Federal Circuit and Family Court of Australia Act 2021 (Cth)
This is a compilation of the
The notes at the end of this compilation (the
The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register ( The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law.
If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.
For more information about any editorial changes made in this compilation, see the endnotes.
If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law.
If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.
Contents
This Act is the
Federal Circuit and Family Court of Australia Act 2021.
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
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. | 1 September 2021 |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
(1) This Act binds the Crown in each of its capacities.
(2) This Act does not make the Crown liable to be prosecuted for an offence.
This Act extends to every external Territory.
The objects of this Act are:
(a) to ensure that justice is delivered by federal courts effectively and efficiently; and
(b) to provide for just outcomes, in particular, in family law or child support proceedings; and
(c) to provide a framework to facilitate cooperation between the Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2) with the aim of ensuring:
(i) common rules of court and forms; and
(ii) common practices and procedures; and
(iii) common approaches to case management.
The federal court known as the Family Court of Australia continues in existence as the Federal Circuit and Family Court of Australia (Division 1). The Court consists of the Chief Justice, the Deputy Chief Justice, Senior Judges and other Judges. The Court has original jurisdiction in matters that are the subject of family law or child support proceedings transferred from the Federal Circuit and Family Court of Australia (Division 2) or as conferred by another law of the Commonwealth, and has appellate jurisdiction in family law and child support matters.
The federal court known as the Federal Circuit Court of Australia continues in existence as the Federal Circuit and Family Court of Australia (Division 2). The Court consists of the Chief Judge, 2 Deputy Chief Judges and other Judges. The Court has original jurisdiction in general federal law matters, as well as family law and child support matters.
All proceedings before the Federal Circuit and Family Court of Australia are subject to case management. The overarching purpose of case management is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. Judges may be authorised to manage classes of proceedings. The parties and their lawyers are required to cooperate with the Federal Circuit and Family Court of Australia, and among themselves, to assist in achieving the overarching purpose.
The Chief Executive Officer is to assist the Chief Justice and the Chief Judge in managing the administrative affairs of the Federal Circuit and Family Court of Australia.
Registrars and other officers of the Federal Circuit and Family Court of Australia may hold appointments as officers of more than one of the following courts:
(a) the Federal Circuit and Family Court of Australia (Division 1);
(b) the Federal Circuit and Family Court of Australia (Division 2);
(c) the Federal Court.
(1) In this Act:
administrative affairs :(a) in relation to the Federal Circuit and Family Court of Australia (Division 1), has a meaning affected by subsection 78(2); and
(b) in relation to the Federal Circuit and Family Court of Australia (Division 2), has a meaning affected by subsection 245(2).
Agency has the same meaning as in thePublic Service Act 1999 .Agency Head has the same meaning as in thePublic Service Act 1999 .audio link means facilities (for example, telephone facilities) that enable audio communication between persons in different places.Australia , when used in a geographical sense, includes every external Territory.Australian court means a federal court or a court of a State or Territory.Australian court or tribunal means a court or tribunal of the Commonwealth, a State or a Territory.beneficiary , in respect of a payment under section 125, has the meaning given by subsection 125(4).Chief Executive Officer means the Chief Executive Officer and Principal Registrar of the Federal Circuit and Family Court of Australia (Division 1).Chief Judge means the Chief Judge of the Federal Circuit and Family Court of Australia (Division 2).Chief Justice means the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1).Child Support (Assessment) Act 1989 includes regulations made under that Act.Child Support (Registration and Collection) Act 1988 includes regulations made under that Act.civil practice and procedure provisions :(a) in relation to the Federal Circuit and Family Court of Australia (Division 1)—has the meaning given by subsection 67(4); and
(b) in relation to the Federal Circuit and Family Court of Australia (Division 2)—has the meaning given by subsection 190(4).
commencement day means the day this Act commences.Commonwealth officer or employee means a person who:(a) is appointed or engaged under the
Public Service Act 1999 ; or(b) is appointed under another law of the Commonwealth; or
(c) holds an office established by a law of the Commonwealth; or
(d) is employed by a public authority of the Commonwealth; or
(e) is a member of the Australian Defence Force; or
(f) is the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the
Australian Federal Police Act 1979 ).
Commonwealth superannuation contribution , in respect of a Judge or retired disabled Judge of the Federal Circuit and Family Court of Australia (Division 2), means a Commonwealth contribution to the Judge’s choice of:(a) a complying superannuation fund (within the meaning of section 45 of the
Superannuation Industry (Supervision) Act 1993 ); or(b) a retirement savings account (within the meaning of section 8 of the
Retirement Savings Accounts Act 1997 ).
Commonwealth tenancy dispute means a matter:(a) involving a lease, licence or other arrangement to possess, occupy or use land and a dispute about:
(i) the recovery of rent or other payments payable under or in relation to the lease, licence or other arrangement; or
(ii) the termination of the lease, licence or other arrangement; or
(iii) the possession, occupation or use of the land; and
(b) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party.
complaint :(a) in Chapter 3, means a complaint mentioned in paragraph 47(2)(d); and
(b) in Chapter 4, means a complaint mentioned in paragraph 144(2)(d).
complaint handler :(a) in Chapter 3, means any of the following persons:
(i) the Chief Justice;
(ii) a person who is authorised by the Chief Justice under subsection 48(2);
(iii) a person who is a member of a body that is authorised by the Chief Justice under subsection 48(2); and
(b) in Chapter 4, means any of the following persons:
(i) the Chief Judge;
(ii) a person who is authorised by the Chief Judge under subsection 145(2);
(iii) a person who is a member of a body that is authorised by the Chief Judge under subsection 145(2).
conveyance includes a vehicle, a vessel and an aircraft.corporate services :(a) in relation to the Federal Circuit and Family Court of Australia (Division 1), has the meaning given by subsection 78(3); and
(b) in relation to the Federal Circuit and Family Court of Australia (Division 2), has the meaning given by subsection 245(3).
CSC (short for Commonwealth Superannuation Corporation) has the same meaning as in theGovernance of Australian Government Superannuation Schemes Act 2011 .delegate :(a) in Chapter 3, means:
(i) the Chief Executive Officer; or
(ii) a Senior Registrar or Registrar of the Federal Circuit and Family Court of Australia (Division 1); and
(b) in Chapter 4, means:
(i) the Chief Executive Officer; or
(ii) a Senior Registrar or Registrar of the Federal Circuit and Family Court of Australia (Division 2).
Deputy Chief Judge means the Deputy Chief Judge (Family Law) or the Deputy Chief Judge (General and Fair Work) of the Federal Circuit and Family Court of Australia (Division 2).Deputy Chief Judge (Family Law) means the Deputy Chief Judge (Family Law) of the Federal Circuit and Family Court of Australia (Division 2).Deputy Chief Judge (General and Fair Work) means the Deputy Chief Judge (General and Fair Work) of the Federal Circuit and Family Court of Australia (Division 2).Deputy Chief Justice means the Deputy Chief Justice of the Federal Circuit and Family Court of Australia (Division 1).dispute resolution processes means procedures and services for the resolution of disputes otherwise than by way of the exercise of the judicial power of the Commonwealth, and includes:(a) counselling; and
(b) mediation; and
(c) arbitration; and
(d) neutral evaluation; and
(e) case appraisal; and
(f) conciliation.
Division means the General Division or the Fair Work Division of the Federal Circuit and Family Court of Australia (Division 2).dwelling house includes a conveyance, or a room in accommodation, in which people ordinarily retire for the night.electronic signature of a person means the person’s unique identification in an electronic form that is approved by the Chief Executive Officer.eligible child has the meaning given by section 127.eligible spouse has the meaning given by section 126.excluded child order means:(a) a parenting order to the extent to which it provides that:
(i) a child is to live with a person; or
(ii) a child is to spend time with a person; or
(iii) a child is to communicate with a person; or
(iv) a person is to have parental responsibility for a child; or
(b) an order in relation to the welfare of a child;
other than:
(ba) an order made under section 70NBB (make‑up time parenting orders) of the
Family Law Act 1975 ; or(c) an order made until further order; or
(d) an order made in undefended proceedings; or
(e) an order made with the consent of all the parties to the proceedings.
Family Law Act 1975 includes regulations made under that Act.family law or child support proceedings means proceedings in respect of which the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction under section 132.Federal Circuit and Family Court of Australia means:(a) the Federal Circuit and Family Court of Australia (Division 1); or
(b) the Federal Circuit and Family Court of Australia (Division 2).
Federal Court means the Federal Court of Australia.Full Court means a Full Court of the Federal Circuit and Family Court of Australia (Division 1) constituted in accordance with section 17.handle a complaint means do one or more of the following acts relating to the complaint:(a) consider the complaint;
(b) investigate the complaint;
(c) report on an investigation of the complaint;
(d) deal with a report of an investigation of the complaint;
(e) dispose of the complaint;
(f) refer the complaint to a person or body.
information includes any document.institute , in relation to proceedings and the power of the Federal Circuit and Family Court of Australia (Division 2) to deal with vexatious proceedings, includes:(a) for civil proceedings—the taking of a step or the making of an application that may be necessary before proceedings can be started against a party; and
(b) for proceedings before a tribunal—the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal; and
(c) for criminal proceedings—the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender; and
(d) for civil or criminal proceedings or proceedings before a tribunal—the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings.
Judge :(a) in Chapter 3, means a person holding office as a Judge of the Federal Circuit and Family Court of Australia (Division 1), including the Chief Justice, Deputy Chief Justice and a Senior Judge; and
(b) in Chapter 4, means a person holding office as a Judge of the Federal Circuit and Family Court of Australia (Division 2), including the Chief Judge and a Deputy Chief Judge.
judgment means a judgment, decree or order, whether final or interlocutory, a decision or a sentence, and includes a decree within the meaning of theFamily Law Act 1975 .living with a person has the meaning given by subsection 126(8).Magistrates Court of Western Australia means the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia.marital or couple relationship has the meaning given by subsection 126(5).news publisher means a person engaged in the business of publishing news or a public or community broadcasting service engaged in the publishing of news through a public news medium.non‑publication order means an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information).overarching purpose :(a) of the civil practice and procedure provisions in relation to the Federal Circuit and Family Court of Australia (Division 1), means the overarching purpose set out in subsection 67(1); and
(b) of the civil practice and procedure provisions in relation to the Federal Circuit and Family Court of Australia (Division 2), means the overarching purpose set out in subsection 190(1).
paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise).partner : a person is thepartner of another person if the 2 persons have a relationship as a couple (whether the persons are the same sex or different sexes).party to a proceeding, in the context of a decision by the Federal Circuit and Family Court of Australia (Division 2) about whether to make a suppression order or non‑publication order, includes the complainant or victim (or alleged victim) in a criminal proceeding and any person named in evidence given in a proceeding and, in relation to a proceeding that has concluded, means a person who was a party to the proceeding before the proceeding concluded.police officer means a member or special member of the Australian Federal Police or a member of the police force or police service of a State or Territory.premises includes a place and a conveyance.prior judicial service , in relation to a retired disabled Judge of the Federal Circuit and Family Court of Australia (Division 2), means service, prior to the Judge’s appointment as a Judge of the Court (and in the case of more than one appointment as a Judge of the Court, the Judge’s most recent appointment), as one of the following:(a) a Justice or Judge of a federal court;
(b) the holder of an office, being an office the holder of which has, by virtue of an Act, the same status as a Justice or Judge of a federal court;
(c) a Judge of the Federal Circuit and Family Court of Australia (Division 2);
(d) a Judge or acting Judge of a court of a State or Territory;
(e) a magistrate of a State or Territory;
(f) in the case of a State or Territory office that qualifies the holder of the office for a pension or retiring allowance under a law of the State or Territory relating to pensions or retiring allowances payable to retired Judges—a holder of the office (including an acting holder).
proceeding :(a) in relation to a court—means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal; and
(b) in relation to a tribunal—means a proceeding in the tribunal, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding.
proceedings of a particular type includes:(a) proceedings in relation to a particular matter; and
(b) proceedings against a particular person.
public authority of the Commonwealth means:(a) a body incorporated, whether before or after the commencement of this definition, for a public purpose by a law of the Commonwealth, being a body corporate employing staff on its own behalf; or
(b) an authority or body, not being a body corporate, established, whether before or after the commencement of this definition, for a public purpose by, or in accordance with the provisions of, a law of the Commonwealth, being an authority or body employing staff on its own behalf; or
(c) an incorporated company over which the Commonwealth, or a body or authority mentioned in paragraph (a) or (b), is in a position to exercise control.
publish , in relation to a news publisher, means disseminate or provide access to the public or a section of the public by any means, including by:(a) publication in a book, newspaper, magazine or other written publication; or
(b) broadcast by radio or television; or
(c) public exhibition; or
(d) broadcast or publication by means of the internet.
Registrar :(a) in Chapter 3, means a Senior Registrar or Registrar of the Federal Circuit and Family Court of Australia (Division 1); and
(b) in Chapter 4, means a Senior Registrar or Registrar of the Federal Circuit and Family Court of Australia (Division 2).
Registry Manager :(a) in Chapter 3, means a Registry Manager of the Federal Circuit and Family Court of Australia (Division 1); and
(b) in Chapter 4, means a Registry Manager of the Federal Circuit and Family Court of Australia (Division 2).
relevant belief :(a)
in relation to the Federal Circuit and Family Court of Australia (Division 1), has the meaning given by subsection 48(4); and
(b) in relation to the Federal Circuit and Family Court of Australia (Division 2), has the meaning given by subsection 145(4).
retired disabled Judge of the Federal Circuit and Family Court of Australia (Division 2) means a person certified by the Minister to be a retired disabled Judge under paragraph 122(2)(a).retires , in relation to a Judge of the Federal Circuit and Family Court of Australia (Division 2), means ceases, otherwise than by death, to hold any office as a Judge.Rules of Court :(a) in relation to the Federal Circuit and Family Court of Australia (Division 1), means Rules of Court made under Chapter 3; and
(b) in relation to the Federal Circuit and Family Court of Australia (Division 2), means Rules of Court made under Chapter 4.
suppression order means an order that prohibits or restricts the disclosure of information (by publication or otherwise).vexatious proceeding includes:(a) a proceeding that is an abuse of the process of a court or tribunal; and
(b) a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c) a proceeding instituted or pursued in a court or tribunal without reasonable ground; and
(d) a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
vexatious proceedings order means an order made under subsection 239(2).video link means facilities (for example, closed‑circuit television facilities) that enable audio and visual communication between persons in different places.(2) An expression has the same meaning in this Act as it has in the
Family Law Act 1975 (other than the expression “this Act”).(3) To the extent of any inconsistency between the meaning of an expression defined in this Act and the
Family Law Act 1975 , the meaning of the expression in this Act prevails.
(1) The federal court known immediately before the commencement day as the Family Court of Australia is continued in existence as the Federal Circuit and Family Court of Australia (Division 1).
(2) The federal court known immediately before the commencement day as the Federal Circuit Court of Australia is continued in existence as the Federal Circuit and Family Court of Australia (Division 2).
Note: The Parliament may create federal courts under Chapter III of the Constitution.
(1) The Federal Circuit and Family Court of Australia (Division 1) is:
(a) a superior court of record; and
(b) a court of law and equity.
(2) The Federal Circuit and Family Court of Australia (Division 1) consists of the following:
(a) a Chief Justice;
(b) a Deputy Chief Justice;
(c) such Senior Judges and other Judges as from time to time hold office in accordance with this Act.
(3) At least 25 Judges are to hold office in accordance with this Act.
(4) In working out whether at least 25 Judges hold office:
(a) include the Chief Justice and Deputy Chief Justice; and
(b) do not include a Judge who is also a judge of the Family Court of Western Australia.
(1) The Federal Circuit and Family Court of Australia (Division 2) is:
(a) a court of record; and
(b) a court of law and equity.
(2) The Federal Circuit and Family Court of Australia (Division 2) consists of the following:
(a) a Chief Judge;
(b) 2 Deputy Chief Judges;
(c) such other Judges as from time to time hold office in accordance with this Act.
(1) A Judge is to be appointed by the Governor‑General by commission.
(2) A person is not to be appointed as a Judge unless:
(a) the person is or has been:
(i) a Judge of another court created by the Parliament or of a court of a State; or
(ii) enrolled as a legal practitioner of the High Court, or the Supreme Court of a State or Territory, for at least 5 years; and
(b) by reason of knowledge, skills, experience and aptitude, the person is a suitable person to deal with family law matters, including matters involving family violence.
(3) A person must not be appointed as a Judge if the person has attained the age of 70 years.
(4) The appointment of a Judge (including by way of promotion or to another judicial office) is to be for a term expiring upon the Judge attaining the age of 70 years.
Note 1: Section 72 of the Constitution sets out requirements relating to the appointment and tenure of Judges.
Note 2: Division 2 of this Part deals with terms and conditions of appointment.
(1) The commission of appointment of a Judge must assign the Judge to a particular location. The Judge:
(a) must not sit at another location on a permanent basis unless the Minister and the Chief Justice consent; and
(b) cannot be required to sit at another location on a permanent basis unless the Judge consents (in addition to the consents required by paragraph (a)); and
(c) may sit at another location on a temporary basis.
(2) In deciding whether to consent as mentioned in paragraph (1)(a), the Chief Justice has the same protection and immunity as if the Chief Justice were making that decision as, or as a member of, the Federal Circuit and Family Court of Australia (Division 1).
(3) Despite section 39B of the
Judiciary Act 1903 , the Federal Court does not have jurisdiction with respect to a matter relating to the exercise by the Minister or the Chief Justice of the power to consent as mentioned in paragraph (1)(a).
(1) The Chief Justice may, by written instrument, authorise a Judge to manage such class or classes of proceedings as may be specified:
(a) in the instrument; or
(b) by the Rules of Court.
(2) In managing a class or classes of proceedings, a Judge is subject to any direction from the Chief Justice.
(3) The authorisation of a Judge does not affect the rank, title, status and precedence as a Judge that the Judge had immediately before any such authorisation.
(4) If a direction under subsection (2) is given in writing, the direction is not a legislative instrument.
Chief Justice (1) The Chief Justice is to be styled “the Honourable Chief Justice
(name) of the Federal Circuit and Family Court of Australia (Division 1)”.
Deputy Chief Justice (2) The Deputy Chief Justice is to be styled “the Honourable Deputy Chief Justice
(name) of the Federal Circuit and Family Court of Australia (Division 1)”.
Other Judges (3) A Judge (other than the Chief Justice or Deputy Chief Justice) is to be styled “the Honourable”.
Former Judges (4) A former Judge is to be styled “the Honourable”.
(1) The order of seniority of the Judges of the Federal Circuit and Family Court of Australia (Division 1) is as follows:
(a) the Chief Justice;
(b) the Deputy Chief Justice;
(c) Senior Judges, according to the days on which their appointments as Senior Judges took effect;
(d) Judges (other than Senior Judges), according to the days on which their appointments as Judges took effect.
(2) If 2 or more commissions of appointment as Judge took effect on the same day, those Judges have such seniority in relation to each other as is assigned to them by the Governor‑General.
(1) Before proceeding to discharge the duties of office, a Judge must take:
(a) an oath or affirmation of allegiance in the form in the Schedule to the Constitution; and
(b) an oath or affirmation in accordance with the form set out in whichever of subsection (3) or (4) is applicable.
(2) The oaths or affirmations must be taken before:
(a) the Chief Justice; or
(b) a Justice of the High Court; or
(c) another Judge of the Federal Circuit and Family Court of Australia (Division 1); or
(d) a Judge of another court created by the Parliament.
Oath (3) This is the form of oath for the purposes of paragraph (1)(b):
I,, do swear that I will well and truly serve in the office of (
Chief Justice, Deputy Chief Justice, Senior Judge or Judge , as the case may be) of the Federal Circuit and Family Court of Australia (Division 1) and that I will do right to all manner of people according to law, without fear or favour, affection or ill‑will. So help me God!Affirmation (4) This is the form of affirmation for the purposes of paragraph (1)(b):
I,, do solemnly and sincerely promise and declare that I will well and truly serve in the office of (
Chief Justice, Deputy Chief Justice, Senior Judge or Judge , as the case may be) of the Federal Circuit and Family Court of Australia (Division 1) and that I will do right to all manner of people according to law without fear or favour, affection or ill‑will.
(1) A Full Court of the Federal Circuit and Family Court of Australia (Division 1) consists of 3 or more Judges sitting together or, to the extent allowed by subsection (2), of 2 Judges sitting together.
(2) If, after a Full Court has started the hearing, or further hearing, of a proceeding and before the proceeding has been determined, one of the Judges constituting the Full Court dies, resigns the Judge’s office or otherwise becomes unable to continue as a member of the Full Court for the purposes of the proceeding, then the hearing and determination, or the determination, of the proceeding may be completed by a Full Court constituted by the remaining Judges, if:
(a) at least 3 Judges remain; or
(b) 2 Judges remain and the parties consent.
(3) A Full Court of the Federal Circuit and Family Court of Australia (Division 1) constituted in accordance with subsection (2) may have regard to any evidence given or received, and arguments adduced, by or before the Full Court as previously constituted.
(1) A Judge is to receive salary, annual allowances and travelling allowances at such respective rates as are fixed from time to time by the Parliament.
(2) The salary and annual allowances of a Judge:
(a) accrue from day to day; and
(b) are payable monthly.
(3) The Consolidated Revenue Fund is appropriated to the extent necessary for payment of salaries and annual allowances in accordance with this section.
Note 1: A Judge’s remuneration may not be diminished during the Judge’s continuance in office: see paragraph 72(iii) of the Constitution.
Note 2: Under subsection 7(4) of the
Remuneration Tribunal Act 1973 , the Remuneration Tribunal may determine any matter significantly related to the remuneration of Judges.
(1) A Judge may resign office by delivering a written resignation to the Governor‑General.
(2) The resignation takes effect on the day it is received by the Governor‑General or, if a later day is specified in the resignation, on that later day.
A Judge must not be removed from office except by the Governor‑General, on an address from both Houses of the Parliament in the same session, praying for the Judge’s removal on the ground of proved misbehaviour or incapacity.
Chief Justice (1) Nothing in this Act prevents the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) from being appointed to, and holding at the same time, the office of Chief Judge of the Federal Circuit and Family Court of Australia (Division 2).
Deputy Chief Justice (2) Nothing in this Act prevents the Deputy Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) from being appointed to, and holding at the same time, the office of the Deputy Chief Judge (Family Law) of the Federal Circuit and Family Court of Australia (Division 2).
(1) Despite any provision of any other Act, a person may hold office at the one time as:
(a) a Judge of the Federal Circuit and Family Court of Australia (Division 1); and
(b) a Judge of a prescribed court or of 2 or more prescribed courts.
(2) In this section:
prescribed court means:(a) a court (other than the Federal Circuit and Family Court of Australia (Division 1)) created by the Parliament; or
(b) the Supreme Court of the Northern Territory.
(1) If a person who holds office as a Judge of the Federal Circuit and Family Court of Australia (Division 1) is appointed or serves as a Judge of a Family Court of a State, the appointment or service does not affect:
(a) the person’s tenure of office of Judge of the Federal Circuit and Family Court of Australia (Division 1); or
(b) the person’s rank, title, status, precedence, salary or annual allowance, or other rights or privileges, as the holder of the office of Judge of the Federal Circuit and Family Court of Australia (Division 1);
and, for all purposes, the person’s service as a Judge of the Family Court of that State is taken to be service as the holder of the office of Judge of the Federal Circuit and Family Court of Australia (Division 1).
(2) A person:
(a) may be appointed to the office of Judge of the Federal Circuit and Family Court of Australia (Division 1), regardless of whether the person holds an office of Judge of a Family Court of a State; and
(b) may serve in that office of Judge of the Federal Circuit and Family Court of Australia (Division 1) even if the person continues to hold, and serve in, the office of Judge of the Family Court of that State.
(1) The Deputy Chief Justice may act as Chief Justice:
(a) during a vacancy in the office of Chief Justice (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the Chief Justice:
(i) is absent from duty or from Australia; or
(ii) is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see sections 33AB and 33A of the
Acts Interpretation Act 1901 .(2) The Minister may, by written instrument, appoint a Judge to act as the Chief Justice:
(a) during a vacancy in the offices of Chief Justice and Deputy Chief Justice (whether or not an appointment has previously been made to either office); or
(b) during any period, or all periods, when both the Chief Justice and Deputy Chief Justice are unavailable because:
(i) either or both Justices are absent from duty; or
(ii) either or both Justices are absent from Australia; or
(iii) either or both Justices are, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see sections 33AB and 33A of the
Acts Interpretation Act 1901 .(3) A person who is acting as Chief Justice is to be called Acting Chief Justice of the Federal Circuit and Family Court of Australia (Division 1).
(1) The Federal Circuit and Family Court of Australia (Division 1) has original jurisdiction:
(a) if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Court under section 51—as set out in paragraphs 132(1)(a), (b), (c) and (d); or
(b) if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Federal Circuit and Family Court of Australia (Division 2) under section 149—as set out in paragraphs 132(1)(a), (b), (c) and (d); or
(c) as is conferred on the Court, or in respect of which proceedings may be instituted in the Court, by any other Act.
(2) Subject to such restrictions and conditions (if any) in:
(a) section 111AA of the
Family Law Act 1975 ; or(b) regulations made under that Act; or
(c) the Rules of Court made under this Chapter;
the jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) may be exercised in relation to persons or things outside Australia.
Note: Division 4 of Part XIIIAA of the
Family Law Act 1975 (international protection of children) may affect the jurisdiction of the Federal Circuit and Family Court of Australia (Division 1).
Appeals generally (1) Subject to section 28, the Federal Circuit and Family Court of Australia (Division 1) has jurisdiction to hear and determine appeals from:
(a) a judgment of a single Judge of the Federal Circuit and Family Court of Australia (Division 1) exercising appellate jurisdiction in relation to a judgment mentioned in paragraph (e); and
(b) a judgment of the Federal Circuit and Family Court of Australia (Division 1) exercising original jurisdiction; and
(c) a judgment of the Federal Circuit and Family Court of Australia (Division 2) exercising the original jurisdiction mentioned in section 132; and
(d) a judgment of:
(i) a Family Court of a State (other than Western Australia); or
(ii) a Supreme Court of a State or Territory constituted by a single Judge;
exercising original or appellate jurisdiction under the
Family Law Act 1975 , theChild Support (Assessment) Act 1989 or theChild Support (Registration and Collection) Act 1988 ; and
(da) a judgment of the Family Court of Western Australia exercising original or appellate jurisdiction under:
(i) the
Family Law Act 1975 (other than Part VIIIC); or(ii) the
Child Support (Assessment) Act 1989 ; or(iii) the
Child Support (Registration and Collection) Act 1988 ; and(e) a judgment of a court of summary jurisdiction of a State or Territory (other than the Magistrates Court of Western Australia) exercising original jurisdiction under:
(i) the
Family Law Act 1975 ; or(ii) the
Child Support (Assessment) Act 1989 ; or(iii) the
Child Support (Registration and Collection) Act 1988 ; and(f) a judgment of the Magistrates Court of Western Australia exercising original jurisdiction under:
(i) the
Family Law Act 1975 (other than Part VIIIC); or(ii) the
Child Support (Assessment) Act 1989 ; or(iii) the
Child Support (Registration and Collection) Act 1988 ; and(g) a judgment of a court exercising jurisdiction in section 69GA proceedings; and
(h) a judgment or decision of a Judge or Magistrate exercising jurisdiction, as mentioned in paragraph (a), (b), (c), (d), (f) or (g), rejecting an application that the Judge or Magistrate disqualify himself or herself from further hearing a matter.
Note 1A: Paragraph (da) and subparagraph (f)(i)—for appeals relating to matters arising under Part VIIIC of the
Family Law Act 1975 : see section 47BA of that Act.Note 1: Paragraphs (e) and (g)—an appeal from a judgment of a court of summary jurisdiction, or of a court exercising jurisdiction in section 69GA proceedings, may be made to the Federal Circuit and Family Court of Australia (Division 1) under the
Family Law Act 1975 : see section 47A of that Act.Note 2: This section also applies to appeals from the making, variation and revocation of court security orders under the
Court Security Act 2013 as described in section 39 of this Act.
Certain kinds of appeals prohibited (2) An appeal must not be brought from a judgment referred to in subsection (1) if the judgment is:
(a) a determination of an application:
(i) for leave or special leave to institute proceedings in the Federal Circuit and Family Court of Australia (Division 1); or
(ii) for an extension of time within which to institute proceedings in the Federal Circuit and Family Court of Australia (Division 1); or
(iii) for leave to amend the grounds of an application or appeal to the Federal Circuit and Family Court of Australia (Division 1); or
(b) a decision to do, or not to do, any of the following:
(i) join or remove a party;
(ii) adjourn or expedite a hearing;
(iii) vacate a hearing date.
Despite section 26, the Federal Circuit and Family Court of Australia (Division 1) has appellate jurisdiction in relation to a matter arising under regulations made for the purposes of section 111C of the
Family Law Act 1975 only as provided by those regulations.
Appeals from judgments of the Federal Circuit and Family Court of Australia (Division 2) or the Magistrates Court of Western Australia (1) Leave of the Federal Circuit and Family Court of Australia (Division 1) is required to appeal to the Court from:
(a) a judgment of the Federal Circuit and Family Court of Australia (Division 2) or the Magistrates Court of Western Australia exercising original jurisdiction under:
(i) the
Child Support (Assessment) Act 1989 ; or(ii) the
Child Support (Registration and Collection) Act 1988 ; or(b) a prescribed judgment of the Federal Circuit and Family Court of Australia (Division 2) or the Magistrates Court of Western Australia; or
(c) a judgment or decision of a Judge or Magistrate exercising jurisdiction, as mentioned in paragraph (a), rejecting an application that the Judge or Magistrate disqualify himself or herself from further hearing a matter.
(2) An application for leave of the Federal Circuit and Family Court of Australia (Division 1) under subsection (1) is to be heard and determined by a single Judge unless the Chief Justice directs that the application be heard and determined by a Full Court.
Appeal from judgments of other courts (3) Leave of a Full Court of the Federal Circuit and Family Court of Australia (Division 1) is required to appeal to the Court from:
(a) a judgment of the Federal Circuit and Family Court of Australia (Division 1) constituted by a single Judge exercising appellate jurisdiction in relation to a judgment mentioned in subparagraph 26(1)(e)(ii) or (iii); or
(b) a judgment of the Federal Circuit and Family Court of Australia (Division 1) constituted by a single Judge exercising original jurisdiction under:
(i) the
Child Support (Assessment) Act 1989 ; or(ii) the
Child Support (Registration and Collection) Act 1988 ; or(c) a judgment of a Family Court of a State exercising original or appellate jurisdiction under:
(i) the
Child Support (Assessment) Act 1989 ; or(ii) the
Child Support (Registration and Collection) Act 1988 ; or(d) a judgment of a Supreme Court of a State or Territory constituted by a single Judge exercising original or appellate jurisdiction under:
(i) the
Child Support (Assessment) Act 1989 ; or(ii) the
Child Support (Registration and Collection) Act 1988 ; or(e) the following judgments:
(i) a prescribed judgment of the Federal Circuit and Family Court of Australia (Division 1) constituted by a single Judge;
(ii) a prescribed judgment of the Family Court of a State;
(iii) a prescribed judgment of a Supreme Court of a State or Territory constituted by a single Judge; or
(f) a judgment or decision of a Judge exercising original or appellate jurisdiction, as mentioned in paragraph (a), (b), (c) or (d), rejecting an application that the Judge disqualify himself or herself from further hearing a matter.
Note: Leave of a single Judge of the Federal Circuit and Family Court of Australia (Division 1) is required for an appeal from a court of summary jurisdiction of a State or Territory: see sections 47A and 47B of the
Family Law Act 1975 .
Rules of Court (4) The Rules of Court may make provision for enabling applications for leave to be dealt with, subject to conditions prescribed by the Rules, without an oral hearing.
To the extent that the Constitution permits, jurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 1) in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) is invoked.
(1) The original jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) is to be exercised by the Court constituted by a single Judge.
(2) In a matter before, or coming before, the Federal Circuit and Family Court of Australia (Division 1), a Judge may give directions under subsection 69(1).
(1) This Subdivision applies to the appellate jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) in relation to a judgment of a court other than a court of summary jurisdiction of a State or Territory.
Note: For the exercise of the appellate jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) in relation to a court of summary jurisdiction, see Subdivision C.
(2) For the purposes of subsection (1), the following courts are not courts of summary jurisdiction:
(a) a Family Court of a State;
(b) the Magistrates Court of Western Australia.
Appeals heard by Full Court or a single Judge (1) Subject to this section, the appellate jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) is to be exercised by:
(a) in relation to a judgment of the Federal Circuit and Family Court of Australia (Division 2) or the Magistrates Court of Western Australia:
(i) a single Judge; or
(ii) if the Chief Justice considers that it is appropriate for the appellate jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) in relation to the appeal to be exercised by a Full Court—a Full Court; and
(b) in relation to a judgment of any other court—a Full Court.
Certain applications etc. generally heard by a single Judge (2) Applications:
(a) for an extension of time within which to institute an appeal to the Federal Circuit and Family Court of Australia (Division 1); or
(b) for an extension of time within which to file an application for leave to appeal to the Federal Circuit and Family Court of Australia (Division 1); or
(c) for leave to amend the grounds of an appeal to the Federal Circuit and Family Court of Australia (Division 1); or
(d) to stay an order of the Federal Circuit and Family Court of Australia (Division 1) made in the exercise of its appellate jurisdiction; or
(e) for security for costs in relation to an appeal to the Federal Circuit and Family Court of Australia (Division 1);
must be heard and determined by a single Judge unless:
(f) the Chief Justice directs that the application be heard and determined by a Full Court; or
(g) the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it is appropriate for it to hear and determine the application.
(3) A single Judge (sitting in Chambers or in open court) or a Full Court of the Federal Circuit and Family Court of Australia (Division 1) may:
(a) join or remove a party to an appeal to the Court; or
(b) give summary judgment; or
(c) make an interlocutory order pending, or after, the determination of an appeal to the Court; or
(d) make an order by consent disposing of an appeal to the Court (including an order for costs); or
(e) make an order that an appeal to the Court be dismissed for want of prosecution; or
(f) make an order that an appeal to the Court be dismissed for:
(i) failure to comply with a direction of the Court; or
(ii) failure of the appellant to attend a hearing relating to the appeal; or
(g) vary or set aside an order under paragraph (c), (e) or (f); or
(h) give directions under subsection 69(1); or
(i) give other directions about the conduct of an appeal to the Court, including directions about:
(i) the use of written submissions; and
(ii) limiting the time for oral argument.
Note: For paragraphs (d) and (i), see also subsection (8).
(4) In subsection (3), a reference to an appeal includes a reference to an application of the kind mentioned in subsection (2).
(5) An application for the exercise of a power mentioned in subsection (3) must be heard and determined by a single Judge unless:
(a) the Chief Justice directs that the application be heard and determined by a Full Court; or
(b) the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it is appropriate for it to hear and determine the application.
Cases stated and questions reserved (6) The Federal Circuit and Family Court of Australia (Division 1) constituted by a single Judge may state any case or reserve any question concerning a matter (whether or not an appeal would lie from a judgment of the Judge to a Full Court of the Court on the matter) for the consideration of a Full Court and the Full Court has jurisdiction to hear and determine the case or question.
Rules of Court (7) The Rules of Court may make provision enabling matters of the kind mentioned in subsections (2) and (3) to be dealt with, subject to conditions prescribed by the Rules, without an oral hearing either with or without the consent of the parties.
Certain orders and directions not appellable (8) No appeal lies under this section from an order or direction of a kind mentioned in paragraph (3)(d) or (i) given by a single Judge or a Full Court of the Federal Circuit and Family Court of Australia (Division 1).
(1) An appeal under subsection 26(1) may be dealt with by the Federal Circuit and Family Court of Australia (Division 1) without an oral hearing if the parties to the appeal consent to the appeal being dealt with in that way.
(2) A consent given in relation to an appeal, as mentioned in subsection (1), may only be withdrawn with the leave of the Federal Circuit and Family Court of Australia (Division 1).
(1) The following have effect:
(a) a court from which appeals lie to the Federal Circuit and Family Court of Australia (Division 1) may state any case or reserve any question concerning a matter with respect to which such an appeal would lie from a judgment of the first‑mentioned court for the consideration of the Federal Circuit and Family Court of Australia (Division 1);
(b) the Federal Circuit and Family Court of Australia (Division 1) has jurisdiction to hear and determine the case or question.
(2) The jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) under subsection (1):
(a) if the court stating the case or reserving the question is not the Federal Circuit and Family Court of Australia (Division 2) or the Magistrates Court of Western Australia—must be exercised by a Full Court; or
(b) if the court stating the case or reserving the question is the Federal Circuit and Family Court of Australia (Division 2) or the Magistrates Court of Western Australia—must be exercised by:
(i) a single Judge; or
(ii) if the Chief Justice considers that it is appropriate for the jurisdiction of the Court in relation to the matter to be exercised by a Full Court—a Full Court.
(3) Subject to any other Act, the Federal Circuit and Family Court of Australia (Division 1) may draw from the facts and the documents any inference, whether of fact or of law, which could have been drawn from them by the court stating the case or reserving the question.
(4) A court referred to in subsection (1) must not state a case or reserve a question concerning a matter referred to in that subsection to a court other than the Federal Circuit and Family Court of Australia (Division 1).
In an appeal, the Federal Circuit and Family Court of Australia (Division 1):
(a) must have regard to the evidence given in the proceedings out of which the appeal arose; and
(b) has the power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be given:
(i) as provided for in Division 2 of Part XI of the
Family Law Act 1975 ; or(ii) by oral examination before the Court or a Judge; or
(iii) otherwise in accordance with section 73 of this Act.
(1) Subject to any other Act, the Federal Circuit and Family Court of Australia (Division 1) may, in the exercise of its appellate jurisdiction:
(a) affirm, reverse or vary the judgment appealed from; or
(b) give such judgment or make such order as, in all the circumstances, it thinks fit, or refuse to make an order; or
(c) set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit; or
(d) award execution from the Court or, in the case of an appeal from another court, award execution from the Court or remit the cause to that other court, or to a court from which a previous appeal was brought, for the execution of the judgment of the Court.
(2) If, in dismissing an appeal under subsection 26(1), the Federal Circuit and Family Court of Australia (Division 1) is of the opinion that the appeal does not raise any question of general principle, it may give reasons for its decision in short form.
(3) It is the duty of a court to which a cause is remitted in accordance with paragraph (1)(d) to execute the judgment of the Federal Circuit and Family Court of Australia (Division 1) in the same manner as if it were its own judgment.
(4) The powers specified in subsection (1) may be exercised by the Federal Circuit and Family Court of Australia (Division 1) even if the notice of appeal asks that part only of the decision be reversed or varied, and may be exercised in favour of all or any of the respondents or parties, including respondents or parties who have not appealed from or complained of the decision.
(5) An interlocutory judgment or order from which there has been no appeal does not operate to prevent the Federal Circuit and Family Court of Australia (Division 1), upon hearing an appeal, from giving such decision upon the appeal as is just.
If the Judges constituting a Full Court of the Federal Circuit and Family Court of Australia (Division 1) for the purposes of any proceeding are divided in opinion as to the judgment to be pronounced:
(a) if there is a majority—judgment is to be pronounced according to the opinion of the majority; or
(b) if the Judges are equally divided in opinion:
(i) in a case of an appeal from a judgment of the Federal Circuit and Family Court of Australia (Division 1), a Family Court of a State or the Supreme Court of a State or Territory—the judgment appealed from is to be affirmed; and
(ii) in any other case—the opinion of the Chief Justice or, if the Chief Justice is not a member of the Full Court, the opinion of the most senior Judge who is a member of the Full Court, is to prevail.
(1) If an appeal to the Federal Circuit and Family Court of Australia (Division 1) from another court has been instituted:
(a) the Federal Circuit and Family Court of Australia (Division 1) or a Judge, or a judge of that other court (not being the Federal Circuit and Family Court of Australia (Division 2) or the Magistrates Court of Western Australia), may order, on such conditions (if any) as either court or a judge thinks fit, a stay of all or any proceedings under the judgment appealed from; and
(b) the Federal Circuit and Family Court of Australia (Division 1) or a Judge may, by order, on such conditions (if any) as the Court or Judge thinks fit, suspend the operation of an injunction or other order to which the appeal, in whole or in part, relates.
(2) This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for or in relation to the stay of proceedings.
(1) This section deals with the application of this Subdivision in relation to the making, variation or revocation of a court security order under Part 4 of the
Court Security Act 2013 by a member (as defined in that Act) of:(a) the Federal Circuit and Family Court of Australia; or
(b) the Family Court of Western Australia.
(2) This Subdivision applies as if the making, variation or revocation were a judgment of the member’s court in the exercise of original jurisdiction under the
Family Law Act 1975 .Note: As a result, an appeal from the making, variation or revocation lies under subsection 26(1).
(3) However, if the member is a member of the Family Court of Western Australia because the member is a Family Law Magistrate of Western Australia, this Subdivision applies as if:
(a) the making, variation or revocation were a judgment of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia exercising original jurisdiction under the
Family Law Act 1975 ; and(b) proceedings for the making, variation or revocation were proceedings in the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia.
Note: As a result, an appeal from the making, variation or revocation by the member lies under subsection 26(1) and, generally, the jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) in relation to the appeal is to be exercised by a single Judge: see paragraph 32(1)(a).
Despite the provisions of this Subdivision, the exercise of the appellate jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) in relation to a matter arising under regulations made for the purposes of section 111C of the
Family Law Act 1975 is as provided by those regulations.
(1) This Subdivision applies to the appellate jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) in relation to a judgment of a court of summary jurisdiction of a State or Territory.
Note 1: For the definition of
court of summary jurisdiction , see section 2B of theActs Interpretation Act 1901 .Note 2: See section 47A of the
Family Law Act 1975 .(2) For the purposes of subsection (1), the following courts are not courts of summary jurisdiction:
(a) a Family Court of a State;
(b) the Magistrates Court of Western Australia.
(1) The appellate jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) is to be exercised by the Court constituted by a single Judge.
(2) In a matter before, or coming before, the Federal Circuit and Family Court of Australia (Division 1), a Judge may give directions under subsection 69(1).
In every matter before the Federal Circuit and Family Court of Australia (Division 1), the Court must grant, either:
(a) absolutely; or
(b) on such terms and conditions as the Court thinks just;
all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by a party in the matter, so that, as far as possible:
(c) all matters in controversy between the parties may be completely and finally determined; and
(d) all multiplicity of proceedings concerning any of those matters may be avoided.
The Federal Circuit and Family Court of Australia (Division 1) has power, in relation to matters in which it has jurisdiction, to:
(a) make orders of such kinds as the Court considers appropriate; or
(b) issue, or direct the issue of, writs of such kinds as the Court considers appropriate.
(1) The Federal Circuit and Family Court of Australia (Division 1) has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.
(2) The jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) to punish a contempt of the Court committed in the face or hearing of the Court may be exercised by the Court as constituted at the time of the contempt.
Note: See also section 112AP of the
Family Law Act 1975 , which deals with family law or child support proceedings.
(1) The Federal Circuit and Family Court of Australia (Division 1) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2) The Federal Circuit and Family Court of Australia (Division 1) may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Federal Circuit and Family Court of Australia (Division 1) has apart from this section.
(1) The Chief Justice is responsible for ensuring the effective, orderly and expeditious discharge of the business of the Federal Circuit and Family Court of Australia (Division 1).
(2) In discharging the Chief Justice’s responsibility, the Chief Justice:
(a) must promote the objects of this Act; and
(b) may, subject to this Chapter and to such consultation with Judges of the Federal Circuit and Family Court of Australia (Division 1) as is appropriate and practicable, do all or any of the following:
(i) make arrangements as to the Judge who is to constitute the Court in particular matters or classes of matters;
(ii) without limiting the generality of subparagraph (i)—assign particular caseloads, classes of cases or functions to particular Judges;
(iii) temporarily restrict a Judge to non‑sitting duties; and
(c) must ensure that arrangements are in place to provide Judges with appropriate access to (or reimbursement for the cost of):
(i) annual health assessments; and
(ii) short‑termcounselling services; and
(iii) judicial education; and
(d) may deal, as set out in section 48, with a complaint about the performance by another Judge of the Judge’s judicial or official duties; and
(e) may take any measures that the Chief Justice believes are reasonably necessary to maintain public confidence in the Federal Circuit and Family Court of Australia (Division 1), including, but not limited to, temporarily restricting another Judge to non‑sitting duties.
(3) The Deputy Chief Justice is to assist the Chief Justice in the exercise of the functions conferred on the Chief Justice by this section (other than paragraph (2)(d) or (e)).
(1) The Chief Justice may, if a complaint is made about another Judge of the Federal Circuit and Family Court of Australia (Division 1), deal with the complaint by doing either or both of the following in respect of the complaint:
(a) deciding whether or not to handle the complaint and then doing one of the following:
(i) dismissing the complaint;
(ii) handling the complaint if the Chief Justice has a relevant belief in relation to the complaint about the other Judge;
(iii) arranging for any other complaint handlers to assist the Chief Justice to handle the complaint if the Chief Justice has a relevant belief in relation to the complaint about the other Judge;
(b) arranging for any other complaint handlers to decide whether or not to handle the complaint and then to do one of the following:
(i) dismiss the complaint;
(ii) handle the complaint if each of the complaint handlers has a relevant belief in relation to the complaint about the other Judge.
Note: A complaint handler (other than the Chief Justice) may handle a complaint by referring it to the Chief Justice. The Chief Justice may then do either or both of the things referred to in paragraph (a) or (b) in respect of the complaint.
(2) The Chief Justice may authorise, in writing, a person or a body to do one or more of the following:
(a) assist the Chief Justice to handle complaints or a specified complaint;
(b) decide whether or not to handle complaints or a specified complaint;
(c) dismiss complaints or a specified complaint;
(d) handle complaints or a specified complaint.
(3) To avoid doubt, the Chief Justice may authorise under subsection (2):
(a) the Deputy Chief Justice; or
(b) a body that includes the Deputy Chief Justice.
(4) In this section:
relevant belief : a person has arelevant belief in relation to a complaint about a Judge if:(a) the person believes that one or more of the circumstances that gave rise to the complaint may, if substantiated, justify consideration of the removal of the Judge in accordance with paragraph 72(ii) of the Constitution; or
(b) the person believes that one or more of the circumstances that gave rise to the complaint may, if substantiated:
(i) adversely affect, or have adversely affected, the performance of judicial or official duties by the Judge; or
(ii) have the capacity to adversely affect, or have adversely affected, the reputation of the Federal Circuit and Family Court of Australia (Division 1).
(1) In exercising the functions or powers mentioned in paragraph 47(2)(b), the Chief Justice has the same protection and immunity as if the Chief Justice were exercising those functions or powers as, or as a member of, the Federal Circuit and Family Court of Australia (Division 1).
Note: See also section 110.
(2) In assisting in the exercise of the functions or powers mentioned in paragraph 47(2)(b), the Deputy Chief Justice has the same protection and immunity as if the Deputy Chief Justice were exercising those functions or powers as, or as a member of, the Federal Circuit and Family Court of Australia (Division 1).
Note: See also section 110.
(3) Despite section 39B of the
Judiciary Act 1903 , the Federal Court does not have jurisdiction with respect to a matter relating to:(a) the exercise by the Chief Justice of the functions or powers mentioned in subsection 47(2) or section 48; or
(b) the assisting in the exercise by the Deputy Chief Justice of the functions or powers mentioned in subsection 47(2) or section 48.
Functions and powers of the Chief Justice (4) In addition to the functions and powers conferred on the Chief Justice by this Chapter, the Chief Justice has such other functions and powers in relation to the Federal Circuit and Family Court of Australia (Division 1) as are specified in the regulations.
(1) A person must not institute family law or child support proceedings (other than appellate proceedings) in the Federal Circuit and Family Court of Australia (Division 1).
Note: For the institution of proceedings other than family law or child support proceedings, see section 62.
(2) If proceedings are instituted in the Federal Circuit and Family Court of Australia (Division 1) in contravention of subsection (1), then:
(a) unless the proceedings are transferred to the Federal Court, the proceedings are, by force of this subsection, transferred to the Federal Circuit and Family Court of Australia (Division 2); and
(b) the proceedings are taken to be as valid as they would have been if subsection (1) had not been enacted.
(1) If:
(a) a proceeding is pending in the Federal Circuit and Family Court of Australia (Division 2); and
(b) the proceeding is a family law or child support proceeding;
the Chief Justice may, by order, transfer the proceeding from the Federal Circuit and Family Court of Australia (Division 2) to the Federal Circuit and Family Court of Australia (Division 1).
(2) The Chief Justice may transfer a proceeding:
(a) on the application of a party to the proceeding; or
(b) on the Chief Justice’s own initiative.
(3) In deciding whether to transfer a proceeding, the Chief Justice must have regard to:
(a) any Rules of Court made for the purposes of subsection 53(2); and
(b) whether proceedings in respect of an associated matter are pending in the Federal Circuit and Family Court of Australia (Division 1); and
(c) whether the resources of the Federal Circuit and Family Court of Australia (Division 1) are sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.
(4) An appeal does not lie from a decision of the Chief Justice in relation to the transfer of a proceeding under this section.
(5) This section does not apply to proceedings of a kind specified in the regulations.
(1) If:
(a) a proceeding is pending in the Federal Circuit and Family Court of Australia (Division 1); and
(b) the proceeding is a family law or child support proceeding;
the Chief Justice may, by order, transfer the proceeding from the Federal Circuit and Family Court of Australia (Division 1) to the Federal Circuit and Family Court of Australia (Division 2).
(2) The Chief Justice may transfer a proceeding:
(a) on the application of a party to the proceeding; or
(b) on the Chief Justice’s own initiative.
(3) In deciding whether to transfer a proceeding, the Chief Justice must have regard to:
(a) any Rules of Court made for the purposes of subsection 53(2); and
(b) whether proceedings in respect of an associated matter are pending in the Federal Circuit and Family Court of Australia (Division 2); and
(c) whether the resources of the Federal Circuit and Family Court of Australia (Division 2) are sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.
(4) An appeal does not lie from a decision of the Chief Justice in relation to the transfer of a proceeding under this section.
(5) This section does not apply to proceedings of a kind specified in the regulations.
(1) The Rules of Court may make provision in relation to:
(a) transfers of proceedings from the Federal Circuit and Family Court of Australia (Division 2) under subsection 51(1); or
(b) transfers of proceedings to the Federal Circuit and Family Court of Australia (Division 2) under subsection 52(1);
including in relation to the scale of costs that applies to any order made in respect of proceedings that are transferred.
(2) In particular, the Rules of Court may specify:
(a) in relation to a proceeding to be transferred from the Federal Circuit and Family Court of Australia (Division 2)—matters to which the Chief Justice must have regard in deciding whether to transfer a proceeding under subsection 51(1); or
(b) in relation to a proceeding to be transferred to the Federal Circuit and Family Court of Australia (Division 2)—matters to which the Chief Justice must have regard in deciding whether to transfer a proceeding under subsection 52(1).
(3) Before Rules of Court are made for the purposes of this section, the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) must consult the Chief Judge of the Federal Circuit and Family Court of Australia (Division 2).
The Chief Justice may, in writing, delegate the Chief Justice’s powers under section 51 or 52 to any one or more of the Judges.
(1) An appeal must not be brought directly to the High Court from:
(a) a judgment of a single Judge of the Federal Circuit and Family Court of Australia (Division 1) in the exercise of its appellate jurisdiction in relation to a judgment mentioned in paragraph 26(1)(e); or
(b) a judgment of the Federal Circuit and Family Court of Australia (Division 1) in the exercise of its original jurisdiction.
Note: See also subsection (6).
(2) An appeal must not be brought directly to the High Court from a judgment of the Federal Circuit and Family Court of Australia (Division 1), whether constituted by a Full Court or a single Judge, in the exercise of its appellate jurisdiction (other than a judgment mentioned in paragraph (1)(a)), except by special leave of the High Court.
(3) An appeal must not be brought to the High Court from a judgment of the Federal Circuit and Family Court of Australia (Division 1), whether constituted by a Full Court or a single Judge, in the exercise of its appellate jurisdiction if the judgment is:
(a) a determination of an application of the kind mentioned in subsection 32(2); or
(b) an order under section 38; or
(c) a decision to do, or not to do, any of the following:
(i) join or remove a party;
(ii) grant leave to defend a proceeding;
(iii) reinstate an appeal that was taken to have been abandoned or dismissed;
(iv) extend the time for making an application for leave to appeal;
(v) adjourn or expedite a hearing;
(vi) vacate a hearing date.
(4) The fact that there has been, or can be, no appeal to the High Court from an interlocutory judgment of the Federal Circuit and Family Court of Australia (Division 1) in a proceeding does not prevent:
(a) a party from founding an appeal from a final judgment in the proceeding on the interlocutory judgment; or
(b) the High Court from taking account of the interlocutory judgment in determining:
(i) an appeal from a final judgment in the proceeding; or
(ii) an application for special leave to appeal from a final judgment in the proceeding.
(5) The jurisdiction of the High Court to hear and determine an appeal in accordance with this section shall be exercised by a Full Court of the High Court consisting of not less than 3 Justices.
(6) If, apart from this subsection, subsection (1) is to any extent inconsistent with section 73 of the Constitution, this Act has effect as if the words “, except by special leave of the High Court” were added at the end of subsection (1).
(1) Subject to this Chapter and the
Family Law Act 1975 , the practice and procedure of the Federal Circuit and Family Court of Australia (Division 1) is to be in accordance with:(a) regulations made under this Act and the
Family Law Act 1975 ; and(b) the Rules of Court.
(2) To the extent that the provisions mentioned in subsection (1) are insufficient, the Rules of the High Court apply,
mutatis mutandis , so far as they are capable of applying and subject to any directions of the Federal Circuit and Family Court of Australia (Division 1) or a Judge, to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 1).(3) This section does not apply in relation to proceedings that are transferred to the Federal Circuit and Family Court of Australia (Division 1) from the Federal Court.
(4) In this section,
practice and procedure includes all matters with respect to which regulations under this Act, theFamily Law Act 1975 or Rules of Court may be made.Note: For further provisions concerning procedure and evidence, see Part XI of the
Family Law Act 1975 .
A party to a proceeding before the Federal Circuit and Family Court of Australia (Division 1) is not entitled to be represented by another person unless:
(a) under the
Judiciary Act 1903 , the other person is entitled to practise as a barrister or solicitor, or both, in a federal court; or(b) under the regulations, the other person is taken to be an authorised representative; or
(c) another law of the Commonwealth authorises the other person to represent the party.
(1) If a document is required or permitted to be filed in the Federal Circuit and Family Court of Australia (Division 1):
(a) the document is to be filed:
(i) at a registry of the Court; or
(ii) in accordance with an arrangement under section 79 or 80; and
(b) the document is to be filed in accordance with the Rules of Court.
(2) The Rules of Court may provide that the requirements of subsection (1) are taken to have been met in relation to a document:
(a) if the document, or its contents, are sent to the Federal Circuit and Family Court of Australia (Division 1), using the web portal of the Federal Circuit and Family Court of Australia; or
(b) in other circumstances set out in the Rules of Court.
(1) The Federal Circuit and Family Court of Australia (Division 1) is to have a seal, and the design of the seal is to be determined by the Minister.
(2) The seal of the Federal Circuit and Family Court of Australia (Division 1) must be kept in such custody as the Chief Justice directs.
(3) The seal of the Federal Circuit and Family Court of Australia (Division 1) must be affixed to documents as provided by this or any other Act or by the Rules of Court.
(1) There are to be one or more Federal Circuit and Family Court of Australia (Division 1) stamps. For this purpose, a
Federal Circuit and Family Court of Australia (Division 1) stamp is a stamp the design of which is, as nearly as practicable, the same as the design of the seal of the Federal Circuit and Family Court of Australia (Division 1).(2) A document or a copy of a document marked with a Federal Circuit and Family Court of Australia (Division 1) stamp is as valid and effectual as if it had been sealed with a seal of the Federal Circuit and Family Court of Australia (Division 1).
(3) A Federal Circuit and Family Court of Australia (Division 1) stamp must be affixed to documents as provided by this or any other Act or by the Rules of Court.
(1) All writs, commissions and process issued from the Federal Circuit and Family Court of Australia (Division 1) must be:
(a) under the seal of the Court; and
(b) signed (including by way of electronic signature) by:
(i) a Judge; or
(ii) the Chief Executive Officer; or
(iii) a Senior Registrar; or
(iv) a Registrar; or
(v) an officer acting with the authority of the Chief Executive Officer.
(2) Subsection (1) does not apply to writs, commissions and process signed and issued in accordance with an arrangement under section 79.
Note: See paragraph 79(1)(b).
(3) To avoid doubt, subsection (1) does not apply to an order of the Federal Circuit and Family Court of Australia (Division 1).
(1) Proceedings may be instituted in the Federal Circuit and Family Court of Australia (Division 1) by way of application without the need for pleadings.
(2) Subsection (1) has effect subject to the Rules of Court.
(1) The Federal Circuit and Family Court of Australia (Division 1) or a Judge may give directions about limiting the length of documents required or permitted to be filed in the Court.
(2) Subsection (1) has effect subject to the Rules of Court.
Sittings of the Federal Circuit and Family Court of Australia (Division 1) must be held from time to time as required and the Court may sit at any place in Australia.
The Federal Circuit and Family Court of Australia (Division 1) or a Judge may, at any stage of a proceeding in the Court, order that the proceeding, or a part of the proceeding, be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Court or Judge imposes.
(1) Proceedings in the Federal Circuit and Family Court of Australia (Division 1) are not invalidated by a formal defect or an irregularity, unless the Court is of the opinion that:
(a) substantial injustice has been caused by the defect or irregularity; and
(b) the injustice cannot be remedied by an order of the Court.
(2) The Federal Circuit and Family Court of Australia (Division 1) or a Judge may, on such conditions (if any) as the Court or Judge thinks fit, make an order declaring that the proceeding is not invalid:
(a) by reason of a defect that it or the Judge considers to be formal; or
(a) any other provision of this Chapter; or
(b) any other law of the Commonwealth.
(3) A function performed on behalf of the Federal Circuit and Family Court of Australia (Division 2) in accordance with an arrangement under subsection (1) has effect as if the function had been performed by the Court.
(4) Copies of an arrangement under subsection (1) are to be made available for inspection by members of the public.
The Chief Judge may make arrangements with the chief judicial officer (however described) of another Australian court for:
(a) the Federal Circuit and Family Court of Australia (Division 2) to sit in rooms of the other court; and
(b) the Court to share registry facilities and other facilities with the other court.
(1) The Federal Circuit and Family Court of Australia (Division 2) may appoint committees consisting of Judges, or of Judges and other persons, for the purpose of advising the Court in relation to the exercise of the powers of the Court under this Chapter.
(2) The Chief Judge may appoint committees consisting of Judges, or of Judges and other persons, for the purpose of:
(a) advising the Judges of the Federal Circuit and Family Court of Australia (Division 2) in relation to the making of Rules of Court; or
(b) advising the Chief Judge in relation to the management of the administrative affairs of the Federal Circuit and Family Court of Australia (Division 2).
The Chief Executive Officer’s function is to assist the Chief Judge in managing the administrative affairs of the Federal Circuit and Family Court of Australia (Division 2).
Note: In relation to the Federal Circuit and Family Court of Australia (Division 1), see section 84.
(1) The Chief Executive Officer has the power to do all things necessary or convenient to be done for the purpose of assisting the Chief Judge under section 250.
(2) In particular, the Chief Executive Officer may act on behalf of the Chief Judge in relation to the administrative affairs of the Federal Circuit and Family Court of Australia (Division 2).
(3) The Chief Judge may give the Chief Executive Officer directions relating to the exercise of the Chief Executive Officer’s powers under:
(a) this Chapter; or
(b) Chapter 5, to the extent that the provisions of that Chapter apply to the Federal Circuit and Family Court of Australia (Division 2).
Note: In relation to the Federal Circuit and Family Court of Australia (Division 1), see section 85.
The Minister must cause such Registries of the Federal Circuit and Family Court of Australia (Division 2) to be established as the Minister thinks fit.
(1) The Federal Circuit and Family Court of Australia (Division 2) is to have such Senior Registrars and Registrars as are necessary.
(2) The Senior Registrars and Registrars of the Federal Circuit and Family Court of Australia (Division 2) are to be persons engaged under the
Public Service Act 1999 .
Delegation of powers (1) Judges, or a majority of them, may make Rules of Court delegating any of the powers of the Federal Circuit and Family Court of Australia (Division 2) to a delegate or a prescribed class of delegate.
Note: For the definition of
delegate , see subsection 7(1).(2) The kinds of powers of the Federal Circuit and Family Court of Australia (Division 2) that the Rules of Court may delegate include the following:
(a) the power, under subsection 191(3), to require a party’s lawyer to give the party an estimate of:
(i) the likely duration of a proceeding or part of a proceeding; and
(ii) the likely amount of costs that the party will have to pay in connection with the proceeding or part of the proceeding;
(b) the power, under subsection 192(1), to give directions about the practice and procedure to be followed in relation to a proceeding or part of a proceeding;
(c) the power, under subsection 192(3), to make such order or direction as is appropriate when a party fails to comply with a direction about the practice and procedure to be followed in relation to a proceeding or part of a proceeding;
(d) the power to dispense with the service of any process of the Court;
(e) the power to make orders in relation to substituted service;
(f) the power to make orders in relation to discovery, inspection and production of documents in the possession, power or custody of a party to proceedings in the Court or of any other person;
(g) the power to make orders in relation to interrogatories;
(h) the power, in proceedings in the Court, to make an order adjourning the hearing of the proceedings;
(i) the power to make an order as to costs;
(j) the power to make an order about security for costs;
(k) the power to make an order exempting a party to proceedings in the Court from compliance with a provision of the Rules of Court;
(l) a power of the Court prescribed by the Rules of Court;
(m) the power, in family law or child support proceedings, to direct a party to the proceedings to answer particular questions;
(n) the power to make orders under the following provisions of the
Family Law Act 1975 :
(i) sections 11F and 11G;
(ii) sections 13C and 13D;
(iii) subsection 65LA(1);
(iv) subsection 70NBD(1);
(o) the power to direct a family consultant to give a report under section 62G of the
Family Law Act 1975 ;(p) the power, in family law or child support proceedings, to make:
(i) an order under section 66Q, 67E, 77 or 90SG of the
Family Law Act 1975 ; or(ii) an order for the payment of maintenance pending the disposal of the proceedings;
(q) the power to make an order the terms of which have been agreed upon by all the parties to the proceedings;
(r) the power to make orders (including an order for garnishment, seizure of property or sequestration) for the enforcement of maintenance orders under the
Family Law Act 1975 ;(s) the power to make an order exempting a party to family law or child support proceedings from compliance with a provision of regulations made under the
Family Law Act 1975 .
Powers that may not be delegated (3) Despite subsection (1), the powers of the Federal Circuit and Family Court of Australia (Division 2) that the Rules of Court may not delegate are the following:
(a) the power to make a divorce order in proceedings that are defended;
(b) the power to make a decree of nullity of marriage;
(c) the power to make a declaration as to the validity of:
(i) a marriage; or
(ii) a divorce; or
(iii) the annulment of a marriage;
(d) the power to make an excluded child order;
(e) the power to make an order setting aside a registered award under section 13K of the
Family Law Act 1975 .
Effect of delegation (4) A power delegated by the Rules of Court, when exercised by a delegate, is taken, for all purposes, to have been exercised by the Federal Circuit and Family Court of Australia (Division 2) or a Judge of the Court.
(5) The delegation of a power by the Rules of Court does not prevent the exercise of the power by the Federal Circuit and Family Court of Australia (Division 2) or a Judge of the Court.
Costs (6) A delegate must not exercise the power referred to in paragraph (2)(i) except in relation to costs of, or in connection with, an application heard by a delegate.
Orders made as a matter of urgency (7) A delegate must not exercise the power referred to in paragraph (2)(p) on application by a party to proceedings under the
Family Law Act 1975 unless:
(a) the other party to the proceedings appears at the hearing of the application; or
(b) the delegate is satisfied that notice of the intention of the party to make the application has been served on the other party.
Exercise of delegable power may be limited (8) The Rules of Court may, in relation to a power delegated by the Rules of Court, limit or specify the circumstances in which the power may be exercised by a delegate.
Application of laws (9) The provisions of this Act, the Rules of Court and any other law of the Commonwealth that relate to the exercise by the Federal Circuit and Family Court of Australia (Division 2) of a power that is, because of the Rules of Court, exercisable by a delegate, apply in relation to an exercise of the power by a delegate under this section as if references in those provisions to the Federal Circuit and Family Court of Australia (Division 2) (expressly or otherwise) were references to the delegate.
Despite any other provision of this Chapter and any provision of the
Public Service Act 1999 or of any other law, a delegate is not subject to the direction or control of any person or body in relation to the way in which the delegate exercises powers under section 254.
(1) A party to proceedings in which a delegate has exercised any of the powers of the Federal Circuit and Family Court of Australia (Division 2) under section 254 may:
(a) within the time prescribed by the Rules of Court; or
(b) within any further time allowed in accordance with the Rules of Court;
apply to the Court for review of that exercise of power.
(2) The Federal Circuit and Family Court of Australia (Division 2) may, on application under subsection (1) or on its own initiative, review an exercise of power by a delegate under section 254, and may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised.
Referral to Court by delegates (3) If:
(a) an application for the exercise of a power referred to in section 254 is to be, or is being, heard by a delegate; and
(b) the delegate considers that it is not appropriate for the application to be determined by a delegate acting under section 254;
the delegate must not hear, or continue to hear, the application and must make appropriate arrangements for the application to be heard by a Judge.
(1) In the following cases:
(a) in conducting a conference that:
(i) is with the parties to property settlement proceedings; and
(ii) relates to the matter to which the proceedings relate;
(b) in exercising a power of the Federal Circuit and Family Court of Australia (Division 2) referred to in section 254;
the Chief Executive Officer, or a Senior Registrar or Registrar of the Court, has the same protection and immunity as a Judge of the Federal Circuit and Family Court of Australia (Division 1) has in performing the functions of a Judge.
(2) This section does not limit any other protection or immunity the Chief Executive Officer, or such a Senior Registrar or Registrar, has (in relation to such a conference or otherwise).
(1) Before proceeding to discharge the duties of office, a Senior Registrar or Registrar must take before a Judge an oath or affirmation in accordance with the form set out in whichever of subsection (2) or (3) is applicable.
Oath (2) This is the form of oath for the purposes of subsection (1):
I,, do swear that I will well and truly serve in the office of (
Senior Registrar or Registrar ) of the Federal Circuit and Family Court of Australia (Division 2) and that I will do right to all manner of people according to law without fear or favour, affection or ill‑will. So help me God!Affirmation (3) This is the form of affirmation for the purposes of subsection (1):
I,, do solemnly and sincerely promise and declare that I will well and truly serve in the office of (
Senior Registrar or Registrar ) of the Federal Circuit and Family Court of Australia (Division 2) and that I will do right to all manner of people according to law without fear or favour, affection or ill‑will.
(1) In addition to the Chief Executive Officer, there are to be the following officers of the Federal Circuit and Family Court of Australia (Division 2):
(a) such Senior Registrars and Registrars of the Court as are necessary;
(b) such Registry Managers of the Court as are necessary;
(c) the Sheriff of the Court;
(d) such Deputy Sheriffs of the Court as are necessary;
(e) the Marshal of the Court;
(f) such Deputy Marshals of the Court as are necessary;
(g) such family consultants as are necessary.
(2) The officers of the Federal Circuit and Family Court of Australia (Division 2), other than the Chief Executive Officer, have such duties, powers and functions as are given to them by:
(a) by or under:
(i) this Chapter or Chapter 5; or
(ii) the
Family Law Act 1975 ; or(iii) the Rules of Court; or
(b) by the Chief Judge or the Court.
(1) The Sheriff of the Federal Circuit and Family Court of Australia (Division 2) is to be a person engaged under the
Public Service Act 1999 .(2) The Sheriff of the Federal Circuit and Family Court of Australia (Division 2) is responsible for the service and execution of all process of the Court directed to the Sheriff.
(3) The Sheriff of the Federal Circuit and Family Court of Australia (Division 2) is also responsible for dealing, on behalf of the Court, with:
(a) the Australian Federal Police; and
(b) the police forces of the States and Territories;
in relation to the service and execution of process of the Court directed to members of any of those police forces.
(1) The Deputy Sheriffs of the Federal Circuit and Family Court of Australia (Division 2) may be persons engaged under the
Public Service Act 1999 .(2) A Deputy Sheriff may, subject to any directions of the Sheriff, exercise or perform any of the powers or functions of the Sheriff.
(1) The Marshal of the Federal Circuit and Family Court of Australia (Division 2) is to be a person engaged under the
Public Service Act 1999 .(2) The Marshal is responsible for:
(a) the security of the Federal Circuit and Family Court of Australia (Division 2); and
(b) the personal security of the Judges, officers and staff of the Court.
(3) The Marshal is also responsible for:
(a) taking, receiving and detaining all persons committed to the Marshal’s custody by the Federal Circuit and Family Court of Australia (Division 2); and
(b) discharging such persons when so directed by the Court or otherwise required by law.
(1) The Deputy Marshals of the Federal Circuit and Family Court of Australia (Division 2) may be persons engaged under the
Public Service Act 1999 .(2) A Deputy Marshal may, subject to any directions of the Marshal, exercise or perform any of the powers or functions of the Marshal.
Family consultants who are officers of the Federal Circuit and Family Court of Australia (Division 2) are to be persons engaged under the
Public Service Act 1999 .Note: Family consultants who are not officers of the Federal Circuit and Family Court of Australia (Division 2) may be appointed under regulations made under the
Family Law Act 1975 : see paragraph 11B(c) of that Act.
(1) There are to be such staff of the Federal Circuit and Family Court of Australia (Division 2) as necessary.
(2) The staff of the Federal Circuit and Family Court of Australia (Division 2) are to consist of persons engaged under the
Public Service Act 1999 .
The Chief Executive Officer may, on behalf of the Chief Judge, arrange with:
(a) an Agency Head; or
(b) an authority of the Commonwealth;
for the services of officers or employees of the Agency or authority to be made available for the purposes of the administrative affairs of the Federal Circuit and Family Court of Australia (Division 2).
(1) A Registry Manager of the Federal Circuit and Family Court of Australia (Division 2) may delegate all or any of a Registry Manager’s functions or powers under the
Family Law Act 1975 to a person whom the Registry Manager considers is an appropriate officer or staff member of the Court.(2) In performing a delegated function or exercising a delegated power, the person must comply with any written directions of the relevant Registry Manager.
(1) The Sheriff may authorise persons to assist the Sheriff in exercising powers or performing functions as the Sheriff.
(2) A Deputy Sheriff may authorise persons to assist the Deputy Sheriff in exercising powers or performing functions as the Deputy Sheriff.
(1) The Marshal may authorise persons to assist the Marshal in exercising powers or performing functions as the Marshal.
(2) A Deputy Marshal may authorise persons to assist the Deputy Marshal in exercising powers or performing functions as the Deputy Marshal.
(1) If the Sheriff or a Deputy Sheriff is a party to a proceeding in the Federal Circuit and Family Court of Australia (Division 2):
(a) all writs, summonses, orders, warrants, precepts, process and commands in the proceeding which should, in the ordinary course, be directed to the Sheriff must be directed to such disinterested person as the Court or a Judge appoints; and
(b) the person so appointed may execute and return them.
(2) If the Marshal or a Deputy Marshal is a party to a proceeding in the Federal Circuit and Family Court of Australia (Division 2):
(a) all writs, summonses, orders, warrants, precepts, process and commands in the proceeding which should, in the ordinary course, be directed to the Marshal must be directed to such disinterested person as the Court or a Judge appoints; and
(b) the person so appointed may execute and return them.
Application (1) This section applies to any of the following persons (the
arrester ) who is authorised by this Chapter, or a warrant issued under this Chapter or the Rules of Court, to arrest another person (thearrestee ):
(a) the Sheriff of the Federal Circuit and Family Court of Australia (Division 2);
(b) a Deputy Sheriff of the Federal Circuit and Family Court of Australia (Division 2);
(c) the Sheriff of a court of a State or Territory;
(d) a Deputy Sheriff of a court of a State or Territory;
(e) a police officer.
Power to enter premises (2) If the arrester reasonably believes the arrestee is on premises, the arrester may enter the premises, using such force as is necessary and reasonable in the circumstances, at any time of the day or night for the purpose of searching the premises for the arrestee or arresting the arrestee.
(3) However, the arrester must not enter a dwelling house between 9 pm one day and 6 am the next day unless the arrester reasonably believes that it would not be practicable to arrest the arrestee there or elsewhere at another time.
Use of force (4) In the course of arresting the arrestee, the arrester:
(a) must not use more force, or subject the arrestee to greater indignity, than is necessary and reasonable to make the arrest or to prevent the arrestee’s escape after the arrest; and
(b) must not do anything that is likely to cause the death of, or grievous bodily harm to, the arrestee unless the arrester reasonably believes that doing that thing is necessary to protect life or prevent serious injury to another person (including the arrester); and
(c) if the arrestee is attempting to escape arrest by fleeing—must not do a thing described in paragraph (b) unless:
(i) the arrester reasonably believes that doing that thing is necessary to protect life or prevent serious injury to another person (including the arrester); and
(ii) the arrestee has, if practicable, been called on to surrender and the arrester reasonably believes that the arrestee cannot be arrested in any other way.
Informing the arrestee of grounds for arrest (5) When arresting the arrestee, the arrester must inform the arrestee of the grounds for the arrest.
(6) It is sufficient if the arrestee is informed of the substance of those grounds, not necessarily in precise or technical language.
(7) Subsection (5) does not apply if:
(a) the arrestee should, in the circumstances, know the substance of the grounds for the arrest; or
(b) the arrestee’s actions make it impracticable for the arrester to inform the arrestee of those grounds.
(1) The Federal Circuit and Family Court of Australia (Division 2) may, at any stage of a proceeding, on such terms and conditions as the Court thinks fit, appoint a receiver by interlocutory order in any case in which it appears to the Court to be just or convenient to do so.
(2) A receiver of any property appointed by the Federal Circuit and Family Court of Australia (Division 2) may, without the previous leave of the Court, be sued in respect of an act or transaction done or entered into by the receiver in carrying on the business connected with the property.
(3) When, in any cause pending in the Federal Circuit and Family Court of Australia (Division 2), a receiver appointed by the Court is in possession of property, the receiver must manage and deal with the property:
(a) according to the requirements of the laws of the State or Territory in which the property is situated; and
(b) in the same manner as that in which the owner or possessor of the property would be bound to do if in possession of the property.
The Chief Executive Officer may give directions and issue guidelines to officers and staff of the Federal Circuit and Family Court of Australia (Division 2) in relation to the procedural information to be given to parties (and, in particular, unrepresented parties) to enable them to formulate and present their cases.
(1) As soon as practicable after 30 June in each financial year, the Chief Judge must prepare a report of the management of the administrative affairs of the Federal Circuit and Family Court of Australia (Division 2) during the financial year.
(2) A report prepared after 30 June in a year must be given to the Minister by 15 October of that year.
(3) The Minister must cause a copy of the report to be tabled in each House of the Parliament as soon as practicable.
(4) A report prepared under this section may be included in a report prepared and given to the Minister under section 46 of the
Public Governance, Performance and Accountability Act 2013 in relation to the listed entity mentioned in section 18ZB of theFederal Court of Australia Act 1976 .
The Chief Judge may, in writing, delegate all or any of the Chief Judge’s powers under section 245 to any one or more of the Judges.
Any judicial or other proceeding relating to a matter arising out of the management of the administrative affairs of the Federal Circuit and Family Court of Australia (Division 2) under this Part, including any proceeding relating to anything done by the Chief Executive Officer under this Part, may be instituted by or against the Commonwealth.
(1) In exercising powers or performing functions under paragraph 144(2)(d) and subsection 145(1), or assisting in exercising those powers or performing those functions, a complaint handler has the same protection and immunity as a Justice of the High Court.
(2) In authorising a person or body under subsection 145(2), the Chief Judge has the same protection and immunity as a Justice of the High Court.
(3) A witness requested to attend, or appearing, before a complaint handler handling a complaint has the same protection, and is subject to the same liabilities in a proceeding, as a witness in a case tried by the High Court.
(4) A legal practitioner assisting, or appearing on behalf of a person before, a complaint handler handling a complaint has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.
277A Immunity for Judges of Federal Circuit and Family Court of Australia (Division 2) A Judge of the Federal Circuit and Family Court of Australia (Division 2) has the same protection and immunity as a Judge of the Federal Circuit and Family Court of Australia (Division 1).
(1) The Chief Executive Officer has all of the functions conferred on family consultants by section 11A of the
Family Law Act 1975 , and any associated powers and duties.(2) Without limiting subsection (1), sections 11C (admissibility of communications with family consultants) and 11D (immunity of family consultants) of that Act apply to the Chief Executive Officer while the Chief Executive Officer is performing the functions of a family consultant.
(3) The Chief Executive Officer is responsible for administering the functions of family consultants appointed by the Chief Executive Officer.
(1) The Chief Executive Officer may, in writing, delegate to a family consultant any of the Chief Executive Officer’s powers, functions and duties in relation to the functions of family consultants mentioned in section 11A of the
Family Law Act 1975 .(2) A delegate is, in the exercise of a delegated power, function or duty, subject to the directions of the Chief Executive Officer.
The Chief Executive Officer may give directions that relate to:
(a) the functions of an officer of the Federal Circuit and Family Court of Australia as a family consultant; or
(b) the functions of an officer or staff member of the Federal Circuit and Family Court of Australia as a family counsellor or family dispute resolution practitioner.
(1) The Chief Executive Officer may authorise an officer or staff member of the Federal Circuit and Family Court of Australia to provide family counselling under the
Family Law Act 1975 .(2) The Chief Executive Officer may authorise an officer or staff member of the Federal Circuit and Family Court of Australia to provide family dispute resolution under the
Family Law Act 1975 .(3) If an officer who is a family consultant also becomes a family counsellor, or family dispute resolution practitioner, because of an authorisation under this section:
(a) section 11C of the
Family Law Act 1975 (admissibility of communications with family consultants) does not apply to the officer at any time while the officer is acting as a family counsellor or family dispute resolution practitioner; and(b) the officer must not perform the functions of a family consultant in relation to particular proceedings, if the officer has conducted family counselling or family dispute resolution with a party to those proceedings.
(1) A reference in a law of the Commonwealth (other than this Act) to a Judge of the Federal Circuit and Family Court of Australia (Division 1) includes a reference to the Chief Justice, the Deputy Chief Justice and a Senior Judge of the Court.
(2) A reference in a law of the Commonwealth (other than this Act) to a Judge of the Federal Circuit and Family Court of Australia (Division 2) includes a reference to the Chief Judge and a Deputy Chief Judge of the Court.
(1) A reference in a law of the Commonwealth (other than this Act) to a Registrar of the Federal Circuit and Family Court of Australia (Division 1) includes a reference to a Senior Registrar and a Registrar of the Court.
(2) A reference in a law of the Commonwealth (other than this Act) to a Registrar of the Federal Circuit and Family Court of Australia (Division 2) includes a reference to a Senior Registrar and a Registrar of the Court.
(1) The Minister must cause a review of the operation of this Act to be conducted within 6 months after the third anniversary of the commencement of this Act.
(2) The person who conducts the review must give the Minister a written report of the review.
(3) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.
(1) The Governor‑General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) Without limiting subsection (1), the regulations may provide for, on in relation to, the following:
(a) penalties, not exceeding 60 penalty units, for offences against the regulations;
(b) fees to be paid in respect of all or any following:
(i) proceedings in the Federal Circuit and Family Court of Australia;
(ii) the service or the execution of the process of the Federal Circuit and Family Court of Australia (Division 1) by officers of the Court;
(iii) the service or the execution of the process of the Federal Circuit and Family Court of Australia (Division 2) by officers of the Court;
(iv) services provided by the Federal Circuit and Family Court of Australia in circumstances other than where a court orders or directs the provision of the services;
(c) exemptions from fees covered by paragraph (b);
(d) the waiver, remission or refund of fees covered by paragraph (b);
(e) the authorisation of:
(i) officers or staff members of the Federal Circuit and Family Court of Australia as family counsellors under subsection 281(1); and
(ii) officers or staff members of the Federal Circuit and Family Court of Australia as family dispute resolution practitioners under subsection 281(2).
(3) The regulations may make provision modifying or adapting provisions of the
Legislation Act 2003 (other than the provisions of Part 2 of Chapter 3 of that Act or any other provisions whose modifications or adaptation would affect the operation of that Part) in their application to the Federal Circuit and Family Court of Australia.(4) To the extent of any inconsistency between regulations and Rules of Court made under Chapter 3 or 4, the regulations prevail.
The endnotes provide information about this compilation and the compiled law.
The following endnotes are included in every compilation:
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
The abbreviation key sets out abbreviations that may be used in the endnotes.
Amending laws are annotated in the legislation history and amendment history.
The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.
The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.
The
If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.
A misdescribed amendment is an amendment that does not accurately describe how an amendment is to be made. If, despite the misdescription, the amendment can be given effect as intended, then the misdescribed amendment can be incorporated through an editorial change made under section 15V of the
If a misdescribed amendment cannot be given effect as intended, the amendment is not incorporated and “(md not incorp)” is added to the amendment history.
ad = added or inserted | o = order(s) |
am = amended | Ord = Ordinance |
amdt = amendment | orig = original |
c = clause(s) | par = paragraph(s)/subparagraph(s) |
C[x] = Compilation No. x | /sub‑subparagraph(s) |
Ch = Chapter(s) | pres = present |
def = definition(s) | prev = previous |
Dict = Dictionary | (prev…) = previously |
disallowed = disallowed by Parliament | Pt = Part(s) |
Div = Division(s) | r = regulation(s)/rule(s) |
ed = editorial change | reloc = relocated |
exp = expires/expired or ceases/ceased to have | renum = renumbered |
effect | rep = repealed |
F = Federal Register of Legislation | rs = repealed and substituted |
gaz = gazette | s = section(s)/subsection(s) |
LA = | Sch = Schedule(s) |
LIA = | Sdiv = Subdivision(s) |
(md) = misdescribed amendment can be given | SLI = Select Legislative Instrument |
effect | SR = Statutory Rules |
(md not incorp) = misdescribed amendment | Sub‑Ch = Sub‑Chapter(s) |
cannot be given effect | SubPt = Subpart(s) |
mod = modified/modification | |
No. = Number(s) | commenced or to be commenced |
Federal Circuit and Family Court of Australia Act 2021 | 12, 2021 | 1 Mar 2021 | 1 Sept 2021 (s 2(1) item 1) | |
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 | 13, 2021 | 1 Mar 2021 | Sch 1 (items 239, 240) and Sch 5 (items 14–31): 1 Sept 2021 (s 2(1) items 3, 15) Sch 1 (items 254–271, 273, 274): 1 Mar 2023 (s 2(1) item 4) Sch 4 (items 11–14): 28 Sept 2022 (s 2(1) item 9) | Sch 1 (items 240, 273, 274) and Sch 5 (items 14–31) |
Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Act 2022 | 3, 2022 | 17 Feb 2022 | Sch 2 (items 3, 4): 18 Feb 2022 (s 2(1) item 4) | — |
Statute Law Amendment (Prescribed Forms and Other Updates) Act 2023 | 74, 2023 | 20 Sept 2023 | Sch 4 (items 46–49): 18 Oct 2023 (s 2(1) item 3) | — |
Family Law Amendment Act 2023 | 87, 2023 | 6 Nov 2023 | Sch 2 (items 31–33, 38), Sch 5 (items 12, 19–35) and Sch 6 (item 10): 6 May 2024 (s 2(1) items 3, 7, 10, 11) Sch 2 (item 37), Sch 8 and 9: 7 Nov 2023 (s 2(1) items 6, 13) | Sch 5 (item 35) and Sch 9 (item 3) |
Federal Courts Legislation Amendment (Judicial Immunity) Act 2023 | 102, 2023 | 27 Nov 2023 | Sch 1 (items 2–5): 28 Nov 2023 (s 2(1) item 1) | Sch 1 (item 5) |
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 | 38, 2024 | 31 May 2024 | Sch 10 (item 2): 14 Oct 2024 (s 2(1) item 2) | — |
Attorney‑General’s Portfolio Miscellaneous Measures Act 2024 | 41, 2024 | 11 June 2024 | Sch 4 (items 11–13): 12 June 2024 (s 2(1) item 5) | — |
Australian Human Rights Commission Amendment (Costs Protection) Act 2024 | 89, 2024 | 1 Oct 2024 | Sch 1 (items 4, 5, 7): 2 Oct 2024 (s 2(1) item 1) | Sch 1 (item 7) |
Family Law Amendment Act 2024 | 118, 2024 | 10 Dec 2024 | Sch 4 (items 12, 13): 10 June 2025 (s 2(1) item 11) | — |
s 7............................................. | am No 87, 2023 |
s 23............................................ | am No 87, 2023 |
s 26............................................ | am No 13, 2021 |
s 67............................................ | am No 87, 2023 |
s 68............................................ | am No 87, 2023 |
s 68A......................................... | ad No 87, 2023 |
s 76............................................ | am No 13, 2021; No 41, 2024 |
s 77............................................ | rep No 13, 2021 |
s 82............................................ | am No 13, 2021 |
s 98............................................ | am No 13, 2021; No 87, 2023 |
s 122.......................................... | am No 38, 2024 |
s 125.......................................... | am No 38, 2024 |
s 126.......................................... | am No 38, 2024 |
s 127.......................................... | am No 13, 2021; No 38, 2024 |
s 136.......................................... | am No 3, 2022 |
s 143.......................................... | am No 87, 2023 |
s 156.......................................... | am No 74, 2023 |
s 169.......................................... | am No 102, 2023 |
s 170.......................................... | am No 102, 2023 |
s 174.......................................... | am No 41, 2024 |
s 190.......................................... | am No 87, 2023 |
s 191.......................................... | am No 74, 2023; No 87, 2023 |
s 191A....................................... | ad No 87, 2023 |
s 214.......................................... | am No 89, 2024; No 118, 2024 |
s 215.......................................... | am No 118, 2024 |
s 217.......................................... | am No 13, 2021; No 41, 2024 |
s 218.......................................... | rep No 13, 2021 |
s 224.......................................... | am No 87, 2023 |
s 228.......................................... | am No 74, 2023 |
s 249.......................................... | am No 13, 2021 |
s 254.......................................... | am No 13, 2021; No 87, 2023 |
s 257.......................................... | am No 102, 2023 |
Part 10....................................... | ad No 102, 2023 |
s 277A....................................... | ad No 102, 2023 |
s 284.......................................... | am No 87, 2023 |
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