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2008-2009-2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ACCESS TO JUSTICE (FAMILY COURT RESTRUCTURE AND OTHER MEASURES) BILL 2010
EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Robert McClelland MP)
Abbreviations used in the Explanatory Memorandum
Bill Access to Justice (Family Court Restructure and Other Measures) Bill
2010
Family Law Act Family Law Act 1975
Federal Court Act Federal Court of Australia Act 1976
Federal Magistrates Act Federal Magistrates Act 1999
Family Law Rules Family Law Rules 2004
ACCESS TO JUSTICE (FAMILY COURT RESTRUCTURE AND OTHER MEASURES) BILL 2010
OUTLINE
This Bill restructures the Family Court of Australia by creating a new
Division of the Court, to which Federal Magistrates exercising family law
jurisdiction will be offered new commissions. The family law jurisdiction
of the Federal Magistrates Court will be removed so that it becomes a court
exercising general federal law jurisdiction.
The restructure of the Family Court will provide a simplified system for
people involved in family law litigation, consistent with the Government's
commitment to eliminating confusion for litigants and reducing
inefficiencies and administrative duplication in the Family Court and
Federal Magistrates Court. It does this by amending the Family Law Act
1975, the Federal Magistrates Act 1999 and by making consequential
amendments to the Child Support (Registration and Collection) Act 1988 and
the Child Support (Assessment) Act 1989, as well as other Acts.
The restructure reflects the recommendations relating to family law
jurisdiction of the Report, Future Governance Options for Federal Family
Law Courts in Australia - Striking the Right Balance. The Bill is also
consistent with the findings of the Australian Institute of Family Studies'
Evaluation of the 2006 Family Law Reforms.
The Bill also amends the Administrative Appeals Tribunal Act 1975 to
authorise the making of regulations which permit the Tribunal to charge
fees at any stage in proceedings, not only at the application stage. This
will allow for the implementation of a new fee in the Tribunal for
Government agencies where the Tribunal makes a determination after a full
hearing that is not favourable to an agency.
Amendments to the Family Law Act 1975
The Bill will make the Family Court the single court dealing with all
family law matters. The restructured Court will have two Divisions - an
Appellate and Superior Division and a General Division:
. The Appellate and Superior Division will hear complex first instance
family law and child support cases, as well as appeals. It will
comprise existing Family Court judges. Judges of the current Appeal
Division will become Appellate Judges in the new Appellate and
Superior Division.
. The General Division will hear the majority of family law cases (as
the Federal Magistrates Court do prior to this Bill) and will be
subject to certain jurisdictional limitations which currently exist.
It will comprise those Federal Magistrates who undertake mainly
family law work and who accept commissions to the new Division as
Judges. Judges of the General Division will be appointed on the same
terms and conditions as Federal Magistrates.
. Matters will be able to be transferred between the two Divisions
where appropriate.
The Chief Judge and Deputy Chief Judge will be retitled the Chief Justice
and the Deputy Chief Justice respectively. Two new positions of
Administrative Judge (Appellate and Superior Division) and Administrative
Judge (General Division) will be created to assist the Chief Justice in
managing the business of the Court.
Family Court of Australia
The Family Court will continue to be a superior court of record. However,
for the purposes of remuneration and exercising persona designata
functions, Judges of the General Division are not to be taken to be Judges
of a superior court.
Amendments to the Federal Magistrates Act 1999
The Bill removes the Federal Magistrates Court's family law jurisdiction,
but retains the Court to hear general federal law matters. The only family
law matters heard in the Court will be matters commenced in the Court prior
to the restructure and matters associated with these proceedings, as well
as matters referred to the Court by the Family Court.
The Federal Magistrates Court will be administered by the Federal Court.
All officers of the Federal Magistrates Court will be officers already
holding positions in the Federal Court and, in the limited circumstances
where the Federal Magistrates Court continues to hear family law matters,
administrative support will be provided by the Family Court. This will
ensure that efficiencies are achieved and that a holistic approach to
service delivery is taken.
Other amendments
Schedule 3 to the Bill makes amendments to a number of other Acts.
Amendments made in Schedule 3 which relate to the restructure of the Family
Court include:
. amendments to remove jurisdiction from the Federal Magistrates Court
with respect to family law and child support matters under the Child
Support (Assessment) Act 1989, the Child Support (Registration and
Collection) Act 1988 and the Marriage Act 1961, and
. consequential amendments of other legislation (including the
Judiciary Act 1903 and the Jurisdiction of Courts (Cross-vesting) Act
1987).
Schedule 3 also amends the Administrative Appeals Tribunal Act 1975 to
expand the regulation-making power in the Act to allow fees to be imposed
at any stage in proceedings. Currently fees can only be imposed at the
application stage. This will allow the making of regulations which give
the Administrative Appeals Tribunal the discretion to impose a fee of $2500
on decision-making agencies where the Tribunal makes a determination which
is not in their favour after a full hearing.
Schedule 4 to the Bill contains various saving and transitional provisions
to support a smooth transition to the new arrangements. The provisions
include:
. preserving the appointment and entitlements of existing Family Court
Judges, Judicial Registrars and Federal Magistrates, and
. facilitating the transfer of family law and child support matters
between the Federal Magistrates Court and the Family Court where the
substantive hearing has not commenced.
FINANCIAL IMPACT
The restructure of the Family Court and the administration of the Federal
Magistrates Court by the Federal Court will create savings of approximately
$6.3 million over 4 years from 2009-10. These savings are a result of the
joint administration of family law jurisdiction and the administration of
the Federal Magistrates Court's administrative and registry functions by
the Federal Court and the corresponding reduction in administrative
duplication achieved.
The Administrative Appeals Tribunal Act amendment will result in the
collection of an additional $0.5m in fees per year from 2010-11.
NOTES ON CLAUSES
Clause 1 - Short title
1. This clause is a formal provision specifying the short title of the
Bill.
Clause 2 - Commencement
2. This clause provides for the commencement of the measures in the Bill.
Most of the measures will commence on Royal Assent. Part 1 of Schedule
1 will commence on Proclamation.
3. The commencement of some items in the Bill is subject to the
commencement of the Trans-Tasman Proceedings (Transitional and
Consequential Provisions) Act 2010, the Trade Practices Amendment
(Australian Consumer Law) Act (No. 2) 2010 and the Personal Property
Securities Act 2009.
Clause 3 - Schedule(s)
4. This clause is a formal provision to ensure that the Schedules to the
Bill will amend the Acts as specified in those Schedules.
SCHEDULE 1 - Amendment of the Family Law Act 1975
Part 1 - Main amendments
Item 1 - Subsection 4(1)
5. Item 1 inserts a definition for a new office of 'Administrative Judge
(Appellate and Superior Division)' in the definitions section of the
Family Law Act, section 4(1). The office is the administrative head of
the newly created 'Appellate and Superior Division' of the Family
Court, whose role will be to assist the Chief Justice in managing the
business of the Court.
Item 2 - Subsection 4(1)
6. Item 2 inserts a definition for a new office of 'Administrative Judge
(General Division)' in the definitions section of the Family Law Act,
section 4(1). The office is the administrative head of the newly
created 'General Division' of the Family Court, whose role will be to
assist the Chief Justice in managing the business of the Court.
Item 3 - Subsection 4(1) (definition of Appeal Division)
7. Item 3 removes the definition of 'Appeal Division' from the definitions
section of the Family Law Act, section 4(1). This definition will no
longer be required as the functions of the Appeal Division will be
performed by Appellate Judges in the Appellate and Superior Division of
the Family Court.
Item 4 - Subsection 4(1)
8. Item 4 inserts a new definition of 'Appellate and Superior Division' in
the definitions section of the Family Law Act, section 4(1). This
definition is required to reflect the renaming of the existing
Divisions, the 'General Division' and the 'Appeal Division', to the
'General Division' and 'Appellate and Superior Division'.
9. A transitional provision, Item 6(2) of Schedule 4, will deem existing
Judges of the General Division of the Family Court to be assigned to
the Appellate and Superior Division (but not as Appellate Judges).
Item 5 - Subsection 4(1)
10. Item 5 inserts a new definition of 'Appellate Judge' in the definitions
section of the Family Law Act, section 4(1). This definition is
required as a result of the incorporation of the former Appeal Division
into the Appellate and Superior Division.
11. Appellate Judges will perform the functions of Judges of the former
Appeal Division and will be assigned to hear appeal matters. A
transitional provision, Item 6(1) of Schedule 4, will deem existing
Judges in the Appeal Division to be assigned to the Appellate and
Superior Division as Appellate Judges.
Item 6 - Subsection 4(1)
12. Items 6, 7, 8 and 11 are definitions which were previously located in
section 20 of the Family Law Act which are being moved to section 4(1)
where other definitions are located. This will improve clarity in the
Act.
13. Item 6 inserts a new definition of 'Chief Justice'. Currently under
the Family Law Act the title of this office is 'Chief Judge'. This
amendment will ensure the Chief Justices of both the Federal Court and
Family Court have the same formal title, that of Chief Justice.
Consequential amendments are made to a number of other Acts to reflect
this change.
14. To avoid any doubt, a transitional provision, Item 3 of Schedule 4,
provides that the office of Chief Judge of the Family Court is the same
office as the office of Chief Justice. Transitional provisions 4(1)
and 5(1) of Schedule 4 ensure that references to the Chief Judge and
Chief Justice are taken to be references to the same office.
Item 7 - Subsection 4(1)
15. Item 7 inserts a new definition of 'Court' in the definitions section
of the Family Law Act to clarify that reference to 'Court' in the Act
means the Family Court of Australia. This definition was previously
located in section 20 of the Act.
Item 8 - Subsection 4(1)
16. Item 8 inserts a new definition of 'Deputy Chief Justice' in the
definitions section of the Family Law Act, section 4(1). Currently,
under section 20 of the Family Law Act, the title of this office is
Deputy Chief Judge. This amendment is consistent with Item 6.
Consequential amendments are made to a number of other Acts to reflect
this change.
17. To avoid doubt a transitional provision, Item 3 of Schedule 4, provides
that the office of Deputy Chief Judge of the Family Court is the same
office as the office of Deputy Chief Justice. Transitional provisions
4(2) and 5(2) of Schedule 4 ensure that references to the Deputy Chief
Judge and Deputy Chief Justice are taken to be references to the same
office.
Item 9 - Subsection 4(1)
18. Item 9 inserts a new definition of 'Division' in the definitions
section of the Family Law Act to reflect the renaming of the existing
Divisions.
Item 10 - Subsection 4(1) (definition of Full Court)
19. Item 10 inserts a new definition of 'Full Court' in the definitions
section of the Family Law Act, section 4(1). As a result of the
restructure the Full Court will no longer be constituted by members of
the 'Appeal Division', but by 'Appellate Judges' and 'Judges of the
Appellate and Superior Division.'
Item 11 - Subsection 4(1)
20. Item 11 inserts a new definition of 'Judge' in the definitions section
of the Family Law Act, section 4(1). The definition will include the
newly created offices of 'Administrative Judge (Appellate and Superior
Division)' and 'Administrative Judge (General Division)'. The
definition has also been amended to avoid any confusion that a
reference to 'Judge' in the Act includes a Judge of the Family Court
and is a consequence of the removal of current definitions by Item 21.
Item 12 - Subsection 4(1)
21. Item 12 inserts a new definition of 'Judge of the Appellate and
Superior Division' in the definitions section of the Family Law Act,
section 4(1). This definition clarifies that the Chief Justice, Deputy
Chief Justice, Administrative Judge (Appellate and Superior Division)
and any other Judges assigned to the Division under section 22A
constitute the Division.
22. Section 22(2AA), which sets out the constitution of the current Appeal
Division, is repealed in Item 29.
Item 13 - Subsection 4(1)
23. Item 13 inserts a new definition of 'Judge of the General Division' in
the definitions section of the Family Law Act, section 4(1). This
definition clarifies that the Administrative Judge (General Division)
and any other Judges assigned to the Division under section 22A
constitute the Division.
Items 14, 15, 16 and 17 - Paragraphs 10C(1)(d) and 10G(1)(d), 11B(b),
11B(note) and subparagraph 11E(1)(e)(i)
24. Items 14, 15, 16 and 17 remove the ability of the Federal Magistrates
Court to authorise 'family counsellors' and 'family dispute resolution
practitioners' from acting under the Federal Magistrates Act. These
officers will be authorised by the Chief Executive Officer of the
Family Court who will make services available to Federal Magistrates
who remain in the Federal Magistrates Court and who hear any family law
matters transferred from the Family Court.
25. There will no longer be a need for the Federal Magistrates Court to
appoint their own family counsellors and family dispute resolution
practitioners because it is expected the vast majority of family law
work will be undertaken in the restructured Family Court. These
amendments complement amendments to the Federal Magistrates Act made in
Schedule 2 of the Bill.
26. Item 14 repeals paragraphs 10C(1)(d) and 10G(1)(d) which enable 'family
counsellors' and 'family dispute resolution practitioners' to be
authorised to act under section 93D of the Federal Magistrates Act, or
engaged under s 115(1A) of that Act.
27. Item 15 repeals paragraph 11B(b) which defines a family consultant to
include one appointed under the Federal Magistrates Act.
28. Item 16 amends the note in section 11B which refers to the Chief
Executive Officer of the Federal Magistrates Court having the ability
to direct the performance of consultants. This note is amended to
provide that only the Chief Executive Officer of the Family Court has
these functions.
29. Item 17 repeals the words 'of that court' from subparagraph
11E(1)(e)(i) which is consistent with ensuring that the Federal
Magistrates Court does not appoint family consultants.
Item 18 - After subsection 13G(2)
30. Item 18 inserts a new provision which ensures that the only questions
of law which can be referred to the Federal Magistrates Court by an
arbitrator conducting arbitration under the Family Law Act are those
where the Federal Magistrates Court has either ordered the arbitration,
or made orders facilitating the arbitration.
31. Prior to these amendments, an arbitrator could refer a question of law
to the Federal Magistrates Court where the Court had not ordered or
facilitated the arbitration.
32. This provision will ensure that after the commencement date, parties
who have chosen to resolve their matters by arbitration will still be
able to access the Federal Magistrates Court in order to finalise their
matter where the arbitration occurred as the result of an order from
the Federal Magistrates Court.
Item 19 - After subsection 13J(1)
33. Item 19 inserts a new provision which enables the Federal Magistrates
Court to review registered arbitration awards on a question of law only
where it has ordered the arbitration, or made orders facilitating the
arbitration.
34. This provision will ensure that after the commencement date, parties
who have chosen to resolve their matters by arbitration will still be
able to access the Federal Magistrates Court to finalise their matter
by determining all questions of law relating to the arbitration or
making such decrees as the Court thinks are appropriate.
Item 20 - Subsection 13K(1)
35. Item 20 corrects a drafting omission in subsection 13K(1) which
currently refers to the court in which an arbitration 'award' is
registered. It is amended to also include reference to an arbitration
'agreement'.
Item 21 - Division 1 of Part IV
36. Item 21 repeals Division 1 Part IV (section 20) of the Family Law Act
which deals with the interpretation of certain terms in Part IV. For
simplicity, definitions for these terms have now been incorporated in
the general definitions section, section 4(1) of the Family Law Act, in
Items 6, 7, 8 and 11.
Item 22 - Division 2 of Part IV (heading)
37. Item 22 amends the title of Division 2 to indicate that the Division
deals with the creation of the Family Court among other things.
Item 23 - Subsections 21(3) and (4)
38. Item 23 repeals subsections (3) and (4) of section 21 and provides a
new subsection (3) which outlines the judicial offices that the Family
Court will comprise. It includes two new offices, those of
'Administrative Judge (Appellate and Superior Division)' and
'Administrative Judge (General Division),' and removes references to
the positions of 'Judge Administrators' and 'Senior Judges', which will
no longer exist.
39. It is intended new regulations will be made under subsection (4) to
increase the number of Judges prescribed to the Family Court under the
Act. This will take account of the movement of existing Federal
Magistrates into the Family Court as Judges of the General Division.
Item 24 - Section 21A
40. Item 24 is a technical amendment to reflect the renaming of the
Divisions of the court - the Appellate and Superior Division and the
General Division. The Appellate and Superior Division will handle
appeals and the most complex matters and the less complex matters will
be handled by the General Division.
Item 25 - Section 21B(1)
41. Section 21B sets out how the Family Court's business will be arranged.
Item 25 amends this section to provide that the Chief Justice is
responsible for the discharge of business of the Court as a whole, and
for both the Appellate and Superior Division and the General Division,
including the allocation of resources between the Divisions.
Item 26 - Section 21B(1A)
42. Item 26 replaces the title 'Chief Judge' with 'Chief Justice' and is a
consequence of changes in Item 6.
Item 27 - Subsections 21B(2) to (5)
43. Item 27 repeals subsections 21B(2) to (5) and introduces new provisions
which further outline the arrangement of business in the Family Court.
These provisions ensure that while the Family Court comprises two
distinct Divisions, the Court is to operate as a whole.
44. The Deputy Chief Justice's role in assisting the Chief Justice is
preserved, while changes in nomenclature are consistent with Item 8.
These provisions set out that the role of the Administrative Judge
(Appellate and Superior Division) and Administrative Judge (General
Division) is to assist the Chief Justice in discharging his or her
responsibility for the arrangement of business in the Court. It also
ensures that in assisting the Chief Justice, Administrative Judges have
the same protection and immunity as they would as members of the Court
performing judicial functions.
45. The office of Administrative Judge is similar to that of a current
Judge Administrator under the Family Law Act whose role is to assist
the Chief Justice and Deputy Chief Justice administer the Family Court
in the location assigned to them by the Chief Justice.
46. Rather than administer locations, the role of Administrative Judges
provided under this Bill is to assist the Chief Justice administer the
two Divisions of the Court.
47. Subsection 21B(6) provides that the Federal Court does not have
jurisdiction under the Judiciary Act 1903 to review the exercise of the
functions or powers of the Chief Justice, Deputy Chief Justice or
Administrative Judges by an officer of the Court.
Item 28 - Before section 22
48. Item 28 inserts a new heading of 'Appointment, seniority, remuneration
etc' which more clearly outlines the provisions dealt with in the
subdivision.
Item 29 - Subsections 22(2AAA) to (2AFA)
49. Item 29 repeals subsections 22(2AAA) through to (2AFA). Other
provisions, including subsection 22(2AA), (2AB) and (2AC) relating to
the Appeal Division, have been moved to the new section 22A at Item 37,
which deals with the appointment and assignment of Appellate Judges,
members of the Appellate and Superior Division and the General
Division.
Item 30, 31, 32, 33, 34 and 35 - Subsections 22(AG), 22(2AH), 22(2A),
22(2B) and subsections 22(3) to (4)
50. These are technical amendments that are a consequence of changes made
to streamline and reorder sections relating to appointment, removal,
remuneration and seniority in the Family Law Act.
Item 36 - At the end of section 22
51. Item 36 introduces a new subsection (7) to section 22 which provides
that in relation to subsections (3), (5) or (6), a reference to a
'Judge of the Court' or a 'Judge of the Family Court of Australia'
refers only to a Judge of the Appellate and Superior Division.
52. This amendment will retain the current ability of existing Judges in
the Family Court and in the new Appellate and Superior Division to hold
office as judges of other prescribed courts, including superior courts
of record and the office of Judge of a Family Court of a State.
53. Federal Magistrates do not currently have the ability to hold more than
one office at one time and these provisions ensure that the status quo
is preserved for the judicial officers in the General Division of the
Family Court. This will enable Judges of the General Division to focus
solely on family law matters filed in the Family Court.
54. Item 36 also retains the current ability of Federal Magistrates to be
appointed on a part-time basis by providing in new subsection (8) that
Judges assigned to the General Division may hold office on a part-time
basis. A commission of assignment to the Appellate or Superior
Division cannot be held part-time. While currently there are no part-
time Federal Magistrates, this provides flexibility for the future.
Item 37 - After section 22
Assignment
55. Item 37 creates a new section, section 22A, which provides for
commissions of assignment of Judges to a Division of the Family Court.
This section includes provisions similar to those repealed by Item 29
and provides that when appointing a Judge to the Court, the Governor-
General must assign the Judge to a Division.
56. Subsections 22A(2) and (3) provide for the commissions of assignment of
particular office holders. Higher office holders must be assigned to
the appropriate Divisions if not already assigned to those Divisions by
the Governor-General. This means that the Chief Justice, Deputy Chief
Justice and the Administrative Judge (Appellate and Superior Division)
will be assigned to the Appellate and Superior Division as Appellate
Judges. The Administrative Judge (General Division) will be assigned
to the General Division. A transitional provision, Item 6(1) of
Schedule 4, ensures that the existing Chief Judge and Deputy Chief
Judge are taken to have been assigned (under section 22A) to the
Appellate and Superior Division as Appellate Judges.
57. Subsections 22A(4) and (5) enable a Judge to be assigned to a Division
during a term of appointment in certain circumstances with their
consent. A Judge of the Appellate and Superior Division can be
assigned as an Appellate Judge, and a Judge of the General Division can
be assigned to the Appellate and Superior Division, including as an
Appellate Judge during the term of their appointment. This ensures
that Federal Magistrates who accept commissions of assignment to the
General Division of the Family Court could later be appointed to the
Appellate and Superior Division as either Judges or as Appellate
Judges.
58. The limit on the number of Judges who may be Appellate Judges, formerly
Judges of the Appeal Division, is retained by subsection (6). The
arrangements for the assignment of Judges to particular locations are
retained and included in new section 22B.
Resignation
59. Item 37 creates a new section, section 22C, which brings together
provisions relating to resignation previously found in
subsections 22(2AFA), (3) and (3A) with a new heading 'Resignation'.
This provides for Judges to resign in writing to the Governor-General
and the resignation takes effect on the day on which it is resigned by
the Governor-General or on a later day as specified in the document.
Effect of appointment to, and resignation from, certain offices
60. Item 37 creates a new section, 22D, which is based on existing
subsection 22(2AFA). This new section broadens the class of judicial
officer who can resign from their position while remaining Judges of
the Court by including the positions of Administrative Judge (Appellate
and Superior Division) and Administrative Judge (General Division).
This could only occur consistently with the requirement in section 72
of the Constitution that a Judge's remuneration shall not be diminished
during their continuance in office. It also removes references to
'Senior Judges' and 'Judge Administrators', consistent with amendments
in Item 23.
Style
61. Item 37 also introduces a new section, section 22E, which includes
former subsection 22(4) and a new subsection 22E(2). It provides that
Judges or former Judges of the Appellate and Superior Division will be
entitled to be styled "The Honourable." An Appellate Judge will be
entitled to include the letters "JA" after his or her name, and any
other Judge of the Appellate and Superior Division will be entitled to
include the letters "SJ" (Senior Judge) after his or her name. A
saving provision, Item 8 of Schedule 4, will save the operation of
existing subsection 22(4) for those Judges who are currently 'former
Judges' of the Family Court.
Item 38 and 39 - Subsection 23(1) and (2)
62. Items 38 and 39 replace references to 'Chief Judge' with 'Chief
Justice' and are a consequence of changes in Item 6.
Item 40 - Subsections 23(3) and (4)
63. Item 40 repeals provisions regarding the seniority of current 'Judge
Administrators' and Judges assigned to the Appeal Division, and inserts
provisions which establish the seniority of the 'Administrative Judge
(Appellate and Superior Division)' and 'Appellate Judges' created by
the Bill.
64. The Administrative Judge (Appellate and Superior Division) will have
seniority to all other Judges of the Court, except the Chief Justice
and Deputy Chief Justice. Appellate Judges will have seniority to all
other Judges of the Court, except the Chief Justice, Deputy Chief
Justice and the Administrative Judge (Appellate and Superior Division)
according to the days on which their assignments as Appellate Judge
take effect.
65. Transitional provisions in Item 9 of Schedule 4 will preserve seniority
for Judges of the Appeal Division who will be titled 'Appellate
Judges'.
Item 41 - Subsections 23(5)
66. Item 41 substitutes reference to the 'appointments as Judge
Administrator and assignments to the Appeal Division' with 'assignments
to the Appellate and Superior Division as an Appellate Judge' in the
seniority provisions. This amendment is a consequence of the renaming
of the 'Appeal Division' as the 'Appellate and Superior Division' and
the creation of the office of 'Appellate Judges'.
Item 42 - Subsections 23(6) to (11)
67. Item 42 repeals subsections 23(6) to (11) which provide for the
seniority of 'Senior Judges' and replaces them with seniority
provisions for Judges of the Appellate and Superior Division (other
than Appellate Judges). Judges of the Appellate and Superior Division
are senior to all other Judges of the Court except the Chief Justice,
Deputy Chief Justice, the Administrative Judge (Appellate and Superior
Division) and Appellate Judges. They have seniority according to the
days on which their assignments to the Appellate and Superior Division
take effect.
68. Subsections (8) and (9) operate to preserve seniority if, after the
Bill commences, a Judge's assignment to the Appellate and Superior
Division is terminated and a new assignment of the same kind
immediately takes effect for that Judge.
69. Transitional provisions in Item 9 of Schedule 4 preserve seniority for
existing Appeal Division and other Family Court Judges.
70. There are not any seniority provisions in the General Division. This
reflects the current position in the Federal Magistrates Court, where
Federal Magistrates (other than the Chief Federal Magistrate) do not
have seniority.
Item 43 - Subsection 24(1)
71. Item 43 amends provisions relating to the absence and illness of the
Chief Justice. They provide that when the Chief Justice is absent from
Australia or from duty, the Deputy Chief Justice will perform the
functions of the Chief Justice. In the case where the Deputy Chief
Justice is not able to perform these functions, the next most senior
Judge of the Appellate and Superior Division who is available in
Australia and willing to do so will perform the duties and exercise
powers of the Chief Justice. These provisions are similar to
provisions for the Federal Court in the Federal Court Act.
Item 44 - Subsection 24(2)
72. Item 44 replaces the title 'Chief Judge' with 'Chief Justice' and is a
consequence of changes in Item 6.
Item 45 - Sections 25 and 26
73. Item 45 confirms in new section 24A that the expressions 'Judge of a
superior court' and 'Judges of a superior court', in any other law of
the Commonwealth, do not include a Judge of the General Division of the
Family Court (which is a superior court of record). Section 48C of the
Australian Capital Territory (Self-Government) Act 1988 is an example
of where this expression occurs.
74. Similarly subclause (2) confirms that references, in any other law of
the Commonwealth, to a period during which a person served as a Judge
in a superior court do not include references to a period during which
the person served as a Judge of the General Division of the Family
Court. Section 34B of the Australian Security Intelligence
Organisation Act 1979 and section 105.2 of the Criminal Code Act 1995
are examples of where this expression occurs.
75. This provision will clarify, for the avoidance of doubt, the
application of such other laws of the Commonwealth to persons who are
serving or have served as a Judge of the General Division of the Family
Court. The Family Court is a superior court of record. However, where
a Judge of the General Division consents to exercise non-judicial
functions and powers in their personal capacity under other
Commonwealth laws, they are not to be taken to be a Judge of a superior
court for that purpose.
76. Item 45 also amends provisions relating to salary and allowances to
reflect the position where the Remuneration Tribunal, subject to
disallowance, makes determinations for the remuneration of all judges
of federal courts. Subclause (1) provides that 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. This
is subject to the Remuneration Tribunal Act.
77. These provisions are consistent with clause 5 of Schedule 1 to the
Federal Magistrates Act. While different provisions are established
under section 26J of the Family Law Act, the enactment of that section
pre-dates the creation of the Remuneration Tribunal. In practice,
these provisions are implemented so that remuneration for Judges of the
Family Court is determined under the Remuneration Tribunal Act.
Similar provisions are also found in the Military Court of Australia
Bill 2010.
78. Subclause (3) reflects former subsection 25(2) to ensure that the
salary and annual allowances of Judges of the Appellate and Superior
Division accrue daily and are payable monthly.
79. Subclause (4) provides that Judges of the General Division are to be
treated as Justices of a court of record for the purpose of determining
their remuneration and other terms and conditions. This is consistent
with the position of Federal Magistrates in the Federal Magistrates
Court, which is a court of record.
80. Subclause (5) provides that the remuneration of a Family Court Judge is
not to be diminished during his or her continuance in office. This is
consistent with the requirement in section 72 of the Constitution that
a Judge's remuneration shall not be diminished during their continuance
in office.
81. These provisions ensure that provisions dealing with remuneration for
all judges in the Family Court are located together. A transitional
provision, Item 12(2) of Schedule 4, will provide that a determination
applies to Judges of the General Division in the same way as Federal
Magistrates.
82. Item 46 amends sections relating to the making of an oath or
affirmation of allegiance and office. The new provisions in section 26
include references to the offices which are created by other amendments
in the Bill including Administrative Judge (Appellate and Superior
Division) and Administrative Judge (General Division) and removes
offices of 'Judge Administrator' and 'Senior Judge'.
83. The new provisions enable all Judges of the Family Court to take their
oath before the Governor-General, which is a practice that already
exists for Judges of the Federal Court and Federal Magistrates in the
Federal Magistrates Court. The provisions also broaden the offices
before which an oath or affirmation of allegiance and office can be
taken, consistent with other amendments in this Bill. These provisions
include the term 'must' as opposed to 'shall' which is found in the
Family Law Act and the Federal Court Act, to reflect the requirement
currently in the Federal Magistrates Act. Similar provisions are also
found in the Military Court of Australia Bill.
Item 46 - At the end of Division 3 of Part IV
84. Item 46 inserts a new Subdivision B which includes provisions relating
to the terms and conditions that apply to Judges of the General
Division. In the Federal Magistrates Court, Federal Magistrates have
certain conditions. These terms and conditions will be preserved and
are brought across from Schedule 1 to the Federal Magistrates Act into
the Family Law Act in the Bill. They ensure that Federal Magistrates
who choose to accept new commissions to the Family Court will do so on
the same terms and conditions as they have in the Federal Magistrates
Court. These provisions do not apply to Judges of the Appellate and
Superior Division nor change the terms of their appointment.
85. Transitional provisions in Item 12 of Schedule 4 will save existing
entitlements made under clause 6 of Schedule 1 to the Federal
Magistrates Act and determinations made under subsection 8(1) of
Schedule 1 to the Federal Magistrates Act.
86. Section 26B inserts a number of new definitions to apply to the terms
and conditions of Judges of the General Division. The title 'Judge' is
specifically defined to mean 'a Judge of the General Division'.
87. As in the Federal Magistrates Act, the term 'Commonwealth
superannuation contribution' is defined as being the Commonwealth's
contribution to a complying superannuation fund or retirement savings
account, whichever is nominated by a Judge or retired disabled Judge of
the General Division. This definition is also relevant to the
entitlement created by the new section 26H for superannuation paid for
retired disabled Judges. This section replicates Clause 9C of
Schedule 1 to the Federal Magistrates Act.
88. The term 'prior judicial service' will include earlier service as a
Federal Magistrate of the Federal Magistrates Court as well as service
as a federal Judge, a State or Territory Judge or a State or Territory
Magistrate. The pension payable to a retired disabled Judge of the
General Division under new section 26G may be reduced where pension or
retiring allowance is payable in respect of such service. These
provisions replicate Clause 9B of Schedule 1 to the Federal Magistrates
Act.
89. The term 'retired disabled Judge' is defined as a person certified as
such under new section 26F of the Family Law Act. These provisions
replicate Clause 9A of Schedule 1 to the Federal Magistrates Act.
90. The term 'retires' is defined to mean where a Judge of the General
Division ceases, otherwise than by death, to hold office. This covers
both resignation and removal by the Parliament under section 72 of the
Constitution.
91. A number of other terms are defined by reference to definitions in
other new sections added by this Schedule. Those definitions are each
dealt with below under the relevant new provision.
92. Section 26C brings across Clause 4 of Schedule 1 to the Federal
Magistrates Act. This section provides that Judges of the General
Division must not engage in remunerated work inconsistent with the
holding of judicial office.
93. Section 26D brings across Clause 6 of Schedule 1 to the Federal
Magistrates Act. It provides that the Remuneration Tribunal will
determine recreation leave entitlements for a Judge of the General
Division.
94. Section 26E brings across Clause 8 of Schedule 1 to the Federal
Magistrates Act which enables the Governor-General to determine other
terms and conditions for Judges of the General Division not specified
in the Act. Determinations made by the Governor-General are
legislative instruments which must be tabled in Parliament and may be
disallowed within 15 sitting days after the determination is tabled.
This disallowance mechanism is based on a similar mechanism in section
7 of the Remuneration Tribunal Act.
95. Section 26F brings across Clause 9A of Schedule 1 to the Federal
Magistrates Act and allows the Minister to certify that a Judge of the
General Division who retires before attaining age 70 is a retired
disabled Judge. The Minister can only do so following a request, and
if he or she is satisfied that the retirement was due to permanent
disability or infirmity. Where a retired disabled Judge was
incapacitated to the extent that he or she is unable to make such a
request, the request may be made by another person.
96. The Administrative Appeals Tribunal has jurisdiction to review a
decision by the Minister to refuse to certify that a person is a
retired disabled Judge of the General Division.
97. Section 26G brings across Clause 9B of Schedule 1 to the Federal
Magistrates Act and provides that a retired disabled Judge of the
General Division is entitled to a pension until he or she attains age
70 or dies, whichever happens first.
98. Section 26G(2) provides that the pension received by a retired disabled
Judge is 60 per cent of the salary the person would have received if he
or she had not retired. The salary on which the pension is based is
defined to be the annual rate of remuneration (i.e. salary and
allowances) set by the Remuneration Tribunal but excluding any
allowances that can be taken in lieu of other entitlements, such as for
vehicle entitlements. Any allowances are not pensionable.
99. Section 26G(3) provides that the pension is reduced by the amount of
any pension or retiring allowance payable to the retired disabled Judge
out of money provided (in full or in part) by the Commonwealth, a State
or a Territory and which was payable by reason of prior judicial
service.
100. Section 26G(4) provides that the rate of pension is not reduced if the
person draws on his or her Commonwealth contributed superannuation
while the pension is being paid. This is consistent with the objective
of paying the disability pension to age 70 and providing Commonwealth
superannuation support for the person as if he or she had worked to age
65. The fact that superannuation is drawn down would merely reflect a
decision by the person to access his or her superannuation sooner
rather than later.
101. Section 26G(6) deems that a pension payable to a retired disabled
Judge of the General Division is a pension payable under a
superannuation scheme for the purposes of Division 3 of Part II of the
Safety, Rehabilitation and Compensation Act 1988. That Division
provides for workers' compensation payments for injuries resulting in
incapacity for work. Any such payments are reduced by pension payments
from a Commonwealth superannuation scheme.
102. Section 26H brings across Clause 9C of Schedule 1 to the Federal
Magistrates Act. It provides that a retired disabled Judge of the
General Division is also entitled to Commonwealth superannuation
contributions until he or she attains age 65 or dies, whichever happens
first. Any such contributions would be payable as if the person had
not retired.
103. Section 26J brings across Clause 9D of Schedule 1 to the Federal
Magistrates Act. It provides for the payment of death benefits in
respect of a Judge of the General Division, or a retired disabled Judge
of the General Division, who dies before attaining age 65 where the
person leaves one or more eligible spouses or eligible children. Where
there is more than one beneficiary, the Minister is to apportion the
death benefit having regard to the respective circumstances of each
beneficiary.
104. Subsections 26J(2) and (3) provide that the amount of a death benefit
payable in respect of a Judge or a retired disabled Judge is equivalent
to the amount of superannuation the Commonwealth would have contributed
for the person to age 65 if the person had neither died nor retired
before attaining that age. This amount is calculated from the date of
death and on the basis of the amount of superannuation contributions
payable for the person at that date.
105. Subsections 26J(7) through to (9) provide that where a payment is
payable to an eligible child, the Minister can be requested to direct
that some or all of the payment be paid to a specified person for the
benefit of the child. This would allow, for example, the Minister to
direct that an amount payable to an eligible child be paid to the
deceased Judge's former spouse, with whom the eligible child lives, for
the benefit of the child. The Minister can alternatively direct that
the payment be spent in a specified manner for the benefit of the
child.
106. The Administrative Appeals Tribunal has jurisdiction to review
specified decisions by the Minister under new section 26J. These
include decisions apportioning a death benefit payment where there is
more than one beneficiary, and directing that a death benefit be paid
instead to a specified person, or be spent in a specified manner, for
the child's benefit.
107. Subsection 26K defines certain relationships for the purpose of
establishing status as a beneficiary for a death benefit payment under
section 26J for the purposes of Federal Magistrates' entitlements only.
It provides the same relationship definitions as those found in clause
9E of Schedule 1 to the Federal Magistrates Act. These definitions,
and those in section 26L, are generally consistent with the definitions
used in legislation establishing Commonwealth superannuation and
pension schemes, such as the Parliamentary Contributory Superannuation
Act 1948.
108. Subsection (1) provides that a person is an 'eligible spouse' of a
Judge of the General Division, or a retired disabled Judge of the
General Division, who dies if particular circumstances apply.
109. Subsection (5) provides that a person has a 'marital relationship'
with another person at a particular time if they have been living as
husband and wife if particular circumstances apply. It also specifies
the relevant evidence the Minister can consider in making a decision
whether a person ordinarily lived with another person as husband and
wife on a permanent and bona fide domestic basis at a particular time.
110. Subsection 26K(9) provides that the Administrative Appeals Tribunal
has jurisdiction to review specified decisions by the Minister under
new section 26K. This includes a decision as to whether a person was
wholly or substantially dependent on a Judge, and whether a Judge and
another person ordinarily lived with each other as husband and wife on
a permanent and bona fide domestic basis at a particular time.
111. Section 26L brings across Clause 9F of Schedule 1 to the Federal
Magistrates Act. This section defines the circumstances in which a
person is an 'eligible child' for the purpose of establishing status as
a beneficiary for a death benefit payment.
112. The Administrative Appeals Tribunal has jurisdiction to review a
decision by the Minister as to whether a person was or would have been
wholly or substantially dependent on the Judge.
113. Section 26M establishes a special appropriation, similar to that in
Clause 9G of Schedule 1 of the Federal Magistrates Act for:
. pensions payable to retired disabled Judges of the General Division
under section 26G
. superannuation contributions payable for retired disabled Judges
under section 26H, and
. death benefits payable under section 26J.
114. This ensures that entitlements for judicial officers are able to be
paid when they arise. The Attorney-General's Department and the
Department of Finance and Deregulation oversee the payment of federal
judicial officers and accountability for such payments.
Item 47 - Division 4 of Part IV
115. Item 47 repeals Division 4 of Part IV (sections 26A through to 26N)
which relate to Judicial Registrars in the Family Law Act. There are
two remaining Judicial Registrars in the Family Court. However no
further Judicial Registrars will be appointed, and the office of
Judicial Registrar will be abolished. Sections 26A through to 26N and
any other provisions applying to Judicial Registrars will be preserved
by way of transitional provisions in Item 13 of Schedule 4.
Item 48 - Subsection 27(2)
116. Item 48 amends subsection 27(2) to provide that two or more Judges of
the Appellate and Superior Division can form a split court.
Item 49 - Subsection 27(2) (note)
117. Item 49 replaces the title 'Chief Judge' with 'Chief Justice' and is a
consequence of changes in Item 6.
Item 50 - Subsections 28(1) to (3)
118. Item 50 amends provisions relating to the exercise of jurisdiction by
Judges of the Family Court. Subsections 28(1) and (3) outline when and
in what circumstances the jurisdiction of the court can be exercised by
Judges of the Appellate and Superior Division.
119. Subsection (1) enables the original jurisdiction of the Court to be
exercised by one or more Judges of the Appellate and Superior Division.
120. Currently the jurisdiction of the Family Court can be exercised by one
or more Judges of the Court, and the Full Court can be constituted by
both Judges of the Appeal Division and of the General Division. After
the commencement of the Bill Federal Magistrates who choose to accept
commissions to the General Division and new appointees to the General
Division will not be able to sit with other Judges to exercise the
jurisdiction of the Family Court or constitute a Full Court.
121. Subsections (2) and (3) set out how the Court is to be constituted in
appeals from a court of summary jurisdiction and from a Judge of the
Supreme Court of a State or Territory. An appeal from a court of
summary jurisdiction is to be heard by a single Judge of the Appellate
and Superior Division. This maintains current practice whereby these
matters are dealt with by a single Judge of the Family Court. An
appeal from a Judge of the Supreme Court of a State or Territory is to
be heard by a Full Court, subject to provisions in section 94AAA (which
deals with the exercise of the jurisdiction of the Court in other
appeals).
122. Subsection (2A) provides that an Appellate Judge can exercise the
jurisdiction of the Court which could also otherwise be exercised by
one or more Judges of the Appellate Division.
Item 51 - Paragraphs 28(4)(a) and (b)
123. Item 51 repeals references to the Judges of the Appeal Division and
replaces them with references to Appellate Judges. This amendment is a
consequence of other changes being made to the Division by Items 4 and
5.
Item 52 - Subsection 28(6)
124. Item 52 repeals subsection 28(6) which is reinserted into new section
29A by Item 53.
Item 53 - After section 28
125. Item 53 creates a new section 29 which specifies certain jurisdiction
a Judge of the General Division cannot exercise. The provisions of the
Acts specified in section 29 do not currently confer jurisdiction on
the Federal Magistrates Court and are generally complex matters
intended to be heard by superior courts. This section is intended to
maintain this status quo and ensure that Judges of the General Division
will continue to exercise the same jurisdiction as Federal Magistrates
can currently exercise. It operates notwithstanding provisions
regarding jurisdiction of courts in section 15C of the Acts
Interpretation Act 1901.
126. Subsection 29(1) provides that the original jurisdiction of the Family
Court may be exercised by one Judge of the General Division.
127. Subsection 29(2) provides that a Judge of the General Division is not
to exercise the original jurisdiction of the Court with respect to a
proceeding of any of the types listed in the table under subsection
(2). Proceedings under the provisions of the Acts listed in the table
in section 29(2) are expressly excluded from being heard the General
Division as they do not currently confer jurisdiction on the Federal
Magistrates Court.
128. Subsection 29(3) provides for other jurisdiction which a Judge of the
General Division generally cannot exercise. However, Judges of the
General Division may exercise this jurisdiction if directed to do so by
the Chief Justice, if associated with a matter that has arisen in a
proceeding before the Judge, or if a proceeding is referred to the
Judge under new section 33AA inserted by Item 55.
129. Subsection 29(4) prevents the General Division from exercising the
original jurisdiction of the Court unless express provision is made for
it to do so by the Family Law Act or any other law of the Commonwealth.
130. Item 53 also creates a new section 29A which allows for the
jurisdiction of the Court to be exercised by one or more Judges at the
same time. This provision replicates current section 28(6) repealed by
Item 52.
Item 54 - Subsection 30(b)
131. Item 54 replaces the title 'Chief Judge' with 'Chief Justice' and is a
consequence of changes in Item 6.
Item 55 - After section 33
132. Item 55 creates a new section 33AA which sets out the circumstances in
which a Judge of one Division can refer a matter to a Judge of the
other Division. The circumstances in which referrals can be made and
whether or not such decisions can be appealed are similar to those
which currently apply to the transfer of proceedings between the Family
Court and the Federal Magistrates Court.
133. Referrals can occur either on application of a party or on the
initiative of the Judge or Judges dealing with the matter. This
provision will ensure that matters are heard at the lowest appropriate
level and are heard before judicial officers best placed to hear
particular types of matters.
134. Subsections (3) and (4) provide that the Rules of Court may make
provision for the referrals of proceedings to provide additional
guidance to Judges. In deciding to make a referral, subsection (5)
requires a Judge to have regard to whether the referral will facilitate
the resolution of the dispute as quickly, inexpensively and efficiently
as possible. Subsection (6) allows the Judge or Judges who refer a
proceeding under this section to make such orders as they consider
necessary.
135. The new section 33A also provides that a decision whether or not to
refer a matter cannot be appealed.
Item 56 - Subsection 33A(1)
136. Item 56 repeals subsection 33A(1) and replaces it with a new provision
which provides a prohibition on instituting proceedings in the Family
Court if an associated matter is before the Federal Magistrates Court.
This subsection will prevent parties instituting proceedings in two
courts at the same time.
137. After commencement of this Bill the Federal Magistrates Court will
only have limited jurisdiction in matters that were already before that
Court at the date of commencement, matters transferred to the Federal
Magistrates Court, and matters in which the Federal Magistrates Court
has made orders - such as referring matters to arbitration with the
consent of the parties.
Items 57, 58, 59 and 60 - Subsection 33B(2), 33B(8A), 33B(10) and 33C
138. Items 57 through to 60 amend certain provisions which currently deal
with the transfer of proceedings between the Family Court and the
Federal Magistrates Court in sections 33B and 33C. It is anticipated
that the courts will establish a formal process for the transfer of
matters from the Family Court to the Federal Magistrates Court only
where there are still Federal Magistrates holding commissions to that
Court available to hear family law matters. This transfer power is
included to provide flexibility in the management of workloads.
Provisions regarding the jurisdiction of the Federal Magistrates Court
are in Item 3 of Schedule 2 to the Bill.
139. Item 57 repeals subsection 33B(2) primarily to prevent a party seeking
a transfer to the Federal Magistrates Court from the Family Court.
140. Item 58 amends subsection 33B(8A) to give the Federal Magistrates
Court jurisdiction in matters transferred to that Court by the Family
Court. Transferred proceedings are to be treated as though they were
initially instituted in the Federal Magistrates Court for the purposes
of Acts like the Child Support (Registration and Collection) Act.
141. Item 59 repeals subsection 33B(10) which provides that certain matters
cannot be transferred to the Federal Magistrates Court if they are
specified in the Regulations. It is no longer needed as the limited
circumstances in which matters may be transferred to the Federal
Magistrates Court will be provided for in section 33B as amended.
142. Item 60 repeals section 33C. It provides that it is mandatory to
transfer certain matters filed in the Family Court if they are of a
type specified in the Regulations. It is no longer needed as the
limited circumstances in which matters may be transferred to the
Federal Magistrates Court will be provided for in section 33B.
Item 61 - Section 34
143. Item 61 is a technical amendment. It omits subsection (1) because
there are no other parts to this provision.
Item 62 - Subsection 37(1) and (2)
144. Item 62 replaces the title 'Chief Judge' with 'Chief Justice' and is a
consequence of changes in Item 6.
Item 63 - Subsection 37A(1)
145. Item 63 removes the requirement for the Rules of Court delegating
powers to Registrars to be made by a majority of Judges. Instead it
will require them to be made in accordance with the new section 124 in
Item 146.
Item 64 - Subsections 37A(3) and (4)
146. Item 64 omits the term 'applicable' from subsections (3) and (4) so
the section only refers to standard Rules of Court. 'Standard Rules of
Court' are those made by Judges of the Family Court under the Act.
'Applicable Rules of Court' are a broader class of rules, defined in
section 3 of the Act to include related Federal Magistrates Rules and
the standard rules of any other Court.
147. Reference to Rules of Court in this section is intended to mean the
standard Rules of Court made by Judges of the Family Court rather than
the wider class of rules.
Item 65 - Subsection 37A(9)
148. Item 65 amends subsection 37A(9) and is a consequence of the amendment
to subsection 37A(1) in Item 63.
Item 66 - Paragraph 37A(14)(b)
149. Item 66 replaces the title 'Chief Judge' with 'Chief Justice' and is a
consequence of changes in Item 6.
Item 67 - Subsection 37A(15) (note)
150. Item 67 omits reference to '26B' which deals with the powers of
Judicial Registrars in the note to subsection 37A(15). This section
will be repealed by Item 47.
Item 68 - Subsections 37B(1) to (4)
151. Item 68 replaces the title 'Chief Judge' with 'Chief Justice' and is a
consequence of changes in Item 6.
Item 69 - Subsection 37B(5)
152. Item 69 amends subsection 37B(5) to define the two types of Registrars
- the 'Principal Registrar of the Court' and 'Registrars'. This change
is a consequence of the amendments made by Item 21 which removes the
definition of Registrar from section 20 of the Act.
Items 70 and 71 - Section 37C
153. Item 70 replaces the word 'shall' with 'must' to be consistent with
similar provisions in the Federal Magistrates Act and to clarify that
it is mandatory for an oath to be taken under section 37C. Item 71
replaces the title 'Chief Judge' with 'Chief Justice' and is a
consequence of changes in Item 6.
Items 72 and 73 - Division 1 of Part IVA (heading) and section 38A
154. Items 72 and 73 replace the title 'Chief Judge' in these provisions
with 'Chief Justice' and are a consequence of changes in Item 6.
Items 74, 75, 76, 77, 78, 79, 80, 81, 82, 83 and 84 - Section 38 generally
155. Items 74 to 84 replace the title 'Chief Judge' in these provisions
with Chief Justice' and are a consequence of changes in Item 6.
Items 85, 86, 87, 88 and 89- Subsections 39(1A), (5AA) and (5A), paragraph
39A(1)(b), and 39B generally
156. Items 85 to 89 remove the jurisdiction of the Federal Magistrates
Court to hear certain family law matters which will instead be dealt
with by the General Division of the Family Court.
157. Item 85 amends subsections 39(1A), (5AA) and (5A) to remove the
ability for parties to institute proceedings in relation to a
matrimonial cause in the Federal Magistrates Court and more generally
removes its jurisdiction to hear matrimonial causes (other than
proceedings of a kind referred to in subparagraph (a)(ii) or paragraph
(b) of the definition of 'matrimonial cause' in subsection 4(1)).
Item 85 also removes the Federal Magistrates Court's jurisdiction to deal
with matters arising under the Act in respect of which proceedings are
instituted under regulations made for the purposes of section 109, 110,
111, 111A or 111B, paragraph 125(1)(f) or section 117A.
Item 3 of Schedule 2 to the Bill gives the Federal Magistrates Court
original jurisdiction in family law and child support matters in
limited circumstances despite the removal otherwise of its jurisdiction
in these matters under the Bill. This includes matters where the
Federal Magistrates Court has commenced hearing the matter or where the
matter or part of the matter has been referred to a dispute resolution
process, matters transferred from the Family Court, or matters
associated with a matter pending in the Federal Magistrates Court.
These provisions do not affect the Federal Magistrates Court's ability
to otherwise transfer matters under section 39 of the Federal
Magistrates Act.
Items 86 and 87 prevent parties from instituting de facto financial cause
proceedings in the Federal Magistrates Court under the Family Law Act.
A de facto financial cause may only be instituted under the Family Law
Act in the Family Court, Supreme Court of the Northern Territory of
Australia or a court of summary jurisdiction of a participating
jurisdiction.
Items 88 and 89 are technical amendments as a consequence of Items 86 and
87.
Items 90, 91, 92, 93, 94, 95, 96, 97, and 98 - Section 46 generally
158. Items 90 to 98 amend provisions regarding the transfer of matters from
courts of summary jurisdiction to the Federal Magistrates Court for
determination. This includes in situations where the parties did not
consent to the court of summary jurisdiction hearing the matter, and
where the court gives leave to a party to object to the proceedings
being heard by the summary court.
159. The amendments ensure that these matters will only be able to be
transferred from a court of summary jurisdiction to the Family Court or
the Supreme Court of a State or Territory. After the commencement
date, only the Family Court will be able to transfer family law matters
to the Federal Magistrates Court.
160. Items 90, 92, 94 and 96 are technical amendments as a consequence of
changes in Items 91, 93, 95 and 97.
161. Item 91 repeals subparagraph 46(1)(a)(iii) which enables courts of
summary jurisdiction to transfer matters to the Federal Magistrates
Court for determination. Following the repeal of this provision, these
matters will only be able to be transferred from a court of summary
jurisdiction to the Family Court or the Supreme Court of a State or
Territory. After the commencement date, only the Family Court will be
able to transfer family law matters to the Federal Magistrates Court.
162. Item 93 repeals provisions in subparagraph 46(1)(b)(iii) which
required courts of summary jurisdiction to transfer matters to the
Federal Magistrates Court, among other courts, for determination where
the parties did not consent to the court of summary jurisdiction
hearing and determining the matter. Following the repeal of this
provision, these matters will only be able to be transferred from a
court of summary jurisdiction to the Family Court or the Supreme Court
of a State or Territory. After the commencement date, only the Family
Court will be able to transfer family law matters to the Federal
Magistrates Court.
163. Item 95 repeals subparagraph 46(1C)(c) which required courts of
summary jurisdiction to transfer matters to among other courts, the
Federal Magistrates Court, for determination where the court gives
leave to a party to object to the proceedings being so heard and
determined by the summary court after the party or parties gave consent
to the matter being heard by a court of summary jurisdiction.
Following the repeal of this subsection, these matters will only be
able to be transferred to the Family Court or the Supreme Court of a
State or Territory. After the commencement date, only the Family Court
will be able to transfer family law matters to the Federal Magistrates
Court.
164. Item 97 repeals subparagraph 46(2A)(d) which requires a court of
summary jurisdiction to transfer proceedings to the Federal Magistrates
Court, among other courts, defended proceedings for a divorce order
which are instituted in or transferred that court. Following the
repeal of this subsection, these matters will only be able to be
transferred to the Family Court or the Supreme Court of a State or
Territory. After the commencement date, only the Family Court will be
able to transfer family law matters to the Federal Magistrates Court.
Item 98 - Paragraph 46(3A)(c)
165. Item 98 repeals subsection 46(3A)(c) which allows the Federal
Magistrates Court, on the application of a party or its own motion, to
order that a proceeding pending in a court of summary jurisdiction be
removed to that Court.
Item 99 - Subsection 65D(3) (note)
166. Item 99 removes the note to subsection 65D(3) which refers to an
application to be made to the Federal Magistrates Court for a parenting
order or proceeding under Subdivision E of Division 13A of Part VII.
After the commencement date, only the Family Court will hear these
applications.
Item 100 - Subsection 69H(4)
167. Item 100 repeals subsection 69H(4) which confers jurisdiction on the
Federal Magistrates Court in relation to children's matters (those
filed under Part VII of the Act). After the commencement date, these
children's matters will not be able to be filed in the Federal
Magistrates Court except as provided in the transitional arrangements
in Schedule 4.
Items 101, 102, 103, 104, 105, 106, 107 and 108 - Section 69N generally
168. Items 101 to 108 amend section 69N which deals with the transfer of
proceedings to the Federal Magistrates Court in certain cases. This
includes where the court has the ability to transfer on its own
initiative or on consent of the parties. After the commencement date
matters will only be able to be transferred to the Family Court, a
Family Court of a State or the Supreme Court of a State or Territory.
169. Items 101, 103, 105 and 107 are technical amendments as a consequence
of Items 102, 104, 106 and 108.
170. Item 102 repeals subparagraph 69N(2)(d), which requires courts of
summary jurisdiction to inform parties that unless each of them
consents to the court hearing and determining the proceedings, the
summary court must transfer proceedings to the Federal Magistrates
Court, among other courts. Following the repeal of this subsection,
courts of summary jurisdiction will have to inform parties that matters
will only be able to be transferred to the Family Court, a Family Court
of a State or the Supreme Court of a State or Territory.
171. Item 104 repeals subparagraph 69N(3)(d) which requires courts of
summary jurisdiction to transfer proceedings for parenting orders where
the respondent seeks different orders from the applicant to the Federal
Magistrates Court, among other courts. Following the repeal of this
subsection, court of summary jurisdiction will only be able to be
transfer these matters to the Family Court, a Family Court of a State
or the Supreme Court of a State or Territory.
172. Item 106 repeals subparagraph 69N(5)(b)(iv) which enables courts of
summary jurisdiction to transfer on their own initiative proceedings
under this section to the Federal Magistrates Court, among other
courts, even where the parties have consented to the court of summary
jurisdiction hearing and determining the matter. Following the repeal
of this subparagraph, courts of summary jurisdiction will only be able
to transfer these matters to the Family Court, a Family Court of a
State or the Supreme Court of a State or Territory.
173. Item 108 repeals subparagraph 69N(6)(d) which enables courts of
summary jurisdiction to transfer proceedings under this paragraph to
the Federal Magistrates Court, among other courts, where the court
gives leave to a party to object to the court of summary jurisdiction
hearing and determining the proceedings after the party or parties gave
consent to the matter being heard by a court of summary jurisdiction.
Following the repeal of this subparagraph, courts of summary
jurisdiction will only be able to transfer these matters to the Family
Court, a Family Court of a State or the Supreme Court of a State or
Territory.
Items 109 and 110 - Section 69ZO and subsection 69ZR(3)
174. Items 109 and 110 remove references to 'Judicial Registrars' in these
sections and is a consequence of the repeal of provisions relating to
Judicial Registrars in Item 47.
Item 111 - Subparagraphs 70NFD(a) and (b)
175. Item 111 amends paragraph 70NFD(a) and (b) to prevent the Federal
Magistrates Court varying or discharging community service orders in
circumstances where the orders were not originally made by that court,
or where proceedings for variation and discharge are not associated
with proceedings already before the Federal Magistrates Court.
176. If there is no associated proceeding before the Federal Magistrates
Court, applications for variation and discharge will have to be made to
the Family Court. The Family Court can hear the application or
transfer the matter to the Federal Magistrates Court under section 33B
if there are Federal Magistrates available to hear family law matters.
Item 112 - Subparagraph 87(11)(b)
177. Item 112 inserts the term 'applicable' before the term 'Rules of
Court' in subparagraph 87(11)(b). Unlike under section 37A, the Rules
of Court for the purposes of this paragraph are intended to be the
broader class of rules which include the Federal Magistrates Rules and
the standard rules of any other Court.
Item 113 - Subparagraph 94(1)(a)
178. Item 113 amends subparagraph 94(1)(a) and includes a new note
referring to the heading to section 94 being amended to provide that,
subject to sections 94AAA and 94AA, an appeal lies to the Full Court of
the Family Court from a decree made by one or more Judges of the
Appellate and Superior Division not sitting as a Full Court.
Item 114 - Subsection 94(1AA)
179. Item 114 amends subsection 94(1AA) to provide that a decision of a
Judge of the Appellate and Superior Division (exercising original or
appellate jurisdiction under this Act) rejecting an application that he
or she disqualify himself or herself from further hearing a matter can
be appealed to a Full Court of the Family Court. An appeal also lies
to a Full Court of the Family Court where a State or Territory Family
Court Judge rejects an application to disqualify him or herself.
Appeals from Judges of the General Division are dealt with in section
94AAA as amended in Items 116-118).
Item 115 - Subsections 94(2B) and (2D)
180. Item 115 amends subsections 94(2B) and (2D) as a consequence of the
change in name of the 'Appeal Division' to the 'Appellate and Superior
Division' and from 'Judge of the Appeal Division' to 'Appellate Judge'
in Items 4 and 5.
181. The provision continues to facilitate the practice where Judges deemed
to be members of the General Division of the Family Court could be a
member of a Full Court. This function will now be exercisable by
Judges of the Appellate and Superior Division not assigned as Appellate
Judges.
Item 116 - Before subparagraph 94AAA(1)(a)
182. Item 116 inserts subparagraph 94AAA(1)(aa) to provide that an appeal
lies to the Family Court from a decree of the Family Court constituted
by a Judge of the General Division, as well as from a Federal
Magistrate and the Magistrates Court of Western Australia.
183. The Item also inserts subparagraph (1)(ab) to ensure that an appeal
from a Judge of the General Division will be heard in the same way as
an appeal from a Federal Magistrate in the Federal Magistrates Court.
Item 117 - Subsection 94AAA(3)
184. Item 117 replaces the title 'Chief Judge' with 'Chief Justice' and is
a consequence of changes in Item 6.
Item 118 - Subsection 94AAA(13)
185. Item 118 amends subsection 94AAA(13) a consequence of the change in
the name of the 'Appeal Division' to the 'Appellate and Superior
Division' and 'Judge of the Appeal Division' to 'Appellate Judge' in
Items 4 and 5. It ensures that an appeal from a Judge of the General
Division may be heard by a Judge of the Appellate and Superior
Division. In accordance with subsection (3) the Chief Justice may
consider it appropriate for the Family Court's jurisdiction in relation
to that appeal not be exercised by an Appellate Judge but any Judge of
the Appellate and Superior Division.
Item 119 - Subsection 94AA(1) (cell at table item 1, column headed 'Appeal
from')
186. Item 119 amends the table in subsection 94AA(1) to provide that leave
is required for an appeal to the Full Court from a prescribed decree of
the Court constituted by one or more Judges of the Appellate and
Superior Division not sitting as a Full Court.
Item 120 - Subsection 94AA(1) (after table item 3)
187. Item 120 also amends the table in subsection 94AA(1) to include a new
item to provide that leave is required from the Full Court for an
appeal to that Court from a prescribed decree of the Family Court
constituted by a Judge of the General Division. The appeal may be
heard by either single Judge of the Appellate and Superior Division
(who need not be an Appellate Judge), or a Full Court.
Item 121 - Subsection 94AA(1) (paragraph (a) of the cell at table item 4,
column headed "Who determines the application for leave to appeal")
188. Item 121 amends subsection 94AA(1) to provide that an appeal from a
prescribed decree of a Federal Magistrate may be determined by either a
single Judge of the Appellate and Superior Division (who need not be an
Appellate Judge) or the Full Court of the Family Court.
Item 122 - Subsection 94AA(1) (paragraph (a) of the cell at table item 5,
column headed "Who determines the application for leave to appeal")
189. Item 122 amends subsection 94AA(1) to provide that an appeal from a
prescribed decree of the Magistrates Court of Western Australia
constituted by a Family Law Magistrate may be determined by either a
single Judge of the Appellate and Superior Division (who need not be an
Appellate Judge) or a Full Court of the Family Court.
Item 123 - Paragraphs 94AA(2)(b) and (c)
190. Item 123 amends subparagraphs 94AA(2)(b) and (c) relating to consent
orders disposing of applications for leave to appeal. These amendments
remove references to 'Judge of the Appeal Division' and replace them
with references to 'an Appellate Judge'. Further references to
'another Judge if there is no Judge of the Appeal Division available'
are revised to enable 'another Judge of the Appellate and Superior
Division' to fulfil this function. These amendments are a consequence
of changes to the structure of the Family Court and will not affect the
current operation of these provisions.
Item 124 - Subsection 94AA(2A)
191. Item 124 is a technical amendment to subsection 94AA(2A) to remove any
doubt that an order by consent disposing of an application under the
section may also occur in the circumstances prescribed in paragraphs
(a) and (b).
Item 125 - Paragraph 94AA(2A)(b)
192. Item 125 further amends subparagraph 94AA(2A)(b) relating to consent
orders disposing of applications for leave to appeal being made by the
Full Court. The amendments replace the phrase 'a single Judge of the
Family Court (who need not be a member of the Appeal Division)' with 'a
single Judge of the Appellate and Superior Division (who need not be an
Appellate Judge).' These amendments are a consequence of changes to the
structure of the Family Court and will not affect the current operation
of these provisions.
Item 126 - After subsection 94A(2)
193. Item 126 creates new subsections (2A) and (2B) which provide that
questions of law referred from a Judge of the General Division to the
Full Court are to be treated in a similar way to which questions of law
from the Federal Magistrates Court are currently dealt with by the
Family Court. These amendments are a consequence of changes to the
structure of the Family Court.
Item 127 - At the end of subsection 96(1)
194. Item 127 adds a note at the end of subsection 96(1) which provides
that the jurisdiction of the Family Court in an appeal from a court of
summary jurisdiction is to be exercised by a Judge of Appellate and
Superior Division (who may not be an Appellate Judge) or the Full Court
in accordance with subsection 28(2).
Item 128 - At the end of section 96
195. Item 128 adds a new subsection (7) which provides that appeals from
courts of summary jurisdiction must be heard by Judges of the Appellate
and Superior Division (who need not be an Appellate Judge). This is
consistent with the current approach where these matters were handled
by Judges of the Family Court as opposed to Federal Magistrates in the
Federal Magistrates Court.
Item 129 - Before section 97
196. Item 129 inserts a heading for new Subdivision A. Provisions
currently in Division 1 relating to procedure and evidence will become
part of this Subdivision, along with a series of provisions currently
in the Federal Magistrates Act. The provisions are intended to
encourage active case management and improve access to justice.
197. A new section 96B specifies that the subdivision applies in relation
to proceedings in the Family Court or any other courts when exercising
jurisdiction under the Family Law Act.
198. A new section 96C specifies that courts exercising jurisdiction under
the Family Law Act must not proceed with undue formality and must use
their best efforts to ensure that proceedings are not protracted. This
provision replicates existing section 97(3) of the Family Law Act
(which is repealed by Item 131) and section 42 of the Federal
Magistrates Act.
Item 130 - Subsection 97(1A)
199. Item 130 removes references to 'Judicial Registrars' from subsection
97(1A) consistent with other amendments being made to the Act to remove
references to this office, and amends the heading to section 97.
Item 131 - Subsection 97(3)
200. Item 131 repeals subsection 97(3) which will become new section 96C as
provided for in Item 129.
Item 132 - At the end of Division 1 of Part XI
201. Item 132 inserts a heading for a new Subdivision B and brings across a
series of new provisions relating to the conduct of proceedings from
the Federal Magistrates Act. The new provisions will assist the Family
Court to operate in a more informal manner and will give Judges the
ability to more greatly control the conduct of proceedings which should
benefit litigants in ensuring greater access to justice. These
provisions also seek to retain the Federal Magistrates Court's current
practice and procedure for which it is well regarded.
202. New section 102BAA provides that the operation of the Subdivision will
apply to the procedure in both Divisions of the Family Court, subject
to any other provisions in the Family Law Act relating to the practice
and procedure of the Court. Making these provisions subject to other
provisions in the Family Law Act will ensure that matters of practice
and procedure and powers of the Family Court are otherwise preserved
where there is any inconsistency, such as in Division 12A relating to
principles for conducting child related proceedings where there are
specific case management procedures relevant to those matters.
203. New section 102BAB will give the Family Court the ability to limit the
length of documents required or permitted to be filed in the Family
Court which will assist to further streamline procedures. This power
is subject to Rules of Court made by the Family Court on the length of
documents made under this section as opposed to under the general rule-
making power in section 123. This section replicates section 51 of the
Federal Magistrates Act and is a feature of active case management.
204. New section 102BAC gives the Family Court the ability to limit the
length of oral argument. This section will strengthen the Family
Court's ability to control proceedings. This power is subject to Rules
of Court made by the Family Court on limits on oral argument made under
this section as opposed to under the general rule-making power in
section 123. This section replicates section 55 of the Federal
Magistrates Act.
205. New section 102BAD gives the Family Court the ability to provide
directions about the use and length of written submissions in
proceedings. This power will make it simpler for self-represented
litigants to present their case by ensuring that written submissions
will, as much as possible, focus on the most important aspects of their
matter. This power is subject to Rules of Court made by the Family
Court on the use and length of written submissions made under this
section as opposed to under the general rule-making power in section
123. This section replicates section 56 of the Federal Magistrates
Act.
206. New section 102BAE enables the Family Court to make orders and
commissions for the examination of witnesses in proceedings before the
Family Court. This amendment gives the Family Court broader powers in
relation to ordering that a commission issue to a person outside
Australia for the purposes of taking evidence. A commission issue
could enable evidence to be provided where a person is unable to attend
court for a particular reason. This section replicates section 60 of
the Federal Magistrates Act.
207. New section 102BAF explicitly enables the Family Court to place time
limits on the giving of evidence in proceedings before the Family
Court. This power is subject to Rules of Court made by the Family
Court on time limits for giving evidence made under this section as
opposed to under the general rule-making power in section 123. This
section replicates section 62 of the Federal Magistrates Act.
208. New section 102BAG enables the Family Court to question witnesses if
the answer to the question is likely to assist in the resolution of a
matter in dispute or the expeditious and efficient conduct of the
proceeding. This amendment gives the Family Court greater powers to
obtain evidence where it has not been provided in another form. It is
expected to be particularly useful where a matter is being conducted by
an unrepresented litigant, so that the litigant is not denied the
opportunity to present a proper case by reason of his or her
inexperience with court practice and procedures.
209. Although this provision gives a wide discretion to Judges, it must be
exercised in accordance with the proper discharge of judicial power.
This power is subject to Rules of Court made by the Family Court on
questioning witnesses made under this section as opposed to under the
general rule-making power in section 123. This section replicates
section 63 of the Federal Magistrates Act.
210. New section 102BAH enables the Family Court to direct that evidence be
given orally or by way of affidavit. However, there is no presumption
that evidence is to be given orally before the Court. It also provides
that a person who makes or proposes to make an affidavit in proceedings
may be requested to appear and be cross-examined. This section
replicates section 64 of the Federal Magistrates Act.
211. New section 102BAI ensures that proceedings in the Family Court are
not invalidated by formal defects or irregularities unless the Court
considers that the defect or irregularity has caused substantial
injustice which cannot be remedied by an order of the Court. The
section also enables the Family Court to make an order that a
proceeding is not invalidated due to a formal defect or by way of
irregularity on such condition as the Court sees fit. This section
replicates section 57 of the Federal Magistrates Act.
212. A new Subdivision C is created which sets out the practice and
procedure provisions that apply only in the General Division of the
Family Court. Bringing these provisions of the Federal Magistrates Act
into the Family Law Act will ensure that the fast efficient procedures
used by the Federal Magistrates Court will continue in the General
Division of the Family Court. It addresses stakeholder concerns that
the case management processes for which the Federal Magistrates Court
is well regarded will not occur in a restructured Family Court.
213. New section 102BBA provides that these provisions apply only in
relation to the General Division, subject to any other provision in the
Act in respect of practice and procedure other than Subdivision B
(which relates more generally to proceedings in the Family Court).
214. New section 102BBB provides that the Judges of the General Division
must endeavour to use streamlined procedures and encourage the use of
appropriate dispute resolution procedures in facilitating the
resolution of matters. This is consistent with the object of the
Federal Magistrates Act in sections 3(2)(b) and (c).
215. New section 102BBC provides that reserved judgments can be delivered
by a Judge other than the Judge who made the order. Reasons can also
be made public by another Judge on behalf of the Judge who heard the
proceeding. This will ensure that there is no delay in delivering
judgments or orders if a Federal Magistrate who heard the proceeding is
unavailable. This replicates section 75 of the Federal Magistrates
Act.
Item 133 - At the end of subsection 102M(1)
216. Item 133 creates a new note at the end of subsection 102M(1). It
refers to the power in section 27 for the Family Court, constituted by
2 or more Judges of the Appellate and Superior Division, to sit in
different places at the same time. This note clarifies that it is not
possible for Judges of the General Division to sit together.
Items 134 and 135 - Paragraph 102N(1)(b) and subsection 102N(4)(paragraph
(c) of the definition of communicate with)
217. These items insert the 'standard' before the term 'Rules of Court' in
paragraph 102N(1)(b) and subsection 102N(4) to clarify that this
provision relates to those rules made by Judges of the Family Court and
not the broader class of 'Applicable Rules of Court'.
Items 136, 137, 138, 139, 140 and 141 - Subsections 109A(1), 109A(5)
(note), 111C(7A), 121(10)(note) and 123(1)
218. These items make technical amendments to a number of sections as a
consequence of the new way in which standard Rules of Court will be
made by Judges of the Family Court in Item 146.
219. Item 141 amends subsection 123(1) to ensure that the Rules of Court
made by the General Division for application in that Division do not
also apply to other courts exercising jurisdiction under the Family Law
Act. Rules of Court made by the Appellate and Superior Division will
apply to other courts exercising jurisdiction under the Family Law Act
as is appropriate.
220. Item 148 omits a reference to section 26B in the note to
subsection 121(10) which is a consequence of the abolition of the
position of Judicial Registrars in Item 47.
Items 142 and 143 - Paragraph 123(2)(b) and subsection 123(2A)
221. Items 142 and 143 replace the titles 'Chief Judge' with 'Chief
Justice' and are a consequence of changes in Item 6.
Item 144 - Subsection 123(3) (not including the note)
222. Item 144 repeals subsection 123(3) which provided a definition of a
'Judge' for the purpose of that section and section 112. This
definition is no longer necessary as section 112 was repealed from the
Family Law Act by the Family Law Amendment Act 2000 and Item 11 in this
Bill provides for a new definition of 'Judge' in subsection 4(1) of the
Family Law Act.
Item 145 - Subsection 123(3) (note)
223. Item 145 amends the note to subsection 123(3) to provide that the
power to make Rules of Court under this section is extended by section
109A and subsection 111C(7A).
224. Other Acts also currently extend the power for the Family Court to
make rules, such as section 1337U of the Corporations Act 2001 and
section 586-90 of the Corporations (Aboriginal and Torres Strait
Islander) Act 2006. This Item amends the note to make this clear on
the face of the legislation.
Item 146 - Section 124
225. Item 146 repeals former section 124 which provided for the creation
of a Rules Advisory Committee, appointed by the Governor-General under
subsection 124(3). This Item establishes a new way of making Rules of
Court in the Family Court.
226. Currently Rules of Court are made by the Judges of the Court or a
majority of them. However, a new method of rule making is required to
reflect the creation of new Divisions of the Family Court which will be
doing different types of family law work. Both Divisions will need the
ability to make Rules that are flexible enough to complement their own
discrete case management practices and procedures. Although, wherever
possible the Court is encouraged to adopt common rules for the Court as
a whole.
227. New section 124 enables Rules of Court to be made for both Divisions,
for each Division separately, and for any other courts exercising
jurisdiction under the Family Law Act. The Family Law Rules may apply
to other Courts exercising jurisdiction under this Act except the Rules
of Court applying only to the General Division. This is consistent
with the current policy that the Federal Magistrates Rules of Court do
not apply to other courts.
228. Rules applicable to both Divisions must be made by a majority of
Judges in the Appellate and Superior Division and a majority of Judges
of the General Division. This prevents either Division making Rules
for the whole Court simply by constituting a 'majority of the Court'.
229. Rules applicable only to the Appellate and Superior Division must be
made by a majority of Judges of that Division. Similarly Rules for the
General Division must be made by a majority of Judges of that Division.
These provisions do not specify what subject matter can be dealt with
in the different Rules of Court.
230. Rules made for each Division separately must not be inconsistent with
Rules of Court made by the majority of both Divisions for the whole
Court.
231. While the practice and procedure of the Federal Magistrates Court will
be retained and apply in the new General Division of the Family Court,
it is not practical to have the current Federal Magistrates Court Rules
apply alongside the current Family Court Rules upon commencement. As a
result, transitional provisions in Item 15 of Schedule 4 provide that
the existing Family Law Rules will apply to both Divisions until such
time as new Rules are developed. This will allow the new Rules to be
specifically designed to suit the restructured Family Court while
maintaining the culture and practice of the Federal Magistrates Court.
Part 2-Other amendments
Family Law Act 1975
Item 147 Subsection 29(2) table item 3
232. Item 147 repeals table item 3 in subsection 29(2) which refers to the
exercise of jurisdiction by Judges of the General Division of the
Family Court under section 9 of the Evidence and Procedure (New
Zealand) Act 1994. Table item 3 is inserted by Item 53 of Schedule 2
to the Bill.
233. The Evidence and Procedure (New Zealand) Act will be repealed by the
Trans-Tasman Proceedings (Consequential and Transitional Provisions)
Act 2010 which has not yet commenced. Once the Trans-Tasman Act
commences Item 147 will operate to remove reference to the Evidence and
Procedure (New Zealand) Act in the table. The commencement of Item 147
is provided for in Item 2 of Schedule 1 to the Bill.
Item 148 Subsection 29(3) table item 12
234. Item 148 amends table item 12 in subsection 29(3) which refers to the
exercise of jurisdiction by Judges of the General Division of the
Family Court under section 86B of the Trade Practices Act 1974. Table
item 12 is inserted by Item 53 of Schedule 2 to the Bill.
235. The Trade Practices Act will be amended by the Trade Practices
Amendment (Australian Consumer Law) Act (No. 2) 2010. The Trade
Practices Act will be renamed the Competition and Consumer Act 2010.
Once the Trade Practices Amendment Act commences, Item 148 will operate
to amend reference to the title of the Act in the table. The
commencement of Item 148 is provided for in Item 2 of Schedule 1 to the
Bill.
SCHEDULE 2 - Amendments to the Federal Magistrates Act 1999
Item 1 - Section 5
236. Item 1 inserts a new definition of 'family law or child support
matter' into the definitions section of the Federal Magistrates Act,
section 5. Item 3 removes the jurisdiction of the Federal Magistrates
Court in family law or child support matters as defined by the new
definition.
Item 2 - Section 5 (paragraph (c) of the definition of Family law or child
support proceedings)
237. Item 2 amends the current definition of 'Family law or child support
proceedings' to include proceedings in the Federal Magistrates Court
under the Marriage Act and to exclude proceedings under section 72Q of
the Child Support (Registration and Collection) Act which relate to
appeals against the making of departure prohibition orders. This more
accurately reflects the jurisdiction the Court will exercise in such
proceedings.
Item 3 - After section 10
238. Item 3 inserts new section 10AA to remove the jurisdiction of the
Federal Magistrates Court in family law or child support matters,
except in certain circumstances. These matters will otherwise be heard
in the General Division of the Family Court.
239. In circumstances where the Federal Magistrates Court has jurisdiction
with respect to a family law or child support matter, the new section
10AA provides that that jurisdiction is taken to be conferred on the
Court by the relevant Act for the purpose of dealing with the matter.
240. New section 10AA provides for the Federal Magistrates Court to
continue to have jurisdiction to hear family law or child support
proceedings in certain circumstances despite the removal of its
jurisdiction in this area under the Bill.
241. The circumstances in which the Federal Magistrates Court will continue
to have jurisdiction are where the Court has begun but not yet
completed the final hearing of an application for final orders in the
matter before commencement, or where the Court has referred any or all
of the matters in dispute for an external dispute resolution process
(defined in subsection (5)), or required either or both parties to
attend an external dispute resolution process. The Court will also
continue to have jurisdiction where a proceeding is associated with a
matter pending in the Federal Magistrates Court, is referred to the
Court by the Family Court under section 33Bor where the matter is
transferred from the Family Court or is an application under subsection
104(2) for the review of the exercise of power by a Registrar.
242. While it is expected that most Federal Magistrates will accept
commissions to the new General Division of the Family Court, this
provision will allow a family law or child support matter instituted in
the Federal Magistrates Court before commencement to continue to be
heard by the same Federal Magistrate if that Magistrate does not accept
such a commission. This is intended to ensure that parties involved in
proceedings before the Federal Magistrates Court are not adversely
affected by the restructure in any way.
243. These provisions do not affect the Federal Magistrates Court's ability
to transfer matters to the Family Court under section 39 of the Federal
Magistrates Act. This transfer power could be used by the Court to
ensure that when parties have returned to the Court after completing a
dispute resolution process, if the Federal Magistrate who referred the
matter out had accepted a new commission as a Judge of the General
Division, the Court could transfer that matter to the Family Court
where it may be possible to arrange for that Judge of the General
Division to continue to deal with the matter.
Item 4 - Subsection 19(1)
244. Item 4 amends subsection 19(1) to omit reference to the Family Court.
Section 19 currently requires a proceeding not to be instituted in the
Federal Magistrates Court if an associated matter is already before the
Family Court or Federal Court.
245. As the family law jurisdiction of the Federal Magistrates Court is
removed by Item 3 of this Schedule it will no longer be possible to
institute family law or child support proceedings in the Federal
Magistrates Court. This removes the need for section 19(1) to refer to
the Family Court.
Item 5 - Subsection 19(2)
246. Item 5 repeals subsection 19(2) as a consequence of changes in Item 4.
Item 6 - Paragraph 19(3)(b)
247. Item 6 omits reference to the Family Court from paragraph 19(3)(b) as
a consequence of changes in Item 4.
Item 7 - After section 19
248. Item 7 inserts new section 19A to remove the power of the Federal
Magistrates Court to receive applications in respect of family law or
child support matters. For transitional reasons, an exception is made
for proceedings in respect of an associated already pending in the
Court. An exception is also made for the review of certain exercises
of power by a Registrar, as it is not intended that such reviews should
be affected by the changes to the Court's jurisdiction.
Item 8 - Subsection 20(2) (paragraph (a) of the note)
249. Item 8 replaces the reference to section 94 of the Family Law Act in
paragraph (a) of the note with a direct reference to section 94AAA.
Appeals from the Federal Magistrates Court to the Family Court are
provided for in section 94AAA.
Item 9 - Part 4 (heading)
250. Item 9 amends the heading to Part 4 to indicate that the Part applies
only to general federal law proceedings and not family law or child
support matters.
Item 10 - Division 1 of Part 4 (heading)
251. Item 10 repeals the heading to Division 1 of Part 4 and is a
consequence of changes in Item 9.
Item 11 - Section 20A
252. Item 11 amends section 20A to indicate that Part 4 does not apply to
family law or child support matters and is a consequence of changes in
Item 9.
Item 12 - Subsection 23(2) (note)
253. Item 12 repeals the note at the end of subsection 23(2) which refers
to the Family Court as a consequence of changes in Item 9.
Item 13 - Section 31
254. Item 13 repeals section 31 to prevent the Federal Magistrates Court
from making Rules of Court regarding applications under the Family Law
Act for mediation or arbitration and for orders under section 19E of
that Act. This reflects the removal of the jurisdiction of the Court
in such matters and is in keeping with the requirements in Item 16 that
the Rules of Court of the Family Court are to be applied in all family
law or child support proceedings that are heard in the Federal
Magistrates Court.
255. The reference in section 31 to section 19E of the Family Law Act is
also removed as that section was repealed by the Family Law Amendment
(Shared Parental Responsibility) Act 2006.
Item 14 - Division 2 of Part 4 (heading)
256. Item 14 repeals the heading to Division 2 Part 4 to reflect that Part
4 will have only one Division. This is a consequence of the removal of
references to family law or child support matters in Item 9.
Item 15 - Section 33
257. Item 15 repeals section 33 regarding the scope of Division 2 as it is
no longer required due to changes in Items 9 to 14.
Item 16 - Subsection 43(2)
258. Item 16 amends subsection 43(2) to provide that the Family Law Rules
and the Federal Court Rules will apply to proceedings to the extent
that the Federal Magistrates Court Rules are insufficient and so far as
they are capable. The Family Court Rules will apply in family law or
child support proceedings, and the Federal Court Rules will apply to
all other proceedings, and are subject to any directions of the Federal
Magistrates Court or a Federal Magistrate.
259. Currently, the Federal Court Rules apply in relation to proceedings
under the Marriage Act in the Federal Magistrates Court. After
commencement, the Family Law Rules will apply to these proceedings.
This is achieved by the reference to 'family law or child support
proceedings' in amended subsection 43(2), which includes a proceeding
under the Marriage Age by virtue of the amended definition in section 5
of the Act inserted by Item 2 of this Schedule.
Item 17 - At the end of subsection 50(1)
260. Item 17 adds a note at the end of subsection 50(1) to reflect the
general removal of the jurisdiction of the Federal Magistrates Court in
family law or child support matters outlined in Item 3.
Item 18 - After subsection 81(1)
261. Item 18 inserts a new subsection 81(1A). It provides that the Federal
Magistrates Court's Rules of Court regarding practice and procedure in
family law or child support matters able to be heard by that Court
should be as consistent with those followed in the General Division of
the Family Court as practicable.
262. This provision is designed to enable the greatest possible consistency
between the respective Rules of Court.
Item 19 - Division 1A of Part 7
263. Item 19 repeals Division 1A of Part 7 of the Act to remove the Chief
Executive Officer of the Federal Magistrates Court's power to appoint
family consultants. The Chief Executive Officer of the Family Court
will make all future appointments of family consultants in both the
Family Court and the Federal Magistrates Court under sections 38BA and
38BD of the Family Law Act.
264. There will no longer be a need for the Federal Magistrates Court to
appoint their own family counsellors and family dispute resolution
practitioners because the vast majority of family law work will be
undertaken in the restructured Family Court.
Item 20 - Paragraph 99(1)(e)
265. Item 20 makes a technical amendment to punctuation in
paragraph 99(1)(e) as a consequence of the change in Item 21.
Item 21 - Paragraph 99(1)(f)
266. Item 21 repeals paragraph 99(1)(f) to remove family consultants from
the list of officers of the Federal Magistrates Court. This amendment
is a consequence of the change in Item 19.
Item 22 - At the end of section 99
267. Item 22 adds a new subparagraph 99(8) to provide that only officers of
the Federal Court or the Family Court may be appointed as officers of
the Federal Magistrates Court. Consistent with a shared services model
of court administration, this amendment will allow certain offices such
as Marshalls and Sheriffs in the Federal Magistrates Court to be filled
by corresponding officers in the other federal courts.
268. Appointment and other provisions relating to the offices of the Court
will be covered by the Federal Court Act and the Family Law Act.
Item 23 - Section 100
269. Item 23 makes a technical amendment to the numbering of subsections in
the section.
Item 24 - At the end of section 100
270. Item 24 inserts a new subsection 100(2) to make it clear that a Chief
Executive Officer of the Federal Magistrates Court may make
arrangements under section 100 regarding staffing matters with the
Registrar of the Federal Court, even if he or she is also the person
appointed as the Registrar of the Federal Court.
271. As a result of the changes implemented by this Bill, the Registrar of
the Federal Court may be concurrently appointed as Chief Executive
Officer of the Federal Magistrates Court. This may result in a section
100 arrangement being made between the two courts even though they are
represented by the same individual and subsection 100(2) has been
inserted to expressly authorise this.
Item 25 - Section 101
272. Item 25 repeals section 101 to reflect that the Registrar of the
Federal Court may serve as the Registrar of the Federal Magistrates
Court. As such, the appointment of the Registrar will be covered by
the Federal Court Act rather than the Public Service Act 1999. This
relates to the amendments in Item 22.
Item 26 - Subsection 106(1)
273. Item 26 repeals subsection 106(1) as a consequence of the change in
Item 22. Appointments to the office of Sheriff of the Federal
Magistrates Court will be covered by provisions in the Federal Court
Act rather than the Public Service Act.
Item 27 - Subsection 107(1)
274. Item 27 repeals subsection 107(1) as a consequence of the change in
Item 22. New subsection 99(8) will require that a Chief Executive
Officer only appoint a Deputy Sheriff of the Federal Magistrate Court
if that person is officer of the Federal Court or Family Court.
Item 28 - Subsection 107(2)
275. Item 28 makes a technical amendment to the numbering of subsections in
the section.
Item 29 - Subsection 109(1)
276. Item 29 repeals subsection 109(1) as a consequence of the change in
Item 22. The appointment of the Marshall of the Federal Magistrates
Court will be covered by the Federal Court Act and the Family Law Act
rather than the Public Service Act.
Item 30 - Subsection 110(1)
277. Item 30 repeals subsection 110(1) as a consequence of the change in
Item 22. New subsection 99(8) will require that a Chief Executive
Officer only appoint a Deputy Marshal of the Federal Magistrate Court
if that person is officer of the Federal Court or Family Court.
Item 31 - Subsection 110(2)
278. Item 31 makes a technical amendment to the numbering of subsections in
the section.
Item 32 - Section 111A
279. Item 32 repeals section 111A to reflect that after commencement the
office of family consultant will no longer exist in the Federal
Magistrates Court.
Item 33 - Subsection 115(1A)
280. Item 33 repeals subsection 115(1A) to remove the Federal Magistrates
Court's ability to authorise 'family counsellors' and 'family dispute
resolution practitioners' from acting under the Federal Magistrates
Act. This amendment is related to the repeal of subsections 10C(1)(d)
and 10G(1)(d) of the Family Law Act by Item 14 of Schedule 1 to this
Bill.
281. Family counsellors and family dispute resolution practitioners in the
Federal Magistrates Court will be authorised by the Chief Executive
Officer of the Family Court.
Item 34 - Subsection 115(2)
282. Item 34 makes a technical amendment to the subsection as a consequence
of changes in Item 33.
Item 35 - At the end of clause 1 of Schedule 2
283. Item 35 inserts new subsections (3) and (4) at the end of clause 1.
This is to clarify that the Chief Executive Officer of the Federal
Magistrates Court and the Registrar of the Federal Court may be the
same person. The new subsections do not provide for remuneration
arrangements in the event that one person does hold both offices.
Subsection 7(12A) of the Remuneration Tribunal Act will apply if the
same person is appointed to both positions on a full-time basis.
SCHEDULE 3 - Amendments to other Acts
Part 1 - Amendments relating to the restructure of the Family Court
Division 1 - Attorney-General
Administrative Decisions (Judicial Review) Act 1977
Item 1 - Subsection 3(1) (definition of Family Court Judge)
284. Item 1 amends the definition of "Family Court Judge" in subsection
3(1) to reflect changes made to judicial offices in the Family Court by
Items 1, 2, 6 and 8 of Schedule 1 to this Bill. These changes include
the retitling of 'Chief Judge' and 'Deputy Chief Judge' as 'Chief
Justice' and 'Deputy Chief Justice', and the creation of the new
positions of 'Administrative Judge (Appellate and Superior Division)'
and 'Administrative Judge (General Division)'.
Items 2 and 3 - Subparagraphs (zd)(i) and (zd)(ii) of Schedule 1
285. Items 2 and 3 amend subparagraphs (zd)(i) and (ii) to reflect the
retitling of 'Chief Judge' and 'Deputy Chief Judge' of the Family Court
as the 'Chief Justice' and 'Deputy Chief Justice'.
Item 4 - Subparagraph (zd)(ii) of Schedule 1
286. Item 4 also amends subparagraph (zd)(ii) to reflect the movement of
provisions relating to the assignment of Judges to particular locations
sitting together from subsection 22(2AAA)(a) of the Family Law Act to
the new section 22B(1)(a).
Bankruptcy Act 1966
Item 5 - Subsection 5(1) (definition of Family Court Judge)
287. Item 5 amends the definition of 'Family Court Judge' in subsection
5(1) to reflect changes made to judicial offices in the Family Court by
Items 1, 2, 6 and 8 of Schedule 1 to this Bill. These changes include
the retitling of 'Chief Judge' and 'Deputy Chief Judge' as 'Chief
Justice' and 'Deputy Chief Justice', and the creation of the new
positions of 'Administrative Judge (Appellate and Superior Division)'
and 'Administrative Judge (General Division)'.
Federal Court of Australia Act 1976
Item 6 - Section 15A
288. Item 6 amends section 15A to reflect the retitling of 'Chief Judge' as
'Chief Justice' in Item 6 of Schedule 1 to this Bill. The heading to
the section is also amended to reflect this change.
Federal Proceedings (Costs) Act 1981
Item 7 - Subsection 3(1) (paragraph (j) of the definition of Federal
appeal)
289. Item 7 amends paragraph (j) of the definition of 'Federal appeal' in
subsection 3(1) by omitting the words 'the Full Court of'. This
reflects the insertion of new subsection 28(2) into the Family Law Act
by Item 50 of Schedule 1 to this Bill, which provides that appeals may
be heard by a single judge of the Appellate and Superior Division, as
well as the Full Court.
Judges (Long Leave Payments) Act 1979
Item 8 - Title
290. Item 8 amends the long title of the Act to remove '(other than
Justices of the High Court and Federal Magistrates)'. The current
reference in the Long Title to 'certain Judges' is sufficient to
indicate that the Act does not apply to all Judges.
Item 9 - Section 3 (paragraph (a) of the definition of Judge)
291. Item 9 amends paragraph (a) of the definition of 'Judge' to include
Judges of the General Division of the Family Court in the list of
judicial officers who are not 'Judges' for the purpose of the Act.
High Court Judges and Federal Magistrates are not covered by the Act.
292. This amendment will provide that Federal Magistrates who accept
commissions in the General Division of the Family Court, as well as any
other judicial officers appointed to the General Division, will not be
covered by the Act.
293. It is a consequence of changes made by Item 46 of Schedule 1 to this
Bill, which applies Federal Magistrates' terms and conditions to
judicial officers appointed to the General Division of the Family
Court.
Item 10 - Section 3
294. This Item inserts a new definition of the Judge of the General
Division and is a consequence of Item 9.
Judiciary Act 1903
Item 11 - Subsection 39B(2)
295. Item 11 amends section 39B(2) to provide that references to an officer
or officers of the Commonwealth in subsections 39B(1), (1B), (1C) and
(1D) of the Act regarding a writ of mandamus or prohibition or an
injunction include Judges of the General Division of the Family Court
but not Judges of the Appellate and Superior Division.
Jurisdiction of Courts (Cross-vesting) Act 1987
Items 12, 13 and 14 - At the end of subsection 5(1), 5(4) and 5(5)
296. Items 12, 13 and 14 add notes to the end of subsections 5(1), (4) and
(5) to refer to new subsection (5A) of the Act regarding proceedings
pending in the Family Court as outlined in Item 16.
Item 15 - After subsection 5(5)
297. Item 15 inserts a new subsection (5A) to provide that the only
proceedings that can be transferred to or from the Family Court under
the Act are those pending before one or more Judges of the Appellate
and Superior Division of the Family Court and not the General Division.
Item 16, 17 and 18 - Paragraphs 6A(2)(a), subparagraph 8(1)(b)(i) and
paragraph 10(a)
298. Items 16, 17 and 18 are technical amendments made as a consequence of
the change in Item 16.
Marriage Act 1961
Item 19 - Subsection 92(1)
299. Item 19 omits the Federal Magistrates Court from the list of courts
which have jurisdiction to make orders under subsection 92(1) of the
Act. Such orders will be able to be made by the General Division of
the Family Court, and the other courts listed in the subsection.
Personal Property Securities Act 2009
Item 20 - Subsection 210(2) (paragraph (b) of note 2)
300. Item 20 replaces reference to section 33C of the Family Law Act with
section 33B which will deal with the transfer of proceedings between
the Family Court and the Federal Magistrates Court. This is a
consequence of the change in Item 59 of Schedule 1 to the Bill which
repeals section 33C.
Division 2 - Families, Housing, Community Service and Indigenous Affairs
Child Support (Assessment) Act 1989
Items 21 and 22 - Section 98X and subsection 99(1)
301. Items 21 and 23 amend sections 98X and subsection 99(1) to remove the
Federal Magistrates Court's jurisdiction under the Act. This is a
consequence of the removal of the Court's jurisdiction in family law
and child support matters in Item 3 of Schedule 2 to this Bill.
Item 23 - Subsection 101(3)
302. Item 23 amends subsection 101(3) to clarify that further evidence in
support of an appeal given by affidavit or oral examination must be
made before a Judge of the Appellate and Superior Division of the
Family Court or in such other manner as the Family Court directs.
Item 24 - Paragraph 102(1)(a)
303. Item 24 amends paragraph 102(1)(a) to clarify that an appeal lies to
the Full Court of the Family Court from a decree of the Family Court
constituted by one or more Judges of the Appellate and Superior
Division.
Item 25 - Subsection 102(2)
304. Item 25 amends subsection 102(2) to clarify that an appeal does not
lie to the Full Court of the Family Court from a decree of a Judge of
the General Division rejecting an application that he or she disqualify
himself or herself under this section.
305. Appeals from a decree of a Judge of the General Division and Federal
Magistrates are dealt with in Items 28 and 29.
Item 26 - Subsections 102(6) and (8)
306. Item 26 replaces references in subsections 102(6) and (8) to the
'Appeal Division' and 'Judges of the Appeal Division' with references
to the 'Appellate and Superior Division' and 'Judges of the Appellate
and Superior Division'. This reflects the new structure of the Court
and the new titles for judicial offices.
Item 27 - Before paragraph 102A(1)(a)
307. Item 27 inserts new paragraph 102A(1)(aa) to provide that an appeal
lies to the Family Court from a decree made by a Judge of the General
Division or a Federal Magistrate under the Act.
Item 28 - Paragraph 102A(1)(b)
308. Item 28 amends paragraph 102A(1)(b) to provide that an appeal lies to
the Family Court from a decree of either a Judge of the General
Division or a Federal Magistrate rejecting an application that he or
she disqualify himself or herself from further hearing a matter.
Item 29 - Subsection 102A(2)
309. Item 29 replaces the title of 'Chief Judge' with 'Chief Justice' and
is a consequence of changes in Item 6 of Schedule 1 to this Bill.
Item 30 - Subsection 102A(12)
310. Item 30 amends subsection 102A(12) regarding appeals to the Family
Court from the Federal Magistrates Court and the Magistrates Court of
Western Australia to provide that while the single Judge referred to in
subsections (2), (7) and (9) must be a Judge of the Appellate and
Superior Division of the Family Court, but that Judge need not be an
Appellate Judge.
Item 31 - After subsection 103(2)
311. Item 31 inserts new subsections 103(2A) and (2B). It provides that
the Full Court of the Family Court must hear and determine questions of
law which arise in proceedings where a decree to which subsection
102A(1) applies could be made. This is only in the event that the
Judge in those proceedings and at least one of the parties wish for the
Full Court to consider the question.
Item 32 - At the end of subsection 105
312. Item 32 inserts a new subsection to clarify that reference to 'Judge'
in paragraphs 8(b) and (c) refer to a Judge of the Appellate and
Superior Division of the Family Court but that Judge need not be an
Appellate Judge.
Child Support (Registration and Collection) Act 1988
Item 33 - Subsection 4(1) (definition of Judge)
313. Item 33 repeals the definition of 'Judge' in subsection 4(1) to avoid
any confusion that a Judge under the Act may include a Federal Court
Judge, Family Court Judge, or a Federal Magistrate.
Items 34 and 35 - Section 103ZC and subsection 104(1)
314. Items 34 and 35 amend sections 103ZC and subsection 104(1) to remove
the Federal Magistrates Court's jurisdiction under the Act. This is a
consequence of the removal of the Court's jurisdiction in family law
and child support matters in Item 3 of Schedule 2 to this Bill.
Item 36 - Subsection 106(3)
315. Item 36 amends subsection 106(3) to clarify that further evidence in
support of an appeal given by affidavit or oral examination must be
made before a Judge of the Appellate and Superior Division of the
Family Court or in such other manner as the Family Court directs.
Item 37 - Paragraph 107(1)(a)
316. Item 37 amends paragraph 107(1)(a) to clarify that an appeal lies to
the Full Court of the Family Court from a decree of the Family Court
constituted by one or more Judges of the Appellate and Superior
Division.
Item 38 - Subsection 107(1A)
317. Item 38 amends subsection 107(1A) to clarify that an appeal does not
lie to the Full Court of the Family Court from a decree of a Judge of
the General Division rejecting an application that he or she disqualify
himself or herself under this section.
318. Appeals from a decree of a Judge of the General Division and Federal
Magistrates are dealt with in Items 41 and 42.
Item 39 - Subsections 107(5) and (7)
319. Item 39 replaces references in subsections 107(5) and (7) to the
'Appeal Division' and 'Judges of the Appeal Division' with references
to the 'Appellate and Superior Division' and 'Judges of the Appellate
and Superior Division'. This reflects the new structure of the Court
and the new titles for judicial offices.
Item 40 - Before paragraph 107A(1)(a)
320. Item 40 inserts new paragraph 107A(1)(aa) to provide that an appeal
lies to the Family Court from a decree made by a Judge of the General
Division.
Item 41 - Paragraph 107A(1)(b)
321. Item 41 amends paragraph 107A(1)(b) to provide that an appeal lies to
the Family Court from a decree of either a Judge of the General
Division or a Federal Magistrate rejecting an application that he or
she disqualify himself or herself.
Item 42 - Subsection 107A(2)
322. Item 42 amends subsection 107A(2) to reflect the retitling the 'Chief
Judge' as the 'Chief Justice' by Item 6 of Schedule 1 to this Bill.
Item 43 - Subsection 107A(12)
323. Item 43 amends subsection 107A(12) regarding appeals to the Family
Court from the Federal Magistrates Court and the Magistrates Court of
Western Australia to provide that while the single Judge referred to in
subsections (2), (7) and (9) must be a Judge of the Appellate and
Superior Division of the Family Court, that Judge need not be an
Appellate Judge.
Item 44 - After subsection 108(2)
324. Item 44 inserts new subsections 108(2A) and (2B). It provides that
the Full Court of the Family Court must hear and determine questions of
law which arise in proceedings where a decree to which subsection
107A(1) applies could be made. This is only in the event that the
Judge in those proceedings and at least one of the parties wish for the
Full Court to consider the question.
Item 45 - At the end of section 110
325. Item 45 inserts a new subsection to clarify that reference to 'Judge'
in paragraphs 8(b) and (c) refer to a Judge of the Appellate and
Superior Division of the Family Court but that Judge need not be an
Appellate Judge.
Division 3 - Finance and Deregulation
Judges' Pensions Act 1968
Item 46 - Title
326. Item 46 inserts the word 'certain' before 'Judges' in the Long Title.
The Act does not apply to all federal judicial officers and the new
Long Title is intended to more accurately reflect this.
Item 47 - Subsection 4(1) (paragraph (a) of the definition of appropriate
current judicial salary)
327. Item 47 amends the definition in subsection 4(1) to include a
reference to a new subsection 4(1)(f) created by Item 10B.
Item 48 - Subsection 4(1) (at the end of the definition of appropriate
current judicial salary)
328. Item 48 inserts a new subsection 4(1)(f) which ensures that for the
purposes of calculating the 'appropriate judicial salary' for a Judge
of the Family Court who retired or died prior to commencement, other
than the Chief Judge or Deputy Chief Judge, the salary should be that
of a Judge of the Appellate and Superior Division (not including the
Chief Justice or the Deputy Chief Justice), not that of the General
Division. Judges of the General Division do not receive judicial
pensions and to reference the 'appropriate judicial salary' against the
salary of Judges of the General Division would reduce the entitlements
for Judges of the Family Court covered by this Act.
Item 49 - Subsection 4(1) (paragraph (a) of the definition of Judge)
329. Item 49 amends paragraph (a) of the definition of 'Judge' in
subsection 4(1) to include Judges of the General Division of the Family
Court in the list of judicial officers who are not 'Judges' for the
purpose of the Act. Federal Magistrates are not currently covered by
the Act.
330. The amendment will provide that Federal Magistrates who accept
commissions in the General Division of the Family Court, as well as any
other judicial officers appointed to the General Division, will not be
covered by the Act.
Items 50 and 51 - Subsection 4(1)
331. Items 50 and 51 insert two new definitions for 'Judge of the Appellate
and Superior Division' and 'Judge of the General Division' of the
Family Court. These definitions are a consequence of the change in
Item 10A, and clarify the terminology in that Item.
Division 4-Treasury
Australian Securities and Investment Commission Act 2001
Item 52 - Subsection 12BA(1) (definition of Family Court Judge)
332. Item 52 amends the definition of 'Family Court Judge' in subsection
12BA(1) to reflect changes made to the definition of Judge in the
Family Law Act by Items 1, 2, 6 and 8 of Schedule 1 to this Bill.
Competition and Consumer Act 2010
Item 53 - Section 130 (definition of Family Court Judge)
333. Item 53 amends the definition of 'Family Court Judge' in section 130
to reflect changes made to the definition of Judge in the Family Law
Act by Items 1, 2, 6 and 8 of Schedule 1 to this Bill. This amendment
will not commence until Schedule 2 to the Trade Practices Amendment
(Australian Consumer Law) Bill (No. 2) 2010 commences.
Taxation Administration Act 1953
Item 54 - Section 14ZQ (definition of Family Court Judge)
334. Item 54 amends the definition of 'Family Court Judge' in section 14ZQ
to reflect changes made to the definition of Judge in the Family Law
Act by Items 1, 2, 6 and 8 of Schedule 1 to this Bill.
Trade Practices Act 1974
Item 55 - Subsection 4(1) (definition of Family Court Judge)
335. Item 55 amends the definition of 'Family Court Judge' in subsection
4(1) to reflect changes made to the definition of Judge in the Family
Law Act by Items 1,2 6 and 8 of Schedule 1 to this Bill. This
amendment will not be necessary if Schedule 2 to the Trade Practices
Amendment (Australian Consumer Law) Bill (No. 2) 2010 has commenced by
the time Part 1 of Schedule 1 of this Bill commences.
Part 2 - Other amendment
Administrative Appeals Tribunal Act 1975
Item 56 - At the end of section 70
336. Item 56 authorises the Governor-General to prescribe regulations which
make provision for fees to be payable at any stage of an Administrative
Appeals Tribunal proceeding and for the waiver of those fees.
337. Currently the Act authorises the making of regulations which prescribe
fees in relation to applications. This means that fees can only be
imposed at the application stage of Tribunal proceedings. The
amendment will allow fees to be imposed at any stage in proceedings.
338. The amendment is necessary to implement a new fee in the Tribunal
which was recommended by the Access to Justice Taskforce in its report
A Strategic Framework for Access to Justice in the Federal Civil
Justice System. The amendment will allow the making of regulations
which give the Tribunal the discretion to impose a $2500 fee on
agencies which are subject to a determination which is not in their
favour after a full hearing at the Tribunal. It will mean that the
costs of having a decision amended by Tribunal are not insignificant
and that there is an incentive to resolve the matter earlier through
other resolution methods.
Item 57 - Application
339. The amendment made by Item 56 will apply to any proceedings before the
Administrative Appeals Tribunal which are filed after Item 56 of
Schedule 3 commences. It will also apply to proceedings which were
filed before the day Item 56 commences but which are not completed by
that day. Due to the differences in the length of time it take to
resolve an Administrative Appeals Tribunal matter, this provision will
ensure that all proceedings are treated consistently after the
commencement of the new provision.
SCHEDULE 4-Application, saving and transitional provisions
Part 1 - Definitions
Item 1 - Definitions
340. Part 1 establishes new definitions for key terms used the purposes of
this Schedule, such as 'Chief Judge' and 'Chief Justice'. This ensures
that the extent of the operation of the application, savings and
transitional provisions are clear.
Part 2 - Restructure of the Family Court
Item 2 - Saving-Continuity of the Family Court
341. Item 2 provides that the continuity of the Family Court of Australia
after the commencement is not affected by the amendments in this Bill
which restructures the Family Court.
Item 3 -Transitional-change of title of offices of Chief Judge and Deputy
Chief Judge
342. To avoid doubt, Item 3 provides that the offices of Chief Judge and
Deputy Chief Judge under the Family Law Act will continue as the office
as Chief Justice and Deputy Chief Justice respectively despite changes
in the titles to these offices in Items 6 and 8 in Schedule 1.
Items 4 and 5-Transitional-references to Chief Justice and Deputy Chief
Justice and Transitional-references to Chief Judge and Deputy Chief Judge
343. Items 4 and 5 are transitional provisions to ensure that references to
the 'Chief Justice' and 'Deputy Chief Justice' in other Acts or
instruments include a reference to the 'Chief Judge' and 'Deputy Chief
Judge' appointed prior to the commencement of this Act. It also
provides that a reference to a 'Chief Judge' and 'Deputy Chief Judge'
prior to commencement includes a reference to the 'Chief Justice' and
'Deputy Chief Justice' and is a consequence of amendments made in Items
6 and 8 of Schedule 1.
Item 6 Transitional-assignment of Judges to new Divisions of Family Court
344. Item 6 provides for the reassignment of Judges into the new Appellate
and Superior Division of the Family Court. As outlined in Item 3 of
Schedule 1, this provision ensures that Judges who held a commission of
assignment to the Appeal Division prior to this Bill commencing are
taken to be assigned to the Appellate and Superior Division as an
Appellate Judge.
345. Judges who were deemed to be assigned to the General Division prior to
the commencement of this Bill under subsection 22(2AF) of the Family
Law Act are now deemed to be assigned to the Appellate and Superior
Division.
Item 7 Transitional-assignment of Judges to particular locations
346. Item 7 preserves any assignment to a location of a Judge that may have
occurred under subsection 22(2AAA) as a result of changes made by Item
37 of Schedule 1.
Item 8 Saving-style for former Judges
347. Item 8 ensures that former Judges of the Family Court can continue to
style themselves 'the Honourable' despite the repeal of subsection
22(4) in Item 37 of Schedule 1.
Item 9 Saving-seniority of Judges
348. Item 9 will preserve the existing seniority of Family Court Judges
despite the changes made to the structure of the Family Court as a
result of changes to the seniority provisions in Items 40-42 of
Schedule 1. In particular, Appellate Judges will retain the seniority
they had as members of the Appeal Division due to the changes made in
Item 40.
Item 10 Saving-things done by Family Court or Judge before commencement
time
349. Item 10 operates to avoid any doubt that anything done by the Family
Court or a Judge of the Family Court before commencement is valid and
is not affected by this Bill.
Item 11 Transitional-remuneration etc.
350. Item 11 operates to preserve any determinations made by the
Remuneration Tribunal which apply to Judges of the Family Court before
commencement. Item 6 deems existing Family Court Judges to be Judges
of the Appellate and Superior Division after commencement, and Judges
of the Appeal Division to be Appellate Judges. Any determinations
which make reference to a Judge of the Family Court are taken to be
references to a Judge of the Appellate and Superior Division, and
references to a Judge of the Appeal Division are taken to be references
to an Appellate Judge (other than the Chief Justice or Deputy Chief
Justice for which separate determinations exist).
351. A reference to a Judge in a determination is taken not to include a
Judge of the new General Division unless that reference includes a
Federal Magistrate. Any provisions in a determination that apply to a
Federal Magistrate apply to a Judge of the General Division.
352. Determinations referring to Judge Administrator and Senior Judge are
taken to be omitted as these offices will no longer apply in the
restructured Family Court. Until a new determination is made by the
Remuneration Tribunal with respect to the new offices of Administrative
Judge (Appellate and Superior Division) and Administrative Judge
(General Division), the current determination regarding Judges of the
Family Court will apply.
353. It is anticipated that the Remuneration Tribunal may create new
determinations for the offices of Administrative Judge. The
Administrative Judge (Appellate and Superior Division) is likely to be
remunerated at a rate higher than a Judge of the Appellate and Superior
Division, and the Administrative Judge (General Division) is likely to
be remunerated at a rate higher than a Judge of the General Division
but less than that of a Judge of the Appellate and Superior Division.
Item 12 Transitional-Judges of the new General Division
354. Item 12 operates to preserve the terms and conditions of appointment
of current Federal Magistrates under the Federal Magistrates Act who
accept commissions to be Judges of the Family Court assigned to the
General Division. This includes determinations of the Remuneration
Tribunal, recreation leave entitlements and other terms and conditions
like personal leave or carer's leave that applied to that person
immediately before commencement.
355. This ensures that Federal Magistrates who accept choose to accept new
commissions will do so on the same terms and conditions as they had in
the Federal Magistrates Court and there will be no impact on these
arrangements upon transition to the restructured Court.
Item 13 Saving and transitional-Judicial Registrars
356. Item 13 will preserve provisions in the Family Law Act which relate to
Judicial Registrars despite the removal of this office by Item 47 of
Schedule 1. They will apply to the two remaining Judicial Registrars
of the Court until their terms expire.
357. Subsection 13(3) provides that no new Judicial Registrars will be
appointed after commencement.
Item 14 Application-practice and procedure
358. Item 14 provides that the new provisions relating to the conduct of
proceedings in the Family Court, inserted by Item 132 of Schedule 1 to
the Bill, will apply only to proceedings instituted in the Family Court
after commencement. The current practice and procedure of the Family
Court will continue to apply to all proceedings instituted before
commencement. This will ensure that the same case management
procedures apply to an entire proceeding.
Item 15 Transitional-Rules of Court
359. Item 15 provides that the existing Rules of Court in force under the
Family Law Act immediately before commencement are taken to be Rules
which apply to both Divisions of the Family Court under new section
124(1)(a) inserted by Item 146 of Schedule 1 to the Bill. However,
this does not prevent the amendment or repeal of the existing Rules.
Item 16 Saving-instruments
360. Item 16 operates to ensure that any instrument made under any law that
is in force immediately before commencement is not affected by this
Bill. This may include a contract entered into by the Chief Justice of
the Court or a Memorandum of Understanding made with another court.
Part 3-Removal from Federal Magistrates Court of jurisdiction with respect
to family law and child support matters
Item 17 Transfer of family law or child support proceedings to Family Court
361. Item 17 operates to automatically transfer family law or child support
proceedings instituted in the Federal Magistrates Court to the Family
Court if the substantive hearing has not yet begun before commencement.
Item 1 provides that 'family law or child support proceedings' has the
meaning given by section 5 of the Federal Magistrates Act, being a
proceeding under the Family Law Act, Child Support (Assessment) Act or
the Child Support (Registration and Collection) Act.
362. If a proceeding is transferred in this way everything already done in
relation to the proceeding in the Federal Magistrates Court, including
the filing of documents or lodgement of money, is taken to have been
done in the Family Court. It is expected that most Federal Magistrates
will accept commissions to the new General Division of the Family
Court, and this transfer arrangement is intended to facilitate a
streamlined transition for family law and child support matters between
the two courts.
363. Subsection (4) provides that the proceeding will not be automatically
transferred to the Family Court if, before commencement, the Federal
Magistrates Court had referred any or all of the matters in dispute for
a dispute resolution process, or required either or both parties to
attend a dispute resolution process.
364. Similarly, a family law or child support matter remitted by the High
Court to the Federal Magistrates Court before commencement under
section 44 of the Judiciary Act will not be affected by the operation
of this provision.
Item 18 Family law or child support matters remitted under the Judiciary
Act 1903
365. Item 18 provides that if a final hearing for final orders has not
begun in the Federal Magistrates Court in a family law or child support
matter remitted by the High Court to the Federal Magistrates Court
under section 44 of the Judiciary Act before commencement, the Federal
Magistrates Court must transfer the matter to the Family Court for
hearing.
366. Subsection (2) confirms that family law or child support matters may
not be remitted to the Federal Magistrates Court by the High Court
after commencement.
Item 19 Re-hearings ordered by Family Court on appeal
367. Item 19 provides that if, on appeal from the Federal Magistrates
Court, the Family Court orders a re-hearing of a matter, the rehearing
will occur in the General Division of the Family Court, rather than the
Federal Magistrates Court. If it would be more convenient of the re-
hearing to occur before the Federal Magistrate whose decision was
appealed, and that Federal Magistrate has not accepted a commission to
the Family Court, the matter could be transferred to the Federal
Magistrates Court under the ordinary transfer provisions.
Item 20 Application-Rules of Court
368. Item 20 provides that the new subsection 81(1A) inserted by Item 18 of
Schedule 2 applies to Rules of Court made in the Federal Magistrates
Court after the commencement date, rather than retrospectively.
Subsection 81(1A) requires the Federal Magistrates to ensure that, so
far as practical, the Rules of the Federal Magistrates Court in
relation to practice and procedure are not to be inconsistent with the
Rules of Court that apply to Judges of the General Division of the
Family Court.
Item 21 Transitional-authorisation to provide family counselling
369. Item 21 ensures that authorisations made at commencement for officers
of the Court or staff to act as a family counsellor under
subsection 93D(1) of the Federal Magistrates Act has effect as though
the authorisation was made by the Chief Executive Officer of the Family
Court under the Family Law Act. Subsection 93D is repealed by Item 19
of Schedule 2.
Item 22 Transitional-authorisation to provide family dispute
resolution
370. Item 22 ensures that authorisations made at commencement for officers
of the Court or staff to provide family dispute resolution under
subsection 93D(1) of the Federal Magistrates Act has effect as though
the authorisation was made by the Chief Executive Officer of the Family
Court under the Family Law Act. Subsection 93D is repealed by Item 19
of Schedule 2.
Item 23 Transitional-family consultants
371. Item 23 ensures that authorisations made at commencement for officers
of the Court or staff to act as a family counsellor under
subsection 93D(1) of the Federal Magistrates Act has effect as though
the authorisation was made by the Chief Executive Officer of the Family
Court under the Family Law Act. Subsection 93D is repealed by Item 19
of Schedule 2.
Part 4-Regulations
Item 24 Regulations may deal with transitional etc. Matters
372. Item 24 allows regulations to be made to deal with matters of a
transitional, saving or application nature relating to amendments made
by the Bill. This is a cautionary provision included to allow for any
arrangements inadvertently omitted in the Bill to be included by
regulation if necessary to ensure the transition to the restructured
Family Court operates as intended.
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Chief Justice
Deputy Chief Justice
Administrative Judge (Appellate and Superior Division)
Appellate and Superior Division
Appellate Judges
Administrative Judge (General Division)
General Division