ACCESS TO JUSTICE (FAMILY COURT RESTRUCTURE AND OTHER MEASURES) BILL 2010

i Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. ,

2010

Contents

1 Short

title

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2 Commencement

.................................................................................

3 Schedule(s)

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Schedule 1--Amendment of the Family Law Act 1975

Part 1--Main amendments

Family Law Act 1975

Part 2--Other amendments

Family Law Act 1975

Schedule 2--Amendment of the Federal Magistrates Act 1999

Federal Magistrates Act 1999

Schedule 3--Amendment of other Acts

Part 1--Amendments relating to the restructure of the Family

Court

Division 1--Attorney-General

Administrative Decisions (Judicial Review) Act 1977

Bankruptcy Act 1966

Federal Court of Australia Act 1976

Federal Proceedings (Costs) Act 1981

Judges (Long Leave Payments) Act 1979

Judiciary Act 1903

Jurisdiction of Courts (Cross-vesting) Act 1987

Marriage Act 1961

Personal Property Securities Act 2009

Division 2--Families, Housing, Community Services and Indigenous

Affairs

Child Support (Assessment) Act 1989

Child Support (Registration and Collection) Act 1988

Division 3--Finance and Deregulation

Judges' Pensions Act 1968

Division 4--Treasury

Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

Australian Securities and Investments Commission Act 2001

Competition and Consumer Act 2010

Taxation Administration Act 1953

Trade Practices Act 1974

Part 2--Other amendment

Administrative Appeals Tribunal Act 1975

Schedule 4--Application, saving and transitional provisions

Part 1--Definitions

Part 2--Restructure of the Family Court

Part 3--Removal from Federal Magistrates Court of

jurisdiction with respect to family law or child support

matters

Part 4--Regulations

Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

A Bill for an Act to amend the law relating to

courts and tribunals, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Access to Justice (Family Court

Restructure and Other Measures) Act 2010.

2 Commencement

(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.

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Commencement information

Column 1

Column 2

Column 3

Provision(s)

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.

2. Schedule 1,

Part 1

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not

commence within the period of 6 months

beginning on the day this Act receives the

Royal Assent, they commence on the day

after the end of that period.

3. Schedule 1,

item 147

The later of:

(a) immediately after the commencement of

the provision(s) covered by table item 2;

and

(b) immediately after the commencement of

item 1 of Schedule 2 to the

Trans-Tasman Proceedings (Transitional

and Consequential Provisions) Act 2010.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

4. Schedule 1,

item 148

The later of:

(a) immediately after the commencement of

the provision(s) covered by table item 2;

and

(b) immediately after the commencement of

Schedule 2 to the Trade Practices

Amendment (Australian Consumer Law)

Act (No. 2) 2010.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

5. Schedule 2

At the same time as the provision(s) covered

by table item 2.

6. Schedule 3,

items 1 to 19

At the same time as the provision(s) covered

by table item 2.

Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

7. Schedule 3,

item 20

The later of:

(a) immediately after the commencement of

the provision(s) covered by table item 2;

and

(b) the registration commencement time

within the meaning of section 306 of the

Personal Property Securities Act 2009.

8. Schedule 3,

items 21 to 52

At the same time as the provision(s) covered

by table item 2.

9. Schedule 3,

item 53

The later of:

(a) immediately after the commencement of

the provision(s) covered by table item 2;

and

(b) immediately after the commencement of

Schedule 2 to the Trade Practices

Amendment (Australian Consumer Law)

Act (No. 2) 2010.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

10. Schedule 3,

item 54

At the same time as the provision(s) covered

by table item 2.

11. Schedule 3,

item 55

At the same time as the provision(s) covered

by table item 2.

However, if Schedule 2 to the Trade

Practices Amendment (Australian Consumer

Law) Act (No. 2) 2010 commences at or

before the time the provision(s) covered by

table item 2 commence, the provision(s) do

not commence at all.

12. Schedule 3,

items 56 and 57

The day after this Act receives the Royal

Assent.

13. Schedule 4

At the same time as the provision(s) covered

by table item 2.

Note:

This table relates only to the provisions of this Act as originally

passed by both Houses of the Parliament and assented to. It will not be

expanded to deal with provisions inserted in this Act after assent.

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(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

Each Act 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.

Amendment of the Family Law Act 1975 Schedule 1

Main amendments Part 1

Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

Schedule 1--Amendment of the Family Law

Act 1975

Part 1--Main amendments

Family Law Act 1975

1 Subsection 4(1)

Insert:

Administrative Judge (Appellate and Superior Division) means

the Administrative Judge (Appellate and Superior Division) of the

Family Court.

2 Subsection 4(1)

Insert:

Administrative Judge (General Division) means the

Administrative Judge (General Division) of the Family Court.

3 Subsection 4(1) (definition of Appeal Division)

Repeal the definition.

4 Subsection 4(1)

Insert:

Appellate and Superior Division means the Appellate and Superior

Division of the Family Court.

5 Subsection 4(1)

Insert:

Appellate Judge means any of the following Judges:

(a) the Chief Justice;

(b) the Deputy Chief Justice;

(d) any other Judge who is assigned to the Appellate and

Superior Division as an Appellate Judge under section 22A.

Schedule 1 Amendment of the Family Law Act 1975

Part 1 Main amendments

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6 Subsection 4(1)

Insert:

Chief Justice means the Chief Justice of the Family Court, and

includes the Deputy Chief Justice if the Deputy Chief Justice is for

the time being performing the duties and exercising the powers of

the Chief Justice.

7 Subsection 4(1)

Insert:

Court means the Family Court of Australia.

8 Subsection 4(1)

Insert:

Deputy Chief Justice means the Deputy Chief Justice of the

Family Court.

9 Subsection 4(1)

Insert:

Division, in relation to the Family Court, means the Appellate and

Superior Division or the General Division.

10 Subsection 4(1) (definition of Full Court)

Repeal the definition, substitute:

Full Court means:

(a) 3 or more Judges of the Appellate and Superior Division

sitting together, where a majority of those Judges are

Appellate Judges; or

(b) in relation to particular proceedings:

(i) 3 or more Judges of the Appellate and Superior Division

sitting together, where, at the commencement of the

hearing of the proceedings, a majority of those Judges

were Appellate Judges; or

(ii) 2 Judges of the Appellate and Superior Division sitting

together, where those Judges are permitted, by

subsection 28(4), to complete the hearing and

Amendment of the Family Law Act 1975 Schedule 1

Main amendments Part 1

Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

determination, or the determination, of those

proceedings.

11 Subsection 4(1)

Insert:

Judge, in relation to the Family Court, includes the Chief Justice,

the Deputy Chief Justice, the Administrative Judge (Appellate and

Superior Division) and the Administrative Judge (General

Division).

12 Subsection 4(1)

Insert:

Judge of the Appellate and Superior Division means any of the

following Judges:

(a) the Chief Justice;

(b) the Deputy Chief Justice;

(d) any other Judge who is assigned to the Appellate and

Superior Division under section 22A.

13 Subsection 4(1)

Insert:

Judge of the General Division means any of the following Judges:

(a) the Administrative Judge (General Division);

(b) any other Judge who is assigned to the General Division

under section 22A.

14 Paragraphs 10C(1)(d) and 10G(1)(d)

Repeal the paragraphs.

15 Paragraph 11B(b)

Repeal the paragraph.

16 Section 11B (note)

Repeal the note, substitute:

Schedule 1 Amendment of the Family Law Act 1975

Part 1 Main amendments

8 Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. ,

2010

Note:

The Chief Executive Officer has all of the functions and powers of

family consultants, and may direct consultants in the performance of

their functions. See Division 1A of Part IVA.

17 Subparagraph 11E(1)(e)(i)

Omit "of that court".

18 After subsection 13G(2)

Insert:

(2A) The arbitrator must not refer a question of law arising in relation to

the arbitration to the Federal Magistrates Court unless:

(a) in the case of section 13E arbitration--the Federal

Magistrates Court ordered the arbitration; or

(b) in the case of relevant property or financial arbitration--the

Federal Magistrates Court made orders under section 13F in

relation to the arbitration.

19 After subsection 13J(1)

Insert:

(1A) An application for review of an award made in an arbitration must

not be made to the Federal Magistrates Court unless:

(a) in the case of section 13E arbitration--the Federal

Magistrates Court ordered the arbitration; or

(b) in the case of relevant property or financial arbitration--the

Federal Magistrates Court made orders under section 13F in

relation to the arbitration.

20 Subsection 13K(1)

Omit "award is", substitute "award or agreement is".

21 Division 1 of Part IV

Repeal the Division.

22 Division 2 of Part IV (heading)

Repeal the heading, substitute:

Division 2--Creation of the Court etc.

23 Subsections 21(3) and (4)

Amendment of the Family Law Act 1975 Schedule 1

Main amendments Part 1

Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

Repeal the subsections, substitute:

(3) The Court consists of:

(a) a Chief Justice; and

(b) a Deputy Chief Justice; and

and

(d) an Administrative Judge (General Division); and

(e) other Judges, not exceeding such number as is prescribed.

24 Section 21A

Repeal the section, substitute:

21A Divisions of Court

For the purposes of the organisation and conduct of the business of

the Court, the Court comprises the following 2 Divisions:

(a) the Appellate and Superior Division;

(b) the General Division.

25 Subsection 21B(1)

Repeal the subsection, substitute:

(1) The Chief Justice is responsible for ensuring the effective, orderly

and expeditious discharge of the business of:

(a) the Court as a whole; and

(b) each Division of the Court (including the allocation of

resources between the Divisions).

26 Subsection 21B(1A)

Omit "Chief Judge", substitute "Chief Justice".

27 Subsections 21B(2) to (5)

Repeal the subsections, substitute:

(2) The Deputy Chief Justice is to assist the Chief Justice in the

exercise of the functions and powers conferred on the Chief Justice

by this section.

(3) The Administrative Judge (Appellate and Superior Division) is to

assist the Chief Justice in the exercise in relation to the Appellate

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Part 1 Main amendments

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and Superior Division of the functions and powers conferred on the

Chief Justice by this section.

(4) The Administrative Judge (General Division) is to assist the Chief

Justice in the exercise in relation to the General Division of the

functions and powers conferred on the Chief Justice by this

section.

(5) In exercising, or assisting in the exercise of, the functions or

powers mentioned in paragraph (1A)(a), the Chief Justice, the

Deputy Chief Justice, the Administrative Judge (Appellate and

Superior Division) and the Administrative Judge (General

Division) have the same protection and immunity as if they were

exercising, or assisting in the exercise of, those functions or powers

as, or as members of, the Court.

(6) Despite section 39B of the Judiciary Act 1903, the Federal Court of

Australia does not have jurisdiction with respect to a matter

relating to:

(a) the exercise by the Chief Justice of the functions or powers

mentioned in subsection (1A); or

(b) the assistance by the Deputy Chief Justice, the

Administrative Judge (Appellate and Superior Division) or

the Administrative Judge (General Division) in the exercise

of those functions or powers.

28 Before section 22

Insert:

Subdivision A--Appointment, seniority, remuneration etc.

Note:

The heading to section 22 is replaced by the heading "Appointment and removal of

Judges".

29 Subsections 22(2AAA) to (2AFA)

Repeal the subsections.

30 Subsection 22(2AG)

Renumber as subsection (3).

31 Subsection 22(2AH)

Renumber as subsection (4).

Amendment of the Family Law Act 1975 Schedule 1

Main amendments Part 1

Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

32 Subsection 22(2AH)

Omit "(2AG)", substitute "(3)".

33 Subsection 22(2A)

Renumber as subsection (5).

34 Subsection 22(2B)

Renumber as subsection (6).

35 Subsections 22(3) to (4)

Repeal the subsections.

36 At the end of section 22

Add:

(7) A reference in subsection (3), (5) or (6) to a Judge of the Family

Court of Australia is a reference to a Judge of the Appellate and

Superior Division.

Certain Judges may hold office on part-time basis

(8) A Judge who is assigned to the General Division under

section 22A may be appointed on a part-time basis.

37 After section 22

Insert:

22A Assignment of Judges to a Division of the Court

Assignment at time of appointment

(1) At the time a Judge is appointed, the Governor-General:

(a) must assign the Judge to:

(i) the Appellate and Superior Division; or

(ii) the General Division; and

(b) if the Governor-General assigns the Judge to the Appellate

and Superior Division--may assign the Judge to that

Division as an Appellate Judge.

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Part 1 Main amendments

12 Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. ,

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Assignment of particular office holders

(2) If the person appointed as the Chief Justice, the Deputy Chief

Justice or the Administrative Judge (Appellate and Superior

Division) is not already assigned to the Appellate and Superior

Division as an Appellate Judge, the Governor-General must assign

the person to that Division as an Appellate Judge.

(3) If the person appointed as the Administrative Judge (General

Division) is not already assigned to the General Division, the

Governor-General must assign the person to that Division.

Assignment during term of appointment

(4) During the term of appointment of a Judge who is assigned to the

Appellate and Superior Division but not as an Appellate Judge, the

Governor-General may, with the consent of the Judge but not

otherwise, assign the Judge to that Division as an Appellate Judge.

(5) During the term of appointment of a Judge who is assigned to the

General Division, the Governor-General may, with the consent of

the Judge but not otherwise, assign the Judge to the Appellate and

Superior Division (either as an Appellate Judge or not).

Limit on number of Appellate Judges

(6) The Governor-General must not assign a Judge to the Appellate

and Superior Division as an Appellate Judge under subsection (1),

(4) or (5) if, as a result of that assignment, the number of Appellate

Judges (not including the Judges referred to in subsection (2))

would exceed the prescribed number.

(7) Subsection (6) does not apply to the assignment of a Judge referred

to in subsection (2).

22B Assignment of Judges to particular locations

(1) The commission of appointment of a Judge must assign the Judge

to a particular location. The Judge:

(a) must not sit at another location on a permanent basis unless

the Attorney-General and the Chief Justice consent; and

Amendment of the Family Law Act 1975 Schedule 1

Main amendments Part 1

Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

(b) cannot be required to sit at another location on a permanent

basis unless the Judge consents (in addition to the consents

required by paragraph (a)); and

(2) In deciding whether to consent as mentioned in paragraph (1)(a),

the Chief Justice has the same protection and immunity as if he or

she were making that decision as, or as a member of, the Court.

(3) Despite section 39B of the Judiciary Act 1903, the Federal Court of

Australia does not have jurisdiction with respect to a matter

relating to the exercise by the Attorney-General or the Chief

Justice of the power to consent as mentioned in paragraph (1)(a).

22C Resignation

(1) A Judge may resign office by writing under his or her hand

addressed to the Governor-General.

(2) The resignation takes effect on:

(a) the day on which it is received by the Governor-General; or

(b) if a later day is specified in the resignation--that later day.

22D Effect of appointment to, and resignation from, certain offices

(1) This section applies if a person who holds office as a Judge of the

Court is appointed to one of the following offices (a higher office):

(a) Deputy Chief Justice;

(b) Administrative Judge (Appellate and Superior Division);

(2) The person retains the office of Judge of the Court while the person

holds the higher office.

(3) The person may resign the higher office without resigning the

office of Judge of the Court.

(4) If the person resigns the higher office without resigning the office

of Judge of the Court, the assignment under section 22A that was

in force in relation to the person while the person held the higher

office continues in force after the resignation.

Schedule 1 Amendment of the Family Law Act 1975

Part 1 Main amendments

14 Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. ,

2010

(5) Subsection (4) does not limit the application of section 22A to the

person after the resignation.

22E Style

(1) A Judge, or former Judge, of the Appellate and Superior Division

is entitled to be styled "The Honourable".

(2) In addition to the entitlement under subsection (1):

(a) an Appellate Judge is entitled to include the letters "JA" after

his or her name; and

(b) any other Judge of the Appellate and Superior Division is

entitled to include the letters "SJ" (Senior Judge) after his or

her name.

38 Subsection 23(1)

Omit "Chief Judge", substitute "Chief Justice".

Note:

The following heading to subsection 23(1) is inserted "Chief Justice".

39 Subsection 23(2)

Omit "Chief Judge" (wherever occurring), substitute "Chief Justice".

Note:

The following heading to subsection 23(2) is inserted "Deputy Chief Justice".

40 Subsections 23(3) and (4)

Repeal the subsections, substitute:

Administrative Judge (Appellate and Superior Division)

(3) The Administrative Judge (Appellate and Superior Division) is

senior to all other Judges of the Court other than the Chief Justice

and the Deputy Chief Justice.

Other Appellate Judges

(4) The remaining Appellate Judges have seniority next to the

Administrative Judge (Appellate and Superior Division) according

to the days on which their assignments to the Appellate and

Superior Division as an Appellate Judge took effect.

41 Subsection 23(5)

Amendment of the Family Law Act 1975 Schedule 1

Main amendments Part 1

Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

Omit "appointments as Judge Administrator and assignments to the

Appeal Division", substitute "assignments to the Appellate and Superior

Division as an Appellate Judge".

42 Subsections 23(6) to (11)

Repeal the subsections, substitute:

Other Judges assigned to the Appellate and Superior Division

(6) The remaining Judges assigned to the Appellate and Superior

Division have seniority next to the Appellate Judges to whom

subsection (4) applies according to the days on which their

assignments to the Appellate and Superior Division took effect.

(7) Where, because 2 or more assignments to the Appellate and

Superior Division took effect on the same day, subsection (6) does

not determine priority between the Judges concerned, those Judges

have such seniority in relation to each other as is assigned to them

by the Governor-General.

Effect of termination of assignment

(8)

If:

(a) a Judge's assignment (the old assignment) to the Appellate

and Superior Division terminates (whether because of

resignation or otherwise); and

(b) an assignment (the new assignment) of the same kind as the

old assignment takes effect for the Judge immediately after

the termination;

then, for the purposes of this section, the new assignment is treated

as if it took effect on the day the old assignment took effect.

(9) For the purposes of subsection (8), an assignment to the Appellate

and Superior Division as an Appellate Judge is not an assignment

of the same kind as an assignment to the Appellate and Superior

Division but not as an Appellate Judge.

43 Subsection 24(1)

Repeal the subsection, substitute:

(1)

Whenever:

(a) the Chief Justice is absent from Australia or from duty; or

Schedule 1 Amendment of the Family Law Act 1975

Part 1 Main amendments

16 Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. ,

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(b) there is a vacancy in the office of Chief Justice;

the Deputy Chief Justice or, if the Deputy Chief Justice is

unavailable, the next senior Judge of the Appellate and Superior

Division who is in Australia and is available and willing to do so is

to perform the duties and may exercise the powers of the Chief

Justice.

Note:

The heading to section 24 is altered by omitting "Chief Judge" and substituting "Chief

Justice".

44 Subsection 24(2)

Omit "Chief Judge", substitute "Chief Justice".

45 Sections 25 and 26

Repeal the sections, substitute:

24A Certain references in other laws to Judge of a superior court

etc. not to include Judge of the General Division

(1) In any other law of the Commonwealth, the expressions "Judge of

a superior court" and "Judges of a superior court" do not include a

Judge of the General Division.

Note:

See, for example, section 48C of the Australian Capital Territory

(Self-Government) Act 1988.

(2) A reference in any other law of the Commonwealth to a period

during which a person has served as a Judge in a superior court

does not include a reference to a period during which the person

served as a Judge of the General Division.

Note:

See, for example, section 34B of the Australian Security Intelligence

Organisation Act 1979 and section 105.2 of the Criminal Code.

25 Remuneration etc.

(1) The following Judges are to be paid such remuneration (within the

meaning of Part II of the Remuneration Tribunal Act 1973) as is

determined by the Remuneration Tribunal:

(a) the Chief Justice;

(b) the Deputy Chief Justice;

(d) each other Judge who is assigned to the Appellate and

Superior Division;

Amendment of the Family Law Act 1975 Schedule 1

Main amendments Part 1

Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

(e) the Administrative Judge (General Division);

(f) each other Judge who is assigned to the General Division.

(2) Subsection (1) has effect subject to the Remuneration Tribunal Act

1973.

Note 1:

Subsection 3(2) of the Remuneration Tribunal Act 1973 provides that

a reference in Part II of that Act to remuneration is to be read as

including a reference to annual allowances.

Note 2:

Under subsection 7(4) of the Remuneration Tribunal Act 1973, the

Remuneration Tribunal may determine any matter significantly related

to the remuneration of a Judge of the Court.

(3) The remuneration of Judges of the Appellate and Superior Division

accrues from day to day and is payable monthly.

(4) Judges of the General Division are to be treated as if they were

Judges of a court of record for the purposes of determining:

(a) their remuneration; and

(b) other terms and conditions that apply in relation to them.

Note:

Subdivision B of this Division sets out other terms and conditions that

apply in relation to Judges of the General Division.

(5) The remuneration of a Judge is not to be diminished during his or

her continuance in office.

26 Oath or affirmation of allegiance and office

(1) Before proceeding to discharge the duties of his or her office, a

Judge must take an oath or affirmation of allegiance in the form in

the Schedule to the Constitution, and also an oath or affirmation in

the following form:

(name), do swear that I will well and truly serve in the office of

(Chief Justice, Deputy Chief Justice, Administrative Judge

(Appellate and Superior Division), Administrative Judge (General

Division) or Judge, as the case may be) of the Family Court of

Australia and that I will do right to all manner of people according

to law, without fear or favour, affection or ill-will. So help me

God.

(name), do solemnly and sincerely promise and declare that (as

above, omitting the words "So help me God").

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Part 1 Main amendments

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(2) A Judge of the Appellate and Superior Division must take an oath

or affirmation under subsection (1) before:

(a) the Governor-General; or

(b) the Chief Justice or a Justice of the High Court; or

(d) a Judge of another court created by the Parliament.

(3) A Judge of the General Division must take an oath or affirmation

under subsection (1) before:

(a) the Governor-General; or

(b) the Chief Justice or a Justice of the High Court; or

(d) a Judge of another court created by the Parliament.

46 At the end of Division 3 of Part IV

Add:

Subdivision B--Other terms and conditions of Judges of the

General Division

26A Application of this Subdivision

This Subdivision sets out other terms and conditions that apply in

relation to Judges of the General Division.

Note:

Judges of the General Division are to be treated as if they were Judges

of a court of record for the purposes of determining other terms and

conditions that apply in relation to them: see subsection 25(4).

26B Definitions

(1) In this Subdivision:

beneficiary, in respect of a payment under section 26J, has the

meaning given by subsection 26J(4).

Commonwealth superannuation contribution, in respect of a

Judge or a retired disabled Judge, means a Commonwealth

contribution to the Judge's choice of:

(a) a complying superannuation fund (within the meaning of

section 45 of the Superannuation Industry (Supervision) Act

1993); or

Amendment of the Family Law Act 1975 Schedule 1

Main amendments Part 1

Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

(b) a retirement savings account (within the meaning of section 8

of the Retirement Savings Accounts Act 1997).

eligible child has the meaning given by section 26L.

eligible spouse has the meaning given by section 26K.

Judge means a Judge of the General Division.

living with a person has the meaning given by subsection 26K(8).

marital or couple relationship has the meaning given by

subsection 26K(5).

partner: a person is the partner of another person if the 2 persons

have a relationship as a couple (whether the persons are the same

sex or different sexes).

prior judicial service, in relation to a retired disabled Judge, means

service, prior to the Judge's appointment as a Judge of the Court,

as one of the following:

(a) a Justice or Judge of a federal court;

(b) the holder of an office, being an office the holder of which

has, by virtue of an Act, the same status as a Justice or Judge

of a federal court;

(d) a Judge or acting Judge of a court of a State or Territory;

(e) a magistrate of a State or Territory;

(f) in the case of a State or Territory office that qualifies the

holder of the office for a pension or retiring allowance under

a law of the State or Territory relating to pensions or retiring

allowances payable to retired Judges--a holder of the office

(including an acting holder).

Note:

If the Judge was appointed as a Judge of the Court more than once, see

subsection (2).

retired disabled Judge means a person certified by the Minister to

be a retired disabled Judge under paragraph 26F(2)(a).

retires, in relation to a Judge, means ceases, otherwise than by

death, to hold any office as a Judge of the Court.

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Part 1 Main amendments

20 Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. ,

2010

Prior judicial service

(2) For the purposes of the definition of prior judicial service in

subsection (1), if a retired disabled Judge was appointed as a Judge

of the Court more than once, the reference to the Judge's

appointment as a Judge of the Court is taken to be a reference to

the Judge's most recent appointment as a Judge of the Court.

26C Outside work

(1) A Judge must not engage in paid work outside the duties of the

Judge's office if that work is incompatible with the holding of a

judicial office under Chapter III of the Constitution.

(2) A Judge must not:

(a) engage in work as a legal practitioner; or

(b) engage in work as an employee of, or consultant to, a legal

practice.

(3) This section does not, by implication, limit the application to a

Judge of any doctrine of constitutional incompatibility.

(4) In this section:

paid work means work for financial gain or reward (whether as an

employee, a self-employed person or otherwise).

26D Leave

A Judge has the recreation leave entitlements that are determined

by the Remuneration Tribunal.

26E Other terms and conditions

(1) A Judge holds office on such terms and conditions (if any) in

relation to matters not covered by this Act as are specified in a

written determination made by the Governor-General for the

purposes of this subsection.

(2) The Minister must cause a copy of a determination under

subsection (1) to be tabled in each House of the Parliament.

(3) Either House may, following a motion upon notice, pass a

resolution disallowing the determination. To be effective, the

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Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

resolution must be passed within 15 sittings days of the House after

the copy of the determination was tabled in the House.

(4) If neither House passes such a resolution, the determination takes

effect on the day immediately after the last day upon which such a

resolution could have been passed.

26F Certification of retired disabled Judge

(1)

If:

(a) a Judge retires; and

(b) the Judge has not attained the age of 70 years;

the Minister may be requested to certify that the Judge is a retired

disabled Judge.

(2) On receiving the request, the Minister must:

(a) if the Minister is satisfied that the retirement was due to

permanent disability or infirmity--certify that the Judge is a

retired disabled Judge; or

(b) otherwise--refuse to so certify.

(3) If the Minister refuses to so certify, application may be made to the

Administrative Appeals Tribunal for review of the refusal.

26G Pensions for retired disabled Judges

Entitlement to pension

(1) A retired disabled Judge is entitled to a pension until:

(a) he or she attains the age of 70 years; or

(b) he or she dies;

whichever happens first.

Annual rate of pension

(2) The annual rate of the pension is 60% of the annual rate of salary

the Judge would have been entitled to from time to time if he or

she had not retired.

(3) However, the rate of the pension must be reduced by the amount of

any pension or retiring allowance:

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(a) payable to the Judge, whether under a law or otherwise, out

of money provided in whole or in part by the

Commonwealth, a State or a Territory (other than a

Commonwealth superannuation contribution the Judge was

entitled to under a determination under subsection 26E(1));

and

(b) payable to the Judge by reason of prior judicial service, or

prior judicial service and any other service.

(4) For the purposes of subsection (2), the annual rate of salary is the

annual rate of remuneration determined under section 25:

(a) excluding any allowances that are paid in lieu of any other

entitlement; and

(b) if any arrangements have been entered into for any amount of

the annual rate of remuneration (other than an allowance

covered by paragraph (a)) to be provided in the form of

another benefit--including that amount.

When pension is due and payable

(5) The pension is due daily, but is payable on the days on which

salary payments are made to Judges of the General Division.

Safety, Rehabilitation and Compensation Act 1988

(6) For the purposes of Division 3 of Part II of the Safety,

Rehabilitation and Compensation Act 1988:

(a) the pension is taken to be a pension payable to the Judge

under a superannuation scheme; and

(b) the Judge is not required to pay superannuation contributions

to that scheme.

26H Superannuation for retired disabled Judges

(1) A retired disabled Judge who has not attained the age of 65 years is

entitled to a Commonwealth superannuation contribution until:

(a) he or she attains the age of 65 years; or

(b) he or she dies;

whichever happens first.

(2) The amount of the Commonwealth superannuation contribution is

the amount of the Commonwealth superannuation contribution (if

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any) the Judge would have been entitled to from time to time,

under a determination under subsection 26E(1), if he or she had not

retired.

(3) The Commonwealth superannuation contribution is to be made by

payments on the days on which salary payments are made to

Judges of the General Division.

26J Death benefits

Entitlement to payment

(1) A payment is payable under this section if:

(a) a Judge, or a retired disabled Judge, who has not attained the

age of 65 years dies; and

(b) the Judge leaves one or more eligible spouses or eligible

children.

Amount

(2) The amount of the payment is the amount of the Commonwealth

superannuation contribution (if any) the Judge would have been

entitled to, under a determination under subsection 26E(1), during

the period in subsection (3) if:

(a) the Judge had neither died nor retired before the end of that

period; and

(b) the amount of the Commonwealth superannuation

contribution the Judge was entitled to under that

determination did not change during that period.

(3) The period in this subsection is the period:

(a) beginning on the day on which the Judge died; and

(b) ending on the day on which the Judge would have attained

the age of 65 years.

Beneficiaries

(4)

The

beneficiaries in respect of the payment are each eligible

spouse and eligible child the Judge leaves.

(5) If there is only one beneficiary in respect of the payment, the

payment is payable to the beneficiary.

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24 Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. ,

2010

(6) If there is more than one beneficiary in respect of the payment, the

payment is payable to the beneficiaries in the proportions (totalling

100% of the amount of the payment) the Minister considers

appropriate, having regard to the respective circumstances of each

beneficiary.

Note:

For review of decisions under subsection (6), see subsection (10).

Beneficiaries--eligible children

(7) If the payment (or a proportion of the payment) is payable to an

eligible child, the Minister may, in writing, direct that:

(a) some or all of the payment or proportion be paid to a

specified person for the benefit of the child (including for the

support or education of the child); or

(b) if the Minister is satisfied that, by reason of special

circumstances, it is desirable to do so in the interests of the

child--some or all of the payment or proportion be spent in a

specified manner for the benefit of the child.

Note:

For review of decisions under subsection (7), see subsection (10).

(8) The Minister may be requested to give a direction under

subsection (7) in respect of an eligible child.

(9) On receiving an application, the Minister must:

(a) if he or she is satisfied that he or she should make a direction

in respect of the child--give such a direction; or

(b) if he or she is not so satisfied--refuse to give such a

direction.

Note:

For review of decisions under paragraph (9)(b), see subsection (10).

Applications for review

(10) Application may be made to the Administrative Appeals Tribunal

for review of the following:

(a) a decision by the Minister under subsection (6);

(b) a direction by the Minister under subsection (7);

direction.

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26K Relationship definitions

Meaning of eligible spouse

(1) For the purposes of this Subdivision, subsections (2), (3) and (4)

set out the 3 circumstances in which a person is an eligible spouse

of a Judge, or a retired disabled Judge, who dies.

(2) A person is an eligible spouse of a Judge who dies if the person

had a marital or couple relationship with the Judge at the time of

the death of the Judge.

(3) A person is an eligible spouse of a retired disabled Judge who dies

if:

(a) the person had a marital or couple relationship with the Judge

at the time of the Judge's death; and

(b) the marital or couple relationship began:

(i) before the Judge retired; or

(ii) before the Judge attained the age of 60 years.

(4) A person is an eligible spouse of a Judge, or a retired disabled

Judge, who dies if:

(a) the person had previously had a marital or couple relationship

with the Judge; and

(b) the person did not, at the time of the Judge's death, have a

marital or couple relationship with the Judge but was legally

married to him or her; and

substantially dependent upon the Judge at the time of the

Judge's death; and

(d) in the case of a marital or couple relationship that began after

the Judge retired--the marital or couple relationship began

before the Judge attained the age of 60 years.

Note:

For review of decisions under paragraph (4)(c), see subsection (9).

Meaning of marital or couple relationship

(5) For the purposes of this Subdivision, a person had a marital or

couple relationship with another person at a particular time if:

(a) the person had been living with the other person as the other

person's husband or wife or partner for a continuous period

of at least 3 years up to that time; or

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26 Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. ,

2010

(b)

both:

(i) the person had been living with the other person as the

other person's husband or wife or partner for a

continuous period of less than 3 years up to that time;

and

(ii) the Minister, having regard to any relevant evidence, is

of the opinion that the person ordinarily lived with the

other person as the other person's husband or wife or

partner on a permanent and bona fide domestic basis at

that time;

whether or not the person was legally married to the other person.

Note 1:

Subsection (7) lists some of the evidence relevant to

subparagraph (5)(b)(ii).

Note 2:

For review of decisions under subparagraph (5)(b)(ii), see

subsection (9).

(6) For the purposes of this Subdivision, a marital or couple

relationship is taken to have begun at the beginning of the

continuous period mentioned in paragraph (5)(a) or

subparagraph (5)(b)(i).

(7) For the purpose of subparagraph (5)(b)(ii), relevant evidence

includes, but is not limited to, evidence establishing any of the

following:

(a) that the person was wholly or substantially dependent on that

other person at the time;

(b) that the persons were legally married to each other at the

time;

State or Territory prescribed for the purposes of section 22B

of the Acts Interpretation Act 1901 as a kind of relationship

prescribed for the purposes of that section;

(d) that the persons had a child who was:

(i) born of the relationship between the persons; or

(ii) adopted by the persons during the period of the

relationship; or

(iii) a child of both of the persons within the meaning of this

Act;

(e) that the persons jointly owned a home which was their usual

residence.

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Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

Meaning of living with a person

(8) For the purposes of this Subdivision, a person is taken to be living

with another person if the Minister is satisfied that the person

would have been living with that other person except for a period

of:

(a) temporary absence; or

(b) absence because of special circumstances (for example,

absence because of the person's illness or infirmity).

Note:

For review of decisions under subsection (8), see subsection (9).

Applications for review

(9) Application may be made to the Administrative Appeals Tribunal

for review of a decision by the Minister under paragraph (4)(c),

subparagraph (5)(b)(ii) or subsection (8).

26L Meaning of eligible child

(1) For the purposes of this Subdivision, a person is an eligible child

of a Judge, or a retired disabled Judge, who dies if:

(a)

the

person:

(i) has not attained the age of 16 years; or

(ii) has not attained the age of 25 years and is receiving

full-time education at a school, college or university;

and

(b) one of the following applies:

(i) the person is a child or adopted child of the Judge;

(ii) the person is a child of the Judge within the meaning of

this Act;

(iii) in the Minister's opinion, the person was wholly or

substantially dependent on the Judge at the time of the

Judge's death;

(iv) in the Minister's opinion, the person would have been

wholly or substantially dependent on the Judge but for

the Judge's death.

(2) Application may be made to the Administrative Appeals Tribunal

for review of a decision by the Minister under

subparagraph (1)(b)(iii) or (iv).

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26M Appropriation

The following are to be paid out of the Consolidated Revenue

Fund, which is appropriated accordingly:

(a) pensions under section 26G;

(b) Commonwealth superannuation contributions under

section 26H;

47 Division 4 of Part IV

Repeal the Division.

48 Subsection 27(2)

Omit ", may be constituted by 2 or more Judges", substitute "in the

Appellate and Superior Division, may be constituted by 2 or more

Judges of that Division".

49 Subsection 27(2) (note)

Omit "Chief Judge", substitute "Chief Justice".

50 Subsections 28(1) to (3)

Repeal the subsections, substitute:

(1) The original jurisdiction of the Court may be exercised by one or

more Judges of the Appellate and Superior Division.

(2) The jurisdiction of the Court in an appeal from a court of summary

jurisdiction is to be exercised by:

(a) one Judge of the Appellate and Superior Division; or

(b) a Full Court.

(2A) Nothing in this Act prevents an Appellate Judge from exercising

the jurisdiction of the Court that, under subsection (1) or (2), is to

be exercised by one or more Judges of the Appellate and Superior

Division.

(3) The jurisdiction of the Court in an appeal from a Judge of the

Appellate and Superior Division, or a Judge of the Supreme Court

of a State or Territory, is to be exercised by a Full Court.

Amendment of the Family Law Act 1975 Schedule 1

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Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

Note:

Section 94AAA deals with the exercise of the jurisdiction of the Court

in other appeals (including appeals from Judges of the General

Division).

Note:

The heading to section 28 is altered by adding at the end "by Judges of the Appellate

and Superior Division".

51 Paragraphs 28(4)(a) and (b)

Repeal the paragraphs, substitute:

(a) if only 2 Judges remain and one of those Judges is an

Appellate Judge, or if more than 2 Judges remain and a

majority of those Judges are Appellate Judges--by the Court

constituted by the remaining Judges; or

(b) with the consent of the parties--by the Court constituted by

the remaining Judge or Judges and an additional Judge or

Judges of the Appellate and Superior Division, where a

majority of the Judges constituting the Court are Appellate

Judges.

52 Subsection 28(6)

Repeal the subsection.

53 After section 28

Insert:

29 Exercise of jurisdiction by Judges of the General Division

(1) Subject to this section, the original jurisdiction of the Court may be

exercised by one Judge of the General Division.

(2) A Judge of the General Division is not to exercise the original

jurisdiction of the Court with respect to a proceeding mentioned in

an item of the following table.

Item Proceedings

A proceeding with respect to the transfer of a PPS matter (within the

meaning of the Personal Property Securities Act 2009) under subsection

211(1) of that Act

A proceeding for interim relief under Part 4 of the Trans-Tasman

Proceedings Act 2010

A proceeding for leave under section 9 of the Evidence and Procedure

(New Zealand) Act 1994

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30 Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. ,

2010

(3) A Judge of the General Division is not to exercise the original

jurisdiction of the Court with respect to a proceeding mentioned in

an item of the following table unless:

(a) the Chief Justice directs the Judge to deal with the

proceeding; or

(b) the proceeding is in respect of a matter that is associated with

a matter that has arisen in a proceeding before the Judge; or

section 33AA.

Item Proceedings

A proceeding of a kind referred to in subparagraph (a)(ii) or paragraph (b)

of the definition of matrimonial cause in subsection 4(1) of this Act

A proceeding for leave under subsection 60G(1) of this Act

A proceeding transferred to the Court under section 18A of the

Administrative Decisions (Judicial Review) Act 1977

A proceeding transferred to the Court under section 12GL of the

Australian Securities and Investments Commission Act 2001

A proceeding with respect to bankruptcy (within the meaning of the

Bankruptcy Act 1966)

A proceeding with respect to a civil matter arising under the Aboriginal

and Torres Strait Islander Corporations legislation (within the meaning of

the Corporations (Aboriginal and Torres Strait Islander) Act 2006)

A proceeding with respect to a civil matter arising under the Corporations

legislation (within the meaning of the Corporations Act 2001)

8 A

proceeding:

(a) for an order under subsection 7(1), 9A(1) or 11(1) of the Foreign

Evidence Act 1994; or

(b) to vary or revoke such an order under subsection 16(1) of that Act

A proceeding transferred to the Court under the Jurisdiction of Courts

(Cross-vesting) Act 1987 or a law of a State, the Australian Capital

Territory or the Northern Territory relating to cross-vesting of jurisdiction

A proceeding with respect to a PPS matter (within the meaning of the

Personal Property Securities Act 2009) of a kind with respect to which the

Federal Magistrates Court does not have jurisdiction under section 207 of

that Act

A proceeding transferred to the Court under section 14ZZS of the Taxation

Administration Act 1953

A proceeding transferred to the Court under section 86B of the Trade

Amendment of the Family Law Act 1975 Schedule 1

Main amendments Part 1

Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

Item Proceedings

Practices Act 1974

A proceeding of a kind prescribed by the regulations

(4) Original jurisdiction that is conferred on the Court after the

commencement of this section is not to be exercised by a Judge of

the General Division, except so far as express provision to the

contrary is made by this Act or any other law of the

Commonwealth.

29A Exercise of jurisdiction by different Judges at the same time

The Court constituted by one or more Judges may sit and exercise

the jurisdiction of the Court even if the Court constituted by one or

more other Judges is at the same time sitting and exercising the

jurisdiction of the Court.

54 Paragraph 30(b)

Omit "Chief Judge", substitute "Chief Justice".

55 After section 33

Insert:

33AA Referral of proceedings from one Division to the other

(1) If a proceeding is pending in a Division of the Court, the Judge or

Judges dealing with the proceeding may refer the proceeding to the

other Division of the Court.

(2) A proceeding may be referred under this section:

(a) on the application of a party to the proceeding; or

(b) on the initiative of the Judge or Judges dealing with the

proceeding.

(3) The standard Rules of Court may make provision in relation to the

referral of a proceeding under this section.

(4) In particular, the standard Rules of Court may set out factors that

are to be taken into account by a Judge in deciding whether to refer

a proceeding under this section.

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32 Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. ,

2010

(5) In deciding whether to refer a proceeding under this section, the

Judge or Judges dealing with the proceeding must have regard to:

(a) any standard Rules of Court made for the purposes of

subsection (3); and

(b) whether the referral will facilitate the resolution of the

dispute as quickly, inexpensively and efficiently as possible.

(6) If a proceeding is referred under this section, the Judge or Judges

who referred the proceeding may make such orders as the Judge or

Judges consider necessary pending the disposal of the proceeding.

(7) An appeal does not lie from a decision to refer, or not to refer, a

proceeding under this section.

56 Subsection 33A(1)

Repeal the subsection, substitute:

(1) Proceedings must not be instituted in the Family Court in respect

of a matter if proceedings in respect of an associated matter are

pending in the Federal Magistrates Court.

57 Subsection 33B(2)

Repeal the subsection.

58 Subsection 33B(8A)

Repeal the subsection, substitute:

(8A) The Federal Magistrates Court has jurisdiction in a matter that is

the subject of a proceeding transferred to it under this section.

(8B) A proceeding transferred to the Federal Magistrates Court under

this section is to be treated as if it had been instituted in the Federal

Magistrates Court.

59 Subsection 33B(10)

Repeal the subsection.

60 Section 33C

Repeal the section.

61 Section 34

Amendment of the Family Law Act 1975 Schedule 1

Main amendments Part 1

Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

Omit "(1)".

62 Subsections 37(1) and (2)

Omit "Chief Judge", substitute "Chief Justice".

63 Subsection 37A(1)

Omit ", or a majority of them, may,", substitute "of the Court may, in

accordance with section 124 and".

64 Subsections 37A(3) and (4)

Omit "applicable".

65 Subsection 37A(9)

Omit "applicable Rules of Court made by the Judges or a majority of

them", substitute "Rules of Court made".

66 Paragraph 37A(14)(b)

Omit "Chief Judge", substitute "Chief Justice".

67 Subsection 37A(15) (note)

Omit "26B,".

68 Subsections 37B(1) to (4)

Omit "Chief Judge" (wherever occurring), substitute "Chief Justice".

69 Subsection 37B(5)

Repeal the subsection, substitute:

(5) In this section:

Principal Registrar means the Principal Registrar of the Court.

Registrar means a Registrar of the Court.

70 Section 37C

Omit "shall", substitute "of the Court must".

71 Section 37C

Omit "Chief Judge", substitute "Chief Justice".

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34 Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. ,

2010

72 Division 1 of Part IVA (heading)

Repeal the heading, substitute:

Division 1--Management responsibilities of the Chief

Justice and the Chief Executive Officer

73 Section 38A

Omit "Chief Judge" (wherever occurring), substitute "Chief Justice".

74 Section 38B

Omit "Chief Judge", substitute "Chief Justice".

75 Section 38C

Omit "Chief Judge", substitute "Chief Justice".

76 Section 38D

Omit "Chief Judge" (wherever occurring), substitute "Chief Justice".

77 Subsection 38F(4)

Omit "Chief Judge", substitute "Chief Justice".

78 Subsection 38G(2)

Omit "Chief Judge" (wherever occurring), substitute "Chief Justice".

79 Subsection 38J(1)

Omit "Chief Judge", substitute "Chief Justice".

80 Section 38L

Omit "Chief Judge", substitute "Chief Justice".

81 Subsection 38M(1)

Omit "Chief Judge", substitute "Chief Justice".

82 Subsections 38N(2) and (6)

Omit "Chief Judge", substitute "Chief Justice".

83 Subsection 38S(1)

Omit "Chief Judge", substitute "Chief Justice".

Amendment of the Family Law Act 1975 Schedule 1

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Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

84 Section 38W

Omit "Chief Judge", substitute "Chief Justice".

Note:

The heading to section 38W is altered by omitting "Chief Judge" and substituting

"Chief Justice".

85 Subsections 39(1A), (5AA) and (5A)

Repeal the subsections.

86 Paragraph 39A(1)(b)

Repeal the paragraph.

87 Paragraph 39B(1)(b)

Repeal the paragraph.

88 Subsection 39B(1) (note 2)

Repeal the note.

89 Subsection 39B(1) (note 3)

Omit "Note 3", substitute "Note 2".

90 Subparagraph 46(1)(a)(ii)

Omit "; or", substitute "; and".

91 Subparagraph 46(1)(a)(iii)

Repeal the subparagraph.

92 Subparagraph 46(1)(b)(ii)

Omit "Territory; or", substitute "Territory.".

93 Subparagraph 46(1)(b)(iii)

Repeal the subparagraph.

94 Paragraph 46(1C)(b)

Omit "Territory; or", substitute "Territory.".

95 Paragraph 46(1C)(c)

Repeal the paragraph.

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36 Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. ,

2010

96 Paragraph 46(2A)(d)

Omit "Territory; or", substitute "Territory.".

97 Paragraph 46(2A)(e)

Repeal the paragraph.

98 Paragraph 46(3A)(c)

Repeal the paragraph.

99 Subsection 65D(3) (note)

Repeal the note.

100 Subsection 69H(4)

Repeal the subsection.

Note:

The heading to section 69H is altered by omitting ", Northern Territory Supreme

Court and Federal Magistrates Court" and substituting "and Northern Territory

Supreme Court".

101 Paragraph 69N(2)(c)

Omit "Territory; or", substitute "Territory.".

102 Paragraph 69N(2)(d)

Repeal the paragraph.

103 Paragraph 69N(3)(c)

Omit "Territory; or", substitute "Territory.".

104 Paragraph 69N(3)(d)

Repeal the paragraph.

105 Subparagraph 69N(5)(b)(iii)

Omit "Territory; or", substitute "Territory.".

106 Subparagraph 69N(5)(b)(iv)

Repeal the subparagraph.

107 Paragraph 69N(6)(c)

Omit "Territory; or", substitute "Territory.".

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Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

108 Paragraph 69N(6)(d)

Repeal the paragraph.

109 Section 69ZO

Omit "Judicial Registrar,".

110 Subsection 69ZR(3)

Omit "Judicial Registrar,".

111 Paragraphs 70NFD(a) and (b)

Repeal the paragraphs, substitute:

(a) by the court that made the order; or

(b) by the Family Court.

112 Paragraph 87(11)(b)

Before "Rules", insert "applicable".

113 Paragraph 94(1)(a)

After "constituted", insert "by one or more Judges of the Appellate and

Superior Division sitting".

Note:

The heading to section 94 is replaced by the heading "Appeals to Full Court of Family

Court".

114 Subsection 94(1AA)

Repeal the subsection, substitute:

(1AA) An appeal lies to a Full Court of the Family Court from:

(a) a decree or decision of a Judge of the Appellate and Superior

Division exercising original or appellate jurisdiction under

this Act or any other law rejecting an application that he or

she disqualify himself or herself from further hearing a

matter; or

(b) a decree or decision of a Judge of a Family Court of a State,

or a Judge of a Supreme Court of a State or Territory,

exercising original or appellate jurisdiction under this Act

rejecting an application that he or she disqualify himself or

herself from further hearing a matter.

115 Subsections 94(2B) and (2D)

Schedule 1 Amendment of the Family Law Act 1975

Part 1 Main amendments

38 Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. ,

2010

Omit "a Judge of the Appeal Division or other Judge if there is no Judge

of the Appeal Division", substitute "an Appellate Judge or other Judge

of the Appellate and Superior Division if there is no Appellate Judge".

116 Before paragraph 94AAA(1)(a)

Insert:

(aa) a decree of the Family Court, constituted by a Judge of the

General Division, exercising original jurisdiction under this

Act or any other law; or

(ab) a decree or decision of a Judge of the General Division

exercising original jurisdiction under this Act or any other

law rejecting an application that he or she disqualify himself

or herself from further hearing a matter; or

Note:

The heading to section 94AAA is replaced by the heading "Other appeals to Family

Court".

117 Subsection 94AAA(3)

Omit "Chief Judge", substitute "Chief Justice".

118 Subsection 94AAA(13)

Repeal the subsection, substitute:

(13) The single Judge referred to in subsection (3), (8) or (10) must be a

Judge of the Appellate and Superior Division but need not be an

Appellate Judge.

119 Subsection 94AA(1) (cell at table item 1, column headed

"Appeal from")

After "constituted", insert "by one or more Judges of the Appellate and

Superior Division sitting".

120 Subsection 94AA(1) (after table item 3)

Insert:

a prescribed decree of

the Family Court

(constituted by a Judge

of the General

Division)

the Family Court

(a) a single Judge of

the Appellate and

Superior Division

(who need not be an

Appellate Judge);

(b) a Full Court of the

Family Court

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Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

121 Subsection 94AA(1) (paragraph (a) of the cell at table

item 4, column headed "Who determines the

application for leave to appeal")

Repeal the paragraph, substitute:

(a) a single Judge of

the Appellate and

Superior Division

(who need not be an

Appellate Judge);

122 Subsection 94AA(1) (paragraph (a) of the cell at table

item 5, column headed "Who determines the

application for leave to appeal")

Repeal the paragraph, substitute:

(a) a single Judge of

the Appellate and

Superior Division

(who need not be an

Appellate Judge);

123 Paragraphs 94AA(2)(b) and (c)

Repeal the paragraphs, substitute:

(b) an Appellate Judge; or

is no Appellate Judge available.

124 Subsection 94AA(2A)

Omit "Despite subsection (1)", substitute "To avoid doubt".

125 Paragraph 94AA(2A)(b)

Repeal the paragraph, substitute:

(b) a single Judge of the Appellate and Superior Division (who

need not be an Appellate Judge).

126 After subsection 94A(2)

Insert:

Schedule 1 Amendment of the Family Law Act 1975

Part 1 Main amendments

40 Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. ,

2010

(2A) If, in proceedings in the General Division of the Family Court,

being proceedings in which a decree or decision to which

subsection 94AAA(1) applies could be made, a question of law

arises which:

(a) the Judge; and

(b) at least one of the parties;

wish to have determined by a Full Court of the Family Court

before the proceedings are further dealt with:

special case for the opinion of a Full Court; and

(d) a Full Court must hear and determine the question.

(2B) The Full Court may draw from the facts and the documents any

inference, whether of fact or of law, which could have been drawn

from them by the Judge.

127 At the end of subsection 96(1)

Add:

Note:

The jurisdiction of the Family Court in an appeal from a court of

summary jurisdiction is to be exercised by a Judge of the Appellate

and Superior Division or by a Full Court: see subsection 28(2).

128 At the end of section 96

Add:

(7) The Judge referred to in paragraph (6)(b) or (c) must be a Judge of

the Appellate and Superior Division but need not be an Appellate

Judge.

129 Before section 97

Insert:

Subdivision A--Proceedings in the Family Court and courts

exercising jurisdiction under this Act

96B Application of Subdivision

This Subdivision applies in relation to proceedings in the Family

Court or in another court when exercising jurisdiction under this

Act.

Amendment of the Family Law Act 1975 Schedule 1

Main amendments Part 1

Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

96C Conduct of proceedings

In proceedings under this Act, the court must proceed without

undue formality and must endeavour to ensure that the proceedings

are not protracted.

130 Subsection 97(1A)

Omit "Judicial Registrar,".

Note:

The heading to section 97 is replaced by the heading "Exercise of jurisdiction in open

court and in Chambers".

131 Subsection 97(3)

Repeal the subsection.

132 At the end of Division 1 of Part XI

Add:

Subdivision B--Proceedings in the Family Court

102BAA Application of Subdivision

(1) This Subdivision applies in relation to proceedings in the Appellate

and Superior Division or the General Division of the Family Court.

(2) This Subdivision has effect subject to Subdivision C and any other

provision of this Act with respect to the practice and procedure of

the Family Court in particular matters.

102BAB Limits on length of documents

(1) The Court may give directions about limiting the length of

documents required or permitted to be filed in the Court.

(2) Subsection (1) has effect subject to the standard Rules of Court.

102BAC Limits on length of oral argument

(1) The Court may give directions about limiting the time for oral

argument in proceedings before the Court.

(2) Subsection (1) has effect subject to the standard Rules of Court.

Schedule 1 Amendment of the Family Law Act 1975

Part 1 Main amendments

42 Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. ,

2010

102BAD Written submissions

(1) The Court may give directions about the use of written submissions

in proceedings before the Court.

(2) The Court may give directions limiting the length of written

submissions in proceedings before the Court.

(3) Subsections (1) and (2) have effect subject to the standard Rules of

Court.

102BAE Orders and commission for examination of witnesses

The Court may, for the purposes of any proceeding before the

Court:

(a) order the examination of a person upon oath or affirmation

before the Court, a Judge, an officer of the Court or other

person, at any place within Australia; or

(b) order that a commission issue to a person, either within or

beyond Australia, authorising him or her to take the evidence

of a person on oath or affirmation;

and the Court may:

directions concerning the time, place and manner of the

examination; and

(d) empower any party to the proceeding to give in evidence in

the proceeding the evidence taken under paragraph (b) on

such terms (if any) as the Court directs.

102BAF Time limits on giving evidence

(1) The Court may give directions about limiting the time for giving

evidence in proceedings before the Court.

(2) Subsection (1) has effect subject to the standard Rules of Court.

102BAG Court may question witnesses

(1) The Court may:

(a) put a question to a person giving evidence in a proceeding if,

in the opinion of the Court, the question is likely to assist in:

Amendment of the Family Law Act 1975 Schedule 1

Main amendments Part 1

Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

(i) the resolution of a matter in dispute in the proceeding;

(ii) the expeditious and efficient conduct of the proceeding;

and

(b) require the person to answer the question.

(2) Subsection (1) has effect subject to the standard Rules of Court.

102BAH Evidence may be given orally or by affidavit

(1) Evidence in a proceeding in the Court is to be given orally or by

affidavit.

(2) However, the Court may:

(a) direct that particular evidence is to be given orally; or

(b) direct that particular evidence is to be given by affidavit.

(3) Subsections (1) and (2) have effect subject to:

(a) the standard Rules of Court; and

(b) any other law of the Commonwealth.

Cross-examination of person who makes an affidavit

(4)

If:

(a) a person makes an affidavit; and

(b) a party to a proceeding in the Court adduces, or proposes to

adduce, evidence by the affidavit;

a party to the proceeding may request the person to appear as a

witness to be cross-examined with respect to the matters in the

affidavit.

(5) Subsection (4) has effect subject to the standard Rules of Court.

(6)

If:

(a) a request under subsection (4) is given to a person who has

made an affidavit; and

(b) the person does not appear as a witness to be cross-examined

with respect to the matters in the affidavit;

the Court is to give the matters in the affidavit such weight as the

Court thinks fit in the circumstances.

Schedule 1 Amendment of the Family Law Act 1975

Part 1 Main amendments

44 Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. ,

2010

102BAI Formal defects not to invalidate

(1) Proceedings in the Court are not invalidated by a formal defect or

an irregularity, unless the Court is of the opinion that:

(a) substantial injustice has been caused by the defect or

irregularity; and

(b) the injustice cannot be remedied by an order of the Court.

(2) The Court may, on such conditions (if any) as the Court thinks fit,

make an order declaring that the proceeding is not invalid:

(a) by reason of a defect that the Court considers to be formal; or

(b) by reason of an irregularity.

Subdivision C--Proceedings in the General Division of the

Family Court

102BBA Application of Subdivision

(1) This Subdivision applies in relation to proceedings in the General

Division of the Family Court.

(2) This Subdivision has effect subject to any other provision of this

Act (other than Subdivision B) with respect to the practice and

procedure of the Family Court in particular matters.

102BBB Use of streamlined procedures and dispute resolution

processes

The Court must:

(a) endeavour to use streamlined procedures; and

(b) encourage the use of a range of appropriate dispute resolution

processes.

102BBC Reserved judgments etc.

(1)

If:

(a) the Court reserves judgment in a proceeding; and

(b) the Judge who heard the proceeding subsequently prepares

orders and reasons, but is not available to publish those

orders and reasons;

Amendment of the Family Law Act 1975 Schedule 1

Main amendments Part 1

Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

those orders and reasons may be made public by another Judge of

the General Division on behalf of the Judge who heard the

proceeding.

(2)

If:

(a) the Court reserves reasons for its decision in a proceeding;

and

(b) the Judge who heard the proceeding has prepared reasons,

but is not available to publish those reasons;

those reasons may be made public by another Judge of the General

Division on behalf of the Judge who heard the proceeding.

133 At the end of subsection 102M(1)

Add:

Note:

Section 27 allows the Family Court constituted by 2 or more Judges of

the Appellate and Superior Division to sit in different places in

Australia at the same time.

134 Paragraph 102N(1)(b)

Before "Rules", insert "standard".

135 Subsection 102N(4) (paragraph (c) of the definition of

communicate with)

Omit "applicable", insert "standard".

136 Subsection 109A(1)

Omit ", or a majority of them,".

137 Subsection 109A(5) (note)

Repeal the note, substitute:

Note:

A power to make Rules of Court is also contained in section 37A.

138 Subsection 111C(7A)

Omit ", or a majority of them,".

139 Subsection 121(10) (note)

Omit "26B,".

140 Subsection 123(1)

Schedule 1 Amendment of the Family Law Act 1975

Part 1 Main amendments

46 Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. ,

2010

Omit ", or a majority of them, may", substitute "of the Court may, in

accordance with section 124,".

141 Subsection 123(1)

Omit "Court and any", substitute "Court or any".

142 Paragraph 123(2)(b)

Omit "Chief Judge", substitute "Chief Justice".

143 Subsection 123(2A)

Omit "Chief Judge", substitute "Chief Justice".

144 Subsection 123(3) (not including the note)

Repeal the subsection.

145 Section 123 (note)

Repeal the note, substitute:

Note:

The power to make Rules of Court conferred by this section is

extended by section 109A and subsection 111C(7A) of this Act and by

certain other Acts that confer jurisdiction on the Court. A power to

make Rules of Court is also contained in section 37A of this Act.

146 Section 124

Repeal the section, substitute:

124 Requirements relating to the making of Rules of Court

(1) Rules of Court made under this Act may relate to:

(a) both Divisions of the Court and (if applicable) other courts

exercising jurisdiction under this Act; or

(b) the Appellate and Superior Division and (if applicable) other

courts exercising jurisdiction under this Act; or

Note:

Sections 37A and 123 provide for Rules of Court to be made.

(2) Rules of Court covered by paragraph (1)(a) must be made by:

(a) a majority of Judges of the Appellate and Superior Division;

and

(b) a majority of Judges of the General Division.

Amendment of the Family Law Act 1975 Schedule 1

Main amendments Part 1

Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

(3) Rules of Court covered by paragraph (1)(b) must be made by a

majority of Judges of the Appellate and Superior Division.

(4) Rules of Court covered by paragraph (1)(c) must be made by a

majority of Judges of the General Division.

(5) Rules of Court covered by paragraph (1)(b) or (c) must not be

inconsistent with Rules of Court covered by paragraph (1)(a).

(6) A reference in subsection (1) to a court exercising jurisdiction

under this Act does not include a reference to the Federal

Magistrates Court.

Amendment of the Federal Magistrates Act 1999 Schedule 2

Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

Schedule 2--Amendment of the Federal

Magistrates Act 1999

Federal Magistrates Act 1999

1 Section 5

Insert:

family law or child support matter means a matter arising under:

(a)

the

Family Law Act 1975; or

(b)

the

Child Support (Assessment) Act 1989; or

(c)

the

Child Support (Registration and Collection) Act 1988

(other than section 72Q); or

(d)

the

Marriage Act 1961.

2 Section 5 (paragraph (c) of the definition of Family law or

child support proceedings)

Repeal the paragraph, substitute:

(c)

the

Child Support (Registration and Collection) Act 1988

(other than section 72Q); or

(d)

the

Marriage Act 1961.

3 After section 10

Insert:

10AA Jurisdiction--family law or child support matters

(1) Except as provided in subsections (2) and (4), the Federal

Magistrates Court does not have original jurisdiction with respect

to a family law or child support matter.

(2) The Federal Magistrates Court has original jurisdiction with

respect to a family law or child support matter only if the matter is:

(a) the subject of a proceeding in the Federal Magistrates Court

to which subsection (3) applies; or

(b) the subject of a proceeding transferred, after the

commencement of this section, to the Federal Magistrates

Schedule 2 Amendment of the Federal Magistrates Act 1999

50 Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. ,

2010

Court by the Family Court under section 33B of the Family

Law Act 1975; or

review of the exercise of power by a Registrar in family law

or child support proceedings; or

(d) associated with a matter that is the subject of a proceeding

that is pending in the Federal Magistrates Court.

(3) This subsection applies to family law or child support proceedings

if the Federal Magistrates Court:

(a) had begun the final hearing of an application for final orders

(the final hearing) in the proceedings before the

commencement of this section; or

(b) had not begun the final hearing in the proceedings before the

commencement of this section, but had:

(i) referred any of the matters in dispute in the proceedings

for an external dispute resolution process; or

(ii) required any of the parties to the proceedings to attend

an external dispute resolution process.

(4) If the Federal Magistrates Court has original jurisdiction with

respect to a family law or child support matter as described in

subsection (2), then:

(a) jurisdiction is taken to be conferred on the Federal

Magistrates Court by the Family Law Act 1975, the Child

Support (Assessment) Act 1989, the Child Support

(Registration and Collection) Act 1988 or the Marriage Act

1961 (as the case requires); and

(b) the Federal Magistrates Court is taken to be a court having or

exercising jurisdiction under that Act;

for the purpose of dealing with that matter or hearing and

determining a proceeding in respect of that matter.

Note:

The Federal Magistrates Court also has jurisdiction in respect of

matters that are associated with a family law or child support matter

referred to in subsection (4) (see section 18).

(5) For the purposes of subsection (3), an external dispute resolution

process is:

(a) arbitration under Division 4 of Part II of the Family Law Act

1975 or Part 4 of this Act; or

(b) conciliation under Part 4 of this Act; or

Amendment of the Federal Magistrates Act 1999 Schedule 2

Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

(d) family dispute resolution conducted by a family dispute

resolution practitioner referred to in paragraph 10G(1)(a) or

(b) of the Family Law Act 1975.

Note:

The heading to section 10 is altered by adding at the end "--general".

4 Subsection 19(1)

Omit "the Family Court or".

Note:

The heading to section 19 is altered by omitting "or the Family Court".

5 Subsection 19(2)

Repeal the subsection.

6 Paragraph 19(3)(b)

Omit "or the Family Court".

7 After section 19

Insert:

19A Applications in respect of family law or child support matters

not to be made to the Federal Magistrates Court except in

certain circumstances

(1) An application in respect of a family law or child support matter

must not be made to the Federal Magistrates Court unless:

(a) proceedings in respect of an associated matter are pending in

the Federal Magistrates Court; or

(b) the application is made under subsection 104(2) for review of

the exercise of a power by a Registrar under subsection

102(2) or under a delegation under subsection 103(1) in

family law or child support proceedings.

Note:

An application that may not be made to the Federal Magistrates Court

because of subsection (1) may be made to the Family Court.

(2) This section has effect despite any other provision of this Act or

any other law of the Commonwealth.

8 Subsection 20(2) (paragraph (a) of the note)

Omit "94", substitute "94AAA".

Schedule 2 Amendment of the Federal Magistrates Act 1999

52 Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. ,

2010

9 Part 4 (heading)

Repeal the heading, substitute:

Part 4--Dispute resolution for proceedings other

than family law or child support

proceedings

10 Division 1 of Part 4 (heading)

Repeal the heading.

11 Section 20A

Repeal the section, substitute:

20A This Part does not apply to family law or child support

proceedings

This Part applies to proceedings in the Federal Magistrates Court

other than family law or child support proceedings.

Note: The

Family Law Act 1975, in particular Parts II, III, IIIA and IIIB,

contains provisions dealing with family counselling, family dispute

resolution and other processes that apply to the Federal Magistrates

Court in relation to family law or child support proceedings.

12 Subsection 23(2) (note)

Repeal the note.

13 Section 31

Repeal the section.

14 Division 2 of Part 4 (heading)

Repeal the heading.

15 Section 33

Repeal the section.

16 Subsection 43(2)

Repeal the subsection, substitute:

Amendment of the Federal Magistrates Act 1999 Schedule 2

Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

(2) In so far as the provisions applicable in accordance with

subsection (1) are insufficient:

(a) the Rules of Court made under the Family Law Act 1975

apply, with necessary modifications, so far as they are

capable of application and subject to any directions of the

Federal Magistrates Court or a Federal Magistrate, to the

practice and procedure of the Federal Magistrates Court in

relation to the jurisdiction of the Federal Magistrates Court

with respect to family law or child support matters; and

(b) the Rules of Court made under the Federal Court of

Australia Act 1976 apply, with necessary modifications, so

far as they are capable of application and subject to any

directions of the Federal Magistrates Court or a Federal

Magistrate, to the practice and procedure of the Federal

Magistrates Court in relation to the jurisdiction of the Federal

Magistrates Court with respect to any other matters.

17 At the end of subsection 50(1)

Add:

Note:

An application in respect of a family law or child support matter must

not be made to the Federal Magistrates Court except as provided by

section 19A.

18 After subsection 81(1)

Insert:

(1A) The Federal Magistrates, or a majority of them, must ensure, so far

as practicable, that Rules of Court, so far as they apply in relation

to the practice and procedure to be followed in the Federal

Magistrates Court in relation to family law or child support

matters, are not inconsistent with Rules of Court made under the

Family Law Act 1975 that apply in relation to the practice and

procedure to be followed in the General Division of the Family

Court in relation to matters of that kind.

19 Division 1A of Part 7

Repeal the Division.

20 Paragraph 99(1)(e)

Omit "necessary;", substitute "necessary.".

Schedule 2 Amendment of the Federal Magistrates Act 1999

54 Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. ,

2010

21 Paragraph 99(1)(f)

Repeal the paragraph.

22 At the end of section 99

Add:

(8) The Chief Executive Officer must not appoint a person to be an

officer of the Federal Magistrates Court unless the person is an

officer of the Federal Court or the Family Court.

23 Section 100

Before "The Chief", insert "(1)".

24 At the end of section 100

Add:

(2) To avoid doubt, the Chief Executive Officer may make an

arrangement under subsection (1) with the Registrar of the Federal

Court, even if the Chief Executive Officer and the Registrar of the

Federal Court are the same person.

25 Section 101

Repeal the section.

26 Subsection 106(1)

Repeal the subsection.

27 Subsection 107(1)

Repeal the subsection.

28 Subsection 107(2)

Omit "(2)".

29 Subsection 109(1)

Repeal the subsection.

30 Subsection 110(1)

Repeal the subsection.

31 Subsection 110(2)

Amendment of the Federal Magistrates Act 1999 Schedule 2

Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

Omit "(2)".

32 Section 111A

Repeal the section.

33 Subsection 115(1A)

Repeal the subsection.

34 Subsection 115(2)

Omit "or (1A)".

35 At the end of clause 1 of Schedule 2

Add:

(3) The same person may hold the office of Chief Executive Officer

and the office of Registrar of the Federal Court.

(4) Subclause (3) has effect despite anything in this Act or the Federal

Court of Australia Act 1976.

Schedule 3 Amendment of other Acts

Part 1 Amendments relating to the restructure of the Family Court

56 Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. ,

2010

Schedule 3--Amendment of other Acts

Part 1--Amendments relating to the restructure of

the Family Court

Division 1--Attorney-General

Administrative Decisions (Judicial Review) Act 1977

1 Subsection 3(1) (definition of Family Court Judge)

Omit "Chief Judge, the Deputy Chief Judge, a Judge Administrator or a

Senior Judge", substitute "Chief Justice, the Deputy Chief Justice, the

Administrative Judge (Appellate and Superior Division) or the

Administrative Judge (General Division)".

2 Subparagraph (zd)(i) of Schedule 1

Omit "Chief Judge or the Deputy Chief Judge", substitute "Chief

Justice or the Deputy Chief Justice".

3 Subparagraph (zd)(ii) of Schedule 1

Omit "Chief Judge", substitute "Chief Justice".

4 Subparagraph (zd)(ii) of Schedule 1

Omit "22(2AAA)(a)", substitute "22B(1)(a)".

Bankruptcy Act 1966

5 Subsection 5(1) (definition of Family Court Judge)

Omit "Chief Judge, the Deputy Chief Judge, a Judge Administrator or a

Senior Judge", substitute "Chief Justice, the Deputy Chief Justice, the

Administrative Judge (Appellate and Superior Division) or the

Administrative Judge (General Division)".

Federal Court of Australia Act 1976

6 Section 15A

Omit "Chief Judge", substitute "Chief Justice".

Amendment of other Acts Schedule 3

Amendments relating to the restructure of the Family Court Part 1

Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

Note:

The heading to section 15A is altered by omitting "Chief Judge" and substituting

"Chief Justice".

Federal Proceedings (Costs) Act 1981

7 Subsection 3(1) (paragraph (j) of the definition of Federal

appeal)

Omit "the Full Court of".

Judges (Long Leave Payments) Act 1979

8 Title

Omit "(other than Justices of the High Court and Federal

Magistrates)".

9 Section 3 (paragraph (a) of the definition of Judge)

Omit "the High Court or the Federal Magistrates Court", substitute "a

Justice of the High Court, a Judge of the General Division of the Family

Court of Australia or a Federal Magistrate".

10 Section 3

Insert:

Judge of the General Division of the Family Court of Australia

means a Judge of the General Division of that Court after the

commencement of Part 1 of Schedule 1 to the Access to Justice

(Family Court Restructure and Other Measures) Act 2010.

Judiciary Act 1903

11 Subsection 39B(2)

After "Judges", insert "of the Appellate and Superior Division".

Jurisdiction of Courts (Cross-vesting) Act 1987

12 At the end of subsection 5(1)

Add:

Note:

See also subsection (5A) in relation to proceedings pending in the

Family Court.

Schedule 3 Amendment of other Acts

Part 1 Amendments relating to the restructure of the Family Court

58 Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. ,

2010

13 At the end of subsection 5(4)

Add:

Note:

See also subsection (5A) in relation to proceedings pending in the

Family Court.

14 At the end of subsection 5(5)

Add:

Note:

See also subsection (5A) in relation to proceedings pending in the

Family Court.

15 After subsection 5(5)

Insert:

(5A) A reference in subsection (1), (4) or (5) to a proceeding pending in

the Family Court is a reference to a proceeding pending in the

Family Court constituted by one or more Judges of the Appellate

and Superior Division of that Court.

16 Paragraph 6A(2)(a)

After "Family Court", insert "constituted by one or more Judges of the

Appellate and Superior Division of that Court".

17 Subparagraph 8(1)(b)(i)

After "Family Court", insert "constituted by one or more Judges of the

Appellate and Superior Division of that Court".

18 Paragraph 10(a)

After "Family Court", insert "constituted by one or more Judges of the

Appellate and Superior Division of that Court".

Marriage Act 1961

19 Subsection 92(1)

Omit "the Federal Magistrates Court,".

Personal Property Securities Act 2009

20 Subsection 210(2) (paragraph (b) of note 2)

Omit "to 33C", substitute "and 33B".

Amendment of other Acts Schedule 3

Amendments relating to the restructure of the Family Court Part 1

Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

Division 2--Families, Housing, Community Services and

Indigenous Affairs

Child Support (Assessment) Act 1989

21 Section 98X

Omit ", the Federal Magistrates Court".

22 Subsection 99(1)

Omit "and the Federal Magistrates Court".

23 Subsection 101(3)

After "Judge", insert "of the Appellate and Superior Division of that

Court".

24 Paragraph 102(1)(a)

After "constituted", insert "by one or more Judges of the Appellate and

Superior Division sitting".

Note:

The heading to section 102 is replaced by the heading "Appeals to Full Court of

Family Court".

25 Subsection 102(2)

After "Judge", insert "(other than a Judge of the General Division of the

Family Court)".

26 Subsections 102(6) and (8)

Omit "a Judge of the Appeal Division or other Judge if there is no Judge

of the Appeal Division", substitute "an Appellate Judge or other Judge

of the Appellate and Superior Division if there is no Appellate Judge".

27 Before paragraph 102A(1)(a)

Insert:

(aa) a decree of the Family Court, constituted by a Judge of the

General Division, exercising original jurisdiction under this

Act; or

Note:

The heading to section 102A is replaced by the heading "Other appeals to Family

Court".

28 Paragraph 102A(1)(b)

Schedule 3 Amendment of other Acts

Part 1 Amendments relating to the restructure of the Family Court

60 Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. ,

2010

Omit "Federal Magistrate", substitute "Judge of the General Division of

the Family Court, or a Federal Magistrate,".

29 Subsection 102A(2)

Omit "Chief Judge", substitute "Chief Justice".

30 Subsection 102A(12)

Repeal the subsection, substitute:

(12) The single Judge referred to in subsection (2), (7) or (9) must be a

Judge of the Appellate and Superior Division of the Family Court

but need not be an Appellate Judge of the Family Court.

31 After subsection 103(2)

Insert:

(2A) If, in proceedings in the Family Court, being proceedings in which

a decree to which subsection 102A(1) applies could be made, a

question of law arises which:

(a) the Judge; and

(b) at least one of the parties;

wish to have determined by a Full Court of the Family Court

before the proceedings are further dealt with:

special case for the opinion of a Full Court; and

(d) a Full Court must hear and determine the question.

(2B) The Full Court may draw, from the facts and the documents, any

inference, whether of fact or of law, that could have been drawn

from them by the Judge.

32 At the end of section 105

Add:

(9) The Judge referred to in paragraph (8)(b) or (c) must be a Judge of

the Appellate and Superior Division of the Family Court but need

not be an Appellate Judge of the Family Court.

Child Support (Registration and Collection) Act 1988

33 Subsection 4(1) (definition of Judge)

Amendment of other Acts Schedule 3

Amendments relating to the restructure of the Family Court Part 1

Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

Repeal the definition.

34 Section 103ZC

Omit ", the Federal Magistrates Court".

35 Subsection 104(1)

Omit "and the Federal Magistrates Court".

36 Subsection 106(3)

After "Judge", insert "of the Appellate and Superior Division of that

Court".

37 Paragraph 107(1)(a)

After "constituted", insert "by one or more Judges of the Appellate and

Superior Division sitting".

Note:

The heading to section 107 is replaced by the heading "Appeals to Full Court of

Family Court".

38 Subsection 107(1A)

After "Judge", insert "(other than a Judge of the General Division of the

Family Court)".

39 Subsections 107(5) and (7)

Omit "a Judge of the Appeal Division or other Judge if there is no Judge

of the Appeal Division", substitute "an Appellate Judge or other Judge

of the Appellate and Superior Division if there is no Appellate Judge".

40 Before paragraph 107A(1)(a)

Insert:

(aa) a decree of the Family Court, constituted by a Judge of the

General Division, exercising original jurisdiction under this

Act; or

Note:

The heading to section 107A is replaced by the heading "Other appeals to Family

Court".

41 Paragraph 107A(1)(b)

Omit "Federal Magistrate", substitute "Judge of the General Division of

the Family Court, or a Federal Magistrate,".

Schedule 3 Amendment of other Acts

Part 1 Amendments relating to the restructure of the Family Court

62 Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. ,

2010

42 Subsection 107A(2)

Omit "Chief Judge", substitute "Chief Justice".

43 Subsection 107A(12)

Repeal the subsection, substitute:

(12) The single Judge referred to in subsection (2), (7) or (9) must be a

Judge of the Appellate and Superior Division of the Family Court

but need not be an Appellate Judge of the Family Court.

44 After subsection 108(2)

Insert:

(2A) If, in proceedings in the Family Court, being proceedings in which

a decree to which subsection 107A(1) applies could be made, a

question of law arises which:

(a) the Judge; and

(b) at least one of the parties;

wish to have determined by a Full Court of the Family Court

before the proceedings are further dealt with:

special case for the opinion of a Full Court; and

(d) a Full Court must hear and determine the question.

(2B) The Full Court may draw, from the facts and the documents, any

inference, whether of fact or of law, that could have been drawn

from them by the Judge.

45 At the end of section 110

Add:

(9) The Judge referred to in paragraph (8)(b) or (c) must be a Judge of

the Appellate and Superior Division of the Family Court but need

not be an Appellate Judge of the Family Court.

Division 3--Finance and Deregulation

Judges' Pensions Act 1968

46 Title

Amendment of other Acts Schedule 3

Amendments relating to the restructure of the Family Court Part 1

Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

Before "Judges", insert "certain".

47 Subsection 4(1) (paragraph (a) of the definition of

appropriate current judicial salary)

Omit "or (e)", substitute ", (e) or (f)".

48 Subsection 4(1) (at the end of the definition of appropriate

current judicial salary)

Add:

; and (f) in the case of a Judge (other than a Chief Judge or a Deputy

Chief Judge) of the Family Court of Australia who retired or

died before the commencement of Part 1 of Schedule 1 to the

Access to Justice (Family Court Restructure and Other

Measures) Act 2010--the salary for the time being payable to

a Judge of the Appellate and Superior Division of the Family

Court of Australia.

49 Subsection 4(1) (paragraph (a) of the definition of Judge)

Omit "the Federal Magistrates Court", substitute "a Judge of the

General Division of the Family Court of Australia or a Federal

Magistrate".

50 Subsection 4(1)

Insert:

Judge of the Appellate and Superior Division of the Family Court

of Australia does not include the Chief Justice, the Deputy Chief

Justice or the Administrative Judge (Appellate and Superior

Division) of that Court.

51 Subsection 4(1)

Insert:

Judge of the General Division of the Family Court of Australia

means a Judge of the General Division of that Court after the

commencement of Part 1 of Schedule 1 to the Access to Justice

(Family Court Restructure and Other Measures) Act 2010.

Schedule 3 Amendment of other Acts

Part 1 Amendments relating to the restructure of the Family Court

64 Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. ,

2010

Division 4--Treasury

Australian Securities and Investments Commission Act 2001

52 Subsection 12BA(1) (definition of Family Court Judge)

Omit "Chief Judge, the Deputy Chief Judge, a Judge Administrator or a

Senior Judge", substitute "Chief Justice, the Deputy Chief Justice, the

Administrative Judge (Appellate and Superior Division) or the

Administrative Judge (General Division)".

Competition and Consumer Act 2010

53 Section 130 (definition of Family Court Judge)

Omit "Chief Judge, the Deputy Chief Judge, a Judge Administrator or a

Senior Judge", substitute "Chief Justice, the Deputy Chief Justice, the

Administrative Judge (Appellate and Superior Division) or the

Administrative Judge (General Division)".

Taxation Administration Act 1953

54 Section 14ZQ (definition of Family Court Judge)

Omit "Chief Judge, the Deputy Chief Judge, a Judge Administrator or a

Senior Judge", substitute "Chief Justice, the Deputy Chief Justice, the

Administrative Judge (Appellate and Superior Division) or the

Administrative Judge (General Division)".

Trade Practices Act 1974

55 Subsection 4(1) (definition of Family Court Judge)

Omit "Chief Judge, the Deputy Chief Judge, a Judge Administrator or a

Senior Judge", substitute "Chief Justice, the Deputy Chief Justice, the

Administrative Judge (Appellate and Superior Division) or the

Administrative Judge (General Division)".

Amendment of other Acts Schedule 3

Other amendment Part 2

Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

Part 2--Other amendment

Administrative Appeals Tribunal Act 1975

56 At the end of section 70

Add:

(3) Without limiting the generality of subsection (1), the regulations

may make provision:

(a) prescribing fees to be payable in respect of proceedings

before the Tribunal; and

(b) for, or in relation to, the waiver (in whole or in part) of such

fees.

57 Application

The amendment made by item 56 of this Schedule applies in relation to

proceedings before the Tribunal:

(a) that commence after the commencement of this item; or

(b) that commenced, but were not completed, before the

commencement of this item.

Schedule 4 Application, saving and transitional provisions

Part 1 Definitions

66 Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. ,

2010

Schedule 4--Application, saving and

transitional provisions

Part 1--Definitions

1 Definitions

In this Schedule:

Administrative Judge (General Division) has the meaning given by

subsection 4(1) of the new Family Law Act.

Appeal Division means the Appeal Division of the Family Court before

the commencement time.

Appellate and Superior Division means the Appellate and Superior

Division of the Family Court after the commencement time.

Appellate Judge has the meaning given by subsection 4(1) of the new

Family Law Act.

commencement time means the time when Part 1 of Schedule 1 to this

Act commences.

Chief Judge has the meaning given by section 20 of the old Family

Law Act.

Chief Justice has the meaning given by subsection 4(1) of the new

Family Law Act.

Deputy Chief Judge has the meaning given by section 20 of the old

Family Law Act.

Deputy Chief Justice has the meaning given by subsection 4(1) of the

new Family Law Act.

Family Court means the Family Court of Australia.

family law or child support matter has the meaning given by section 5

of the Federal Magistrates Act 1999, as in force after the

commencement time.

family law or child support proceedings has the meaning given by

section 5 of the Federal Magistrates Act 1999, as in force after the

commencement time.

Federal Magistrate means a Federal Magistrate of the Federal

Magistrates Court.

Judge means a Judge of the Family Court.

Application, saving and transitional provisions Schedule 4

Definitions Part 1

Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

new Family Law Act means the Family Law Act 1975 as in force after

the commencement time.

new General Division means the General Division of the Family Court

after the commencement time.

old Family Law Act means the Family Law Act 1975 as in force

immediately before the commencement time.

old General Division means the General Division of the Family Court

before the commencement time.

Schedule 4 Application, saving and transitional provisions

Part 2 Restructure of the Family Court

68 Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. ,

2010

Part 2--Restructure of the Family Court

2 Continuity of the Family Court

The amendments made by Part 1 of Schedule 1 do not affect the

continuity, after the commencement time, of the Family Court.

3 Transitional--change of title of offices of Chief Judge and

Deputy Chief Judge

(1)

To avoid doubt, the office of Chief Judge of the Family Court under the

old Family Law Act is the same office as the office of Chief Justice

under the new Family Law Act.

(2)

To avoid doubt, the office of Deputy Chief Judge of the Family Court

under the old Family Law Act is the same office as the office of Deputy

Chief Justice under the new Family Law Act.

4 Transitional--references to Chief Justice and Deputy Chief

Justice

References to Chief Justice

(1)

A reference in an Act or instrument to the Chief Justice, whether

enacted before or after the commencement time, is taken to include a

reference to the person:

(a) holding the office of Chief Judge immediately before the

commencement time; and

(b) continuing to hold that office.

References to Deputy Chief Justice

(2)

A reference in an Act or instrument to the Deputy Chief Justice,

whether enacted before or after the commencement time, is taken to

include a reference to the person:

(a) holding the office of Deputy Chief Judge immediately before

the commencement time; and

(b) continuing to hold that office.

5 Transitional--references to Chief Judge and Deputy Chief

Judge

Application, saving and transitional provisions Schedule 4

Restructure of the Family Court Part 2

Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

References to Chief Judge

(1)

A reference in an instrument in force immediately before the

commencement time to the Chief Judge is taken, after that time, to be a

reference to:

(a) the Chief Justice; or

(b)

the

person:

(i) holding the office of Chief Judge immediately before

the commencement time; and

(ii) continuing to hold that office.

References to Deputy Chief Judge

(2)

A reference in an instrument in force immediately before the

commencement time to the Deputy Chief Judge is taken, after that time,

to be a reference to:

(a) the Deputy Chief Justice; or

(b)

the

person:

(i) holding the office of Deputy Chief Judge immediately

before the commencement time; and

(ii) continuing to hold that office.

6 Transitional--assignment of Judges to new Divisions of

Family Court

Judges who were members of the Appeal Division before

commencement time

(1)

A Judge (including the Chief Justice and the Deputy Chief Justice) who,

immediately before the commencement time, was a member of the

Appeal Division under subsection 22(2AA) of the old Family Law Act

is taken, after that time, to be assigned, under section 22A of the new

Family Law Act, to the Appellate and Superior Division as an Appellate

Judge.

Judges who were assigned to the old General Division before

commencement time

(2)

A Judge who, immediately before the commencement time, was

assigned to the old General Division under subsection 22(2AF) of the

old Family Law Act is taken, after that time, to be assigned, under

Schedule 4 Application, saving and transitional provisions

Part 2 Restructure of the Family Court

70 Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. ,

2010

section 22A of the new Family Law Act, to the Appellate and Superior

Division (but not as an Appellate Judge).

Assignment under new Family Law Act not limited

(3)

This item does not limit the application, after the commencement time,

of section 22A of the new Family Law Act to a Judge covered by this

item.

7 Transitional--assignment of Judges to particular locations

A Judge who, immediately before the commencement time, was

assigned to a particular location under subsection 22(2AAA) of the old

Family Law Act is taken, after that time, to be assigned to that location

under subsection 22B(1) of the new Family Law Act.

8 Saving--style for former Judges

Despite the repeal of subsection 22(4) of the old Family Law Act by

Part 1 of Schedule 1, that subsection continues to apply, after the

commencement time, in relation to a person who was a former Judge

before that time.

9 Saving--seniority of Judges

Appellate Judges

(1)

Subitems (2) and (3) apply to a Judge if, immediately before the

commencement time, the seniority of the Judge was determined under

subsection 23(3), (4) or (5) of the old Family Law Act.

(2)

For the purposes of the application, after the commencement time, of

subsection 23(4) or (5) of the new Family Law Act to the Judge:

(a) the Judge is taken to have been assigned to the Appellate and

Superior Division as an Appellate Judge on the day on which

the Judge's assignment to the Appeal Division under the old

Family Law Act took effect; and

(b) if subsection 23(3) of the old Family Law Act applied to the

Judge--the Judge has such seniority in relation to each other

Judge to whom that subsection applied as he or she had

before the commencement time.

(3)

If subsection 23(4) of the new Family Law Act does not determine

priority between 2 or more Appellate Judges, then those Appellate

Application, saving and transitional provisions Schedule 4

Restructure of the Family Court Part 2

Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

Judges are taken, for the purposes of subsection 23(5) of the new

Family Law Act, to have such seniority in relation to each other after

the commencement time, as they had under subsection 23(5) of the old

Family Law Act immediately before that time.

Other Judges assigned to the Appellate and Superior Division

(4)

Subitems (5) and (6) apply to a Judge if, immediately before the

commencement time, the seniority of the Judge was determined under

subsection 23(8) or (9) of the old Family Law Act.

(5)

For the purposes of the application, after the commencement time, of

subsection 23(6) or (7) of the new Family Law Act to the Judge, the

Judge is taken to have been assigned to the Appellate and Superior

Division:

(a) if subsection 23(10) of the old Family Law Act applied to the

Judge--on the day on which the Judge's appointment as a

Judge took effect because of that subsection; or

(b) in any other case--on the day on which the Judge's

appointment as a Judge took effect.

(6)

If subsection 23(6) of the new Family Law Act does not determine

priority between 2 or more Judges, then those Judges are taken, for the

purposes of subsection 23(7) of the new Family Law Act, to have such

seniority in relation to each other after the commencement time, as they

had under subsection 23(9) of the old Family Law Act immediately

before that time.

Assignment under new Family Law Act may affect seniority

(7)

This item does not prevent any changes to a Judge's seniority as a result

of the application, after the commencement time, of section 22A of the

new Family Law Act to the Judge.

10 Saving--things done by Family Court or Judge before

commencement time

To avoid doubt, the amendments made by Part 1 of Schedule 1 do not

affect the validity of anything done by the Family Court or a Judge

before the commencement time.

11 Transitional--remuneration etc.

Schedule 4 Application, saving and transitional provisions

Part 2 Restructure of the Family Court

72 Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. ,

2010

(1)

This item applies in relation to a determination made by the

Remuneration Tribunal, under subsections 7(3) and (4) of the

Remuneration Tribunal Act 1973, that relates to the remuneration to be

paid to a Judge of the Family Court if:

(a) the determination was in force immediately before the

commencement time; and

(b) the determination is in force after the commencement time.

(2)

The determination has effect after the commencement time as if:

(a) a reference to a Judge of the Family Court were a reference

to a Judge of the Appellate and Superior Division; and

(b) a reference to a Judge assigned to the Appeal Division were a

reference to an Appellate Judge (other than the Chief Justice

or the Deputy Chief Justice); and

omitted; and

(d) a reference to a Judge (other than a reference that includes a

reference to a Federal Magistrate) does not include a

reference to a Judge of the new General Division; and

(e) the provisions that apply to a Federal Magistrate also apply to

a Judge of the new General Division.

12 Transitional--Judges of the new General Division

(1)

This item applies in relation to a person if:

(a) after the commencement time, the person:

(i) is appointed to the office of Judge (including the office

of Administrative Judge (General Division)); and

(ii) is assigned to the new General Division; and

(b) before the appointment took effect:

(i) the person held office as a Federal Magistrate; and

(ii) the person resigned that office; and

(iii) the resignation took effect immediately before the

person's appointment to the office of Judge took effect.

Remuneration

(2)

The determination by the Remuneration Tribunal of the remuneration

that the person was to be paid as a Federal Magistrate continues to have

effect in relation to the person after the person's appointment as a Judge

Application, saving and transitional provisions Schedule 4

Restructure of the Family Court Part 2

Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

takes effect, as if a reference in the determination to a Federal

Magistrate included a reference to a Judge of the new General Division.

Recreation leave entitlements

(3)

The person retains any recreation leave entitlements that had accrued to

the person under clause 6 of Schedule 1 to the Federal Magistrates Act

1999 immediately before the person's appointment as a Judge took

effect and, for this purpose, those entitlements are taken to have accrued

to the person under section 26D of the new Family Law Act.

Other terms and conditions

(4)

A determination that was in force in relation to the person, under

subclause 8(1) of Schedule 1 to the Federal Magistrates Act 1999

immediately before the time the person's appointment as a Judge took

effect, continues to have effect in relation to the person after that time as

if it had been made under subsection 26E(1) of the new Family Law

Act.

(5)

Any entitlements (for example to personal leave or carer's leave) that

had accrued to the person, under a determination referred to in

subitem (4), immediately before the person's appointment as a Judge

took effect are taken to have accrued to the person under that

determination as it continues to have effect because of subitem (4).

(6)

For the purposes of subitem (4), the determination continues to have

effect in relation to the person, after the person's appointment as a

Judge takes effect, as if a reference in the determination to a Federal

Magistrate were a reference to a Judge of the new General Division.

Amendment of determinations etc. not prevented

(7)

Nothing in this item prevents the amendment or repeal of a

determination or other instrument covered by this item.

13 Saving and transitional--Judicial Registrars

(1)

This item applies in relation to the following provisions of the old

Family Law Act:

(a) Division 4 of Part IV;

(b)

section

69ZO;

(c)

subsection

69ZR(3);

Schedule 4 Application, saving and transitional provisions

Part 2 Restructure of the Family Court

74 Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. ,

2010

(d)

subsection

97(1A).

(2)

Despite the repeal or amendment of those provisions by Part 1 of

Schedule 1:

(a) those provisions, as in force immediately before the

commencement time; and

(b) any Rules of Court in force under Division 4 of Part IV of the

old Family Law Act immediately before the commencement

time; and

Registrar of the Family Court immediately before the

commencement time;

continue in force after the commencement time as if the repeals and

amendments had not happened.

(3)

However, the Governor-General must not make any appointments under

section 26A of the old Family Law Act (as it continues in force because

of subitem (2)) after the commencement time.

(4)

This item ceases to have effect when there are no longer any Judicial

Registrars of the Family Court.

14 Application--practice and procedure

Subdivisions B and C of Division 1 of Part XI of the new Family Law

Act apply in relation to proceedings instituted in the Family Court after

the commencement time.

15 Transitional--Rules of Court

(1)

Rules of Court that were in force under the old Family Law Act

immediately before the commencement time are taken, after that time,

to be Rules of Court covered by paragraph 124(1)(a) of the new Family

Law Act.

Note:

Rules of Court covered by paragraph 124(1)(a) of the new Family Law Act relate to

both the Appellate and Superior Division and the new General Division.

(2)

Subitem (1) does not prevent the amendment or repeal of Rules of Court

covered by that subitem.

16 Saving--instruments

Schedule 4 Application, saving and transitional provisions

Part 3 Removal from Federal Magistrates Court of jurisdiction with respect to family

law or child support matters

76 Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. ,

2010

Part 3--Removal from Federal Magistrates Court of

jurisdiction with respect to family law or

child support matters

17 Transfer of family law or child support proceedings to

Family Court

(1)

Subject to subitems (4) and (6), this item applies to family law or child

support proceedings in the Federal Magistrates Court if the Federal

Magistrates Court had not, before the commencement time, begun the

final hearing of an application for final orders in the proceedings.

(2)

At the commencement time, the proceedings are transferred to the

Family Court.

(3)

If proceedings are transferred to the Family Court under subitem (2):

(a) all documents filed in the Federal Magistrates Court in

relation to the proceedings are to be transmitted to the Family

Court; and

(b) any money lodged with the Federal Magistrates Court in

relation to the proceedings is to be transferred to the Family

Court and is taken to be money lodged with the Family Court

in relation to the proceedings; and

Federal Magistrates Court is taken to have been done in the

Family Court.

(4)

Subitem (2) does not apply to the proceedings if, before the

commencement time, the Federal Magistrates Court had:

(a) referred any of the matters in dispute in the proceedings for

an external dispute resolution process; or

(b) required any of the parties to the proceedings to attend an

external dispute resolution process.

(5)

For the purposes of subitem (4), an external dispute resolution process

is:

(a) arbitration under Division 4 of Part II of the Family Law Act

1975 or Part 4 of the Federal Magistrates Act 1999; or

(b) conciliation under Part 4 of the Federal Magistrates Act

1999; or

Application, saving and transitional provisions Schedule 4

Removal from Federal Magistrates Court of jurisdiction with respect to family law or

child support matters Part 3

Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

(d) family dispute resolution conducted by a family dispute

resolution practitioner referred to in paragraph 10G(1)(a) or

(b) of the Family Law Act 1975.

(6)

This item does not affect a family law or child support matter that was

remitted by the High Court to the Federal Magistrates Court before the

commencement time under section 44 of the Judiciary Act 1903.

Note:

Subitem 18(1) applies in relation to a matter covered by subitem (6).

18 Family law or child support matters remitted under the

Judiciary Act 1903

Family law or child support matters remitted to the Federal

Magistrates Court before the commencement time

(1) If:

(a) a family law or child support matter had been remitted by the

High Court to the Federal Magistrates Court under section 44

of the Judiciary Act 1903 before the commencement time;

and

(b) the Federal Magistrates Court had not, before the

commencement time, begun the final hearing of an

application for final orders in a proceeding with respect to the

matter;

then the Federal Magistrates Court must transfer the matter to the

Family Court.

Family law or child support matters remitted after the

commencement time

(2)

To avoid doubt, a family law or child support matter may not be

remitted, after the commencement time, by the High Court to the

Federal Magistrates Court under section 44 of the Judiciary Act 1903.

Note:

The matter may be remitted instead to the Family Court.

19 Re-hearings ordered by Family Court on appeal

(1)

This item applies if, in an appeal from a decree of the Federal

Magistrates Court (whether that decree was made before or after the

Schedule 4 Application, saving and transitional provisions

Part 3 Removal from Federal Magistrates Court of jurisdiction with respect to family

law or child support matters

78 Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. ,

2010

commencement time), the Family Court orders a re-hearing under

subsection 94AAA(6) of the new Family Law Act.

(2)

The re-hearing is to be dealt with in the new General Division.

20 Application--Rules of Court

Subsection 81(1A) of the Federal Magistrates Act 1999 (as in force

after the commencement time) applies in relation to Rules of Court that

are made under that Act after the commencement time.

21 Transitional--authorisation to provide family counselling

(1)

This item applies to an authorisation that was given to a person by the

Chief Executive Officer of the Federal Magistrates Court under

subsection 93D(1) of the Federal Magistrates Act 1999 (as in force

before the commencement time) if the authorisation was in force

immediately before that time.

(2)

The authorisation has effect after the commencement time as if it had

been given to the person by the Chief Executive Officer of the Family

Court under subsection 38BD(1) of the new Family Law Act.

22 Transitional--authorisation to provide family dispute

resolution

(1)

This item applies to an authorisation that was given to a person by the

Chief Executive Officer of the Federal Magistrates Court under

subsection 93D(2) of the Federal Magistrates Act 1999 (as in force

before the commencement time) if the authorisation was in force

immediately before that time.

(2)

The authorisation has effect after the commencement time as if it had

been given to the person by the Chief Executive Officer of the Family

Court under subsection 38BD(2) of the new Family Law Act.

23 Transitional--family consultants

Appointments made under the Federal Magistrates Act 1999

(1)

Subitem (2) applies to an appointment of a person as a family consultant

under paragraph 99(1)(f) of the Federal Magistrates Act 1999 (as in

force before the commencement time) if the appointment was in force

immediately before that time.

Application, saving and transitional provisions Schedule 4

Removal from Federal Magistrates Court of jurisdiction with respect to family law or

child support matters Part 3

Access to Justice (Family Court Restructure and Other Measures) Bill 2010 No. , 2010

(2)

The appointment has effect, after the commencement time, as if it had

been made under paragraph 38N(1)(d) of the new Family Law Act.

Appointments made under regulations made under the Family

Law Act 1975

(3)

Subitem (4) applies to an appointment of a person as a family consultant

by the Chief Executive Officer of the Federal Magistrates Court under

regulations made for the purposes of paragraph 11B(c) of the old

Family Law Act if the appointment was in force immediately before the

commencement time.

(4)

The appointment has effect, after the commencement time, as if it had

been made by the Chief Executive Officer of the Family Court under

regulations made for the purposes of paragraph 11B(c) of the new

Family Law Act.

Commonwealth of Australia Bills

ACCESS TO JUSTICE (FAMILY COURT RESTRUCTURE AND OTHER MEASURES) BILL 2010