
28
(Division 1); or
29
(e) another Judge of the Federal Circuit and Family Court of
30
Australia (Division 2).
31
Federal Circuit and Family Court of Australia (Division 2)
Chapter 4
Constitution
Part 1
Constitution
Division 1
Section 115
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
101
Oath
1
(3) This is the form of oath for the purposes of subsection (1):
2
I,
, do swear that I will well and truly serve in the office
3
of (
Chief Judge, Deputy Chief Judge (Family Law), Deputy Chief
4
Judge (General and Fair Work) or Judge
, as the case may be) of
5
the Federal Circuit and Family Court of Australia (Division 2) and
6
that I will do right to all manner of people according to law without
7
fear or favour, affection or ill-will. So help me God!
8
Affirmation
9
(4) This is the form of affirmation for the purposes of subsection (1):
10
I,
, do solemnly and sincerely promise and declare that I
11
will well and truly serve in the office of (
Chief Judge, Deputy
12
Chief Judge (Family Law), Deputy Chief Judge (General and Fair
13
Work) or Judge
, as the case may be) of the Federal Circuit and
14
Family Court of Australia (Division 2) and that I will do right to all
15
manner of people according to law without fear or favour, affection
16
or ill-will.
17
Chapter 4
Federal Circuit and Family Court of Australia (Division 2)
Part 1
Constitution
Division 2
Terms and conditions of serving Judges
Section 116
102
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Division 2--Terms and conditions of serving Judges
1
116 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
117 Leave
18
A Judge has the recreation leave entitlements that are determined
19
by the Remuneration Tribunal.
20
118 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
Federal Circuit and Family Court of Australia (Division 2)
Chapter 4
Constitution
Part 1
Terms and conditions of serving Judges
Division 2
Section 119
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
103
(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
119 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
120 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
121 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
Chapter 4
Federal Circuit and Family Court of Australia (Division 2)
Part 1
Constitution
Division 3
Disability and death benefits
Section 122
104
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Division 3--Disability and death benefits
1
122 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
123 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 119(1));
29
and
30
Federal Circuit and Family Court of Australia (Division 2)
Chapter 4
Constitution
Part 1
Disability and death benefits
Division 3
Section 124
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
105
(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 116:
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
124 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 119(1), if the Judge had
29
not 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
Chapter 4
Federal Circuit and Family Court of Australia (Division 2)
Part 1
Constitution
Division 3
Disability and death benefits
Section 125
106
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
125 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 119(1), during
10
the period in subsection (3) of this section 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
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Chapter 4
Constitution
Part 1
Disability and death benefits
Division 3
Section 125
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
107
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
Chapter 4
Federal Circuit and Family Court of Australia (Division 2)
Part 1
Constitution
Division 3
Disability and death benefits
Section 126
108
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
126 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
Federal Circuit and Family Court of Australia (Division 2)
Chapter 4
Constitution
Part 1
Disability and death benefits
Division 3
Section 126
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
109
(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
Chapter 4
Federal Circuit and Family Court of Australia (Division 2)
Part 1
Constitution
Division 3
Disability and death benefits
Section 127
110
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(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
127 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
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Chapter 4
Constitution
Part 1
Disability and death benefits
Division 3
Section 128
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
111
(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
128 Appropriation
7
The following are to be paid out of the Consolidated Revenue
8
Fund, which is appropriated accordingly:
9
(a) pensions under section 123;
10
(b) Commonwealth superannuation contributions under
11
section 124;
12
(c) payments under section 125.
13
Chapter 4
Federal Circuit and Family Court of Australia (Division 2)
Part 1
Constitution
Division 4
Judges of 2 or more courts
Section 129
112
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Division 4--Judges of 2 or more courts
1
129 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 (Family Law)
8
(2) Nothing in this Act prevents the Deputy Chief Judge (Family Law)
9
of the Federal Circuit and Family Court of Australia (Division 2)
10
from being appointed to, and holding at the same time, the office of
11
Deputy Chief Justice of the Federal Circuit and Family Court of
12
Australia (Division 1).
13
Federal Circuit and Family Court of Australia (Division 2)
Chapter 4
Constitution
Part 1
Acting Chief Judge
Division 5
Section 130
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
113
Division 5--Acting Chief Judge
1
130 Acting Chief Judge
2
(1) The Deputy Chief Judge (Family Law) 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 Deputy Chief Judge (General and Fair Work) may act as Chief
13
Judge:
14
(a) during a vacancy in the offices of both the Chief Judge and
15
Deputy Chief Judge (Family Law) (whether or not an
16
appointment has previously been made to the offices); or
17
(b) during any period, or during all periods, when both of the
18
following subparagraphs apply:
19
(i) the Chief Judge is absent from duty or from Australia,
20
or is, for any reason, unable to perform the duties of the
21
office of Chief Judge;
22
(ii) the Deputy Chief Judge (Family Law) is absent from
23
duty or from Australia, or is, for any reason, unable to
24
perform the duties of the office of Chief Judge; or
25
(c) during any period, or during all periods, when both of the
26
following subparagraphs apply:
27
(i) the Chief Judge is absent from duty or from Australia,
28
or is, for any reason, unable to perform the duties of the
29
office of Chief Judge;
30
(ii) there is a vacancy in the office of Deputy Chief Judge
31
(Family Law) (whether or not an appointment has
32
previously been made to the office); or
33
Chapter 4
Federal Circuit and Family Court of Australia (Division 2)
Part 1
Constitution
Division 5
Acting Chief Judge
Section 130
114
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(d) during any period, or during all periods, when both of the
1
following subparagraphs apply:
2
(i) there is a vacancy in the office of Chief Judge (whether
3
or not an appointment has previously been made to the
4
office);
5
(ii) the Deputy Chief Judge (Family Law) is absent from
6
duty or from Australia, or is, for any reason, unable to
7
perform the duties of the office of Deputy Chief Judge
8
(Family Law).
9
Note:
For rules that apply to acting appointments, see sections 33AB and
10
33A of the
Acts Interpretation Act 1901
.
11
(3) The Minister may, by written instrument, appoint a Judge to act as
12
the Chief Judge:
13
(a) during a vacancy in the offices of Chief Judge, Deputy Chief
14
Judge (Family Law) and Deputy Chief Judge (General and
15
Fair Work) (whether or not an appointment has previously
16
been made to the offices); or
17
(b) during any period, or all periods, when the Chief Judge and
18
Deputy Chief Judges are unavailable because one or more of
19
the following subparagraphs apply in relation to all of them:
20
(i) any of all of the Judges are absent from duty;
21
(ii) any or all of the Judges are absent from Australia;
22
(iii) any or all of the Judges are, for any reason, unable to
23
perform the duties of their office or offices.
24
Note:
For rules that apply to acting appointments, see sections 33AB and
25
33A of the
Acts Interpretation Act 1901
.
26
(4) A person who is acting as Chief Judge is to be called Acting Chief
27
Judge of the Federal Circuit and Family Court of Australia
28
(Division 2).
29
(5) For the purposes of this Chapter, a person who is acting as Chief
30
Judge is taken not to be assigned to a Division of the Federal
31
Circuit and Family Court of Australia (Division 2).
32
Note:
A Judge who is not assigned to a Division of the Federal Circuit and
33
Family Court of Australia (Division 2) may exercise the powers of the
34
Court in any Division (see subsection 146(3)).
35
Federal Circuit and Family Court of Australia (Division 2)
Chapter 4
Jurisdiction
Part 2
Original jurisdiction
Division 1
Section 131
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
115
Part 2--Jurisdiction
1
Division 1--Original jurisdiction
2
131 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 133.
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
132 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
Chapter 4
Federal Circuit and Family Court of Australia (Division 2)
Part 2
Jurisdiction
Division 1
Original jurisdiction
Section 133
116
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(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:
12
(i) the
Child Support (Assessment) Act 1989
; or
13
(ii) the
Child Support (Registration and Collection) Act
14
1988
.
15
(2) Subject to such restrictions and conditions (if any) in:
16
(a) section 111AA of the
Family Law Act 1975
; or
17
(b) regulations made under that Act; or
18
(c) the related Federal Circuit and Family Court of Australia
19
(Division 2) Rules, as defined by that Act;
20
the jurisdiction of the Federal Circuit and Family Court of
21
Australia (Division 2) may be exercised in relation to persons or
22
things outside Australia.
23
Note:
Division 4 of Part XIIIAA of the
Family Law Act 1975
(international
24
protection of children) may affect the jurisdiction of the Federal
25
Circuit and Family Court of Australia (Division 2).
26
133 Original jurisdiction--Commonwealth tenancy disputes
27
(1) The Federal Circuit and Family Court of Australia (Division 2) has
28
original jurisdiction to hear and determine a Commonwealth
29
tenancy dispute between the parties to a lease, licence or other
30
arrangement in which:
31
(a) the Commonwealth, or a person suing or being sued on
32
behalf of the Commonwealth, is:
33
(i) the lessor (other than as a sublessor); or
34
(ii) the licensor (other than as a sublicensor); or
35
Federal Circuit and Family Court of Australia (Division 2)
Chapter 4
Jurisdiction
Part 2
Original jurisdiction
Division 1
Section 133
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
117
(iii) the grantor of a right or permission to possess, occupy
1
or use land owned by the Commonwealth; and
2
(b) a person other than:
3
(i) the Commonwealth; or
4
(ii) a person suing or being sued on behalf of the
5
Commonwealth; or
6
(iii) a Commonwealth officer or employee;
7
is:
8
(iv) the lessee (other than as a sublessee); or
9
(v) the licensee (other than as a sublicensee); or
10
(vi) the grantee of the right or permission.
11
(2) The Minister may, by legislative instrument, confer jurisdiction on
12
the Federal Circuit and Family Court of Australia (Division 2) in
13
respect of any other specified Commonwealth tenancy dispute.
14
Note:
For specification by class, see subsection 13(3) of the
Legislation Act
15
2003
.
16
(3) The Minister may, by legislative instrument, make provision for
17
and in relation to all or any of the following matters in respect of a
18
Commonwealth tenancy dispute:
19
(a) the rights of the parties to the Commonwealth tenancy
20
dispute;
21
(b) the law (whether a law of the Commonwealth or a law of a
22
State or Territory) to be applied in determining the
23
Commonwealth tenancy dispute (the
applicable law
);
24
(c) any modifications of the applicable law that are to apply in
25
relation to the Commonwealth tenancy dispute;
26
(d) the powers that the Federal Circuit and Family Court of
27
Australia (Division 2) may exercise under the applicable law;
28
(e) if the Federal Circuit and Family Court of Australia
29
(Division 2) makes an order when exercising jurisdiction
30
over the Commonwealth tenancy dispute--the powers that
31
may be exercised when executing the order or a class of
32
orders.
33
Chapter 4
Federal Circuit and Family Court of Australia (Division 2)
Part 2
Jurisdiction
Division 2
Associated matters
Section 134
118
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Division 2--Associated matters
1
134 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 3
Section 135
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
119
Division 3--Exercise of jurisdiction
1
135 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 3
Exercise of jurisdiction
Section 136
120
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Jurisdiction that is required to be exercised in more than one
1
Division
2
(5) If the jurisdiction of the Federal Circuit and Family Court of
3
Australia (Division 2) is required to be exercised in both the
4
General Division and the Fair Work Division in relation to
5
particular proceedings or proceedings of a particular kind, the
6
Chief Judge may, at any time (whether before or after the
7
proceedings are instituted), give a direction about the allocation to
8
the General Division or the Fair Work Division of those
9
proceedings or proceedings of that kind.
10
136 Exercise of jurisdiction--open court or in Chambers
11
(1) This section does not apply to family law or child support
12
proceedings.
13
Note:
See section 97 of the
Family Law Act 1975
.
14
Open court
15
(2) The jurisdiction of the Federal Circuit and Family Court of
16
Australia (Division 2) must be exercised in open court. However,
17
this rule does not apply where, as authorised by this Chapter or
18
another law of the Commonwealth, the jurisdiction of the Court is
19
exercised by a Judge of that Court sitting in Chambers.
20
Judge sitting in Chambers
21
(3) The jurisdiction of the Federal Circuit and Family Court of
22
Australia (Division 2) may be exercised by a Judge of the Court
23
sitting in Chambers in:
24
(a) a proceeding on an application relating to the conduct of a
25
proceeding; and
26
(b) a proceeding on an application for orders or directions as to
27
any matter which, by this Chapter or any other law of the
28
Commonwealth, is made subject to the direction of a Judge
29
of the Court sitting in Chambers; and
30
(c) a proceeding on any other application authorised by the Rules
31
of Court to be made to a Judge of the Court sitting in
32
Chambers.
33
Federal Circuit and Family Court of Australia (Division 2)
Chapter 4
Jurisdiction
Part 2
Exercise of jurisdiction
Division 3
Section 137
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
121
(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
137 Exercise of jurisdiction
28
(1) The jurisdiction of the Federal Circuit and Family Court of
29
Australia (Division 2) is to be exercised by the Court constituted
30
by a single Judge.
31
Chapter 4
Federal Circuit and Family Court of Australia (Division 2)
Part 2
Jurisdiction
Division 3
Exercise of jurisdiction
Section 138
122
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(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 192(1).
3
138 Decisions to be final
4
A judgment or decision of the Federal Circuit and Family Court of
5
Australia (Division 2) is valid and binding until set aside, even if it
6
is given or made in excess of the Court's jurisdiction.
7
139 Determination of matter completely and finally
8
In every matter before the Federal Circuit and Family Court of
9
Australia (Division 2), the Court must grant, either:
10
(a) absolutely; or
11
(b) on such terms and conditions as the Court thinks just;
12
all remedies to which any of the parties appears to be entitled in
13
respect of a legal or equitable claim properly brought forward by a
14
party in the matter, so that, as far as possible:
15
(c) all matters in controversy between the parties may be
16
completely and finally determined; and
17
(d) all multiplicity of proceedings concerning any of those
18
matters may be avoided.
19
Federal Circuit and Family Court of Australia (Division 2)
Chapter 4
Jurisdiction
Part 2
Certain powers relating to matters of jurisdiction
Division 4
Section 140
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
123
Division 4--Certain powers relating to matters of
1
jurisdiction
2
140 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
141 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
142 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 4
Certain powers relating to matters of jurisdiction
Section 143
124
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
143 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
(5) This section does not apply if the Federal Circuit and Family Court
25
of Australia (Division 2) is exercising jurisdiction under the
Family
26
Law Act 1975
.
27
Note:
For the power of the Federal Circuit and Family Court of Australia
28
(Division 2) to give summary judgment if the Court is exercising
29
jurisdiction under the
Family Law Act 1975
, see section 45A of that
30
Act.
31
Federal Circuit and Family Court of Australia (Division 2)
Chapter 4
Jurisdiction
Part 2
Administration
Division 5
Section 144
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
125
Division 5--Administration
1
144 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 145, 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) Either Deputy Chief Judge may assist the Chief Judge in the
31
exercise of the functions conferred on the Chief Judge by this
32
section (other than paragraph (2)(d) or (e)).
33
Chapter 4
Federal Circuit and Family Court of Australia (Division 2)
Part 2
Jurisdiction
Division 5
Administration
Section 145
126
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
145 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) a Deputy Chief Judge; or
36
Federal Circuit and Family Court of Australia (Division 2)
Chapter 4
Jurisdiction
Part 2
Administration
Division 5
Section 146
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
127
(b) a body that includes a 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
146 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 another 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 any Division of the
29
Federal Circuit and Family Court of Australia (Division 2) may
30
exercise, or participate in exercising, the powers of the Court in all
31
Divisions.
32
Chapter 4
Federal Circuit and Family Court of Australia (Division 2)
Part 2
Jurisdiction
Division 5
Administration
Section 147
128
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(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
147 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
148 Protection for Chief Judge and Deputy Chief Judge
12
(1) In exercising the functions or powers mentioned in
13
paragraph 144(2)(b) or subsection 147(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 277.
18
(2) In assisting in the exercise of the functions or powers mentioned in
19
paragraph 144(2)(b), a Deputy Chief Judge has the same protection
20
and immunity as if the Deputy Chief Judge were exercising those
21
functions or powers as, or as a member of, the Federal Circuit and
22
Family Court of Australia (Division 2).
23
Note:
See also section 277.
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 144(2), section 145 or
28
subsection 147(1); or
29
(b) the assisting in the exercise by a Deputy Chief Judge of the
30
functions or powers mentioned in subsection 144(2) or
31
section 145.
32
Federal Circuit and Family Court of Australia (Division 2)
Chapter 4
Jurisdiction
Part 2
Administration
Division 5
Section 148
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
129
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 149
130
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Part 3--Transfer of proceedings
1
Division 1--Transfer of proceedings to the Federal Circuit
2
and Family Court of Australia (Division 1)
3
149 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, the Federal Circuit
13
and Family Court of Australia (Division 2) must have regard to:
14
(a) any Rules of Court made for the purposes of
15
subsection 151(2); and
16
(b) whether proceedings in respect of an associated matter are
17
pending in the Federal Circuit and Family Court of Australia
18
(Division 1); and
19
(c) whether the resources of the Federal Circuit and Family
20
Court of Australia (Division 1) are sufficient to hear and
21
determine the proceeding; and
22
(d) the interests of the administration of justice.
23
(4) An appeal does not lie from a decision of the Federal Circuit and
24
Family Court of Australia (Division 2) in relation to the transfer of
25
a proceeding under this section.
26
(5) This section does not apply to proceedings of a kind specified in
27
the regulations.
28
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 150
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
131
150 Transferred proceedings returned to the Federal Circuit and
1
Family Court of Australia (Division 2)
2
(1) If:
3
(a) a family law or child support proceeding was transferred to
4
the Federal Circuit and Family Court of Australia
5
(Division 1) under subsection 149(1); and
6
(b) the proceeding is transferred back to the Federal Circuit and
7
Family Court of Australia (Division 2) under section 52;
8
the Chief Judge may make another order (the
second order
) under
9
section 149 transferring the proceeding to the Federal Circuit and
10
Family Court of Australia (Division 1) again.
11
Note:
Section 52 allows the Chief Justice to order the transfer of proceedings
12
to the Federal Circuit and Family Court of Australia (Division 2).
13
(2) For the purposes of subsection (1), section 149 has effect as if a
14
reference to the Federal Circuit and Family Court of Australia
15
(Division 2) were a reference to the Chief Judge.
16
(3) This section does not apply to proceedings of a kind specified in
17
the regulations.
18
151 Rules of Court
19
(1) The Rules of Court may make provision in relation to transfers of
20
proceedings to the Federal Circuit and Family Court of Australia
21
(Division 1) under subsection 149(1), including in relation to the
22
scale of costs that applies to any order made in respect of
23
proceedings that are transferred.
24
(2) In particular, the Rules of Court may specify matters to which the
25
Federal Circuit and Family Court of Australia (Division 2) must
26
have regard in deciding whether to transfer a proceeding to the
27
Federal Circuit and Family Court of Australia (Division 1) under
28
subsection 149(1).
29
(3) Before Rules of Court are made for the purposes of this section, the
30
Chief Judge of the Federal Circuit and Family Court of Australia
31
(Division 2) must consult the Chief Justice of the Federal Circuit
32
and Family Court of Australia (Division 1).
33
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 152
132
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
152 Delegation
1
The Chief Judge may, in writing, delegate the Chief Judge's power
2
under subsection 150(1) to any one or more of the Judges.
3
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 153
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
133
Division 2--Transfer of proceedings to the Federal Court
1
153 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 154(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 154
134
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(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
154 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 153(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 153(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 155
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
135
Part 4--Appeals
1
2
155 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 156
136
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Part 5--Dispute resolution for proceedings other
1
than proceedings under the Family Law
2
Act 1975
3
Division 1--General
4
156 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 168) applies to
15
proceedings under the
Child Support (Assessment) Act 1989
and the
16
Child Support (Registration and Collection) Act 1988
.
17
157 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
158 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 159
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
137
(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
159 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
160 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 161
138
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
161 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
162 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 163
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
139
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
163 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
164 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 165
140
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(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
165 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
166 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 156 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 192(4)(d) and (e).
24
167 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 168
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
141
Division 2--Proceedings other than family law or child
1
support proceedings
2
168 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
169 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 170
142
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
170 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
171 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 170(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 172
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
143
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
172 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 170(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 173
144
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(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
173 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 170(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 170(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 174
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
145
Part 6--Practice and procedure
1
Division 1--General
2
174 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 217 and regulations are made
11
under section 284.
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 175
146
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
175 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
176 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 177
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
147
Division 2--Documents filed in the Federal Circuit and
1
Family Court of Australia (Division 2)
2
177 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 246 or
9
247; 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
178 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 179
148
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
179 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
180 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 246.
28
Note:
See paragraph 246(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 209.
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 181
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
149
181 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
182 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 183
150
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Division 3--Conduct of proceedings
1
183 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
184 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
185 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
186 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
187 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 188
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
151
188 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
189 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 190
152
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Division 4--Case management
1
190 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 191
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
153
191 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 149 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 192
154
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(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
192 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 193
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
155
(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
193 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 194
156
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Division 5--Evidence
1
194 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 246(1)(d).
16
195 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 195
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
157
(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 246(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 196
158
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
196 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
197 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
198 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 199
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
159
(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
199 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 200
160
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(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
200 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 200
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
161
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 201
162
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Division 6--Use of video links or audio links
1
201 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 204.
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 202
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
163
Note:
See Part 6 of the
Trans-Tasman Proceedings Act 2010
.
1
202 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 204.
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
203 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 204.
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 204
164
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(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
204 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 201(1),
8
202(1) or 203(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 204
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
165
(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 201(1),
7
202(1) or 203(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 205
166
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
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
205 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
206 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 207
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
167
(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
207 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
208 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 209
168
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Division 7--Orders and judgments
1
209 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
210 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
211 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 211
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
169
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 211
170
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(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 212
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
171
212 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
213 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 214
172
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Division 8--Costs
1
214 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 192(4)(d) and (e).
25
215 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 215
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
173
(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 216
174
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Division 9--Common approaches with the Federal Circuit
1
and Family Court of Australia (Division 1)
2
216 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 217
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
175
Division 10--Rules of Court
1
217 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) prescribing penalties, not exceeding 50 penalty units, for
13
offences against the Rules of Court; or
14
(d) prescribing matters required or permitted by:
15
(i) any other provision of this Chapter; or
16
(ii) any other law of the Commonwealth;
17
to be prescribed by the Rules of Court.
18
Note:
The power to make Rules of Court under this section will be amended
19
2 years after this section commences, to provide for the Rules to be
20
made by the Judges, or a majority of them (see Part 4 of Schedule 1 to
21
the
Federal Circuit and Family Court of Australia (Consequential
22
Amendments and Transitional Provisions) Act 2019
).
23
(2) Rules of Court have effect subject to any provision made by
24
another Act, or by rules or regulations under another Act, with
25
respect to the practice and procedure of the Federal Circuit and
26
Family Court of Australia (Division 2) in particular matters.
27
(3) The
Legislation Act 2003
(other than sections 8, 9, 10 and 16 and
28
Part 4 of Chapter 3 of that Act) applies in relation to Rules of Court
29
made by the Chief Judge under this Chapter or another Act:
30
(a) as if a reference to a legislative instrument (other than in
31
subparagraph 14(1)(a)(ii) and subsection 14(3) of the
32
Legislation Act 2003
) were a reference to a rule of 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 218
176
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(b) subject to such further modifications or adaptations as are
1
provided for in regulations made under section 284 of this
2
Act.
3
(4) Despite the fact that section 16 of the
Legislation Act 2003
does
4
not apply to Rules of Court made by the Chief Judge under this
5
Chapter or another Act, the Office of Parliamentary Counsel
6
(established by subsection 2(1) of the
Parliamentary Counsel Act
7
1970
) may provide assistance in the drafting of any of those Rules
8
if the Chief Judge so desires.
9
218 Consultation
10
(1) Before making Rules of Court, the Chief Judge must be satisfied
11
that there has been appropriate consultation with other Judges.
12
(2) The fact that consultation does not occur does not affect the
13
validity or enforceability of a Rule of Court.
14
(3) To avoid doubt, this section does not limit section 17 of the
15
Legislation Act 2003
.
16
219 Documents
17
(1) The Rules of Court may make provision for or in relation to:
18
(a) pleading; and
19
(b) appearance under protest; and
20
(c) interrogatories; and
21
(d) discovery, production and inspection of documents; and
22
(e) the making of applications for dissolution of marriage jointly
23
by both parties to the marriage; and
24
(f) the forms to be used for the purposes of proceedings in the
25
Federal Circuit and Family Court of Australia (Division 2).
26
(2) The Rules of Court may make provision for:
27
(a) the amendment of a document in a proceeding; or
28
(b) leave to amend a document in a proceeding;
29
even if the effect of the amendment would be to allow a person to
30
seek a remedy in respect of a legal or equitable claim that would
31
Federal Circuit and Family Court of Australia (Division 2)
Chapter 4
Practice and procedure
Part 6
Rules of Court
Division 10
Section 220
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
177
have been barred because of the expiry of a period of limitation if
1
the remedy had originally been sought at the time of the
2
amendment.
3
220 Service
4
The Rules of Court may make provision for or in relation to:
5
(a) the service and execution of the process of the Federal
6
Circuit and Family Court of Australia (Division 2), including:
7
(i) the manner in which and the extent to which the process
8
of the Court, or notice of any such process, may be
9
served out of the jurisdiction of the Court; and
10
(ii) dispensing with service; and
11
(b) the issue by the Court of letters of request for the service in
12
another country of any process of the Court; and
13
(c) the service by officers of the Court, in Australia, of the
14
process of a court of another country or of a part of another
15
country, in accordance with:
16
(i) a request of that court or of an authority of that country
17
or of that part of that country; or
18
(ii) an arrangement in force between Australia and the
19
government of that other country or of that part of that
20
other country.
21
221 Evidence
22
The Rules of Court may make provision for or in relation to:
23
(a) subpoenas; and
24
(b) summonses; and
25
(c) the attendance of witnesses; and
26
(d) the administration of oaths and affirmations; and
27
(e) the means by which particular facts may be proved and the
28
mode in which evidence of particular facts may be given; and
29
(f) the reception from New Zealand of copies of documents sent
30
by fax; and
31
(g) the reception from New Zealand of evidence or submissions
32
by video link or audio link; and
33
Chapter 4
Federal Circuit and Family Court of Australia (Division 2)
Part 6
Practice and procedure
Division 10
Rules of Court
Section 222
178
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(h) issuing subpoenas for service in New Zealand and the service
1
of such subpoenas; and
2
(i) the form to accompany a subpoena for service in New
3
Zealand.
4
222 Orders and judgments
5
The Rules of Court may make provision for or in relation to:
6
(a) the enforcement and execution of judgments of the Federal
7
Circuit and Family Court of Australia (Division 2); and
8
(b) the stay of proceedings in, or under judgments of, the Federal
9
Circuit and Family Court of Australia (Division 2) or another
10
court; and
11
(c) the stay of proceedings in, or under decisions of, tribunals;
12
and
13
(d) the procedure of the Federal Circuit and Family Court of
14
Australia (Division 2) exercising its powers (whether under
15
section 112AP of the
Family Law Act 1975
or otherwise) to
16
deal with a person for contempt of the Court; and
17
(e) the form in which the Federal Circuit and Family Court of
18
Australia (Division 2) or a Judge is to give reasons for
19
decisions.
20
223 Costs
21
The Rules of Court may make provision for or in relation to:
22
(a) the giving of security; and
23
(b) the costs of proceedings in the Federal Circuit and Family
24
Court of Australia (Division 2); and
25
(c) the fees to be charged by practitioners practising in the
26
Federal Circuit and Family Court of Australia (Division 2)
27
for the work done by them in relation to proceedings in the
28
Court and the taxation of their bills of costs, either as
29
between party and party or as between solicitor and client;
30
and
31
(d) the kinds of proceedings or circumstances in which each
32
party is required to bear the party's own costs.
33
Federal Circuit and Family Court of Australia (Division 2)
Chapter 4
Practice and procedure
Part 6
Rules of Court
Division 10
Section 224
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
179
224 General
1
(1) The Rules of Court may make provision for or in relation to:
2
(a) the power, under subsection 191(3), to require a party's
3
lawyer to give the party an estimate of:
4
(i) the likely duration of a proceeding or part of a
5
proceeding; and
6
(ii) the likely amount of costs that the party will have to pay
7
in connection with the proceeding or part of the
8
proceeding; and
9
(b) the power, under subsection 192(1), to give directions about
10
the practice and procedure to be followed in relation to a
11
proceeding or part of a proceeding; and
12
(c) the power, under subsection 192(3), to make such order or
13
direction as is appropriate when a party fails to comply with a
14
direction about the practice and procedure to be followed in
15
relation to a proceeding or part of a proceeding; and
16
(d) trial management; and
17
(e) the custody of convicted persons; and
18
(f) the prevention or termination of vexatious proceedings; and
19
(g) the summary disposal of proceedings; and
20
(h) authorising the Federal Circuit and Family Court of Australia
21
(Division 2) to refer to an officer of the Court, for
22
investigation, report and recommendation:
23
(i) claims for, or relating to, any matters before the Court;
24
or
25
(ii) applications for, or relating to, any matters before the
26
Court; and
27
(i) authorising an officer making an investigation mentioned in
28
paragraph (h) to:
29
(i) take evidence on oath or affirmation; and
30
(ii) receive in evidence a report from a family consultant
31
under section 55A or 62G of the
Family Law Act 1975
;
32
and
33
(iii) receive in evidence a report from a person who has had
34
dealings with a party to a matter under investigation
35
Chapter 4
Federal Circuit and Family Court of Australia (Division 2)
Part 6
Practice and procedure
Division 10
Rules of Court
Section 224
180
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
under section 65F, 65L, 65LA, 70NEB or 70NEG of the
1
Family Law Act 1975
; and
2
(j) enabling the summoning of witnesses before an officer
3
making an investigation mentioned in paragraph (h) for the
4
purposes of giving evidence or producing books or
5
documents; and
6
(k) the procedure of the Federal Circuit and Family Court of
7
Australia (Division 2) on receiving a report of an officer who
8
has made an investigation referred to in paragraph (h); and
9
(l) the appointment, by the Minister, of a guardian
ad litem
for a
10
party in proceedings; and
11
(m) both:
12
(i) the forfeiture of recognisances; and
13
(ii) the recovery of any money that may be due to the
14
Commonwealth under such recognisances or from any
15
person who has become a surety; and
16
(n) the attachment of money payable by:
17
(i) the Commonwealth, a State, a Territory or the
18
Government of a Territory; or
19
(ii) an authority of the Commonwealth, of a State or of a
20
Territory; and
21
(o) the death of parties; and
22
(p) the duties of officers of the Federal Circuit and Family Court
23
of Australia (Division 2).
24
(2) The Rules of Court may make provision for or in relation to:
25
(a) attendance at family counselling by parties to proceedings
26
under the
Family Law Act 1975
; and
27
(b) attendance at family dispute resolution by parties to
28
proceedings under the
Family Law Act 1975
; and
29
(c) the giving of advice and assistance by family consultants to
30
people involved in proceedings under the
Family Law Act
31
1975
; and
32
(d) the participation by parties to proceedings under the
Family
33
Law Act 1975
in courses, programs and other services that
34
the parties are ordered by the court to participate in; and
35
Federal Circuit and Family Court of Australia (Division 2)
Chapter 4
Practice and procedure
Part 6
Rules of Court
Division 10
Section 225
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
181
(e) the use, for the purposes of proceedings under the
Family
1
Law Act 1975
, by the Federal Circuit and Family Court of
2
Australia (Division 2) and officers of the Court in family law
3
or child support proceedings, of reports about the future
4
conduct of the proceedings that have been prepared by
5
persons who dealt with the parties in accordance with Rules
6
of Court made under paragraph (a), (b), (c) or (d).
7
225 Incidental matters
8
The Rules of Court may prescribe matters incidental to the matters
9
that, under:
10
(a) any other provision of this Chapter; or
11
(b) any other law of the Commonwealth;
12
are required or permitted to be prescribed by the Rules of Court.
13
Chapter 4
Federal Circuit and Family Court of Australia (Division 2)
Part 7
Suppression and non-publication orders
Division 1
Introduction
Section 226
182
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Part 7--Suppression and non-publication orders
1
Division 1--Introduction
2
226 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
227 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
228 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
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 229
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
183
Division 2--Suppression and non-publication orders
1
229 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
230 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
231 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
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 232
184
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(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
232 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
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 233
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
185
(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
233 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
234 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
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 235
186
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
235 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
236 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 230.
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
Federal Circuit and Family Court of Australia (Division 2)
Chapter 4
Vexatious proceedings
Part 8
Introduction
Division 1
Section 237
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
187
Part 8--Vexatious proceedings
1
Division 1--Introduction
2
237 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
238 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
Chapter 4
Federal Circuit and Family Court of Australia (Division 2)
Part 8
Vexatious proceedings
Division 2
Vexatious proceedings orders
Section 239
188
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Division 2--Vexatious proceedings orders
1
239 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
Federal Circuit and Family Court of Australia (Division 2)
Chapter 4
Vexatious proceedings
Part 8
Vexatious proceedings orders
Division 2
Section 240
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
189
(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
240 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
Chapter 4
Federal Circuit and Family Court of Australia (Division 2)
Part 8
Vexatious proceedings
Division 2
Vexatious proceedings orders
Section 240
190
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
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
Federal Circuit and Family Court of Australia (Division 2)
Chapter 4
Vexatious proceedings
Part 8
Particular consequences of vexatious proceedings orders
Division 3
Section 241
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
191
Division 3--Particular consequences of vexatious
1
proceedings orders
2
241 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 244; 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 244.
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
Chapter 4
Federal Circuit and Family Court of Australia (Division 2)
Part 8
Vexatious proceedings
Division 3
Particular consequences of vexatious proceedings orders
Section 242
192
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
242 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 244(1)(a). If
22
the order is made, the applicant must serve the copy in accordance
23
with the order.
24
243 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 242 for leave to institute a proceeding if the Court or Judge
28
considers the affidavit does not substantially comply with
29
subsection 242(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
Federal Circuit and Family Court of Australia (Division 2)
Chapter 4
Vexatious proceedings
Part 8
Particular consequences of vexatious proceedings orders
Division 3
Section 244
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
193
section 242 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
244 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 242 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
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 245
194
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Part 9--Management and administration
1
Division 1--Management responsibilities of the Chief
2
Judge and the Chief Executive Officer
3
245 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
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 246
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
195
(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 253, subsections 260(1), 261(1), 262(1) and
26
263(1) and sections 264 and 265 of this Act are part of the Statutory
27
Agency declared under section 18ZE of the
Federal Court of
28
Australia Act 1976
.
29
246 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
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 247
196
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(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
247 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
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 248
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
197
(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
248 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
249 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
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 249
198
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(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
Federal Circuit and Family Court of Australia (Division 2)
Chapter 4
Management and administration
Part 9
Chief Executive Officer
Division 2
Section 250
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
199
Division 2--Chief Executive Officer
1
250 Function of Chief Executive Officer
2
The Chief Executive Officer's function is to assist the Chief Judge
3
in managing the administrative affairs of the Federal Circuit and
4
Family Court of Australia (Division 2).
5
Note:
In relation to the Federal Circuit and Family Court of Australia
6
(Division 1), see section 84.
7
251 Powers of Chief Executive Officer
8
(1) The Chief Executive Officer has the power to do all things
9
necessary or convenient to be done for the purpose of assisting the
10
Chief Judge under section 250.
11
(2) In particular, the Chief Executive Officer may act on behalf of the
12
Chief Judge in relation to the administrative affairs of the Federal
13
Circuit and Family Court of Australia (Division 2).
14
(3) The Chief Judge may give the Chief Executive Officer directions
15
relating to the exercise of the Chief Executive Officer's powers
16
under:
17
(a) this Chapter; or
18
(b) Chapter 5, to the extent that the provisions of that Chapter
19
apply to the Federal Circuit and Family Court of Australia
20
(Division 2).
21
Note:
In relation to the Federal Circuit and Family Court of Australia
22
(Division 1), see section 85.
23
Chapter 4
Federal Circuit and Family Court of Australia (Division 2)
Part 9
Management and administration
Division 3
Registries and registrars
Section 252
200
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Division 3--Registries and registrars
1
252 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
253 Senior Registrars and Registrars
6
(1) The Federal Circuit and Family Court of Australia (Division 2) is
7
to have such Senior Registrars and Registrars as are necessary.
8
(2) The Senior Registrars and Registrars of the Federal Circuit and
9
Family Court of Australia (Division 2) are to be persons engaged
10
under the
Public Service Act 1999
.
11
254 Delegation
12
Delegation of powers
13
(1) The Chief Judge may make Rules of Court delegating any of the
14
powers of the Federal Circuit and Family Court of Australia
15
(Division 2) to a delegate or a prescribed class of delegate.
16
Note:
For the definition of
delegate
, see subsection 7(1).
17
(2) The kinds of powers of the Federal Circuit and Family Court of
18
Australia (Division 2) that the Rules of Court may delegate include
19
the following:
20
(a) the power, under subsection 191(3), to require a party's
21
lawyer to give the party an estimate of:
22
(i) the likely duration of a proceeding or part of a
23
proceeding; and
24
(ii) the likely amount of costs that the party will have to pay
25
in connection with the proceeding or part of the
26
proceeding;
27
Federal Circuit and Family Court of Australia (Division 2)
Chapter 4
Management and administration
Part 9
Registries and registrars
Division 3
Section 254
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
201
(b) the power, under subsection 192(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
(c) the power, under subsection 192(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
(d) the power to dispense with the service of any process of the
8
Court;
9
(e) the power to make orders in relation to substituted service;
10
(f) 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
(g) the power to make orders in relation to interrogatories;
15
(h) the power, in proceedings in the Court, to make an order
16
adjourning the hearing of the proceedings;
17
(i) the power to make an order as to costs;
18
(j) the power to make an order about security for costs;
19
(k) 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
(l) a power of the Court prescribed by the Rules of Court;
23
(m) the power, in family law or child support proceedings, to
24
direct a party to the proceedings to answer particular
25
questions;
26
(n) 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
(o) the power to direct a family consultant to give a report under
33
section 62G of the
Family Law Act 1975
;
34
(p) the power, in family law or child support proceedings, to
35
make:
36
Chapter 4
Federal Circuit and Family Court of Australia (Division 2)
Part 9
Management and administration
Division 3
Registries and registrars
Section 254
202
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(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
(q) the power to make an order the terms of which have been
5
agreed upon by all the parties to the proceedings;
6
(r) 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
(s) 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
Powers that may not be delegated
15
(3) Despite subsection (1), the powers of the Federal Circuit and
16
Family Court of Australia (Division 2) that the Rules of Court may
17
not delegate are the following:
18
(a) the power to make a divorce order in proceedings that are
19
defended;
20
(b) the power to make a decree of nullity of marriage;
21
(c) the power to make a declaration as to the validity of:
22
(i) a marriage; or
23
(ii) a divorce; or
24
(iii) the annulment of a marriage;
25
(d) the power to make an excluded child order;
26
(e) the power to make an order setting aside a registered award
27
under section 13K of the
Family Law Act 1975
.
28
Effect of delegation
29
(4) A power delegated by the Rules of Court, when exercised by a
30
delegate, is taken, for all purposes, to have been exercised by the
31
Federal Circuit and Family Court of Australia (Division 2) or a
32
Judge of the Court.
33
Federal Circuit and Family Court of Australia (Division 2)
Chapter 4
Management and administration
Part 9
Registries and registrars
Division 3
Section 254
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
203
(5) The delegation of a power by the Rules of Court does not prevent
1
the exercise of the power by the Federal Circuit and Family Court
2
of Australia (Division 2) or a Judge of the Court.
3
Costs
4
(6) A delegate must not exercise the power referred to in
5
paragraph (2)(i) except in relation to costs of, or in connection
6
with, an application heard by a delegate.
7
Orders made as a matter of urgency
8
(7) A delegate must not exercise the power referred to in
9
paragraph (2)(p) on application by a party to proceedings under the
10
Family Law Act 1975
unless:
11
(a) the other party to the proceedings appears at the hearing of
12
the application; or
13
(b) the delegate is satisfied that notice of the intention of the
14
party to make the application has been served on the other
15
party.
16
Exercise of delegable power may be limited
17
(8) The Rules of Court may, in relation to a power delegated by the
18
Rules of Court, limit or specify the circumstances in which the
19
power may be exercised by a delegate.
20
Application of laws
21
(9) The provisions of this Act, the Rules of Court and any other law of
22
the Commonwealth that relate to the exercise by the Federal
23
Circuit and Family Court of Australia (Division 2) of a power that
24
is, because of the Rules of Court, exercisable by a delegate, apply
25
in relation to an exercise of the power by a delegate under this
26
section as if references in those provisions to the Federal Circuit
27
and Family Court of Australia (Division 2) (expressly or
28
otherwise) were references to the delegate.
29
Chapter 4
Federal Circuit and Family Court of Australia (Division 2)
Part 9
Management and administration
Division 3
Registries and registrars
Section 255
204
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
255 Independence of delegates
1
Despite any other provision of this Chapter and any provision of
2
the
Public Service Act 1999
or of any other law, a delegate is not
3
subject to the direction or control of any person or body in relation
4
to the way in which the delegate exercises powers under
5
section 254.
6
256 Review of power exercised by delegate
7
(1) A party to proceedings in which a delegate has exercised any of the
8
powers of the Federal Circuit and Family Court of Australia
9
(Division 2) under section 254 may:
10
(a) within the time prescribed by the Rules of Court; or
11
(b) within any further time allowed in accordance with the Rules
12
of Court;
13
apply to the Court for review of that exercise of power.
14
(2) The Federal Circuit and Family Court of Australia (Division 2)
15
may, on application under subsection (1) or on its own initiative,
16
review an exercise of power by a delegate under section 254, and
17
may make any order or orders it thinks fit in relation to the matter
18
in respect of which the power was exercised.
19
Referral to Court by delegates
20
(3) If:
21
(a) an application for the exercise of a power referred to in
22
section 254 is to be, or is being, heard by a delegate; and
23
(b) the delegate considers that it is not appropriate for the
24
application to be determined by a delegate acting under
25
section 254;
26
the delegate must not hear, or continue to hear, the application and
27
must make appropriate arrangements for the application to be
28
heard by a Judge.
29
257 Protection for Registrars
30
(1) In the following cases:
31
Federal Circuit and Family Court of Australia (Division 2)
Chapter 4
Management and administration
Part 9
Registries and registrars
Division 3
Section 258
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
205
(a) in conducting a conference that:
1
(i) is with the parties to property settlement proceedings;
2
and
3
(ii) relates to the matter to which the proceedings relate;
4
(b) in exercising a power of the Federal Circuit and Family Court
5
of Australia (Division 2) referred to in section 254;
6
the Chief Executive Officer, or a Senior Registrar or Registrar of
7
the Court, has the same protection and immunity as a Judge of the
8
Court has in performing the functions of a Judge.
9
(2) This section does not limit any other protection or immunity the
10
Chief Executive Officer, or such a Senior Registrar or Registrar,
11
has (in relation to such a conference or otherwise).
12
258 Oath or affirmation of office
13
(1) Before proceeding to discharge the duties of office, a Senior
14
Registrar or Registrar must take before a Judge an oath or
15
affirmation in accordance with the form set out in whichever of
16
subsection (2) or (3) is applicable.
17
Oath
18
(2) This is the form of oath for the purposes of subsection (1):
19
I,
, do swear that I will well and truly serve in the office
20
of (
Senior Registrar or Registrar
) of the Federal Circuit and
21
Family Court of Australia (Division 2) and that I will do right to all
22
manner of people according to law without fear or favour, affection
23
or ill-will. So help me God!
24
Affirmation
25
(3) This is the form of affirmation for the purposes of subsection (1):
26
I,
, do solemnly and sincerely promise and declare that I
27
will well and truly serve in the office of (
Senior Registrar or
28
Registrar
) of the Federal Circuit and Family Court of Australia
29
(Division 2) and that I will do right to all manner of people
30
according to law without fear or favour, affection or ill-will.
31
Chapter 4
Federal Circuit and Family Court of Australia (Division 2)
Part 9
Management and administration
Division 4
Other officers and staff
Section 259
206
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
Division 4--Other officers and staff
1
Subdivision A--Officers and staff
2
259 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) such Senior Registrars and Registrars of the Court as are
8
necessary;
9
(b) such Registry Managers of the Court as are necessary;
10
(c) the Sheriff of the Court;
11
(d) such Deputy Sheriffs of the Court as are necessary;
12
(e) the Marshal of the Court;
13
(f) such Deputy Marshals of the Court as are necessary;
14
(g) such family consultants as are necessary.
15
(2) The officers of the Federal Circuit and Family Court of Australia
16
(Division 2), other than the Chief Executive Officer, have such
17
duties, powers and functions as are given to them by:
18
(a) by or under:
19
(i) this Chapter or Chapter 5; or
20
(ii) the
Family Law Act 1975
; or
21
(iii) the Rules of Court; or
22
(b) by the Chief Judge or the Court.
23
260 Sheriff
24
(1) The Sheriff of the Federal Circuit and Family Court of Australia
25
(Division 2) is to be a person engaged under the
Public Service Act
26
1999
.
27
(2) The Sheriff of the Federal Circuit and Family Court of Australia
28
(Division 2) is responsible for the service and execution of all
29
process of the Court directed to the Sheriff.
30
Federal Circuit and Family Court of Australia (Division 2)
Chapter 4
Management and administration
Part 9
Other officers and staff
Division 4
Section 261
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
207
(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
261 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
262 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 263
208
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
263 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
264 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
265 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
266 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
Federal Circuit and Family Court of Australia (Division 2)
Chapter 4
Management and administration
Part 9
Other officers and staff
Division 4
Section 267
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
209
267 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
268 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
269 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
270 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 271
210
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(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
271 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
Federal Circuit and Family Court of Australia (Division 2)
Chapter 4
Management and administration
Part 9
Other officers and staff
Division 4
Section 272
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
211
(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
272 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 272
212
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(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 273
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
213
Division 5--Miscellaneous administrative matters
1
273 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
274 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
275 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 245 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 276
214
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
276 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
277 Protection of persons involved in handling etc. complaints
9
(1) In exercising powers or performing functions under
10
paragraph 144(2)(d) and subsection 145(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 145(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 278
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
215
Chapter 5--Miscellaneous
1
Part 1--Administration of family services
2
3
278 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
279 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
280 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 281
216
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(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
281 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 282
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
217
Part 2--Miscellaneous
1
2
282 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 a Deputy
11
Chief Judge of the Court.
12
283 References in other laws to a Registrar of the Federal Circuit
13
and Family Court of Australia
14
(1) A reference in a law of the Commonwealth (other than this Act) to
15
a Registrar of the Federal Circuit and Family Court of Australia
16
(Division 1) includes a reference to a Senior Registrar and a
17
Registrar of the Court.
18
(2) A reference in a law of the Commonwealth (other than this Act) to
19
a Registrar of the Federal Circuit and Family Court of Australia
20
(Division 2) includes a reference to a Senior Registrar and a
21
Registrar of the Court.
22
284 Review of operation of this Act
23
(1) The Minister must cause a review of the operation of this Act to be
24
conducted within 6 months after the fifth anniversary of the
25
commencement of this Act.
26
(2) The person who conducts the review must give the Minister a
27
written report of the review.
28
Chapter 5
Miscellaneous
Part 2
Miscellaneous
Section 285
218
Federal Circuit and Family Court of Australia Bill 2019
No. , 2019
(3) The Minister must cause a copy of the report to be tabled in each
1
House of the Parliament within 15 sitting days of that House after
2
the report is given to the Minister.
3
285 Regulations
4
(1) The Governor-General may make regulations prescribing matters:
5
(a) required or permitted by this Act to be prescribed; or
6
(b) necessary or convenient to be prescribed for carrying out or
7
giving effect to this Act.
8
(2) Without limiting subsection (1), the regulations may provide for,
9
on in relation to, the following:
10
(a) penalties, not exceeding 60 penalty units, for offences against
11
the regulations;
12
(b) fees to be paid in respect of all or any following:
13
(i) proceedings in the Federal Circuit and Family Court of
14
Australia;
15
(ii) the service or the execution of the process of the Federal
16
Circuit and Family Court of Australia (Division 1) by
17
officers of the Court;
18
(iii) the service or the execution of the process of the Federal
19
Circuit and Family Court of Australia (Division 2) by
20
officers of the Court;
21
(iv) services provided by the Federal Circuit and Family
22
Court of Australia in circumstances other than where a
23
court orders or directs the provision of the services;
24
(c) exemptions from fees covered by paragraph (b);
25
(d) the waiver, remission or refund of fees covered by
26
paragraph (b);
27
(e) the authorisation of:
28
(i) officers or staff members of the Federal Circuit and
29
Family Court of Australia as family counsellors under
30
subsection 281(1); and
31
(ii) officers or staff members of the Federal Circuit and
32
Family Court of Australia as family dispute resolution
33
practitioners under subsection 281(2).
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Miscellaneous
Chapter 5
Miscellaneous
Part 2
Section 285
No. , 2019
Federal Circuit and Family Court of Australia Bill 2019
219
(3) The regulations may make provision modifying or adapting
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provisions of the
Legislation Act 2003
(other than the provisions of
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Part 2 of Chapter 3 of that Act or any other provisions whose
3
modifications or adaptation would affect the operation of that Part)
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in their application to the Federal Circuit and Family Court of
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Australia.
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(4) To the extent of any inconsistency between regulations and Rules
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of Court made under Chapter 3 or 4, the regulations prevail.
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