Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth)

Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021

No. 13, 2021

An Act to deal with consequential and transitional matters in connection with the Federal Circuit and Family Court of Australia Act 2021, and for related purposes

Contents

Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021

No. 13, 2021

An Act to deal with consequential and transitional matters in connection with the Federal Circuit and Family Court of Australia Act 2021, and for related purposes

[Assented to 1 March 2021]

The Parliament of Australia enacts:

1Short title

This Act is the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021.

2Commencement

1. (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.

Commencement information
Column 1	Column 2	Column 3
Provisions	Commencement	Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table	The day this Act receives the Royal Assent.	1 March 2021
2. Schedule 1, Parts 1 and 2	At the same time as the Federal Circuit and Family Court of Australia Act 2021 commences. However, the provisions do not commence at all if that Act does not commence.	1 September 2021
3. Schedule 1, Part 3	The later of: (a) 1 January 2020; and (b) at the same time as the commencement of the provisions covered by table item 2.	1 September 2021 (paragraph (b) applies)
4. Schedule 1, Part 4	The day after the end of the period of 18 months beginning on the day the Federal Circuit and Family Court of Australia Act 2021 commences.	1 March 2023
5. Schedules 2 and 3	At the same time as the provisions covered by table item 2.	1 September 2021
6. Schedule 4, Part 1	The later of: (a) at the same time as the commencement of the provisions covered by table item 2; and (b) immediately after the commencement of Schedule 2 to the Aged Care Legislation Amendment (New Commissioner Functions) Act 2019. However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur.	1 September 2021 (paragraph (a) applies)
7. Schedule 4, Part 2	The later of: (a) at the same time as the commencement of the provisions covered by table item 2; and (b) immediately after the commencement of the Communications Legislation Amendment (Deregulation and Other Measures) Act 2019. However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur.	1 September 2021 (paragraph (a) applies)
8. Schedule 4, Part 3	The later of: (a) at the same time as the commencement of the provisions covered by table item 2; and (b) immediately after the commencement of item 3 of Schedule 4 to the Fair Work Laws Amendment (Proper Use of Worker Benefits) Act 2021. However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur.
9. Schedule 4, Part 4	The later of: (a) at the same time as the commencement of the provisions covered by table item 2; and (b) immediately after the commencement of the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2020. However, the provisions do not commence at all unless both of the events mentioned in paragraphs (a) and (b) occur.	28 September 2022 (paragraph (b) applies)
10. Schedule 4, Part 5	The later of: (a) at the same time as the commencement of the provisions covered by table item 2; and (b) immediately after the commencement of the Interactive Gambling Amendment (National Self‑exclusion Register) Act 2019. However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur.	1 September 2021 (paragraph (a) applies)
11. Schedule 4, Part 6	The later of: (a) at the same time as the commencement of the provisions covered by table item 2; and (b) immediately after the commencement of the National Sports Tribunal Act 2019. However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur.	1 September 2021 (paragraph (a) applies)
12. Schedule 4, Part 7	The later of: (a) at the same time as the commencement of the provisions covered by table item 2; and (b) immediately after the commencement of Division 1 of Part 1 of Schedule 1 to the Offshore Petroleum and Greenhouse Gas Storage Amendment (Miscellaneous Amendments) Act 2019. However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur.	1 September 2021 (paragraph (a) applies)
13. Schedule 4, Part 8	The later of: (a) at the same time as the commencement of the provisions covered by table item 2; and (b) immediately after the commencement of the Student Identifiers Amendment (Enhanced Student Permissions) Act 2020. However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur.	1 September 2021 (paragraph (a) applies)
14. Schedule 4, Part 9	The later of: (a) at the same time as the commencement of the provisions covered by table item 2; and (b) immediately after the commencement of Schedule 4 to the Telecommunications Legislation Amendment (Competition and Consumer) Act 2020. However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur.	1 September 2021 (paragraph (a) applies)
15. Schedule 5	At the same time as the provisions covered by table item 2.	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.

1. (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.

3Schedules

Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendments relating to the Federal Circuit and Family Court of Australia

Part 1Amendments

Family Law Act 1975

1

Subsection 4(1)

Omit “, the standard Rules of Court and the related Federal Circuit Court Rules, unless the contrary intention appears”, substitute “and the applicable Rules of Court”.

2

Subsection 4(1)

Repeal the following definitions:

1. (a)

   definition of administrative affairs;

2. (b)

   definition of appeal;

3. (c)

   definition of Appeal Division.

1. 3

   Subsection 4(1) (definition of applicable Rules of Court)

Repeal the definition, substitute:

applicable Rules of Court:

1. (a)

   in relation to the Federal Circuit and Family Court of Australia (Division 1)—means the Federal Circuit and Family Court of Australia (Division 1) Rules; and

2. (b)

   in relation to the Federal Circuit and Family Court of Australia (Division 2)—means the related Federal Circuit and Family Court of Australia (Division 2) Rules; and

3. (c)

   in relation to any other court—means the standard Rules of Court.

1. 4

   Subsection 4(1) (definition of Chief Executive Officer)

Repeal the definition, substitute:

Chief Executive Officer means the Chief Executive Officer and Principal Registrar of the Federal Circuit and Family Court of Australia (Division 1).

5

Subsection 4(1)

Repeal the following definitions:

1. (a)

   definition of Chief Justice;

2. (b)

   definition of complaint;

3. (c)

   definition of complaint handler;

4. (d)

   definition of corporate services.

1. 6

   Subsection 4(1) (at the end of the definition of court)

Add “, the Federal Circuit and Family Court of Australia Act 2021, the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988”.

1. 7

   Subsection 4(1) (definition of Deputy Chief Justice)

Repeal the definition.

8

Subsection 4(1)

Insert:

Federal Circuit and Family Court of Australia means:

1. (a)

   the Federal Circuit and Family Court of Australia (Division 1); or

2. (b)

   the Federal Circuit and Family Court of Australia (Division 2).

Federal Circuit and Family Court of Australia (Division 1) Rules means the Rules of Court made under Chapter 3 of the Federal Circuit and Family Court of Australia Act 2021.

9

Subsection 4(1)

Repeal the following definitions:

1. (a)

   definition of Federal Circuit Court;

2. (b)

   definition of Federal Circuit Court Chief Executive Officer.

10

Subsection 4(1)

Repeal the following definitions:

1. (a)

   definition of Full Court;

2. (b)

   definition of General Division;

3. (c)

   definition of handle.

11

Subsection 4(1) (definition of Registrar)

Repeal the definition, substitute:

Registrar means:

1. (a)

   in relation to the Federal Circuit and Family Court of Australia (Division 1)—a Senior Registrar or Registrar of the Court; or

2. (b)

   in relation to the Federal Circuit and Family Court of Australia (Division 2)—a Senior Registrar or Registrar of the Court; or

3. (c)

   in relation to any other court—the principal legal officer of the court or any other appropriate officer of the court.

1. 12

   Subsection 4(1) (definition of Registry Manager)

Repeal the definition, substitute:

Registry Manager:

1. (a)

   in relation to the Federal Circuit and Family Court of Australia (Division 1), means a Registry Manager of the Court; and

2. (b)

   in relation to the Federal Circuit and Family Court of Australia (Division 2), means a Registry Manager of the Court; and

3. (c)

   in relation to any other court, means the principal officer of the court or any other appropriate officer or staff member of the court.

13

Subsection 4(1)

Insert:

related Federal Circuit and Family Court of Australia (Division 2) Rules means the Rules of Court made under Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 to the extent to which they relate to this Act.

14

Subsection 4(1)

Repeal the following definitions:

1. (a)

   definition of related Federal Circuit Court Rules;

2. (b)

   definition of relevant belief;

3. (c)

   definition of split court.

15

Subsection 4(1A)

Repeal the subsection, substitute:

1. (1A)

   In this Act and the applicable Rules of Court, a reference to a Family Court of a State is a reference to a court to which section 41 applies.

16

Subsections 4(2) and (2A)

Omit “, the standard Rules of Court or the related Federal Circuit Court Rules”, substitute “or the applicable Rules of Court”.

17

Subsection 4(3)

Repeal the subsection, substitute:

1. (3)

   To avoid doubt, for all purposes:

   1. (a)

      jurisdiction under a provision of the Federal Circuit and Family Court of Australia Act 2021 referring to this Act is taken to be jurisdiction under this Act; and

   2. (b)

      jurisdiction under paragraphs 25(1)(a) and (b) of the Federal Circuit and Family Court of Australia Act 2021 is taken to be jurisdiction under this Act; and

   3. (c)

      jurisdiction under section 101 of the Child Support (Assessment) Act 1989 and under section 106 of the Child Support (Registration and Collection) Act 1988 is taken to be jurisdiction under this Act; and

   4. (d)

      jurisdiction under the applicable Rules of Court is taken to be jurisdiction under this Act; and

   5. (e)

      proceedings transferred under section 51 or 149 of the Federal Circuit and Family Court of Australia Act 2021 referring to this Act are taken to be proceedings under this Act; and

   6. (f)

      proceedings under the applicable Rules of Court are taken to be proceedings under this Act; and

   7. (g)

      an order (however described) made by a court under the applicable Rules of Court is taken to be an order made by the court under this Act.

18

Subsection 8(1)

Repeal the subsection, substitute:

1. (1)

   After the commencement of this Act, proceedings by way of a matrimonial cause shall not be instituted except under this Act.

19

Section 9

Repeal the section.

20

Paragraphs 10C(1)(c) and (d)

Repeal the paragraphs, substitute:

1. (c)

   a person who is authorised to act under section 281 of the Federal Circuit and Family Court of Australia Act 2021 as a family counsellor; or

21

Paragraphs 10G(1)(c) and (d)

Repeal the paragraphs, substitute:

1. (c)

   a person who is authorised to act under section 281 of the Federal Circuit and Family Court of Australia Act 2021 as a family dispute resolution practitioner; or

22

Section 10P

Omit “Family Court”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

23

Section 11B (note)

Omit “See Division 1A of Part IVA of this Act”, substitute “See Part 1 of Chapter 5 of the Federal Circuit and Family Court of Australia Act 2021”.

24

Subsection 11C(1) (note 1)

Omit “subsection 38BD(3)”, substitute “subsection 281(3) of the Federal Circuit and Family Court of Australia Act 2021”.

25

Section 11D

Omit “Family Court”, substitute “Federal Circuit and Family Court of Australia (Division 1)”.

26

Subparagraphs 11E(1)(e)(i) and (ia)

Repeal the subparagraphs, substitute:

1. (i)

   if the court is the Federal Circuit and Family Court of Australia—a family consultant nominated by the Chief Executive Officer; or

27

Subparagraph 11E(1)(e)(iii)

Omit “, (ia)”.

28

Section 13G (heading)

Omit “Family Court and Federal Circuit Court”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

29

Paragraphs 13G(1)(a), (b) and (c)

Repeal the paragraphs, substitute:

1. (a)

   the Federal Circuit and Family Court of Australia (Division 2); or

2. (b)

   a single judge of the Family Court of a State.

30

Subsection 13G(3)

Omit “Federal Circuit Court of Australia”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

31

Section 13J (heading)

Omit “Family Court or Federal Circuit Court”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

32

Paragraphs 13J(1)(a), (b) and (c)

Repeal the paragraphs, substitute:

1. (a)

   the Federal Circuit and Family Court of Australia (Division 2); or

2. (b)

   a single judge of the Family Court of a State.

33

Subsection 13J(2)

Omit “Federal Circuit Court of Australia” (wherever occurring), substitute “Federal Circuit and Family Court of Australia (Division 2)”.

34

Section 13K (heading)

Omit “Family Court and Federal Circuit Court”, substitute “Federal Circuit and Family Court of Australia”.

35

Paragraphs 13K(1)(a) and (b)

Repeal the paragraphs, substitute:

1. (a)

   the Federal Circuit and Family Court of Australia (Division 1); or

2. (b)

   the Federal Circuit and Family Court of Australia (Division 2); or

36

Parts IV and IVA

Repeal the Parts.

37

Paragraph 39(1)(a)

Repeal the paragraph, substitute:

1. (a)

   in the Federal Circuit and Family Court of Australia (Division 2); or

38

Subsection 39(1A)

Repeal the subsection.

39

Subsection 39(5)

Omit “Family Court”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

40

Paragraph 39(5)(b)

Repeal the paragraph.

41

Paragraph 39(5)(d)

Repeal the paragraph, substitute:

1. (d)

   proceedings are instituted under:

   1. (i)

      regulations made for the purposes of section 109, 110, 111, 111A or 111B; or

   2. (ii)

      regulations made for the purposes of paragraph 125(1)(f) or (g); or

   3. (iii)

      provisions of the applicable Rules of Court dealing with the attachment of money payable by the Commonwealth, a State, a Territory or the Government of a Territory, or an authority of the Commonwealth, of a State or of a Territory; or

42

Subsections 39(5AA) and (5A)

Repeal the subsections.

43

Paragraph 39(6)(b)

Repeal the paragraph.

44

Paragraph 39(6)(d)

Repeal the paragraph, substitute:

1. (d)

   proceedings are instituted under:

   1. (i)

      regulations made for the purposes of section 109, 110, 111, 111A or 111B; or

   2. (ii)

      regulations made for the purposes of paragraph 125(1)(f) or (g); or

   3. (iii)

      provisions of the applicable Rules of Court dealing with the attachment of money payable by the Commonwealth, a State, a Territory or the Government of a Territory, or an authority of the Commonwealth, of a State or of a Territory; or

45

Paragraphs 39A(1)(a) and (b)

Repeal the paragraphs, substitute:

1. (a)

   the Federal Circuit and Family Court of Australia (Division 2); or

46

Paragraphs 39B(1)(a) and (b)

Repeal the paragraphs, substitute:

1. (a)

   the Federal Circuit and Family Court of Australia (Division 2); and

47

Subsection 39B(1) (notes 1 and 2)

Repeal the notes, substitute:

Note 1: The exercise of this jurisdiction by the Federal Circuit and Family Court of Australia (Division 2) is subject to section 40.

48

Section 39G

Repeal the section, substitute:

39GJurisdiction in relation to transferred matters under other Commonwealth laws

If proceedings in relation to a matter arising under a law of the Commonwealth are transferred under this Act or the Federal Circuit and Family Court of Australia Act 2021 to a court that has jurisdiction conferred on or invested in it by this Division, the jurisdiction so conferred on or invested in the court includes jurisdiction in relation to that matter.

49

Section 40 (heading)

Omit “Family Court”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

50

Subsection 40(1)

Omit “Family Court under this Act”, substitute “Federal Circuit and Family Court of Australia (Division 2) under this Act or the Federal Circuit and Family Court of Australia Act 2021”.

51

Subsection 40(6)

Omit all the words after “have been instituted in”, substitute “the Federal Circuit and Family Court of Australia (Division 2), may apply to that Court for an order transferring the proceedings to the Court, and the Court may order accordingly”.

52

Subsection 40(7)

Omit “standard Rules of Court”, substitute “Federal Circuit and Family Court of Australia (Division 1) Rules and the related Federal Circuit and Family Court of Australia (Division 2) Rules”.

53

Section 40A

Repeal the section.

54

Subsection 41(3)

Omit “, 46, 94 and 96”, substitute “, 46, 47A and 47B of this Act and subsection 26(1) of the Federal Circuit and Family Court of Australia Act 2021”.

55

Subsection 41(5)

Omit “standard Rules of Court”, substitute “applicable Rules of Court”.

56

Subsection 43(1)

Omit “The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction,”, substitute “A court exercising jurisdiction under this Act must, in the exercise of that jurisdiction,”.

57

Subparagraph 44(1B)(a)(ii)

Omit “Family Court, the Federal Circuit Court of Australia”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

58

Subparagraph 44(1B)(a)(iii)

Omit “Family Court, the Federal Circuit Court of Australia”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

59

Subsection 45(1)

Omit “or are being continued in accordance with any of the provisions of section 9 and it appears to that court that other proceedings that have been so instituted or are being so continued”, substitute “and it appears to that court that other proceedings that have been so instituted”.

60

Subsection 45(2)

Omit “or are being continued in accordance with any of the provisions of section 9”.

61

Paragraphs 45(2)(a) and (b)

Repeal the paragraphs, substitute:

1. (a)

   the first‑mentioned court is the Federal Circuit and Family Court of Australia (Division 1) and the other court is the Federal Circuit and Family Court of Australia (Division 2); or

2. (b)

   the first‑mentioned court is the Federal Circuit and Family Court of Australia (Division 2) and the other court is the Federal Circuit and Family Court of Australia (Division 1).

62

Subsection 45(2) (notes 1 and 2)

Repeal the notes, substitute:

Note 1: For transfers from the Federal Circuit and Family Court of Australia (Division 1) to the Federal Circuit and Family Court of Australia (Division 2), see section 52 of the Federal Circuit and Family Court of Australia Act 2021.

Note 2: For transfers from the Federal Circuit and Family Court of Australia (Division 2) to the Federal Circuit and Family Court of Australia (Division 1), see sections 51 and 149 of the Federal Circuit and Family Court of Australia Act 2021.

63

Subparagraphs 46(1)(a)(i) to (iii)

Repeal the subparagraphs, substitute:

1. (i)

   the Federal Circuit and Family Court of Australia (Division 2); or

2. (ii)

   a Family Court of a State; or

3. (iii)

   the Supreme Court of a State or Territory; and

64

Subparagraphs 46(1)(b)(i) to (iii)

Repeal the subparagraphs, substitute:

1. (i)

   the Federal Circuit and Family Court of Australia (Division 2); or

2. (ii)

   a Family Court of a State; or

3. (iii)

   the Supreme Court of a State or Territory.

65

Paragraphs 46(1C)(a) to (c)

Repeal the paragraphs, substitute:

1. (a)

   the Federal Circuit and Family Court of Australia (Division 2); or

1. (b)

   a Family Court of a State; or

2. (c)

   the Supreme Court of a State or Territory.

66

Paragraphs 46(2A)(c) to (e)

Repeal the paragraphs, substitute:

1. (c)

   the Federal Circuit and Family Court of Australia (Division 2); or

2. (d)

   a Family Court of a State; or

3. (e)

   the Supreme Court of a State or Territory.

67

Subsection 46(3A)

Omit “, or continued under section 9,”.

68

Paragraphs 46(3A)(a) to (c)

Repeal the paragraphs, substitute:

1. (a)

   the Federal Circuit and Family Court of Australia (Division 2);

2. (b)

   a Family Court of a State;

3. (c)

   the Supreme Court of a State or Territory;

69

At the end of Part V

Add:

Division 4—Appeals

47AAppeals from courts of summary jurisdiction

1. (1)

   Subject to section 47B, an appeal lies from a decree of a court of summary jurisdiction of a State or Territory exercising jurisdiction under:

   1. (a)

      this Act; or

   2. (b)

      the Child Support (Assessment) Act 1989; or

   3. (c)

      the Child Support (Registration and Collection) Act 1988;

to:

1. (d)

   the Federal Circuit and Family Court of Australia (Division 1); or

2. (e)

   the Supreme Court of that State or Territory.

1. (2)

   Subsection (1) does not apply to a decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia.

2. (3)

   An appeal under subsection (1) must be instituted within:

   1. (a)

      in the case of an appeal to the Federal Circuit and Family Court of Australia (Division 1):

      1. (i)

         the time prescribed by the Federal Circuit and Family Court (Division 1) Rules; or

      2. (ii)

         such further time as is allowed in accordance with those Rules; and

   2. (b)

      in any other case:

      1. (i)

         the time prescribed by the standard Rules of Court; or

      2. (ii)

         such further time as is allowed in accordance with those Rules.

3. (4)

   The Supreme Court of each State is invested with federal jurisdiction, and jurisdiction is conferred on the Supreme Court of each Territory, with respect to matters arising under this Act, in respect of which appeals are instituted under this section.

   Note: For jurisdiction in relation to child support legislation, see section 101 of the Child Support (Assessment) Act 1989 and section 106 of the Child Support (Registration and Collection) Act 1988.

4. (5)

   The Governor‑General may, by Proclamation, fix a date as the date on or after which appeals to the Supreme Court of a specified State or Territory under this section may not be instituted, and such a Proclamation may be expressed to apply only to proceedings of a specified class or specified classes.

5. (6)

   The court hearing an appeal under this section:

   1. (a)

      must proceed by way of a hearing de novo, but may receive as evidence any record of evidence given, including any affidavit filed or exhibit received, in the court of summary jurisdiction; and

   2. (b)

      must have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact and, in its discretion, to receive further evidence upon questions of fact, which may be given:

      1. (i)

         by affidavit; or

      2. (ii)

         by oral examination before the court; or

      3. (iii)

         as provided for in Division 2 of Part XI; and

   3. (c)

      may make such decrees as the court considers appropriate, including a decree affirming, reversing or varying the decree the subject of the appeal.

Decrees made in section 69GA proceedings treated like decrees of courts of summary jurisdiction

1. (7)

   This section applies in relation to a decree of a court made in section 69GA proceedings in the same way as this section would apply in relation to a decree of a court of summary jurisdiction.

47BLeave to appeal needed for child support matters

1. (1)

   Leave of a single Judge of the Federal Circuit and Family Court of Australia (Division 1) is required to appeal to the Court from a decree of a court of summary jurisdiction of a State or Territory exercising jurisdiction under:

   1. (a)

      the Child Support (Assessment) Act 1989; or

   2. (b)

      the Child Support (Registration and Collection) Act 1988.

2. (2)

   Leave of the Supreme Court of a State or Territory is required to appeal to the Court from a decree of a court of summary jurisdiction of that State or Territory exercising jurisdiction under:

   1. (a)

      the Child Support (Assessment) Act 1989; or

   2. (b)

      the Child Support (Registration and Collection) Act 1988.

3. (3)

   An application for leave to appeal must be made within:

   1. (a)

      in the case of leave of the Federal Circuit and Family Court of Australia (Division 1):

      1. (i)

         the time prescribed by the Federal Circuit and Family Court (Division 1) Rules; or

      2. (ii)

         such further time as is allowed in accordance with those Rules; and

   2. (b)

      in any other case:

      1. (i)

         the time prescribed by the standard Rules of Court; or

      2. (ii)

         such further time as is allowed in accordance with those Rules.

4. (4)

   The applicable 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.

47CAppeal may be dismissed if no reasonable prospect of success

1. (1)

   If:

   1. (a)

      an appeal has been instituted in a court under this Division; and

   2. (b)

      it appears to the court that the appeal has no reasonable prospect of success;

the court may, at any time, order that the proceedings on the appeal be dismissed.

1. (2)

   This section does not limit any powers that the court has apart from this section.

47DAppeals to High Court may not be brought

1. (1)

   An appeal must not be brought directly to the High Court from a decree of the following courts exercising jurisdiction under this Act:

   1. (a)

      a court of summary jurisdiction of a State or Territory;

   2. (b)

      a Family Court of a State;

   3. (c)

      a Supreme Court of a State or Territory constituted by a single Judge.

   Note: In relation to the Federal Circuit and Family Court of Australia, see sections 55 and 155 of the Federal Circuit and Family Court of Australia Act 2021.

2. (2)

   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 inserted after the words “this Act” in subsection (1).

47ERegulations to be sole source of certain appellate jurisdiction

Despite the provisions of this Division, a court has appellate jurisdiction in relation to a matter arising under regulations made for the purposes of section 111C only as provided by those regulations.

1. 70

   Subsection 55(5) (paragraphs (d) and (e) of the definition of appeal)

Repeal the paragraphs, substitute:

1. (d)

   a review by the Federal Circuit and Family Court of Australia (Division 1) of the making, by the Chief Executive Officer, or a Senior Registrar or Registrar of that Court, of:

   1. (i)

      the divorce order; or

   2. (ii)

      an order under section 55A in relation to the proceedings in which the divorce order was made; or

   3. (iii)

      an order determining an application under section 57 or 58 for rescission of the divorce order; or

2. (e)

   a review by the Federal Circuit and Family Court of Australia (Division 2) of the making, by the Chief Executive Officer, or a Senior Registrar or Registrar of that Court, of:

   1. (i)

      the divorce order; or

   2. (ii)

      an order under section 55A in relation to the proceedings in which the divorce order was made; or

   3. (iii)

      an order determining an application under section 57 or 58 for rescission of the divorce order; or

71

Subsection 56(2)

Omit all the words after “certificate”, substitute:

that certifies that the divorce order has taken effect and is signed by:

1. (a)

   if the court is the Federal Circuit and Family Court of Australia (Division 1)—the Chief Executive Officer, or a Senior Registrar or Registrar of the Court; or

2. (b)

   if the court is the Federal Circuit and Family Court of Australia (Division 2)—the Chief Executive Officer, or a Senior Registrar or Registrar of the Court; or

3. (c)

   in relation to any other court—the Registrar of that court.

72

At the end of Part VI

Add:

60No appeal after divorce order takes effect

An appeal does not lie from a divorce order after the order takes effect.

73

Subsection 60F(5) (definition of this Act)

Repeal the definition, substitute:

this Act includes the applicable Rules of Court.

74

Section 60G (heading)

Omit “Family Court may grant leave”, substitute “Leave may be granted”.

75

Subsection 60G(1)

Omit “Family Court” (first occurring), substitute “Federal Circuit and Family Court of Australia (Division 2)”.

76

Subsection 60H(6) (definition of this Act)

Repeal the definition, substitute:

this Act includes the applicable Rules of Court.

77

Subsection 60HA(4) (definition of this Act)

Repeal the definition, substitute:

this Act includes the applicable Rules of Court.

78

Subsection 60HB(2) (definition of this Act)

Repeal the definition, substitute:

this Act includes the applicable Rules of Court.

79

Subsections 60I(2) to (5)

Repeal the subsections.

80

Subsection 60I(6) (heading)

Repeal the heading, substitute:

Applications for a Part VII order

81

Paragraph 60J(1)(a)

Omit “subsections 60I(5) and (6)”, substitute “subsection 60I(6)”.

82

Subsection 64B(9) (definition of this Act)

Repeal the definition, substitute:

this Act includes the applicable Rules of Court.

83

Subsection 65D(3) (note)

Repeal the note, substitute:

Note 1: The applicant may apply to the Federal Circuit and Family Court of Australia (Division 1) for the application for the parenting order or for the proceedings under Subdivision E of Division 13A of Part VII, or both, to be transferred to the Federal Circuit and Family Court of Australia (Division 2): see section 52 of the Federal Circuit and Family Court of Australia Act 2021.

Note 2: The applicant may apply to the Federal Circuit and Family Court of Australia (Division 2) for the application for the parenting order or for the proceedings under Subdivision E of Division 13A of Part VII, or both, to be transferred to the Federal Circuit and Family Court of Australia (Division 1): see section 149 of the Federal Circuit and Family Court of Australia Act 2021.

Note 3: Proceedings may also be transferred from the Federal Circuit and Family Court of Australia (Division 2) to the Federal Circuit and Family Court of Australia (Division 1) by order of the Chief Justice: see section 51 of the Federal Circuit and Family Court of Australia Act 2021.

84

Subsection 67Z(2)

Omit “the prescribed form”, substitute “an approved form”.

85

Subsection 67Z(4)

Insert:

approved form means a form approved for the purposes of this section under the applicable Rules of Court.

1. 86

   Subsection 67Z(4) (definition of prescribed form)

Repeal the definition.

87

Paragraph 67ZA(1)(a)

Repeal the paragraph, substitute:

1. (a)

   the Chief Executive Officer; or

2. (aa)

   a Senior Registrar or Registrar of the Federal Circuit and Family Court of Australia (Division 1); or

3. (ab)

   a Senior Registrar or Registrar of the Federal Circuit and Family Court of Australia (Division 2); or

88

Paragraph 67ZA(1)(c)

Repeal the paragraph.

89

Subsection 67ZBA(2)

Omit “the prescribed form”, substitute “an approved form”.

90

Subsection 67ZBA(4)

Insert:

approved form means a form approved for the purposes of this section under the applicable Rules of Court.

1. 91

   Subsection 67ZBA(4) (definition of prescribed form)

Repeal the definition.

92

Section 69H (heading)

Repeal the heading, substitute:

69HJurisdiction of Federal Circuit and Family Court of Australia (Division 2), State Family Courts and Northern Territory Supreme Court

93

Subsection 69H(1)

Omit “Family Court”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

94

Subsection 69H(4)

Repeal the subsection.

95

Paragraphs 69N(2)(a) to (d) and (3)(a) to (d)

Repeal the paragraphs, substitute:

1. (a)

   the Federal Circuit and Family Court of Australia (Division 2); or

2. (b)

   the Family Court of a State; or

3. (c)

   the Supreme Court of the Northern Territory.

96

Subparagraphs 69N(5)(b)(i) to (iv)

Repeal the subparagraphs, substitute:

1. (i)

   the Federal Circuit and Family Court of Australia (Division 2); or

2. (ii)

   the Family Court of a State; or

3. (iii)

   the Supreme Court of the Northern Territory.

97

Paragraphs 69N(6)(a) to (d)

Repeal the paragraphs, substitute:

1. (a)

   the Federal Circuit and Family Court of Australia (Division 2); or

2. (b)

   the Family Court of a State; or

3. (c)

   the Supreme Court of the Northern Territory.

98

Section 69ZO

Repeal the section, substitute:

69ZOThis Division also applies to proceedings in Chambers

The following persons, when hearing child‑related proceedings in Chambers, have all of the duties and powers that a court has under this Division:

1. (a)

   in the case of the Federal Circuit and Family Court of Australia (Division 1)—a Judge, the Chief Executive Officer, or a Senior Registrar or Registrar of the Court;

2. (b)

   in the case of the Federal Circuit and Family Court of Australia (Division 2)—a Judge, the Chief Executive Officer, or a Senior Registrar or Registrar of the Court;

3. (c)

   in any other case—a Judge, Registrar or magistrate.

Note: An order made in Chambers has the same effect as an order made in open court.

99

Subsection 69ZR(3)

Omit “a judge, Judicial Registrar, Registrar or magistrate”, substitute “a person”.

100

Section 70M (heading)

Omit “Registrar”, substitute “Registry Manager”.

101

Paragraph 70NFD(a)

Omit “Family Court or the Federal Circuit Court of Australia”, substitute “Federal Circuit and Family Court of Australia (Division 1) or the Federal Circuit and Family Court of Australia (Division 2)”.

102

Paragraph 70NFD(b)

Omit “Family Court”, substitute “Federal Circuit and Family Court of Australia”.

103

Subsection 79(9)

Omit “Family Court” (first occurring), substitute “Federal Circuit and Family Court of Australia (Division 1)”.

104

Paragraph 79(9)(a)

Repeal the paragraph, substitute:

1. (a)

   the parties to the proceedings have attended a conference in relation to the matter to which the proceedings relate:

   1. (i)

      in the case of the Federal Circuit and Family Court of Australia (Division 1)—with the Chief Executive Officer, or a Senior Registrar or Registrar of the Court; or

   2. (ii)

      in the case of the Family Court of that State—with a Senior Registrar or Registrar of that Family Court; or

105

Paragraph 79H(3)(c)

Omit “Federal Circuit Court of Australia”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

106

Subsection 90SM(9)

Omit “Family Court” (first occurring), substitute “Federal Circuit and Family Court of Australia (Division 1)”.

107

Paragraph 90SM(9)(a)

Repeal the paragraph, substitute:

1. (a)

   the parties to the proceedings have attended a conference in relation to the matter to which the proceedings relate with the Chief Executive Officer, or a Senior Registrar or Registrar of the Federal Circuit and Family Court of Australia (Division 1); or

108

Paragraph 90SQ(3)(c)

Omit “Federal Circuit Court of Australia”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

109

Part X

Repeal the Part.

110

Subsection 97(1)

Omit “Family Court, in the Federal Circuit Court of Australia,”, substitute “Federal Circuit and Family Court of Australia”.

111

Subsection 97(1A)

Omit all the words after “heard”, substitute:

by:

1. (a)

   in the case of the Federal Circuit and Family Court of Australia (Division 1)—a Judge, the Chief Executive Officer, or a Senior Registrar or Registrar of the Court, sitting in Chambers; and

2. (b)

   in the case of the Federal Circuit and Family Court of Australia (Division 2)—a Judge, the Chief Executive Officer, or a Senior Registrar or Registrar of the Court, sitting in Chambers; and

3. (c)

   in any other case—a Judge, Registrar or magistrate sitting in Chambers.

112

Subsection 97(2)

Omit “Family Court”, substitute “Federal Circuit and Family Court of Australia”.

113

Subsection 98(1)

Omit “(1)”.

114

Subsection 98(1)

Omit “standard Rules of Court”, substitute “applicable Rules of Court”.

115

Subsection 98(2)

Repeal the subsection (including the note).

116

Sections 98AA and 98AB

Repeal the sections.

117

Subsection 100B(2)

Omit “Family Court”, substitute “Federal Circuit and Family Court of Australia”.

118

Subsection 102F(7) (definition of courtroom)

Repeal the definition, substitute:

courtroom, in relation to a Judge or a court, means the courtroom or other place where the Judge or court is sitting.

119

Subsection 102G(2)

Omit “(that is not a split court)”.

120

Subsection 102G(3)

Repeal the subsection.

121

Section 102H

Repeal the section.

122

Subsection 102J(1)

Omit “(1)”.

123

Subsection 102J(2)

Repeal the subsection.

124

Paragraph 102K(1)(c)

Omit “Division; or”, substitute “Division.”.

125

Paragraph 102K(1)(d)

Repeal the paragraph.

126

Division 3 of Part XI

Repeal the Division.

127

Division 4 of Part XI (heading)

Repeal the heading, substitute:

Division 3—Cross‑examination of parties where allegations of family violence

1. 128

   Subsection 102Q(1) (paragraphs (a) and (b) of the definition of appropriate court official)

Repeal the paragraphs, substitute:

1. (a)

   in relation to the Federal Circuit and Family Court of Australia—the Chief Executive Officer; and

129

Subsection 105(1) (note)

Repeal the note.

130

Subsection 109A(1)

Omit “the Judges, or a majority of them,”, substitute “the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1)”.

131

Subsection 109A(5) (note)

Repeal the note.

132

After section 109A

Insert:

109AARules of Court relating to enforcement—Federal Circuit and Family Court of Australia (Division 1)

1. (1)

   Section 109A applies to the making of Rules of Court under Chapter 3 of the Federal Circuit and Family Court of Australia Act 2021 in a corresponding way to the way in which it applies to the making of Rules of Court under section 123 of this Act.

2. (2)

   For the purposes of the application of section 109A in accordance with subsection (1) of this section:

   1. (a)

      the reference in subsection 109A(1) to the court is to be read as a reference to the Federal Circuit and Family Court of Australia (Division 1); and

   2. (b)

      each reference in subsection 109A(2) to a court is to be read as a reference to the Federal Circuit and Family Court of Australia (Division 1); and

   3. (c)

      each reference in subsection 109A(2) to a Registrar is to be read as a reference to the Chief Executive Officer, or a Senior Registrar or Registrar of the Federal Circuit and Family Court of Australia (Division 1).

3. (3)

   Section 109A has no effect in relation to the Federal Circuit and Family Court of Australia (Division 1) except as provided by subsections (1) and (2) of this section.

133

Section 109B (heading)

Omit “Federal Circuit Court”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

134

Subsection 109B(1)

Omit “section 81 of the Federal Circuit Court of Australia Act 1999”, substitute “Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021”.

135

Paragraphs 109B(2)(a) and (b)

Omit “Federal Circuit Court of Australia”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

136

Paragraph 109B(2)(c)

Omit “a Registrar of the Federal Circuit Court of Australia”, substitute “the Chief Executive Officer, or a Registrar of the Federal Circuit and Family Court of Australia (Division 2)”.

137

Subsection 109B(3)

Omit “Federal Circuit Court of Australia”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

138

At the end of subsection 111C(5)

Add “or the Federal Circuit and Family Court of Australia Act 2021”.

139

Subsection 111C(7A)

Omit “the Judges, or a majority of them,”, substitute “the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1)”.

140

After subsection 111C(7A)

Insert:

1. (7B)

   The power of the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) under Chapter 3 of the Federal Circuit and Family Court of Australia Act 2021 to make Rules of Court extends to making Rules of Court for or in relation to the making of adoption orders.

2. (7C)

   The power of the Chief Judge of the Federal Circuit and Family Court of Australia (Division 2) under Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 to make Rules of Court extends to making Rules of Court for or in relation to the making of adoption orders.

141

Paragraph 111CV(1A)(b)

Repeal the paragraph, substitute:

1. (b)

   the Chief Executive Officer; and

2. (ba)

   a Senior Registrar or Registrar of the Federal Circuit and Family Court of Australia (Division 1); and

3. (bb)

   a Senior Registrar or Registrar of the Federal Circuit and Family Court of Australia (Division 2); and

142

Paragraph 111CV(1A)(d)

Repeal the paragraph.

1. 143

   Section 112AA (definition of applicable Rules of Court)

Repeal the definition.

144

Subsection 112AK(1)

Repeal the subsection, substitute:

1. (1)

   Subject to this section, an order made under section 112AD may be varied or discharged by the court that made the order or the Federal Circuit and Family Court of Australia.

145

Subsection 115(2)

Omit “Family Court”, substitute “Federal Circuit and Family Court of Australia”.

146

At the end of subsection 117(2)

Add:

Note 1: For other provisions about the award of costs by the Federal Circuit and Family Court of Australia (Division 1), see paragraphs 69(4)(d) and (e) of the Federal Circuit and Family Court of Australia Act 2021.

Note 2: For other provisions about the award of costs by the Federal Circuit and Family Court of Australia (Division 2), see paragraphs 192(4)(d) and (e) of the Federal Circuit and Family Court of Australia Act 2021.

147

Subsection 121(10) (note)

Omit “26B, 37A,”.

148

After section 122

Insert:

122AAAProtection of Registrars conducting conferences about property matters

1. (1)

   In conducting a conference that:

   1. (a)

      is with the parties to property settlement proceedings; and

   2. (b)

      relates to the matter to which the proceedings relate;

a Registrar of a Family Court of a State has the same protection and immunity as a Judge of the Court has in performing the functions of a Judge.

1. (2)

   This section does not limit any other protection or immunity such a Registrar has (in relation to such a conference or otherwise).

149

Subsection 122A(1)

Omit “, the standard Rules of Court or the related Federal Circuit Court Rules”, substitute “or the applicable Rules of Court”.

150

Paragraphs 122A(1)(a) and (b)

Omit “Family Court”, substitute “Federal Circuit and Family Court of Australia (Division 1)”.

151

Paragraphs 122A(1)(c) and (d)

Omit “Federal Circuit Court”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

152

Subsection 123(1)

Omit “Judges, or a majority of them,”, substitute “Chief Justice of the Federal Circuit and Family Court of Australia (Division 1)”.

153

Subsection 123(1)

Omit “in the Family Court and, subject to subsection 69GA(3), any other courts”, substitute “, subject to subsection 69GA(3), in a court”.

154

Subsection 123(1)

Omit “those courts”, substitute “the court”.

155

Paragraph 123(1)(b)

Omit “the Family Court or another court”, substitute “a court”.

156

Paragraphs 123(1)(bb), (c) and (d)

Repeal the paragraphs.

157

Paragraph 123(1)(f)

Omit “the Family Court and in any other court”, substitute “a court”.

158

Paragraph 123(1)(ma)

Omit “Divisions 2 and 3”, substitute “Division 2”.

159

Subparagraph 123(1)(sda)(i)

Omit “subsection 38BD(1) of this Act”, substitute “subsection 281(1) of the Federal Circuit and Family Court of Australia Act 2021”.

160

Subparagraph 123(1)(sdb)(i)

Omit “subsection 38BD(2) of this Act”, substitute “subsection 281(2) of the Federal Circuit and Family Court of Australia Act 2021”.

161

Paragraph 123(1)(sea)

Omit “subsection 38BD(1) of this Act”, substitute “subsection 281(1) of the Federal Circuit and Family Court of Australia Act 2021”.

162

Paragraph 123(1)(seb)

Omit “subsection 38BD(2) of this Act”, substitute “subsection 281(2) of the Federal Circuit and Family Court of Australia Act 2021”.

163

At the end of subsection 123(1)

Add:

Note 1: For other powers to make Rules of Court, see section 109A and subsection 111C(7A).

Note 2: The power to make Rules of Court under this section will be amended 18 months after the commencement of the Federal Circuit and Family Court of Australia Act 2021, to provide for the Rules to be made by the Judges of the Federal Circuit and Family Court of Australia (Division 1), or a majority of them (see Part 4 of Schedule 1 to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021).

164

Subsection 123(1A)

Omit “Federal Circuit Court of Australia”, substitute “Federal Circuit and Family Court of Australia”.

165

Subsection 123(2)

Omit “made by Judges under this section or any other Act”, substitute “made by the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) under this section or any other Act (other than the Federal Circuit and Family Court of Australia Act 2021)”.

166

Paragraph 123(2)(b)

Repeal the paragraph.

167

Subsection 123(2A)

Omit “made by Judges under this or any other Act”, substitute “made by the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) under this Act”.

168

Subsection 123(3)

Repeal the subsection (including the note).

169

Subsection 124(1)

Omit “Family Court of Australia” (first occurring), substitute “Federal Circuit and Family Court of Australia (Division 1), such Judges of the Federal Circuit and Family Court of Australia (Division 2)”.

170

Subsection 124(1)

Omit “Family Court of Australia” (second occurring), substitute “Federal Circuit and Family Court of Australia (Division 1)”.

171

Subsection 124(2)

Omit “the Judges referred to in section 123”, substitute “the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1)”.

172

Subsection 124(2)

Omit “those Judges”, substitute “the Chief Justice of the Court”.

173

Subsection 124(6)

Omit “Family Court of Australia”, substitute “Federal Circuit and Family Court of Australia (Division 1)”.

174

Paragraph 125(1)(ba)

Repeal the paragraph.

175

Paragraph 125(1)(baa)

Omit “the Family Court and any other court”, substitute “a court”.

176

Paragraph 125(1)(ca)

Repeal the paragraph.

177

Paragraphs 125(1)(d) and (e)

Omit “and fees prescribed under paragraph (ca)”.

Federal Court of Australia Act 1976

1. 178

   Section 4 (definition of administrative affairs)

Repeal the definition, substitute:

administrative affairs:

1. (a)

   of the Court—has a meaning affected by subsection 18A(1A) of this Act; and

2. (b)

   of the Federal Circuit and Family Court of Australia (Division 1)—has the meaning given by the definition of that expression in the Federal Circuit and Family Court of Australia Act 2021 in relation to that Court; and

3. (c)

   of the Federal Circuit and Family Court of Australia (Division 2)—has the meaning given by the definition of that expression in the Federal Circuit and Family Court of Australia Act 2021 in relation to that Court.

179

Section 4

Insert:

Chief Executive Officer of the Federal Circuit and Family Court of Australia means the Chief Executive Officer and Principal Registrar of the Federal Circuit and Family Court of Australia (Division 1).

180

Section 4 (definition of corporate services)

Repeal the definition, substitute:

corporate services:

1. (a)

   of the Court—has the meaning given by subsection 18A(1B) of this Act; and

2. (b)

   of the Federal Circuit and Family Court of Australia (Division 1)—has the meaning given by the definition of that expression in the Federal Circuit and Family Court of Australia Act 2021 in relation to that Court; and

3. (c)

   of the Federal Circuit and Family Court of Australia (Division 2)—has the meaning given by the definition of that expression in the Federal Circuit and Family Court of Australia Act 2021 in relation to that Court.

1. 181

   Section 4 (definition of Family Court Chief Executive Officer)

Repeal the definition.

182

Section 4

Insert:

family law or child support proceeding means a proceeding under:

1. (a)

   the Family Law Act 1975; or

2. (b)

   the Child Support (Assessment) Act 1989; or

3. (c)

   the Child Support (Registration and Collection) Act 1988 (other than a proceeding under section 72Q of that Act).

Federal Circuit and Family Court of Australia means:

1. (a)

   the Federal Circuit and Family Court of Australia (Division 1); or

2. (b)

   the Federal Circuit and Family Court of Australia (Division 2).

183

Section 4

Repeal the following definitions:

1. (a)

   definition of Federal Circuit Court;

2. (b)

   definition of Federal Circuit Court Chief Executive Officer.

184

Subsection 6(2)

Repeal the subsection, substitute:

1. (2)

   A person is not to be appointed as a Judge unless:

   1. (a)

      the person:

      1. (i)

         is or has been a Judge of a prescribed court or of a court of a State; or

      2. (ii)

         has been enrolled as a legal practitioner of the High Court or of the Supreme Court of a State or Territory for not less than 5 years; and

   2. (b)

      the person has appropriate knowledge, skills and experience to deal with the kinds of matters that may come before the Court.

185

After section 13

Insert:

13AAuthorised Judges may manage classes of proceedings

1. (1)

   The Chief Justice may, by written instrument, authorise a Judge to manage such class or classes of proceedings as may be specified:

   1. (a)

      in the instrument; or

   2. (b)

      by the Rules of Court.

2. (2)

   In managing a class or classes of proceedings, a Judge is subject to any direction from the Chief Justice.

3. (3)

   A Judge may be authorised even though the Judge is not assigned to a Division.

4. (4)

   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.

5. (5)

   If a direction under subsection (2) is given in writing, the direction is not a legislative instrument.

186

Subsection 15(1AAA)

After “another Judge”, insert “of the Court”.

187

Section 15A

Repeal the section.

188

After paragraph 18A(1B)(e)

Insert:

1. (ea)

   records management;

2. (eb)

   administrative matters relating to judgments, to the extent that such matters do not involve the exercise of judicial power;

189

After paragraph 18A(1B)(h)

Insert:

1. (ha)

   court security;

190

After paragraph 18N(1)(d)

Insert:

1. (da)

   the Marshal of the Court;

2. (db)

   such Deputy Marshals of the Court as are necessary;

191

Subsection 18N(4)

Omit “and the Marshals”, substitute “, the Deputy Marshals of the Court and the Marshals for the purposes of the Admiralty Act 1988”.

192

Subsection 18N(5)

Omit “and the Marshals”, substitute “, the Deputy Marshals of the Court and the Marshals for the purposes of the Admiralty Act 1988”.

193

At the end of Division 3 of Part IIA

Add:

18PAMarshal

1. (1)

   The Marshal of the Court is responsible for:

   1. (a)

      the security of the Court; and

   2. (b)

      the personal security of the Judges and officers and staff of the Court.

2. (2)

   The Marshal of the Court is also responsible for:

   1. (a)

      taking, receiving and detaining all persons committed to the Marshal’s custody by the Court; and

   2. (b)

      discharging such persons when so directed by the Court or otherwise required by law.

18PBDeputy Marshals

A Deputy Marshal of the Court may, subject to any directions of the Marshal of the Court, exercise or perform any of the powers or functions of the Marshal.

18PCAuthorised persons to assist the Marshal or Deputy Marshals

1. (1)

   The Marshal of the Court may authorise persons to assist the Marshal in exercising powers or performing functions as the Marshal.

2. (2)

   A Deputy Marshal of the Court may authorise persons to assist the Deputy Marshal in exercising powers or performing functions as the Deputy Marshal.

194

Paragraphs 18Z(1)(b) and (c)

Repeal the paragraphs, substitute:

1. (b)

   providing the corporate services of the Federal Circuit and Family Court of Australia (Division 1);

2. (c)

   providing the corporate services of the Federal Circuit and Family Court of Australia (Division 2).

195

Paragraphs 18Z(3)(b) to (e)

Repeal the paragraphs, substitute:

1. (b)

   the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1);

2. (c)

   the Chief Judge of the Federal Circuit and Family Court of Australia (Division 2);

3. (d)

   the Chief Executive Officer of the Federal Circuit and Family Court of Australia.

196

Subsection 18Z(5)

Repeal the subsection, substitute:

1. (5)

   When performing functions, or exercising powers, under this section, before the Chief Executive Officer makes a decision that has the effect of imposing an expenditure obligation relating to the administrative affairs of a court mentioned in an item of the following table:

   1. (a)

      the Chief Executive Officer must consult the person or persons mentioned in that item about the decision; and

   2. (b)

      either:

      1. (i)

         the person or persons mentioned in that item must consent to the decision; or

      2. (ii)

         the Attorney‑General must consent to the decision, after the Attorney‑General has consulted the person or persons mentioned in that item about the decision.

Consultation about expenditure relating to administrative affairs
Item	Court	Persons to be consulted
1	The Court	The Chief Justice
2	The Federal Circuit and Family Court of Australia (Division 1)	Both: (a) the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1); and (b) the Chief Justice of the Court
3	The Federal Circuit and Family Court of Australia (Division 2)	Both: (a) the Chief Judge of the Federal Circuit and Family Court of Australia (Division 2); and (b) the Chief Justice of the Court

197

Subparagraphs 18ZB(a)(iv) to (ix)

Repeal the subparagraphs, substitute:

1. (iv)

   the Chief Executive Officer of the Federal Circuit and Family Court of Australia;

2. (v)

   the officers of the Federal Circuit and Family Court of Australia (Division 1) referred to in subsection 103(1) of the Federal Circuit and Family Court of Australia Act 2021;

3. (vi)

   the staff of the Registries of the Federal Circuit and Family Court of Australia (Division 1) referred to in subsection 103(6) of the Federal Circuit and Family Court of Australia Act 2021;

4. (vii)

   the officers of the Federal Circuit and Family Court of Australia (Division 2) referred to in section 259 of the Federal Circuit and Family Court of Australia Act 2021;

5. (viii)

   the staff of the Federal Circuit and Family Court of Australia (Division 2) referred to in section 265 of the Federal Circuit and Family Court of Australia Act 2021;

198

Subparagraphs 18ZB(e)(ii) and (iii)

Repeal the subparagraphs, substitute:

1. (ii)

   the functions of the Chief Executive Officer of the Federal Circuit and Family Court of Australia under sections 84, 250 and 278 of the Federal Circuit and Family Court of Australia Act 2021;

199

Section 18ZC

Repeal the section, substitute:

18ZCDelegation of powers etc. under the finance law

Section 110 of the Public Governance, Performance and Accountability Act 2013 applies as if:

1. (a)

   for the delegation of a matter that relates to the administrative affairs of the Federal Circuit and Family Court of Australia (Division 1)—a reference to an official were a reference to:

   1. (i)

      the Chief Executive Officer of the Federal Circuit and Family Court of Australia; or

   2. (ii)

      the holder of an office or position referred to in subparagraph 18ZB(a)(v) or (vi) of this Act, being an office or position that, at the time the delegation is made, is nominated in writing by the Chief Executive Officer of the Federal Circuit and Family Court of Australia; and

2. (b)

   for the delegation of a matter that relates to the administrative affairs of the Federal Circuit and Family Court of Australia (Division 2)—a reference to an official were a reference to:

   1. (i)

      the Chief Executive Officer of the Federal Circuit and Family Court of Australia; or

   2. (ii)

      the holder of an office or position referred to in subparagraph 18ZB(a)(vii) or (viii) of this Act, being an office or position that, at the time the delegation is made, is nominated in writing by the Chief Executive Officer of the Federal Circuit and Family Court of Australia.

200

Subparagraphs 18ZD(1)(b)(ii) to (iv)

Repeal the subparagraphs, substitute:

1. (ii)

   the administrative affairs of the Federal Circuit and Family Court of Australia (Division 1); or

2. (iii)

   the administrative affairs of the Federal Circuit and Family Court of Australia (Division 2); or

3. (iv)

   the corporate services of the Court, the Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2), as referred to in subsection 18Z(1); and

201

Subsections 18ZD(2) and (3)

Repeal the subsections, substitute:

1. (2)

   Before spending a part of the outcome amount for another outcome for the listed entity, if the outcome amount relates to the administrative affairs of a court mentioned in an item of the following table, the Chief Executive Officer must:

   1. (a)

      consult the person or persons mentioned in that item about the spending; and

   2. (b)

      obtain the consent of:

      1. (i)

         the person or persons mentioned in that item to the spending; or

      2. (ii)

         the Attorney‑General to the spending.

Consultation about spending
Item	Court	Persons to be consulted
1	The Court	The Chief Justice
2	The Federal Circuit and Family Court of Australia (Division 1)	Both: (a) the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1); and (b) the Chief Justice of the Court
3	The Federal Circuit and Family Court of Australia (Division 2)	Both: (a) the Chief Judge of the Federal Circuit and Family Court of Australia (Division 2); and (b) the Chief Justice of the Court

202

Subparagraphs 18ZE(2)(b)(ii) and (iii)

Repeal the subparagraphs, substitute:

1. (iii)

   sections 103 and 253, subsections 260(1), 261(1), 262(1) and 263(1), and sections 264 and 265 of the Federal Circuit and Family Court of Australia Act 2021;

203

Sections 18ZF and 18ZG

Repeal the sections, substitute:

18ZFMaking arrangements relating to APS employees

1. (1)

   The Chief Executive Officer must make the services of APS employees who are officers of the Federal Circuit and Family Court of Australia (Division 1), or staff of the Registries of the Court, available for the purposes of assisting the Chief Executive Officer of the Federal Circuit and Family Court of Australia in the performance of functions under sections 84 and 278 of the Federal Circuit and Family Court of Australia Act 2021.

2. (2)

   While a person is performing services made available under subsection (1), that person must do so in accordance with the directions of:

   1. (a)

      the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1); and

   2. (b)

      the Chief Executive Officer of the Federal Circuit and Family Court of Australia.

3. (3)

   The Chief Executive Officer must make the services of APS employees who are officers of the Federal Circuit and Family Court of Australia (Division 2), or staff of the Court, available for the purposes of assisting the Chief Executive Officer of the Federal Circuit and Family Court of Australia in the performance of functions under sections 250 and 278 of the Federal Circuit and Family Court of Australia Act 2021.

4. (4)

   While a person is performing services made available under subsection (3), that person must do so in accordance with the directions of:

   1. (a)

      the Chief Judge of the Federal Circuit and Family Court of Australia (Division 2); and

   2. (b)

      the Chief Executive Officer of the Federal Circuit and Family Court of Australia.

18ZGDelegation of powers etc. under the Public Service Act 1999

Section 78 of the Public Service Act 1999 applies, in relation to the administrative affairs of the Federal Circuit and Family Court of Australia, as if the reference in subsection (7) to another person were a reference to the Chief Executive Officer of the Federal Circuit and Family Court of Australia.

204

Paragraphs 18ZH(1)(b) and (c)

Repeal the paragraphs, substitute:

1. (b)

   the officers of the Federal Circuit and Family Court of Australia (Division 1) referred to in paragraphs 103(1)(a) to (e) of the Federal Circuit and Family Court of Australia Act 2021;

2. (c)

   the officers of the Federal Circuit and Family Court of Australia (Division 2) referred to in paragraphs 259(1)(a) to (g) of the Federal Circuit and Family Court of Australia Act 2021;

205

Subsections 18ZH(2) and (3)

Repeal the subsections, substitute:

1. (2)

   The Chief Executive Officer may delegate the Chief Executive Officer’s powers under paragraph (1)(b) or (c) to appoint any or all of the officers to the Chief Executive Officer of the Federal Circuit and Family Court of Australia.

2. (3)

   The appointment of a person to more than one office, or an office or offices of more than one court, mentioned in subsection (1) may be made in a single instrument.

206

Paragraphs 18ZI(1)(b) and (c)

Repeal the paragraphs, substitute:

1. (b)

   the Federal Circuit and Family Court of Australia (Division 1); or

2. (c)

   the Federal Circuit and Family Court of Australia (Division 2); or

207

Subsections 18ZI(4) and (5)

Repeal the subsections, substitute:

1. (4)

   The Chief Executive Officer may delegate the Chief Executive Officer’s powers under subsections (1) and (2) in relation to the Federal Circuit and Family Court of Australia to the Chief Executive Officer of the Federal Circuit and Family Court of Australia.

208

Section 18ZJ

Repeal the section, substitute:

18ZJSubdelegation of powers under this Division

1. (1)

   If, under subsection 18ZH(2) or 18ZI(4), the Chief Executive Officer delegates any powers to the Chief Executive Officer of the Federal Circuit and Family Court of Australia, the Chief Executive Officer of the Federal Circuit and Family Court of Australia may, in writing, delegate all or any of those powers to:

   1. (a)

      in relation to the Federal Circuit and Family Court of Australia (Division 1)—the holder of an office or position referred to in subparagraph 18ZB(a)(v) or (vi); or

   2. (b)

      in relation to the Federal Circuit and Family Court of Australia (Division 2)—the holder of an office or position referred to in subparagraph 18ZB(a)(vii) or (viii).

2. (2)

   Sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901 apply to a delegation under this section in the same way as they apply to a delegation under section 18ZH or 18ZI.

209

Section 18ZK

Repeal the section, substitute:

18ZKOfficers of the Court and the Federal Circuit and Family Court of Australia

1. (1)

   A person may be an officer of one or more of the following courts:

   1. (a)

      the Court;

   2. (b)

      the Federal Circuit and Family Court of Australia (Division 1);

   3. (c)

      the Federal Circuit and Family Court of Australia (Division 2).

2. (2)

   Subsection (1) has effect despite anything in this Act and the Federal Circuit and Family Court of Australia Act 2021.

210

Paragraphs 24(1)(d) and (e)

Omit “Federal Circuit Court”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

211

Subsection 25(1AA)

Omit “Federal Circuit Court”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

212

Paragraph 29(1)(a)

Omit “Federal Circuit Court”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

213

Section 32AA (heading)

Omit “Federal Circuit Court”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

214

Paragraphs 32AA(1)(a) and (b)

Omit “Federal Circuit Court”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

215

Paragraph 32AA(2)(b)

Omit “Federal Circuit Court”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

216

Section 32AB (heading)

Omit “Federal Circuit Court”, substitute “Federal Circuit and Family Court of Australia”.

217

Subsections 32AB(1), (3), (4), (5) and (6)

Omit “Federal Circuit Court” (wherever occurring), substitute “Federal Circuit and Family Court of Australia”.

218

Subsection 32AB(7)

Omit “Federal Circuit Court”, substitute “Federal Circuit and Family Court of Australia”.

219

Subsection 32AB(8A)

Repeal the subsection, substitute:

1. (8A)

   The Federal Circuit and Family Court of Australia (Division 1) has jurisdiction in a matter that:

   1. (a)

      is the subject of a proceeding transferred to the Federal Circuit and Family Court of Australia (Division 1) under this section; and

   2. (b)

      is a matter in which the Federal Circuit and Family Court of Australia (Division 1) does not have jurisdiction apart from this subsection.

To avoid doubt, the jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) under this subsection is not subject to limits set by another provision.

1. (8B)

   The Federal Circuit and Family Court of Australia (Division 2) has jurisdiction in a matter that:

   1. (a)

      is the subject of a proceeding transferred to the Federal Circuit and Family Court of Australia (Division 2) under this section; and

   2. (b)

      is a matter in which the Federal Circuit and Family Court of Australia (Division 2) does not have jurisdiction apart from this subsection.

To avoid doubt, the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) under this subsection is not subject to limits set by another provision.

220

After section 32AB

Insert:

32ACDiscretionary transfer of civil proceedings from the Federal Circuit and Family Court of Australia (Division 2)

1. (1)

   If:

   1. (a)

      a proceeding is pending in the Federal Circuit and Family Court of Australia (Division 2); and

   2. (b)

      the proceeding is not a family law or child support proceeding;

the Court may, by order, transfer the proceeding from the Federal Circuit and Family Court of Australia (Division 2) to the Court.

1. (2)

   The Court may transfer a proceeding:

   1. (a)

      on the application of a party to the proceeding; or

   2. (b)

      on its own initiative.

2. (3)

   The Rules of Court may make provision in relation to transfers of proceedings from the Federal Circuit and Family Court of Australia (Division 2) under this section.

3. (4)

   In particular, the Rules of Court may set out factors that are to be taken into account by the Court in deciding whether to transfer a proceeding from the Federal Circuit and Family Court of Australia (Division 2).

4. (5)

   Before Rules of Court are made for the purposes of subsection (3) or (4), the Court must consult the Federal Circuit and Family Court of Australia (Division 2).

5. (6)

   In deciding whether to transfer a proceeding from the Federal Circuit and Family Court of Australia (Division 2), the Court must have regard to:

   1. (a)

      any Rules of Court made for the purposes of subsection (4); and

   2. (b)

      whether proceedings in respect of an associated matter are pending in the Court; and

   3. (c)

      whether the resources of the Court are sufficient to hear and determine the proceeding; and

   4. (d)

      the interests of the administration of justice.

6. (7)

   An appeal does not lie from a decision of the Court in relation to the transfer of a proceeding under this section.

7. (8)

   The Court has jurisdiction in a matter that:

   1. (a)

      is the subject of a proceeding transferred to the Court under this section; and

   2. (b)

      is a matter in which the Court does not have jurisdiction apart from this subsection.

To avoid doubt, the Court’s jurisdiction under this subsection is not subject to limits set by another provision.

1. (9)

   This section does not apply to criminal proceedings.

2. (10)

   This section does not apply to proceedings of a kind specified in the regulations.

32ADConfirmation of civil proceedings transferred from the Federal Circuit and Family Court of Australia (Division 2)

1. (1)

   If the Federal Circuit and Family Court of Australia (Division 2) makes an order under subsection 153(1) of the Federal Circuit and Family Court of Australia Act 2021 transferring a proceeding to the Court, the Court may, by order, confirm the transfer of the proceeding to the Court.

   Note: The transfer of a proceeding takes effect on the day the Court makes an order under this section in relation to the proceeding: see subsection 153(4) of the Federal Circuit and Family Court of Australia Act 2021.

2. (2)

   The Court may, in its discretion, receive further evidence to decide whether to make an order under subsection (1). Such evidence may be taken in any of the ways mentioned in section 27.

3. (3)

   The Court has jurisdiction in a matter that:

   1. (a)

      is the subject of a proceeding transferred to the Court by the Federal Circuit and Family Court of Australia (Division 2); and

   2. (b)

      is a matter in which the Court does not have jurisdiction apart from this subsection.

To avoid doubt, the Court’s jurisdiction under this subsection is not subject to limits set by another provision.

1. (4)

   An appeal does not lie from a decision of the Court in relation to an order made under subsection (1) confirming the transfer of a proceeding.

221

Subsections 34(1) and (2)

Omit “The Governor‑General shall”, substitute “The Minister must”.

222

Subsection 34(2)

Omit “Governor‑General” (second occurring), substitute “Minister”.

223

Subsection 49(2)

Repeal the subsection, substitute:

1. (2)

   If:

   1. (a)

      the Court reserves judgment in a proceeding; and

   2. (b)

      a Judge who heard the proceeding, whether as a single Judge or as a member of a Full Court, prepares orders and reasons;

those orders and reasons may be made public by another Judge on behalf of the Judge who heard the proceeding or as otherwise provided for by the Rules of Court.

1. (2A)

   If:

   1. (a)

      the Court reserves reasons for its decision in a proceeding; and

   2. (b)

      a Judge who heard the proceeding, whether as a single Judge or as a member of a Full Court, prepares reasons;

those reasons may be made public by another Judge on behalf of the Judge who heard the proceeding or as otherwise provided for by the Rules of Court.

224

Subsection 49(3)

Omit “subsection (2)”, substitute “this section”.

225

After section 55

Insert:

55AAActions by or against Marshal

If the Marshal or a Deputy Marshal is a party to a proceeding in the Court:

1. (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

2. (b)

   the person so appointed may execute and return them.

226

After subsection 59(1)

Insert:

1. (1A)

   The Judges of the Court, or a majority of them, may make Rules of Court prescribing matters required or permitted by:

   1. (a)

      any other provision of this Act; or

   2. (b)

      any other law of the Commonwealth;

to be prescribed by the Rules of Court.

227

After paragraph 59(2)(r)

Insert:

1. (ra)

   the transfer of proceedings from the Federal Circuit and Family Court of Australia (Division 2), including matters relating to costs, such as:

   1. (i)

      the costs of the application for an order transferring such a proceeding; and

   2. (ii)

      the costs for any step in such a proceeding, including steps that occurred before the proceeding was transferred; and

   3. (iii)

      the scale of costs that is to apply; and

Part 2Application, saving and transitional provisionsDivision 1Introduction

228

Definitions

In this Part:

commencement day means the day this Schedule commences.

Division 2Application of amendments

229

Application

The amendments of the Family Law Act 1975 and the Federal Court of Australia Act 1976 made by this Schedule apply in relation to a proceeding commenced before, on or after the commencement day.

Division 3Saving and transitional provisions: Family Law Act 1975 amendments

230

Authorisation about handling complaints

A written authorisation made under subsection 21B(3A) of the Family Law Act 1975 and in force immediately before the commencement day continues in force (and may be dealt with) as if it had been made under subsection 48(2) of the Federal Circuit and Family Court of Australia Act 2021.

231

Arrangements with other courts

An arrangement made under subsection 38BAA(1) of the Family Law Act 1975 and in force immediately before the commencement day continues in force (and may be dealt with) as if it had been made under subsection 79(1) of the Federal Circuit and Family Court of Australia Act 2021.

232

Arrangements with agencies or organisations

An arrangement made under subsection 38BAB(1) of the Family Law Act 1975 and in force immediately before the commencement day continues in force (and may be dealt with) as if it had been made under subsection 80(1) of the Federal Circuit and Family Court of Australia Act 2021.

233

Delegation

An instrument made under section 38W of the Family Law Act 1975 and in force immediately before the commencement day continues in force (and may be dealt with) as if it had been made under section 108 of the Federal Circuit and Family Court of Australia Act 2021.

234

Proclamation

Despite the repeal of section 96 of the Family Law Act 1975 by this Act, a Proclamation made under subsection 96(3) of that Act and in force immediately before the commencement day, continues in force (and may be dealt with) as if:

1. (a)

   it had been made under subsection 47A(5) of the Family Law Act 1975, as inserted by this Act; and

2. (b)

   the Supreme Courts specified in that Proclamation are also specified for the purposes of appeals in relation to:

   1. (i)

      the Child Support (Assessment) Act 1989; or

   2. (ii)

      the Child Support (Registration and Collection) Act 1988.

235

Oaths and affirmations

A written authorisation made under subsection 98AA(2) of the Family Law Act 1975 and in force immediately before the commencement day continues in force (and may be dealt with) as if it had been made under subsection 71(2) of the Federal Circuit and Family Court of Australia Act 2021.

236

Seals and stamps

Despite the amendment of paragraph 123(1)(f) of the Family Law Act 1975 by this Schedule:

1. (a)

   a seal of the Family Court, prescribed by the Rules of Court and in force immediately before the commencement day, may be affixed to documents (in accordance with subsection 59(3) of the Federal Circuit and Family Court of Australia Act 2021) until the end of the 12‑month period beginning on the commencement day, as if it were a seal of the Federal Circuit and Family Court of Australia (Division 1); and

2. (b)

   a stamp of the Family Court, prescribed by the Rules of Court and in force immediately before the commencement day, may be affixed to documents (in accordance with subsection 60(3) of the Federal Circuit and Family Court of Australia Act 2021) until the end of the 12‑month period beginning on the commencement day, as if it were a stamp of the Federal Circuit and Family Court of Australia (Division 1).

237

Continuity of Rules of Court

The amendments made by items 130, 139, 152, 165 and 167 of this Schedule:

1. (a)

   do not affect the continuity of any Rules of Court made for the purposes of section 123 of the Family Law Act 1975 that are in force immediately before the commencement day; and

2. (b)

   to avoid doubt, do not prevent the amendment or repeal of those Rules of Court.

Division 4Saving and transitional provisions: Federal Court of Australia Act 1976 amendments

238

Registries of the Federal Court of Australia

(1) Despite the amendment of section 34 of the Federal Court of Australia Act 1976 by this Schedule, a Registry of the Federal Court of Australia, existing immediately before the commencement day, continues in existence on and after that day.

(2) The amendment of section 34 of the Federal Court of Australia Act 1976 by this Schedule does not affect:

1. (a)

   the designation, before the commencement day, of a Registry of the Federal Court of Australia as the Principal Registry of the Court; or

2. (b)

   the specification, before the commencement day, of a District (in respect of which a District Registry of the Federal Court of Australia exists).

Part 3Amendments not commencing before 1 January 2020

Federal Circuit and Family Court of Australia Act 2021

239

Paragraph 127(1)(a)

Repeal the paragraph, substitute:

1. (a)

   the person:

   1. (i)

      has not attained the age of 18 years; or

   2. (ii)

      has attained the age of 18 years but has not attained the age of 25 years and is receiving full‑time education at a school, college or university; and

240

Application provision

The amendment of the Federal Circuit and Family Court of Australia Act2021 made by this Part applies in relation to a Judge of the Federal Circuit and Family Court of Australia (Division 2) or a retired disabled Judge (within the meaning of that Act) who dies on or after the day this item commences.

Part 4Amendments relating to making Rules of Court

Corporations (Aboriginal and Torres Strait Islander) Act 2006

1. 241

   Section 700‑1 (paragraph (b) of the definition of Aboriginal and Torres Strait Islander Corporations legislation)

Omit “the Chief Justice”, substitute “Judges”.

Corporations Act 2001

1. 242

   Section 9 (paragraph (c) of the definition of Corporations legislation)

Omit “the Chief Justice”, substitute “Judges”.

Family Law Act 1975

243

Subsection 109A(1)

Omit “the Chief Justice”, substitute “Judges”.

244

Subsection 111C(7A)

Omit “the Chief Justice”, substitute “Judges”.

245

Subsection 111C(7B)

Omit “the Chief Justice”, substitute “Judges”.

246

Subsection 111C(7C)

Omit “the Chief Judge”, substitute “Judges”.

247

Subsection 123(1)

Omit “Chief Justice of the Federal Circuit and Family Court of Australia (Division 1)”, substitute “Judges of the Federal Circuit and Family Court of Australia (Division 1), or a majority of them,”.

248

Subsection 123(1) (note 1)

Omit “Note 1”, substitute “Note”.

249

Subsection 123(1) (note 2)

Repeal the note.

250

Subsection 123(2)

Omit “the Chief Justice”, substitute “Judges”.

251

After paragraph 123(2)(a)

Insert:

1. (b)

   as if a reference to a rule‑maker were a reference to the Chief Justice acting on behalf of the Judges of that Court; and

252

Subsection 123(2A)

Omit “the Chief Justice”, substitute “Judges”.

253

Subsection 124(2)

Repeal the subsection, substitute:

1. (2)

   The function of the Rules Advisory Committee is to advise the Judges of the Federal Circuit and Family Court of Australia (Division 1) in relation to the making of standard Rules of Court as requested from time to time.

Federal Circuit and Family Court of Australia Act 2021

254

Subsection 76(1)

Omit “Chief Justice”, substitute “Judges, or a majority of them,”.

255

Subsection 76(1) (note)

Repeal the note.

256

After subsection 76(1)

Insert:

1. (1A)

   Proposed Rules of Court are not to be made if the Chief Justice considers they are not consistent with the aim mentioned in paragraph 75(a) (ensuring common rules of court and forms).

257

Subsection 76(4)

Omit “the Chief Justice”, substitute “Judges”.

258

After paragraph 76(4)(a)

Insert:

1. (aa)

   as if a reference to a rule‑maker were a reference to the Chief Justice acting on behalf of the Judges of the Court; and

259

Subsection 76(5)

Omit “made by the Chief Justice”, substitute “made by Judges”.

260

Section 77

Repeal the section.

261

Subsection 82(2)

Repeal the subsection, substitute:

1. (2)

   The Chief Justice may appoint committees consisting of Judges, or of Judges and other persons, for the purpose of:

   1. (a)

      advising the Judges of the Federal Circuit and Family Court of Australia (Division 1) in relation to the making of Rules of Court; or

   2. (b)

      advising the Chief Justice in relation to the management of the administrative affairs of the Federal Circuit and Family Court of Australia (Division 1).

262

Subsection 98(1)

Omit “The Chief Justice”, substitute “Judges, or a majority of them,”.

263

Subsection 217(1)

Omit “Chief Judge”, substitute “Judges, or a majority of them,”.

264

Subsection 217(1) (note)

Repeal the note.

265

After subsection 217(1)

Insert:

1. (1A)

   Proposed Rules of Court are not to be made if the Chief Judge considers they are not consistent with the aim mentioned in paragraph 216(a) (ensuring common rules of court and forms).

266

Subsection 217(3)

Omit “the Chief Judge”, substitute “Judges”.

267

After paragraph 217(3)(a)

Insert:

1. (aa)

   as if a reference to a rule‑maker were a reference to the Chief Judge acting on behalf of the Judges of the Court; and

268

Subsection 217(4)

Omit “made by the Chief Judge”, substitute “made by Judges”.

269

Section 218

Repeal the section.

270

Subsection 249(2)

Repeal the subsection, substitute:

1. (2)

   The Chief Judge may appoint committees consisting of Judges, or of Judges and other persons, for the purpose of:

   1. (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

   2. (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).

271

Subsection 254(1)

Omit “The Chief Judge”, substitute “Judges, or a majority of them,”.

Plant Breeder’s Rights Act 1994

272

Subsection 56A(5)

Omit “of the Chief Judge of the Federal Circuit and Family Court of Australia (Division 2)”.

273

Application of amendments

The amendments made by this Part apply in relation to rules of court made after this Part commences.

274

Continuity of rules of court

The amendments made by this Part:

1. (a)

   do not affect the continuity of any rules of court that are in force immediately before this Part commences; and

2. (b)

   to avoid doubt, do not prevent the amendment or repeal of those rules of court.

Schedule 2Further consequential amendments

Administrative Appeals Tribunal Act 1975

1

Paragraph 7(2)(a)

Omit “Family Court of Australia”, substitute “Federal Circuit and Family Court of Australia (Division 1)”.

2

Subsection 43(5C)

Omit “Federal Circuit Court of Australia”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

3

Subsection 44(1) (note 2)

Omit “Federal Circuit Court”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

4

Section 44AAA (heading)

Omit “Federal Circuit Court”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

5

Subsections 44AAA(1) and (2)

Omit “Federal Circuit Court of Australia”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

6

Subsection 44AAA(3)

Omit “the Federal Circuit Court of Australia Act 1999”, substitute “Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021”.

(2) The person holds office, on and after the commencement day:

1. (a)

   on the terms and conditions that were applicable to the person immediately before that day; and

2. (b)

   for the balance of the person’s term of appointment that remained immediately before that day.

1. 5

   Officers and staff of the Family Court of Australia

(1) A person who, immediately before the commencement day, was an officer of the Family Court of Australia, as mentioned in paragraph 38N(1)(b), (c), (d), (e) or (f) of the old law, continues on and after that day as an officer of the Federal Circuit and Family Court of Australia (Division 1).

(2) A person who, immediately before the commencement day, was a member of the staff of the Registries of the Family Court of Australia (as mentioned in subsection 38N(7) of the old law), continues on and after that day as a member of the staff of the Registries of the Federal Circuit and Family Court of Australia (Division 1).

(3) In this item:

old law means Part IVA of the Family Law Act 1975, as in force immediately before the commencement day.

1. 6

   Application of subsection 25B(1) of the Acts Interpretation Act 1901

Subsection 25B(1) of the Acts Interpretation Act 1901 applies as if:

1. (a)

   the Family Court of Australia were a body; and

2. (b)

   the offices of Chief Justice, Deputy Chief Justice, Senior Judge and Judge were offices.

1. 7

   Things done by the Family Court of Australia or Judges of the Court

To avoid doubt, the amendments made by this Act do not affect the validity of anything done, before the commencement day, by or in relation to:

1. (a)

   the Family Court of Australia; or

2. (b)

   a Full Court of the Family Court of Australia; or

3. (c)

   the Chief Justice, the Deputy Chief Justice, a Senior Judge or a Judge of the Family Court of Australia; or

4. (d)

   a Judge of the Family Court of Australia (including the Chief Justice, the Deputy Chief Justice or a Senior Judge) when performing functions, or exercising powers, under an Act in the Judge’s personal capacity.

Note: Paragraph (d)—if a Judge may issue a warrant under an Act and does so, the Judge issues the warrant in the Judge’s personal capacity and not as a member of a court.

1. 8

   Things done by, or in relation to, the Chief Executive Officer

(1) If a thing was done by, or in relation to, the Chief Executive Officer of the Family Court of Australia, then the thing is taken, for the purposes of the operation of any law on and after the commencement day, to have been done by, or in relation to, the Chief Executive Officer of the Federal Circuit and Family Court of Australia (Division 1).

(2) The Minister may, in writing, determine that subitem (1) does not apply in relation to a specified thing done by, or in relation to, the Chief Executive Officer of the Family Court of Australia.

(3) To avoid doubt, doing a thing includes making an instrument.

(4) A determination under subitem (2) is not a legislative instrument.

1. 9

   Things done by, or in relation to, a Registrar or Deputy Registrar

(1) If a thing was done by, or in relation to, a Registrar of the Family Court of Australia, then the thing is taken, for the purposes of the operation of any law on and after the commencement day, to have been done by, or in relation to, a Senior Registrar of the Federal Circuit and Family Court of Australia (Division 1).

(2) The Minister may, in writing, determine that subitem (1) does not apply in relation to a specified thing done by, or in relation to, a Registrar of the Family Court of Australia.

(3) If a thing was done by, or in relation to, a Deputy Registrar of the Family Court of Australia, then the thing is taken, for the purposes of the operation of any law on and after the commencement day, to have been done by, or in relation to, a Registrar of the Federal Circuit and Family Court of Australia (Division 1).

(4) The Minister may, in writing, determine that subitem (3) does not apply in relation to a specified thing done by, or in relation to, a Deputy Registrar of the Family Court of Australia.

(5) To avoid doubt, doing a thing includes making an instrument.

(6) A determination under subitem (2) or (4) is not a legislative instrument.

1. 10

   Things done by, or in relation to, a Registry Manager

(1) If a thing was done by, or in relation to, the Registry Manager of a Registry of the Family Court of Australia, then the thing is taken, for the purposes of the operation of any law on and after the commencement day, to have been done by, or in relation to, the Registry Manager of a Registry of the Federal Circuit and Family Court of Australia (Division 1).

(2) The Minister may, in writing, determine that subitem (1) does not apply in relation to a specified thing done by, or in relation to, the Registry Manager of a Registry of the Family Court of Australia.

(3) To avoid doubt, doing a thing includes making an instrument.

(4) A determination under subitem (2) is not a legislative instrument.

1. 11

   Things done by, or in relation to, the Marshal or a Deputy Marshal

(1) If a thing was done by, or in relation to, the Marshal or a Deputy Marshal of the Family Court of Australia, then the thing is taken, for the purposes of the operation of any law on and after the commencement day, to have been done by, or in relation to, the Marshal or a Deputy Marshal of the Federal Circuit and Family Court of Australia (Division 1).

(2) The Minister may, in writing, determine that subitem (1) does not apply in relation to a specified thing done by, or in relation to, the Marshal or a Deputy Marshal of the Family Court of Australia.

(3) To avoid doubt, doing a thing includes making an instrument.

(4) A determination under subitem (2) is not a legislative instrument.

12

Registries

Despite the repeal of Part IV of the Family Law Act 1975, a Registry of the Family Court of Australia, existing immediately before the commencement day, continues in existence on and after that day as a Registry of the Federal Circuit and Family Court of Australia (Division 1).

13

Complaints

If, in relation to a Judge of the Family Court of Australia:

1. (a)

   a complaint is made, on or after the commencement day, about the Judge; and

2. (b)

   the circumstances that gave rise to the complaint occurred before the commencement day;

then:

1. (c)

   the Chief Justice may deal with the complaint under section 48 of the new law; and

2. (d)

   for the purposes of dealing with the complaint, the reference to the Federal Circuit and Family Court of Australia (Division 1) in subparagraph (b)(ii) of the definition of relevant belief in subsection 48(4) of the new law is taken to include a reference to the Family Court of Australia.

Part 3Continuity of the Federal Circuit Court of Australia, and Judges and personnel of the Court

14

Change in title of judicial offices

(1) The office of Chief Judge of the Federal Circuit Court of Australia under the old law is the same office as the office of Chief Judge of the Federal Circuit and Family Court of Australia (Division 2) under the new law.

(2) The office of Judge (other than Chief Judge) of the Federal Circuit Court of Australia under the old law is the same office as the office of Judge of the Federal Circuit and Family Court of Australia (Division 2) under the new law.

(3) In this item:

old law means the Federal Circuit Court of Australia Act 1999, as in force immediately before the commencement day.

15

Appointments to judicial offices

Chief Judge

(1) The person holding office as the Chief Judge of the Federal Circuit Court of Australia immediately before the commencement day continues to hold that office under the title of Chief Judge of the Federal Circuit and Family Court of Australia (Division 2).

Judge

(2) A person holding office as a Judge of the Federal Circuit Court of Australia (other than the Chief Judge) immediately before the commencement day continues to hold that office under the title of Judge of the Federal Circuit and Family Court of Australia (Division 2).

Assignment of Judges to locations or registries

(3) Despite the repeal of the Federal Circuit Court of Australia Act 1999, an instrument made under subsection 12(4) of that Act and in force immediately before the commencement day continues in force (and may be dealt with) as if it had been made under subsection 147(1) of the new law.

(4) An approval given under subsection 12(5) of the Federal Circuit Court of Australia Act 1999 in relation to an instrument mentioned in subitem (3), and in force immediately before the commencement day, continues in force (and may be dealt with) as if it had been given under subsection 147(2) of the new law.

1. 16

   Officers and staff of the Federal Circuit Court of Australia

(1) A person who, immediately before the commencement day, was an officer of the Federal Circuit Court of Australia, as mentioned in paragraph 99(1)(a), (b), (c), (d), (e) or (f) of the old law, continues on and after that day as an officer of the Federal Circuit and Family Court of Australia (Division 2).

(2) A person who, immediately before the commencement day, was a member of the staff of the Federal Circuit Court of Australia (as mentioned in section 112 of the old law), continues on and after that day as a member of the staff of the Federal Circuit and Family Court of Australia (Division 2).

(3) In this item:

old law means the Federal Circuit Court of Australia Act 1999, as in force immediately before the commencement day.

1. 17

   Application of subsection 25B(1) of the Acts Interpretation Act 1901

Subsection 25B(1) of the Acts Interpretation Act 1901 applies as if:

1. (a)

   the Federal Circuit Court of Australia were a body; and

2. (b)

   the offices of Chief Judge and Judge were offices.

1. 18

   Things done by, or in relation to, the Federal Circuit Court of Australia or Judges of the Court

To avoid doubt, the repeal of the Federal Circuit Court of Australia Act 1999, and any other amendment made by this Act, does not affect the validity of anything done, before the commencement day, by or in relation to:

1. (a)

   the Federal Circuit Court of Australia; or

2. (b)

   the Chief Judge or a Judge of the Federal Circuit Court of Australia; or

3. (c)

   a Judge of the Federal Circuit Court of Australia as a Federal Magistrate; or

4. (d)

   a Judge of the Federal Circuit Court of Australia (including the Chief Judge) when performing functions, or exercising powers, under an Act in the Judge’s personal capacity.

Note: Paragraph (d)—if a Judge may issue a warrant under an Act and does so, the Judge issues the warrant in the Judge’s personal capacity and not as a member of a court.

1. 19

   Things done by, or in relation to, the Chief Executive Officer

(1) If a thing was done by, or in relation to, the Chief Executive Officer of the Federal Circuit Court of Australia, then, despite the repeal of the Federal Circuit Court of Australia Act 1999, the thing is taken, for the purposes of the operation of any law on and after the commencement day, to have been done by, or in relation to, the Chief Executive Officer of the Federal Circuit and Family Court of Australia (Division 1).

(2) The Minister may, in writing, determine that subitem (1) does not apply in relation to a specified thing done by, or in relation to, the Chief Executive Officer of the Federal Circuit Court of Australia.

(3) To avoid doubt, doing a thing includes making an instrument.

(4) A determination under subitem (2) is not a legislative instrument.

20

Things done by, or in relation to, a Registrar

(1) If a thing was done by, or in relation to, a Registrar of the Federal Circuit Court of Australia, then, despite the repeal of the Federal Circuit Court of Australia Act 1999, the thing is taken, for the purposes of the operation of any law on and after the commencement day, to have been done by, or in relation to, a Registrar of the Federal Circuit and Family Court of Australia (Division 2).

(2) The Minister may, in writing, determine that subitem (1) does not apply in relation to a specified thing done by, or in relation to, a Registrar of the Federal Circuit Court of Australia.

(3) To avoid doubt, doing a thing includes making an instrument.

(4) A determination under subitem (2) is not a legislative instrument.

1. 21

   Things done by, or in relation to, the Sheriff or a Deputy Sheriff

(1) If a thing was done by, or in relation to, the Sheriff or a Deputy Sheriff of the Federal Circuit Court of Australia, then, despite the repeal of the Federal Circuit Court of Australia Act 1999, the thing is taken, for the purposes of the operation of any law on and after the commencement day, to have been done by, or in relation to, the Sheriff or a Deputy Sheriff of the Federal Circuit and Family Court of Australia (Division 2).

(2) The Minister may, in writing, determine that subitem (1) does not apply in relation to a specified thing done by, or in relation to, the Sheriff or a Deputy Sheriff of the Federal Circuit Court of Australia.

(3) To avoid doubt, doing a thing includes making an instrument.

(4) A determination under subitem (2) is not a legislative instrument.

1. 22

   Things done by, or in relation to, the Marshal or a Deputy Marshal

(1) If a thing was done by, or in relation to, the Marshal or a Deputy Marshal of the Federal Circuit Court of Australia, then, despite the repeal of the Federal Circuit Court of Australia Act 1999, the thing is taken, for the purposes of the operation of any law on and after the commencement day, to have been done by, or in relation to, the Marshal or a Deputy Marshal of the Federal Circuit and Family Court of Australia (Division 2).

(2) The Minister may, in writing, determine that subitem (1) does not apply in relation to a specified thing done by, or in relation to, the Marshal or a Deputy Marshal of the Federal Circuit Court of Australia.

(3) To avoid doubt, doing a thing includes making an instrument.

(4) A determination under subitem (2) is not a legislative instrument.

23

Registries

Despite the repeal of the Federal Circuit Court of Australia Act 1999, a Registry of the Federal Circuit Court of Australia, existing immediately before the commencement day, continues in existence on and after that day as a Registry of the Federal Circuit and Family Court of Australia (Division 2).

24

Complaints

If, in relation to a Judge of the Federal Circuit Court of Australia:

1. (a)

   a complaint is made, on or after the commencement day, about the Judge; and

2. (b)

   the circumstances that gave rise to the complaint occurred before the commencement day;

then:

1. (c)

   the Chief Judge may deal with the complaint under section 145 of the new law; and

2. (d)

   for the purposes of dealing with the complaint, the reference to the Federal Circuit and Family Court of Australia (Division 2) in subparagraph (b)(ii) of the definition of relevant belief in subsection 145(4) of the new law is taken to include a reference to the Federal Circuit Court of Australia.

Part 4Transitional arrangements for appealsDivision 1Appeals or applications not made, but time for making appeal or application not expired

25

Appeals to the High Court

If:

1. (a)

   on the day before the commencement day, an application for special leave to appeal could be made under section 95 of the Family Law Act 1975; and

2. (b)

   despite the amendments to the Family Law Act 1975 made by this Act, on the commencement day the time for making the application has not ended;

then, on or after the commencement day, the application may be made to the High Court.

1. 26

   Appeals to Federal Circuit and Family Court of Australia (Division 1)

(1) If:

1. (a)

   on the day before the commencement day, either:

   1. (i)

      an appeal could be instituted under Part X of the Family Law Act 1975; or

   2. (ii)

      an application for leave to appeal could be made under section 94AA of that Act; and

2. (b)

   despite the amendments to the Family Law Act 1975 made by this Act, on the commencement day the time for instituting the appeal or making the application has not ended;

then, on or after the commencement day, the appeal or application may be made to the Federal Circuit and Family Court of Australia (Division 1).

(2) For the purposes of subitem (1), an appeal or application for leave to appeal must be made in accordance with the Rules of Court made under Chapter 3 of the Federal Circuit and Family Court of Australia Act 2021.

(3) To avoid doubt, the Federal Circuit and Family Court of Australia (Division 1) is to hear and determine the appeal or application according to:

1. (a)

   the Federal Circuit and Family Court of Australia Act 2021; and

2. (b)

   the Family Law Act 1975, as amended by this Act; and

3. (c)

   any other law of the Commonwealth, as relevant.

1. 27

   Extensions of time to appeal or seek leave to appeal

(1) Despite the amendments to the Family Law Act 1975 made by this Act, if, on the commencement day, a person could seek an extension of time:

1. (a)

   to institute an appeal under the Family Law Act 1975; or

2. (b)

   to apply for leave to appeal under that Act;

then, on or after the commencement day, the person may apply to the Federal Circuit and Family Court of Australia (Division 1) to seek such an extension of time.

(2) To avoid doubt, the Federal Circuit and Family Court of Australia (Division 1) is to hear and determine the application according to:

1. (a)

   the Federal Circuit and Family Court of Australia Act 2021; and

2. (b)

   the Family Law Act 1975, as amended by this Act; and

3. (c)

   any other law of the Commonwealth, as relevant.

Division 2Matters not substantively heard before the commencement day

1. 28

   Matters before a Judge or Full Court of the Family Court of Australia

Matters to be substantively heard by the Federal Circuit and Family Court of Australia (Division 1)

(1) Subject to subitems (3) and (4), if:

1. (a)

   before the commencement day, any of the following occur:

   1. (i)

      an application is made under section 94AA of the Family Law Act 1975 for leave to appeal under Part X of that Act;

   2. (ii)

      an appeal is instituted, as allowed by Part X of that Act;

   3. (iii)

      facts and a question of law are stated in the form of a special case for the opinion of a Full Court of the Family Court of Australia; and

2. (b)

   on the day before the commencement day, either:

   1. (i)

      there has not been a substantive hearing of the application, appeal or special case by the Full Court of the Family Court of Australia; or

   2. (ii)

      in the case of an application referred to in subparagraph (a)(i) that could be determined by a single Judge of the Family Court of Australia, there has not been a substantive hearing of the application by a single Judge of the Court;

then, on or after the commencement day, the Federal Circuit and Family Court of Australia (Division 1) is to hear and determine the application, appeal or special case, as if the application were made to, the appeal instituted in, or the special case stated for, the Federal Circuit and Family Court of Australia (Division 1).

(2) To avoid doubt, the Federal Circuit and Family Court of Australia (Division 1) is to hear and determine the application, appeal or special case according to:

1. (a)

   the Federal Circuit and Family Court of Australia Act 2021; and

2. (b)

   the Family Law Act 1975, as amended by this Act; and

3. (c)

   any other law of the Commonwealth, as relevant.

Federal Circuit and Family Court of Australia (Division 1) to deal with certain applications of a procedural nature first

(3) If, on the day before the commencement day, a Full Court of the Family Court of Australia has reserved judgment on an application of a procedural nature (as mentioned in subsection 94(2D) or 94AAA(10) of the Family Law Act 1975) in relation to an application or appeal mentioned in paragraph (1)(a), then, on or after the commencement day, a Full Court of the Federal Circuit and Family Court of Australia (Division 1) must deliver the judgment on the procedural application.

Note: For provisions relating to the constitution of a Full Court, see item 32.

(4) If, on the day before the commencement day, a single Judge of the Family Court of Australia has reserved judgment on an application of a procedural nature (as mentioned in subsection 94(2D) or 94AAA(10) of the Family Law Act 1975) in relation to an application or appeal mentioned in paragraph (1)(a), then, on or after the commencement day, a single Judge of the Federal Circuit and Family Court of Australia (Division 1) must deliver the judgment on the procedural application.

Note: For provisions relating to the unavailability of a Judge, see item 33.

(5) Once judgment has been delivered on the procedural application, as mentioned in subitem (3) or (4), the application or appeal mentioned in paragraph (1)(a) is to be dealt with by the Federal Circuit and Family Court of Australia (Division 1) as required by subitem (1).

Federal Circuit and Family Court of Australia (Division 1) to deal with other applications of a procedural nature

(6) If, on the day before the commencement day:

1. (a)

   an application of a procedural nature (as mentioned in subsection 94(2D) or 94AAA(10) of the Family Law Act 1975) exists in relation to an application or appeal mentioned in paragraph (1)(a); and

2. (b)

   subitems (3) and (4) do not apply;

the Federal Circuit and Family Court of Australia (Division 1) must deal with the procedural application before dealing with the application or appeal mentioned in paragraph (1)(a) as required by subitem (1), and for this purpose, subitem (2) applies.

Full Court divided in opinion

(7) If the Judges constituting the Full Court of the Federal Circuit and Family Court of Australia (Division 1) are divided in opinion as to the judgment to be pronounced on an application of a procedural nature:

1. (a)

   if there is a majority—judgment is be pronounced according to the opinion of the majority; and

2. (b)

   if the Judges are equally divided in opinion:

   1. (i)

      in the case of an appeal from a judgment of the Family Court of Australia constituted by a single Judge, or of a Family Court of a State or the Supreme Court of a State or Territory—the judgment appealed from is to be affirmed; and

   2. (ii)

      in any other case—the opinion of the Chief Justice or, if the Chief Justice is not one of the Judges constituting the Full Court, the opinion of the most senior of the Judges constituting the Full Court is to prevail.

Jurisdiction to hear applications of a procedural nature

(8) To avoid doubt:

1. (a)

   a Full Court of the Federal Circuit and Family Court of Australia (Division 1) has jurisdiction to deal with an application of a procedural nature for the purposes of subitem (3); and

2. (b)

   a single Judge of the Federal Circuit and Family Court of Australia (Division 1) has jurisdiction to deal with an application of a procedural nature for the purposes of subitem (4).

29

Appeals from courts of summary jurisdiction

Appeals before a single Judge of the Family Court of Australia

(1) If:

1. (a)

   before the commencement day, an appeal is instituted, as allowed by section 96 of the Family Law Act 1975; and

2. (b)

   on the day before the commencement day, both:

   1. (i)

      there has not been a substantive hearing of the appeal by a single Judge of the Family Court of Australia; and

   2. (ii)

      the appeal has not been referred to the Full Court of the Family Court of Australia under subsection 96(5) of that Act;

then, on or after the commencement day, a single Judge of the Federal Circuit and Family Court of Australia (Division 1) is to hear and determine the appeal.

(2) To avoid doubt, the Judge of the Federal Circuit and Family Court of Australia (Division 1) is to hear and determine the appeal or application according to:

1. (a)

   the Federal Circuit and Family Court of Australia Act 2021; and

2. (b)

   the Family Law Act 1975, as amended by this Act; and

3. (c)

   any other law of the Commonwealth, as relevant.

Appeals before a Full Court of the Family Court of Australia

(3) If:

1. (a)

   before the commencement day:

   1. (i)

      an appeal is instituted, as allowed by section 96 of the Family Law Act 1975; and

   2. (ii)

      the appeal has been referred to, or an application has been made for referral to, a Full Court of the Family Court of Australia under subsection 96(5) of that Act; and

2. (b)

   on the day before the commencement day, there has not been a substantive hearing of the appeal or application by a Full Court of the Family Court of Australia;

then, despite the referral or application for referral to a Full Court of the Family Court of Australia, on or after the commencement day, a Full Court of the Federal Circuit and Family Court of Australia (Division 1) is to hear and determine the appeal or application.

(4) To avoid doubt, the Full Court of the Federal Circuit and Family Court of Australia (Division 1) is to hear and determine the appeal or application according to:

1. (a)

   the Federal Circuit and Family Court of Australia Act 2021; and

2. (b)

   the Family Law Act 1975, as amended by this Act; and

3. (c)

   any other law of the Commonwealth, as relevant.

Division 3Matters substantively heard, in whole or in part, before the commencement day

1. 30

   Matters before the Full Court of the Family Court of Australia

Judgment to be delivered by the Federal Circuit and Family Court of Australia (Division 1)

(1) If:

1. (a)

   before the commencement day, a Full Court of the Family Court of Australia has heard, in whole or in part, any of the following:

   1. (i)

      an application made under section 94AA of the Family Law Act 1975 for leave to appeal under Part X of that Act;

   2. (ii)

      an appeal allowed by Part X of that Act;

   3. (iii)

      an appeal referred under subsection 96(5) of that Act;

   4. (iv)

      a special case for the opinion of the Full Court; and

2. (b)

   on the day before the commencement day, either:

   1. (i)

      a substantive hearing of the application, appeal or special case has not concluded; or

   2. (ii)

      a substantive hearing of the application, appeal or special case has concluded, but judgment has not been delivered in relation to the application, appeal or special case;

then, on or after the commencement day, despite the amendments to the Family Law Act 1975 made by this Act, the Federal Circuit and Family Court of Australia (Division 1), constituted as a Full Court, must:

1. (c)

   if required, conclude the substantive hearing of the application, appeal or special case; and

2. (d)

   deliver the judgment in relation to the application, appeal or special case.

Regard may be had to prior evidence

(2) A Full Court of the Federal Circuit and Family Court of Australia (Division 1) may have regard to any evidence given or received, and arguments adduced, by or before the Full Court of the Family Court of Australia, as constituted before the commencement day.

Reasons for decision may be given in short form in certain cases

(3) Except in the case of an appeal referred under subsection 96(5) of the Family Law Act 1975, if, in dismissing an appeal, a Full Court of 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.

Full Court divided in opinion

(4) If the Judges constituting a Full Court of the Federal Circuit and Family Court of Australia (Division 1) are divided in opinion as to the judgment to be pronounced:

1. (a)

   if there is a majority—judgment is to be pronounced according to the opinion of the majority; and

2. (b)

   if the Judges are equally divided in opinion:

   1. (i)

      in the case of an appeal from a judgment of the Family Court of Australia constituted by a single Judge, or of a Family Court of a State or the Supreme Court of a State or Territory—the judgment appealed from is to be affirmed; and

   2. (ii)

      in any other case—the opinion of the Chief Justice or, if the Chief Justice is not one of the Judges constituting the Full Court, the opinion of the most senior of the Judges constituting the Full Court is to prevail.

Appellate jurisdiction

(5) To avoid doubt, a Full Court of the Federal Circuit and Family Court of Australia (Division 1) has appellate jurisdiction for the purposes of this item.

1. 31

   Matters before a Judge of the Family Court of Australia

Judgment to be delivered by Judge of the Federal Circuit and Family Court of Australia (Division 1)

(1) If:

1. (a)

   before the commencement day, a single Judge of the Family Court of Australia has heard, in whole or in part, either of the following:

   1. (i)

      an application made under section 94AA of the Family Law Act 1975 for leave to appeal under Part X of that Act;

   2. (ii)

      an appeal allowed by Part X of that Act; and

2. (b)

   on the day before the commencement day, either:

   1. (i)

      a substantive hearing of the application or appeal has not concluded; or

   2. (ii)

      a substantive hearing of the application or appeal has concluded, but judgment has not been delivered in relation to the application or appeal;

then, on or after the commencement day, despite the amendments to the Family Law Act 1975 made by this Act, the Judge, as a Judge of the Federal Circuit and Family Court of Australia (Division 1), must deliver the judgment in relation to the application or appeal.

Note: For provisions relating to the unavailability of a Judge, see item 33.

Reasons for decision may be given in short form in certain cases

(2) Except in the case of an appeal under section 96 of the Family Law Act 1975, if, in dismissing an appeal, a single Judge of 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, the Judge may give reasons for the Judge’s decision in short form.

Appellate jurisdiction

(3) To avoid doubt, a single Judge of the Federal Circuit and Family Court of Australia (Division 1) has appellate jurisdiction for the purposes of this item.

Division 4Miscellaneous

1. 32

   Constituting a Full Court of the Federal Circuit and Family Court of Australia (Division 1)

(1) For the purposes of subitems 28(3) and 30(1), if:

1. (a)

   one or more of the Judges involved in hearing and determining the application, appeal or special case are not available to constitute a Full Court of the Federal Circuit and Family Court of Australia (Division 1); and

2. (b)

   the allocation of another Judge is necessary to constitute a Full Court;

the Chief Justice must allocate another Judge of the Federal Circuit and Family Court of Australia (Division 1) to be a member of the Full Court.

(2) For the purposes of subitems 28(3) and 30(1), if:

1. (a)

   one or more of the Judges involved in hearing and determining the application, appeal or special case are not available to constitute a Full Court of the Federal Circuit and Family Court of Australia (Division 1); and

2. (b)

   the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) otherwise considers it necessary;

the Chief Justice may allocate another Judge of the Federal Circuit and Family Court of Australia (Division 1) to be a member of the Full Court.

1. 33

   Unavailability of a Judge of the Federal Circuit and Family Court of Australia (Division 1)

(1) For the purposes of subitems 28(4) and 31(1), if the single Judge of the Federal Circuit and Family Court of Australia (Division 1) involved in hearing and determining the application or appeal is not available to deliver judgment in relation to the application or appeal, the Chief Justice must allocate another Judge of the Court to do so.

(2) The Judge of the Federal Circuit and Family Court of Australia (Division 1) so allocated:

1. (a)

   may have regard to any evidence given or received, and arguments adduced, by or before the Judge of the Family Court of Australia before the commencement day; and

2. (b)

   may receive further evidence or submissions, or hear further argument, if required.

34

Other matters

(1) If an application is made before, on or after the commencement day that relates, or is incidental, to a proceeding mentioned in a preceding item of this Part, then the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) may give any direction necessary to ensure that the application is heard and determined, and judgment is delivered, pending the disposal of the proceeding.

(2) When giving a direction, as allowed by subitem (1), the Chief Justice must consider the workload and resources of the Federal Circuit and Family Court of Australia.

35

Application of case management provisions

Division 4 of Part 5 of Chapter 3 of the Federal Circuit and Family Court of Australia Act 2021 (Case management) applies in relation to:

1. (a)

   a proceeding commenced before the commencement day that will come before the Federal Circuit and Family Court of Australia (Division 1) because of an item of this Part; and

2. (b)

   a proceeding commencing on or after the commencement day that comes before the Federal Circuit and Family Court of Australia (Division 1) because of an item of this Part.

Part 5Miscellaneous

36

Prior judicial service

Paragraph 123(3)(b) of the Federal Circuit and Family Court of Australia Act 2021 has effect, on and after the commencement day, as if paragraph (c) of the definition of prior judicial service in subsection 7(1) of that Act included a reference to a Federal Magistrate.

Note: The appointment of a Federal Magistrate under the former Federal Magistrates Act 1999 continued as an appointment of a Judge of the Federal Circuit Court of Australia: see subitem 8(1) of Schedule 2 to the Federal Circuit Court of Australia Legislation Amendment Act 2012. See also item 15 of this Schedule.

37

Application

The Federal Circuit and Family Court of Australia Act 2021, including the following provisions of that Act:

1. (a)

   Division 4 of Part 5 of Chapter 3 (Case management);

2. (b)

   Division 4 of Part 6 of Chapter 4 (Case management);

applies in relation to a proceeding commenced before, on or after the commencement day.

38

Transitional rules

(1) The Minister may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to:

1. (a)

   the amendments or repeals made by this Act; or

2. (b)

   the enactment of the Federal Circuit and Family Court of Australia Act 2021.

(2) To avoid doubt, the rules may not do the following:

1. (a)

   create an offence or civil penalty;

2. (b)

   provide powers of:

   1. (i)

      arrest or detention; or

   2. (ii)

      entry, search or seizure;

3. (c)

   impose a tax;

4. (d)

   set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act or the Federal Circuit and Family Court of Australia Act 2021;

5. (e)

   directly amend the text of this Act or the Federal Circuit and Family Court of Australia Act 2021.

1. 39

   Schedule does not limit certain provisions of the Acts Interpretation Act 1901

This Schedule does not limit the operation of section 7 or subsection 25B(1) of the Acts Interpretation Act 1901.

[Minister’s second reading speech made in—

House of Representatives on 5 December 2019

Senate on 2 December 2020]

(249/19)