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2016 - 2017 - 2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (CONSEQUENTIAL
AMENDMENTS AND TRANSITIONAL PROVISIONS) BILL 2018
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Attorney-General, the Honourable Christian Porter MP)
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (CONSEQUENTIAL
AMENDMENTS AND TRANSITIONAL PROVISIONS) BILL 2018
GENERAL OUTLINE
1. The Federal Circuit and Family Court of Australia (Consequential Amendments and
Transitional Provisions) Bill 2018 (the Bill) makes consequential amendments and provides
transitional provisions necessary to support the Federal Circuit and Family Court of Australia
Bill 2018 (the FCFC Bill).
2. The FCFC Bill would bring the Family Court of Australia (the Family Court) and the
Federal Circuit Court of Australia (the Federal Circuit Court) together to be known as the
Federal Circuit and Family Court of Australia (FCFC). The FCFC would comprise two
'divisions'. The Federal Circuit and Family Court of Australia (Division 1) (FCFC
(Division 1)) would be a continuation of the Family Court. The Federal Circuit and Family
Court of Australia (Division 2) (FCFC (Division 2)) would be a continuation of the Federal
Circuit Court. This structural reform of the federal courts is intended:
to create a consistent pathway for Australian families in having their family law
disputes dealt with in the federal courts
to improve the efficiency of the federal court system, and
to ensure outcomes for Australian families are resolved in the most timely, informed
and cost effective manner possible.
3. To give effect to this structural reform, the Bill makes a number of amendments to
Commonwealth laws to reflect and support the proposed operation of the FCFC Bill. These
include:
amending the Federal Court of Australia Act 1976 to establish the new Family Law
Appeal Division in the Federal Court of Australia (the Federal Court)
amending the Family Law Act 1975 to ensure that it continues to operate effectively in
the context of the FCFC
amending court-related Regulations and Rules of Court to ensure that they continue to
operate effectively following the commencement of the FCFC and the Family Law Appeal
Division of the Federal Court, and
making minor consequential amendments to other Commonwealth Acts and relevant
subordinate legislation (to accommodate references to the FCFC and the Family Law Appeal
Division of the Federal Court).
4. As part of these amendments, the appellate function of the Family Court would
largely be removed and placed in the new Family Law Appeal Division of the Federal Court.
The FCFC (Division 1) would only retain a limited appellate jurisdiction to hear appeals from
State and Territory courts of summary jurisdiction exercising federal family law jurisdiction.
As there will be significantly fewer appeals handled by the FCFC (Division 1), these
2
amendments enable the existing judicial resources of the Family Court to be refocussed to
finalise more first instance family law matters and to clear the backlog of pending matters.
5. The Family Law Appeal Division of the Federal Court would be given appellate
jurisdiction in relation to appeals from judgments of the FCFC (Division 1) and FCFC
(Division 2) as well as appeals from judgments of the Family Court of Western Australia in
relation to federal family law matters. Importantly, amendments in the Bill would provide for
the process, procedure and management of the Family Law Appeal Division. The conferral of
family law jurisdiction on the Federal Court is not intended to impact on its general federal
law caseload or operations.
6. This Bill would also ensure that appropriate transitional arrangements are in place for
matters before the federal courts as at the date of commencement of the FCFC Act. In
particular, this Bill:
provides a framework to preserve and transition the title and appointments of the
Chief Justice and the Deputy Chief Justice of the Family Court, Senior Judges and Judges of
the Family Court and certain other personnel of the Family Court to the FCFC (Division 1)
(Part 2 of Schedule 10)
provides a framework to preserve and transition the title and appointments of the
Chief Judge and Judges of the Federal Circuit Court and certain other personnel of the
Federal Circuit Court to the FCFC (Division 2) (Part 3 of Schedule 10)
provides transitional arrangements for family law appeals which are on foot in the
Family Court as at 1 January 2019, as well as appeals which are eligible to be filed as at
1 January 2019
provides transitional arrangements for appeals which would otherwise be impacted as
a result of the transfer of appellate jurisdiction from the Appeal Division of the Family Court
to the Family Law Appeal Division of the Federal Court (Part 4 of Schedule 10).
7. For the avoidance of doubt, any first-instance proceedings on foot in the Family Court
or the Federal Circuit Court as at the date of commencement of the FCFC Act would be heard
in the FCFC (Division 1) or the FCFC (Division 2), respectively. This arrangement
appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and the
Federal Circuit Court as the FCFC (Division 2) under the FCFC Act.
8. The establishment of the FCFC and the creation of the Family Law Appeal Division
in the Federal Court will increase efficiencies, reduce delays, and lead to better outcomes in
the family law jurisdiction of the federal court system, particularly for those families
interacting with the Courts during stressful and difficult periods in their lives. Together, these
changes will further support the long term financial sustainability of the federal court system,
building upon court reform work undertaken in the context of the 2015-16 Budget and
aligning with ongoing efficiency work of the federal courts.
FINANCIAL IMPACT
9. As part of the 2018-19 Budget, $4.0 million was allocated to assist with the
implementation costs of the structural reform of the federal courts.
3
10. Bringing the Federal Circuit Court and the Family Court together in the FCFC is
expected to deliver efficiencies to the courts of $3.0 million over the forward estimates.
These efficiencies will be reinvested in the courts to further enhance their capacity to provide
services.
11. Family law fees have been calculated to be harmonised between the FCFC
(Division 1) and FCFC (Division 2) but set at a level that maintains (rather than increases or
decreases) total fee revenues.
4
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Federal Circuit and Family Court of Australia (Consequential Amendments and
Transitional Provisions) Bill 2018
1. This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
2. The Federal Circuit and Family Court of Australia (Consequential Amendments and
Transitional Provisions) Bill 2018 (the Bill) makes the necessary amendments to other
Commonwealth Acts and Regulations affected by the passage of the Federal Circuit and
Family Court of Australia Bill 2018 (the FCFC Bill). In particular, the Bill establishes the
Family Law Appeal Division in the Federal Court of Australia (Federal Court) and provides
the Family Law Appeal Division appellate jurisdiction in relation to family law appeals from
the FCFC as well as some appeals from the Family Court of Western Australia. The Bill also
reforms transfer provisions by creating a power that enables the Federal Court to 'uplift'
matters that are not family law or child support matters from the FCFC (Division 2), makes
amendments to various regulations and rules relating to the family law system, and provides
for transitional arrangements for the introduction of the Federal Circuit and Family Court of
Australia (FCFC).
3. Many of the amendments required to other legislation are nominal: references to the
Family Court or the Federal Circuit Court of Australia need to be updated to refer to the
FCFC (Division 1) or the FCFC (Division 2), respectively. As such, there are many rights
that are tangentially engaged by the Bill, due to the legislation it amends. This tangential
engagement with rights is not discussed in this statement of compatibility, as directed by the
Committee.1 However, this Bill does also make a number of substantive changes.
4. This Bill amends the Federal Court of Australia Act 1976 (Federal Court Act) to
create the Family Law Appeal Division in the Federal Court and correspondingly amends the
Family Law Act 1975 (Family Law Act) to remove the majority of the appellate jurisdiction
of the FCFC (Division 1). Appeals from FCFC family law or child support decisions would
be heard by the Family Law Appeal Division; accordingly, new jurisdiction would be
conferred on the Federal Court to reflect this. However, by creating the new Family Law
Appeal Division, it is not foreseen that the general federal law workload of the Federal Court
will be impacted, or that the Federal Court would hear first instance family law or child
support matters. This Bill also provides for appeals from federal family law decisions of the
Family Court of Western Australia to be heard in the Family Law Appeal Division, as the
current Appeal Division in the Family Court will cease to exist following the passage of the
Federal Circuit and Family Court of Australia Bill 2018.
1
Parliamentary Joint Committee on Human Rights, Guidance Note 1: Drafting statements of compatibility
(December 2014), p. 3.
5
5. For general federal law matters (not including family law or child support), this Bill
provides for transfers to be made from FCFC (Division 2) to the Federal Court, either
pursuant to an order from the Federal Court (known as the 'uplift power') or an order from
the FCFC (Division 2).
6. This Bill also amends various rules, including the Federal Court Rules 2011, Family
Law Rules 2004, the Federal Circuit Court Rules 2001, and creates Rules of Court for both
divisions of the FCFC, and for other courts exercising jurisdiction under the Family Law Act.
Many of the changes are nominal, by updating references to the Family Court or the Federal
Circuit Court. More substantively, the amendments to the rules account for the new transfer
provisions, the creation of the Family Law Appeal Division, and accommodate the case
management provisions in the Federal Circuit and Family Court of Australia Bill 2018. The
Bill also amends fees payable in respect of family law matters.
7. Finally, this Bill makes arrangements to manage the transition from the Family Court
and the Federal Circuit Court to the FCFC.
Human rights implications
8. The Bill directly engages the following human rights:
right to a fair and public hearing: Article 14(1) of the International Covenant on Civil
and Political Rights (ICCPR)
right to an effective remedy: Article 2(3) of the ICCPR
rights of parents and children: Article 24(1) of the ICCPR, and Article 3 of the
Convention on the Rights of the Child (CRC)
right to respect for the family: Article 23 of the ICCPR
elimination of discrimination against women: Articles 2 and 26 of the ICCPR, and
Articles 2, 3 and 5 of the Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW)
right to security of the person: Article 9 of the ICCPR.
Right to a fair and public hearing - Article 14(1) of the ICCPR
9. Article 14(1) of the ICCPR enshrines the right of a person to have a fair and public
hearing by a competent, independent and impartial tribunal established by law. As noted in
General Comment No 32, an important aspect of the fairness of a hearing is its
expeditiousness.2 This right is engaged through the limiting of appeals from certain decisions
through the imposition of requirements for leave to appeal or preventing appeals against
certain procedural or interlocutory decisions, creating the capacity for appellate jurisdiction to
be exercised by a single Judge, and by ensuring that a consistent set of family law fees will
apply across the federal family law courts.
2
Human Rights Committee, General Comment No. 32 - Article 14: Right to equality before the courts and
tribunal and to a fair trial, 90th sess, UN Doc CCPR/C/GC/32 (23 August 2007), para 27.
6
Leave to appeal from certain decisions
10. Sub-items 227(4) and (5) and item 228 promote the right to a fair hearing under
Article 14 of the ICCPR by facilitating the expeditiousness of the appeal system, and thus
ensuring the right to a fair hearing when seeking review of a decision. These items provide
circumstances in which an appeal must not be brought, or circumstances in which an appeal
can only be brought with leave of the Court. Sub-items 227(4) and (5) relate to interlocutory
decisions, which are not determinative of a litigant's final rights. Similarly, item 228 of
Schedule 1, Part 1, read alongside item 57 of Schedule 3, Part 1 limits a litigant's ability to
appeal interlocutory decisions that do not relate to child welfare matters. By circumscribing a
litigant's ability to appeal3 an interlocutory decision, unnecessary appeals will not be filed
with the Family Law Appeal Division. These items allow court resources to be better
allocated to litigants who need to access their right to a fair hearing and have their final rights
determined. As such, sub-items 186(4) and (5) promote the right to a fair hearing under
Article 14 of the ICCPR.
Capacity for appellate jurisdiction to be exercised by a single Judge
11. With the conferral of appellate jurisdiction on the Federal Court in respect of appeals
from family law and child support proceedings in the FCFC (Division 1) and the FCFC
(Division 2), Division 2 of Part III of the Federal Court Act ('Appellate and related
jurisdiction (civil proceedings)') will apply. Specifically, subsection 25(1AA) would
provide that in an appeal from FCFC (Division 2), the appellate jurisdiction of the Federal
Court is to be exercised by a single Judge, unless a Judge considers it appropriate for the
appellate jurisdiction to be exercised by a Full Court. This arrangement departs from current
practice in the case of appeals from the FCFC (Division 2) to the Family Court. Section
94AAA(3) of the Family Law Act currently provides that in an appeal from the Federal
Circuit Court the appellate jurisdiction of the Family Court is to be exercised by a Full Court,
unless the Chief Justice considers it appropriate for the appellate jurisdiction of the Court to
be exercised by a single Judge. This amendment engages with the right to a fair hearing by
remedy under Article 14 of the ICCPR, as described in paragraph 9, by increasing the number
of judicial resources available to hear both appellate and first instance matters, and thus
increasing the capacity of the Court to resolve disputes expeditiously, for the ultimate benefit
of litigants.4
Fees
12. Part 1 of Schedule 3 of the Bill engages with the right to a fair and public hearing in
Article 14(1) of the ICCPR. Part 1 of Schedule 3 amends the Family Law (Fees)
Regulation 2012 to ensure that a consistent set of family law fees will apply across the federal
family law courts. Family law fees are already largely consistent across the Family Court and
Federal Circuit Court. For those family law court events that have different fees currently
applying in the Family Court and Federal Circuit Court, fees will be set at a level that
3
Noting that the right to appeal is not part of Article 14: General Comment No. 32, above n 2, para 12. See also
Communication No. 450/1991, I.P. v Finland, para 6.2. However to the extent these items limit the rights of
parents and children, and right to respect for the family, the issue is discussed at paragraphs 20 and 21 of this
statement of compatibility.
4
General Comment No. 32, above n 2, para 27.
7
maintains and does not increase overall fee revenue. New fee amounts have been calculated
based on 2017-18 figures, with the result that:
most fees are already consistent and will remain unchanged
because significantly more family law matters are currently handled by the Federal
Circuit Court, this will mean a small increase to the current Federal Circuit Court setting
down and daily hearing fees, and a substantial decrease to the current Family Court setting
down and daily hearing fees
harmonising fees will see Federal Circuit Court setting down and daily hearing fees
increase by approximately 7 per cent and Family Court setting down and daily hearing fees
decrease by approximately 22 per cent
given that divorce applications are handled almost exclusively by the Federal Circuit
Court divorce application fees in the Family Court will reduce to Federal Circuit Court rates
13. These changes will result in a fairer fee structure for Australian families, ensuring that
they are more easily able to access the family law system. In turn, this can be seen as a
promotion of the Article 14(1) of the ICCPR right to a fair and public hearing
Right to a fair and public hearing, and to an effective remedy - Article 2(3) and 14(1) of
the ICCPR
14. As noted above in paragraph 9, Article 14(1) of the ICCPR enshrines the right of a
person to have a fair and public hearing by a competent, independent and impartial tribunal
established by law. Article 2(3) requires States to ensure that any person whose rights and
freedoms as stipulated in the ICCPR are violated, that person shall have an effective remedy,
which is to be determined by a competent judicial authority. This Bill engages both of these
rights by creating an 'uplift power' for the Federal Court, and through the transitional
provisions.
'Uplift power'
15. Item 248 of Schedule 1 engages the right to a fair hearing, under Article 14 of the
ICCPR, and engages the right to an effective remedy under Article 2(3) of the ICCPR. Item
248 creates an 'uplift power' for the Federal Court, which allows for a matter that is not a
family law or child support proceeding to be transferred from the FCFC (Division 2) to the
Federal Court, on the application of a party to the proceeding, or on the Federal Court's own
initiative. The factors to be taken into account in exercising this power are set out in item 1 of
Schedule 6, which amends the Federal Court Rules 2011. While the power for the FCFC
(Division 2) to transfer a proceeding to the Federal Court on its own motion is retained, this
power ensures that the transfer would not come into effect unless the Federal Court is
satisfied that it is appropriate that the proceeding be heard in the Federal Court. These
provisions are proposed to prevent circumstances in which matters can be transferred to the
Federal Court only to be transferred back to the Federal Circuit Court. This unnecessarily
increases delay5 and cost, which can be prohibitive upon litigants in seeking an effective
5
Human Rights Committee, General Common No. 32 - Article 14: Right to equality before the courts and
tribunal and to a fair trial, 90th sess, UN Doc CCPR/C/GC/32 (23 August 2007), para 27.
8
remedy. By providing the Federal Court an uplift power, item 248 rectifies these challenges
currently faced by the courts and litigants and thus promotes both the right to a fair hearing
under Article 14 and the right to an effective remedy under Article 2(3) of the ICCPR.
Transitional provisions
16. The transitional provisions in Schedule 10 of the Bill engage with the right to a fair
and public hearing in Article 14(1) of the ICCPR and the right to an effective remedy in
Article 2(3) of the ICCPR. Schedule 10 provides the transitional arrangements for the court
reform amendments. Schedule 10 provides for the continuity of the Family Court and the
Federal Circuit Court, their Judges, staff, and decisions made by these offices. Schedule 10
also provides transitional arrangements for family law appeals that are on-foot as at
1 January 2019.
17. Schedule 10 ensures that litigants who have filed an appeal in respect of their family
law proceedings are not disadvantaged as a result of the commencement of this Bill on
1 January 2019 - either by having appeals that have been filed, but not substantively heard
before 1 January 2019, transferred to the Family Law Appeal Division; or by having matters
that have been substantively heard (either in whole or in part) on 1 January 2019 remain with
the court in which they were filed (the Family Court). To the extent possible, Schedule 10
ensures continuity in appeals proceedings that have commenced prior to the restructure taking
effect, minimising confusion and unnecessary delay, and ensuring that litigants' right to a fair
hearing and to an effective remedy are promoted.
Rights of parents and children and right to respect for the family - Article 23 and 24(1)
of the ICCPR, Article 3 of the CRC
18. Article 24(1) of the ICCPR also provides for the protection of all children, without
discrimination, by virtue of their status as minors. This is elaborated upon in Article 3 of the
CRC, which requires that in all actions concerning children, including by courts, the best
interests of the child are to be a primary consideration. The right to respect for the family is
contained in Article 23 of the ICCPR, which recognises the family as the natural and
fundamental group unit within society, and it is entitled to protection by society and the State.
Creation of the Family Law Appeal Division
19. The Family Law Appeal Division provides the forum for the rights of parents and
children, and the right to respect for the family to be realised. Items 192 and 227 of
Schedule 1 confer family law jurisdiction on the Federal Court, which is to be exercised by
its Family Law Appeal Division. As stipulated in item 227, the Federal Court has the power
to exercise appellate jurisdiction in family law and child support matters in its Family Law
Appeal Division in relation to determine appeals from judgments of the FCFC, a Family
Court of a State, or the Supreme Court of a state or territory, exercising original or appellate
jurisdiction under a range of acts and regulations relating to family law matters. The creation
of the Family Law Appeal Division, in effect, recreates the appeal division in the Family
Court, in the Federal Court. By providing for the right to review for such matters, the creation
of the Family Law Appeal Division engages and promotes the rights of parents and children,
and respect for the family by ensuring there is a forum for their rights to be realised, and a
means to achieve correct and accountable decision-making in relation to family law matters.
9
Appealing from certain decisions
20. As discussed above in paragraph 10, sub-items 227(4) and (5), as well as item 228,
limit the ability of litigants to appeal from interlocutory decisions that do not relate to child
welfare matters, by prohibiting appeal or providing that leave to appeal is required.
21. As noted in footnote 3, by limiting the ability to appeal, the rights of parents, children
and the family may also be limited, by either removing the forum to realise their rights (in
sub-item 227(4)), or placing an extra burden to realise their rights (in the form of a leave to
appeal requirement in sub-item 227(5) and item 228) in the short-term. However, sub-items
227(4) and (5) as well as item 228 pursue the legitimate objective, and are necessary to
promote the finality of interlocutory decisions, which enhances the efficiency of reaching a
final decision. These items are not determinative of a litigant's final rights, as the Court's
final decision remains appealable and is therefore considered reasonable and proportionate.
Further, notwithstanding subsection 227(5), no leave is required for an appeal under
subsection 227(6), which allows appeals from interlocutory judgments that affect the liberty
of an individual, or in proceedings relating to the contempt of court. Similarly, item 228 of
Schedule 1, Part 1, read alongside item 57 of Schedule 3, creates an exception to the leave to
appeal requirement for child welfare matters. This ensures the proportionality and
reasonableness of subsection 227(5) and item 228. Accordingly, sub-items 227(4) and (5),
and item 228 are permissible limitations on Articles 23 and 24(1) of the ICCPR, and Article 3
of the CRC.
Appeals from courts of summary jurisdiction
22. Item 72 of Schedule 1 relates to appeals from state or territory courts exercising
summary jurisdiction under the Family Law Act to the FCFC or a state or territory Supreme
Court. Item 72 provides that an appeal may be dismissed if there are no reasonable prospects
of success. This may be considered a limitation on the rights of parents and children, as well
as the right to the respect of the family, as it inhibits the ability of a litigant to challenge a
decision of the FCFC. The legitimate objective of this provision is to ensure that the appeal
system is not overburdened by litigants who are dissatisfied with a decision, despite its
correctness under the law. On this basis, item 72 is reasonable and necessary to ensure the
efficient and expeditious operation of the Courts for litigants in the family law system. There
is a rational connection between item 72 and the objective, as it provides for the opportunity
for an initial consideration of the grounds of appeal, before dismissing the appeal on the basis
that it is without reasonable prospects of success. The provision is considered proportionate
as applications for appeal receive an initial consideration prior to dismissal. Therefore, to the
extent that item 72 is considered a limitation on Articles 23 and 24(1) of the ICCPR, and
Article 3 of the CRC, the limitation is permissible.
Elimination of discrimination against women - Articles 2 and 26 of the ICCPR, Articles
2, 3, and 5 of CEDAW
Creation of the Family Law Appeal Division
23. Australia's obligation to eliminate discrimination against women is contained in
Articles 2 and 26 of the ICCPR, and Articles 2, 3 and 5 of the CEDAW. This includes
10
addressing family violence, which amounts to discrimination against women.6 As discussed
in paragraph 19, the Family Law Appeal Division is the forum to ensure that correct and
consistent decisions are made in relation to family law matters. Accordingly, the Family Law
Appeal Division assists Australia to meet its obligation to eliminate discrimination against
women.
Right to security of the person - Article 9 of the ICCPR
Transitional provisions
24. Item 38 of Schedule 10, Part 5 provides for transitional rules, which include the power
for the Minister to, by legislative instrument, make rules on prescribed matters of a
transitional nature. Subsection (2) of item 38 clarifies that the rules the Minister makes may
not create an offence or provide powers of arrest or detention. This item engages Article 9 of
the ICCPR, which provides that everyone has the right to liberty and security of the person
and that no one shall be subjected to arbitrary arrest or detention. By restricting the Minister's
power to makes Rules to matters that do not create offences or provide for powers of arrest or
detention, item 38 ensures that the Minister cannot make Rules which subject a person to
arbitrary arrest or detention.
Conclusion
25. The Bill is compatible with human rights because it promotes the protection of human
rights and to the extent that it may limit human rights, those limitations are reasonable,
necessary and proportionate to achieve the legitimate objectives of the Bill.
6
Committee on the Elimination of Discrimination against Women, General recommendation No. 35 on gender-
based violence against women, updating general recommendation No. 19, 67th sess, UN Doc CEDAW/C/GC/35
(26 July 2017), para 1
11
NOTES ON CLAUSES
List of abbreviations
Family Court Family Court of Australia
Family Law Act Family Law Act 1975 (Cth)
Family Law Rules Family Law Rules 2004 (Cth)
FCFC (Division 1) Rules Federal Circuit and Family Court of Australia
(Division 1) Rules 2018 (Cth)
FCFC (Division 1) Federal Circuit and Family Court of Australia
(Division 1)
FCFC (Division 2) Rules Federal Circuit and Family Court of Australia
(Division 2) Rules 2018 (Cth)
FCFC (Division 2) Federal Circuit and Family Court of Australia
(Division 2)
FCFC Federal Circuit and Family Court of Australia
Federal Circuit Court Act Federal Circuit Court of Australia Act 1999 (Cth)
Federal Circuit Court Rules Federal Circuit Court Rules 2001 (Cth)
Federal Circuit Court Federal Circuit Court of Australia
Federal Court Act Federal Court of Australia Act 1976 (Cth)
Federal Court Rules Federal Court Rules 2011 (Cth)
Federal Court Federal Court of Australia
High Court High Court of Australia
12
A Bill for an Act to deal with consequential and transitional matters in connection with
the Federal Circuit and Family Court of Australia Act 2018, and for related purposes
Clause 1 - Short title
1. Clause 1 provides that this Act is the Federal Circuit and Family Court of Australia
(Consequential Amendments and Transitional Provisions) Act 2018.
Clause 2 - Commencement
2. Clause 2 provides the commencement dates of Parts of the Act. Schedule 1;
Divisions 1, 3 and 4 of Schedule 2; and Schedules 6 and 7 of this Act will commence on
1 January 2019. Other Parts of the Act will start in accordance with the table provided in
Clause 2.
Clause 3 - Schedules
3. Subclause 3(1) provides that legislation that is specified in a Schedule to this Act
(other than Schedule 7 and 8) is amended or repealed as set out by the relevant Schedule, and
that any other item in a Schedule to this Act (other than Schedules 7 and 8) has effect in
accordance with its terms. The Note to subclause 3(1) directs the reader to the fact that
provisions of a regulation or other instrument amended or inserted by this Act, and any other
provision of the regulation or instrument, may be amended or repealed by another instrument
made under the relevant authority in the relevant Act.
4. Subclause 3(2) provides that legislation specified in Schedules 7 and 8 to this Act is
modified as set out in the applicable items, and any other item in those Schedules has effect
according to its terms. The Note in subclause 3(2) provides that in these two Schedules, Rules
of Court are modified in their application to the FCFC, without amending their text.
13
Schedule 1 - Amendments relating to the Federal Circuit and Family Court of Australia
Part 1--Amendments
Family Law Act 1975
Item 1 - Subsection 4(1)
5. Subsection 4(1) provides a list of definitions which apply to the Family Law Act, the
standard Rules of Court and the related Federal Circuit Court Rules.
6. Item 1 omits 'the standard rules of Court and the related Federal Circuit Court Rules,
unless the contrary intention appears' and substitutes 'and the applicable Rules of Court' to
encompass the various Rules of Court which will now use these definitions. The definition of
applicable Rules of Court is amended by item 3 of Schedule 1 of this Bill.
Item 2 - Subsection 4(1)
7. Item 2 repeals the definitions of administrative affairs, appeal and Appeal Division in
subsection 4(1). These definitions are relevant to the structure, administration and function of
the FCFC (defined in item 8 of Schedule 1 of this Bill, and provided for by the Federal
Circuit and Family Court of Australia Act 2018) and are no longer required in the Family
Law Act. A replacement definition of administrative affairs is included in section 7 of the
Federal Circuit and Family Court of Australia Act 2018.
Item 3 - Subsection 4(1) (definition of applicable Rules of Court)
8. Item 3 repeals the definition of applicable Rules of Court in subsection 4(1) and
substitutes a new definition to reflect the different rules applicable to the different courts
exercising jurisdiction under the Family Law Act.
Item 4 - Subsection 4(1) (definition of Chief Executive Officer)
9. Item 4 repeals the existing definition of Chief Executive Officer in subsection 4(1) and
substitutes a new definition: 'Chief Executive Officer means the Chief Executive Officer and
Principal Registrar of the Federal Court of Australia.' This aligns with the definition of Chief
Executive Officer in section 7 of the Federal Circuit and Family Court of Australia Act 2018.
Item 5 - Subsection 4(1)
10. Item 5 repeals the existing definitions of Chief Justice, complaint, complaint handler
and corporate services in subsection 4(1). These definitions are relevant to the structure and
administration of the FCFC (defined in item 8 of Schedule 1 of this Bill, and provided for by
the Federal Circuit and Family Court of Australia Act 2018) and are no longer required in the
Family Law Act. Definitions of those terms in the context of the FCFC are provided in
section 7 the Federal Circuit and Family Court of Australia Act 2018.
Item 6 - Subsection 4(1) (at the end of the definition of court)
11. Item 6 amends the existing definition of court in subsection 4(1) to ensure that a
'court' for the purposes of the Family Law Act includes a court, in relation to any
proceedings, exercising jurisdiction in those proceedings by virtue of the Family Law Act,
14
the Federal Court Act, Federal Circuit and Family Court of Australia Act 2018, the Child
Support (Assessment) Act 1989, or the Child Support (Registration and Collection) Act 1988.
This amendment recognises that each of those Acts confer jurisdiction upon a number of
courts, including the FCFC (defined in item 8 of Schedule 1 of this Bill, and provided for by
the Federal Circuit and Family Court of Australia Act 2018), and the Federal Court in respect
of proceedings which may be instituted under the Family Law Act, and/or to hear appeals
from decisions of courts exercising jurisdiction under the Family Law Act.
Item 7 - Subsection 4(1) (definition of Deputy Chief Justice)
12. Item 7 repeals the existing definition of Deputy Chief Justice in subsection 4(1). This
definition is relevant to the structure of the FCFC (defined in item 8, of Schedule 1 of this
Bill, and provided for by the Federal Circuit and Family Court of Australia Act 2018). A
definition of Deputy Chief Justice in the context of the FCFC is provided in section 7 of the
Federal Circuit and Family Court of Australia Act 2018.
Item 8 - Subsection 4(1)
13. Item 8 inserts a new definition of the Federal Circuit and Family Court of Australia
in subsection 4(1) of the Family Law Act. The 'Federal Circuit and Family Court of
Australia' is defined as the FCFC (Division 1) or the FCFC (Division 2). The FCFC is
provided for by the Federal Circuit and Family Court of Australia Act 2018 (section 8).
Reference in the Family Law Act to the FCFC should be read as a reference to either the
FCFC (Division 1) or the FCFC (Division 2) of the Court.
14. Item 8 also inserts a new definition of Federal Circuit and Family Court of Australia
(Division 1) Rules in subsection 4(1) of the Family Law Act. The practice and procedure of
the FCFC (Division 1) will be governed by a set of rules made under Chapter 3 of the
Federal Circuit and Family Court of Australia Act 2018, rather than rules made under
section 123 of the Family Law Act.
Item 9 - Subsection 4(1)
15. Item 9 repeals the definitions of Federal Circuit Court and Federal Circuit Court
Chief Executive Officer in subsection 4(1). These definitions are relevant to the structure,
administration and function of the FCFC (Division 2) as provided for by the Federal Circuit
and Family Court of Australia Act 2018. A definition of Chief Executive Officer in the
context of the FCFC is provided in section 7 of the Federal Circuit and Family Court of
Australia Act 2018.
Item 10 - Subsection 4(1)
16. Item 10 inserts a new definition of Federal Court Rules in subsection 4(1). The
provision makes clear that the Federal Court Rules are 'Rules of Court made under the
Federal Court Act to the extent that those Rules relate to the exercise of the Federal Court of
Australia's jurisdiction in the Family Law Appeal Division of the Federal Court of Australia'.
The Family Law Appeal Division of the Federal Court is vested with jurisdiction to hear the
majority of appeals from decisions of courts exercising jurisdiction under the Family Law
Act (item 227 of Schedule 1 of this Bill will repeal subsections 24(1AA) to (1E) of the
Federal Court Act and substitute new provisions providing for the new appellate jurisdiction).
15
Item 11 - Subsection 4(1)
17. Item 11 repeals the definitions of Full Court, General Division and handle in
subsection 4(1). These definitions are relevant to the structure and function of the FCFC
(defined in item 8 of Schedule 1 of this Bill, and provided for by the Federal Circuit and
Family Court of Australia Act 2018) and are no longer required in the Family Law Act. A
new definition of handle in the context of the FCFC is provided in section 7 the Federal
Circuit and Family Court of Australia Act 2018.
Item 12 - Subsection 4(1) (definition of Registrar)
18. Item 12 repeals the existing definition of 'Registrar' in subsection 4(1) and substitutes
a new definition that reflects the structure, administration and functions of the new FCFC
(defined in item 8 of Schedule 1 of this Bill, and provided for by the Federal Circuit and
Family Court of Australia Act 2018).
19. Item 12 provides that Registrar will mean a persons or persons occupying the office
of Registrar of FCFC (Division 1) or the FCFC (Division 2), or the principal legal officer, or
any other appropriate officer, of any other court. The new definition of Registrar is
purposefully narrower in its application than the existing definition; the new definition does
not include a Principal Registrar or Deputy Registrar. The office of Principal Registrar is not
separately defined in the Family Law Act; this position is incorporated into the new definition
of Chief Executive Officer in subsection 4(1) (see item 4 of Schedule 1 of this Bill).
Provisions in the Family Law Act that refer to Registrar, with the intention that the provision
also apply to other officers of the court such as the Chief Executive Officer (Principal
Registrar) or a Deputy Registrar, have been amended to clearly identify the officers of the
court to which the provisions apply.
20. For courts other than the FCFC, the substituted definition retains the former
requirement that the Registrar is the principal legal officer or any other appropriate officer of
that court.
Item 13 - Subsection 4(1) (definition of Registry Manager)
21. Item 13 repeals the definition of Registry Manager in subsection 4(1) and substitutes
a new definition that reflects the structure, administration and functions of the new FCFC
(defined in item 8 of Schedule 1 of the Bill, and provided for by the Federal Circuit and
Family Court of Australia Act 2018) and which applies throughout the Family Law Act. The
definition includes Registry Managers of the FCFC (Division 1) and the FCFC (Division 2),
and the principal legal officer or any other appropriate officer of any other court exercising
jurisdiction under the Family Law Act. A consistent definition of Registry Manager is also
provided in section 7 the Federal Circuit and Family Court of Australia Act 2018.
Item 14 - Subsection 4(1)
22. Item 14 inserts a new definition of related Federal Circuit and Family Court of
Australia (Division 2) Rules in subsection 4(1) of the Family Law Act, which provides that
these are the Rules of Court under Chapter 4 of the new Federal Circuit and Family Court of
Australia Act 2018 to the extent to which they relate to the Family Law Act.
16
Item 15 - Subsection 4(1)
23. Item 15 repeals the definitions of related Federal Circuit Court Rules, relevant belief
and split court in subsection 4(1). These definitions are relevant to the structure of the FCFC
(defined in item 8, of Schedule 1 of this Bill, and provided for by the Federal Circuit and
Family Court of Australia Act 2018).
24. The repeal of the definition of related Federal Circuit Court Rules is required as
item 14 of Schedule 1 of this Bill inserts a definition of Federal Circuit and Family Court of
Australia (Division 2) Rules to reflect the change to the source of the relevant rule making
power.
25. The definition of relevant belief relates to complaints and is no longer required in the
Family Law Act. A definition of relevant belief in the context of complaints made about a
judge of the FCFC (Division 1) or a judge of the FCFC (Division 2) is provided in section 7
of the Federal Circuit and Family Court of Australia Act 2018.
26. The definition of split court is no longer required in the Family Law Act as the only
appeals jurisdiction that may involve more than one judge, will be appeals heard by the
Family Law Appeals Divisions of the Federal Court exercising jurisdiction under the Federal
Court Act.
Item 16 - Subsection 4(1) (definition of warrant issued under a provision of this Act)
27. Item 16 amends the definition of warrant issued under a provision of this Act in
subsection 4(1). Specifically, this item omits 'standard Rules of Court or the related Federal
Circuit Court Rules' and substitutes 'applicable Rules of Court.' This amendment will ensure
that the definition covers all relevant Rules of Court. In addition, a new definition of
applicable Rules of Court will be inserted by item 3 of Schedule 1 of this Bill, reflecting the
new court structure.
Item 17 - Subsection 4(1A)
28. Subsection 4(1A) currently provides how a reference to the 'Family Court' and to a
'Family Court of a State' are to be read in the standard Rules of Court and related Federal
Circuit Court Rules.
29. Item 17 repeals subsection 4(1A) and substitutes a new subsection 4(1A) that aligns
with the new arrangements established under the Federal Circuit and Family Court of
Australia Act 2018.
30. The new subsection 4(1A) inserted by item 17 includes updated terminology to refer
to the applicable Rules of Court (the definition of that term is provided in item 3 of
Schedule 1 of this Bill). This will ensure that this subsection applies to all relevant Rules of
Court. Recognising that the 'Family Court' is continued in existence as the FCFC (Division
1) (by section 8 of the Federal Circuit and Family Court of Australia Act 2018), the reference
to the 'Family Court' has been removed from subsection 4(1A).
17
Item 18 - Subsection 4(2) and (2A)
31. Subsection 4(2) provides that a reference in the Act, standard rules of Court or the
related Federal Circuit Court Rules to a 'party to a marriage' includes a person to whom one
of the circumstances, outlined in paragraphs 4(2)(a) to (c), applies.
32. Similarly, subsection 4(2A) provides that a reference in the Act, standard rules of
Court or the related Federal Circuit Court Rules to a 'party to a de facto relationship' includes
a reference to a party to a de facto relationship that has broken down.
33. Item 18 amends subsections 4(2) and 4(2A) to align with the new arrangements
established under the Federal Circuit and Family Court of Australia Act 2018. Item 18 omits
the reference to 'the standard Rules of Court or the related Federal Circuit Court Rules' in
subsections 4(2) and 4(2A) and substitutes the applicable Rules of Court (the definition of
that term is provided in item 3 of Schedule 1 of this Bill). This will ensure that these
subsections apply to all relevant Rules of Court.
Item 19 - Subsection 4(3)
34. Subsection 4(3) provides that jurisdiction, proceedings and orders under the standard
Rules of Court and the related Federal Circuit Court Rules, is taken to be jurisdiction,
proceedings and orders under the Family Law Act.
35. Item 19 repeals this subsection and substitutes a new subsection to align with the new
arrangements established under the Federal Circuit and Family Court of Australia Act 2018.
Item 19 updates the terminology in subsection 4(3) such that jurisdiction, proceedings and
orders under the applicable Rules of Court (the definition of that term is provided in item 3 of
Schedule 1 of this Bill) are taken to be jurisdiction, proceedings and orders under the Family
Law Act. This ensures that the subsection applies to all relevant Rules of Court.
36. New paragraph 4(3)(a) provides that jurisdiction under a provision of the Federal
Court Act or the Federal Circuit and Family Court of Australia Act 2018 referring to the
Family Law Act, is taken to be jurisdiction under the Family Law Act. This reflects that the
courts primarily exercising original and appellate jurisdiction in family law matters will no
longer be established by the Family Law Act and so, to avoid doubt, this subsection provides
that the exercise of jurisdiction of these courts currently conferred under the Family Law Act,
remains an exercise of jurisdiction under the Family Law Act.
37. Further, new paragraph 4(3)(b) provides that jurisdiction under section 101 of the
Child Support (Assessment) Act 1989 and under section 106 of the Child Support
(Registration and Collection) Act 1988 is taken to be jurisdiction under the Family Law Act.
The sections referred to in new paragraph 4(3)(b) confer jurisdiction on a Family Court of a
State and the Northern Territory Supreme Court to hear appeals in the respective child
support Acts (see items 167 and 181 of Schedule 3 of this Bill). Paragraph 4(3)(b) clarifies
that the exercise of this appellate jurisdiction is an exercise of jurisdiction under the Family
Law Act.
Item 20 - Subsection 8(1)
38. Section 8 provides limitations on the institution and continuing of certain types of
proceedings after the commencement of the Family Law Act.
18
39. Item 20 repeals subsection 8(1) to remove the option of continuing matrimonial
causes proceedings in accordance with the section 9 arrangements, reflecting that section 9 of
the Family Law Act will be repealed (see item 21 of Schedule 1 of this Bill).
Item 21 - Section 9
40. Section 9 contains transitional provisions relating to proceedings pending prior to the
commencement of the Family Law Act.
41. Item 21 repeals section 9 as there are now no proceedings to which this section would
apply.
Item 22- Paragraph 10C(1)(c) and (d)
42. Section 10C provides a definition of family counsellor. Paragraphs 10C(1)(c) and (d)
of the definition provide that persons authorised by the Chief Executive Officer of the Family
Court or the Chief Executive Officer of the Federal Circuit Court, respectively, to provide
family counselling under the Family Law Act are to be taken to be a family counsellor.
43. Item 22 repeals paragraphs 10C(1)(c) and (d) and substitutes a new paragraph
10C(1)(c) to align with the new arrangements established under the Federal Circuit and
Family Court of Australia Act 2018. Section 247 of the Federal Circuit and Family Court of
Australia Act 2018 confers a new power on the Chief Executive Officer of the FCFC to
authorise officers or staff of the FCFC to provide family counselling under the Family Law
Act. Item 22 inserts a new paragraph 10C(1)(c) which provides that officers and staff so
authorised by the Chief Executive Officer of the Federal Circuit and Family Court of
Australia Act 2018 under section 247 of the Federal Circuit and Family Court Act 2018 are
to be taken to be a family counsellor.
Item 23 - Paragraphs 10G(1)(c) and (d)
44. Section 10G provides a definition of family dispute resolution practitioner.
Paragraphs 10G(1)(c) and (d) provide that persons authorised by the Chief Executive Officer
of the Family Court or the Chief Executive Officer of the Federal Circuit Court, respectively,
to act as a family dispute resolution practitioner are to be taken to be a family dispute
resolution practitioner.
45. Item 23 repeals paragraphs 10G(1)(c) and (d) and substitutes a new paragraph
10G(1)(c) to align with the new arrangements established under the Federal Circuit and
Family Court of Australia Act 2018. Section 247 of the Federal Circuit and Family Court of
Australia Act 2018 confers a new power on the Chief Executive Officer of the FCFC to
authorise officers or staff of the FCFC to provide family dispute resolution under the Family
Law Act. Item 23 inserts a new paragraph 10G(1)(c) which provides that officers and staff so
authorised by the Chief Executive Officer of the Federal Circuit and Family Court of
Australia Act 2018 under section 247 of the Federal Circuit and Family Court Act 2018 are
to be taken to be a family dispute resolution practitioner.
Item 24 - Section 10P
46. Section 10P provides an arbitrator, performing their functions as an arbitrator, with
the same protection and immunity that a Judge of the Family Court has in performing the
functions of a Judge.
19
47. Item 24 omits the reference to 'Family Court' and substitutes a reference to 'Federal
Circuit and Family Court of Australia (Division 1)' to align with the new arrangements
established under the Federal Circuit and Family Court of Australia Act 2018. Item 24
reflects the continuation of the Family Court as the FCFC (Division 1) (provided by section 8
of the Federal Circuit and Family Court of Australia Act 2018) and does not change the
operation of section 10P.
Item 25 - Section 11B (note)
48. The note to section 11B provides that the Chief Executive Officer has all the functions
and powers of family consultants and may direct consultants in the performance of their
functions, with a direction to see Division 1A of Part IVA of the Family Law Act in this
regard.
49. Item 25 omits, in this note, the reference to 'Division 1A of Part IVA of this Act'
(referring to the Family Law Act), and substitutes a reference to 'Part 1 of Chapter 5 of the
Federal Circuit and Family Court of Australia Act 2018' to provide the correct legislative
reference for the information contained in the note and align with the new arrangements to be
established by the Federal Circuit and Family Court of Australia Act 2018.
Item 26 - Subsection 11C(1) (note 1)
50. Note 1 to subsection 11C(1) provides that communications with a family consultant
are not confidential except in the circumstances set out in subsection 38BD(3) of the Family
Law Act.
51. Item 26 omits the reference to subsection 38BD(3) in this note and substitutes a
reference to subsection 247(3) of the Federal Circuit and Family Court of Australia Act 2018
to provide the correct legislative reference for the information contained in the note and align
with the new arrangements to be established by the Federal Circuit and Family Court of
Australia Act 2018.
Item 27 - Section 11D
52. Section 11D provides a family consultant, performing their functions as a family
consultant, with the same protection and immunity that a Judge of the Family Court has in
performing the functions of a Judge.
53. Item 27 omits the reference to 'Family Court' and replaces it with 'Federal Circuit
and Family Court of Australia (Division 1)' to align with the new arrangements established
under the Federal Circuit and Family Court of Australia Act 2018. Item 27 reflects the
continuation of the Family Court as the FCFC (Division 1) (provided by section 8 of the
Federal Circuit and Family Court of Australia Act 2018), and does not change the operation
of section 11D.
Item 28 - Subparagraphs 11E(1)(e)(i) and (ia)
54. Paragraph 11E(1)(e) provides that, where the Family Court or the Federal Circuit
Court has the power under the Family Law Act to order that a person attend family
counselling, family dispute resolution, appointments with a family consultant, or a course,
program or other service, before making such an order the court can seek advice from a
family consultant appointed by the Chief Executive of that court. .
20
55. Item 28 omits subparagraphs 11E(1)(e)(i) and (ia), which refer to the Chief Executive
Officer of the Family Court and the Chief Executive Officer of the Federal Circuit Court,
respectively, and substitutes a single subparagraph 11E(1)(e)(i) which provides that, if the
court is the Federal Circuit and Family Court of Australia, the court can seek advice from a
family consultant nominated by the Chief Executive Officer of that court. This amendment
brings section 11E into alignment with the new arrangements provided by Federal Circuit
and Family Court of Australia Act 2018, and reflects that the Chief Executive Officer of the
FCFC (Division 1) and the FCFC (Division 2) will be the same person.
Item 29 - Subparagraph 11E(1)(e)(iii)
56. Item 29 omits the reference to '(ia)' in subparagraph 11E(1)(e)(iii), which is required
because of the amendment made by item 28 of Schedule 1 of this Bill.
Item 30 - Section 13G (heading)
57. Section 13G is headed 'Family Court and Federal Circuit Court may determine
question of law referred by arbitrator'.
58. Item 30 omits 'Family Court or Federal Circuit Court' from the heading and
substitutes 'Federal Circuit and Family Court of Australia' to align with the new
arrangements established under the Federal Circuit and Family Court of Australia Act 2018.
Item 30 reflects the continuation of the Family Court as the FCFC (Division 1) (provided by
section 8 of the Federal Circuit and Family Court of Australia Act 2018), and the
continuation of the Federal Circuit Court as the FCFC (Division 2) (also provided by section
8 of the Federal Circuit and Family Court of Australia Act 2018), which are collectively
referred to as the FCFC.
Item 31 - Paragraphs 13G(1)(a), (b) and (c)
59. Paragraphs 13G(1)(a) to (b) specify the courts to which an arbitrator may refer a
question of law.
60. Item 31 omits paragraphs 13G(1)(a),(b) and (c) and substitutes paragraphs 13G(1)(a)
and (b). This reflects that the Family Court and the Federal Circuit Court are continued in
existence as the FCFC (Division 1) and the FCFC (Division 2), respectively (as provided by
section 8 of the Federal Circuit and Family Court of Australia Act 2018), and are collectively
referred to as the FCFC. This amendment does not change the operation of subsection
13G(1).
Item 32 - Subsection 13G(3)
61. Subsection 13G(3) provides that the arbitrator must not make an award in the
arbitration until the judge or Federal Circuit Court has determined the question of law or
remitted the matter back to the arbitrator.
62. Item 32 omits the reference to the 'Federal Circuit Court of Australia' and substitutes
'Federal Circuit and Family Court of Australia' to align with the new arrangements
established under the Federal Circuit and Family Court of Australia Act 2018. This reflects
that the Family Court and the Federal Circuit Court are continued in existence as the FCFC
(Division 1) and the FCFC (Division 2), respectively (as provided by section 8 of the Federal
21
Circuit and Family Court of Australia Act 2018), and are collectively referred to as the
FCFC. This amendment does not change the operation of subsection 13G(3).
Item 33 - Section 13J (heading)
63. Section 13J is headed 'Family Court or Federal Circuit Court can review registered
awards'.
64. Item 33 omits 'Family Court or Federal Circuit Court' from the heading and
substitutes 'Federal Circuit and Family Court of Australia' to align with the new
arrangements established under the Federal Circuit and Family Court of Australia Act 2018.
This reflects that the Family Court and the Federal Circuit Court are continued in existence as
the FCFC (Division 1) and the FCFC (Division 2), respectively (as provided by section 8 of
the Federal Circuit and Family Court of Australia Act 2018), and are collectively referred to
as the FCFC.
Item 34 - Paragraphs 13J(1)(a), (b) and (c)
65. Paragraphs 13J(1)(a) to (b) specify the courts to which a party to a registered award
may apply for a review of the award on a question of law.
66. Item 34 omits paragraphs 13J(1)(a),(b) and (c) and substitutes paragraphs 13J(1)(a)
and (b). This reflects that the Family Court and the Federal Circuit Court are continued in
existence as the Federal Circuit and Family Court of Australia (Division 1) and the Federal
Circuit and Family Court of Australia (Division 2), respectively (as provided by section 8 of
the Federal Circuit and Family Court of Australia Act 2018), and are collectively referred to
as the FCFC. This amendment does not change the operation of subsection 13J(1).
Item 35 - Subsection 13J(2)
67. Subsection 13J(2) provides what a judge or the Federal Circuit Court may do on a
review of an award.
68. Item 35 omits references to the 'Federal Circuit Court of Australia' in
subsection 13J(2) and on each occasion substitutes 'Federal Circuit and Family Court of
Australia' to align with the new arrangements established under the Federal Circuit and
Family Court of Australia Act 2018. This reflects that the Family Court and the Federal
Circuit Court are continued in existence as the FCFC (Division 1) and the FCFC (Division 2),
respectively (as provided by section 8 of the Federal Circuit and Family Court of Australia
Act 2018), and are collectively referred to as the FCFC. This amendment does not change the
operation of subsection 13J(2).
Item 36 - Section 13K (heading)
69. Section 13K is headed 'Family Court and Federal Court may set aside registered
awards'.
70. Item 36 omits 'Family Court or Federal Circuit Court' from the heading and
substitutes 'Federal Circuit and Family Court of Australia' to align with the new
arrangements established under the Federal Circuit and Family Court of Australia Act 2018.
This reflects that the Family Court and the Federal Circuit Court are continued in existence as
the FCFC (Division 1) and the FCFC (Division 2), respectively (as provided by section 8 of
22
the Federal Circuit and Family Court of Australia Act 2018), and are collectively referred to
as the FCFC.
Item 37- Paragraph 13K(1)(a) and (b)
71. Paragraphs 13K(1)(a) to (c) specify the courts in which an award arising out of an
arbitration may be registered.
72. Item 37 omits paragraphs 13K(1)(a) and (b) and substitutes new paragraphs 13K(1)(a)
and (b) to align with the new arrangements established under the Federal Circuit and Family
Court of Australia Act 2018. The reference to the 'Family Court' in paragraph 13K(1)(a) will
be replaced with the 'Federal Circuit and Family Court of Australia (Division 1)', reflecting
the continuation of the Family Court under this new name as is provided by section 8 of the
Federal Circuit and Family Court of Australia Act 2018. The reference to the 'Federal
Circuit Court of Australia' in paragraph 13K(1)(b) will be replaced with the 'Federal Circuit
and Family Court of Australia (Division 2)', reflecting the continuation of the Federal Circuit
Court under this new name as is provided by section 8 of the Federal Circuit and Family
Court of Australia Act 2018. This amendment does not change the operation of subsection
13K(1).
Item 38 - Part IV and IVA
73. Part IV governs the creation, structure and constitution of the Family Court of
Australia and Part IVA governs the management of the Court.
74. Item 38 repeals Part IV and Part IVA. The Family Court will continue in existence as
the FCFC (Division 1) (see section 8 of the Federal Circuit and Family Court of Australia
Act 2018). The provisions in Parts IV and IVA are substantially replicated in the Federal
Circuit and Family Court of Australia Act 2018, with such amendments as are necessary to
support the operation of the new court structure.
Item 39 - Paragraph 39(1)(a)
75. Paragraph 39(1)(a) provides that a matrimonial cause may be instituted in the Family
Court.
76. Item 39 repeals existing paragraph 39(1)(a) and replaces it with a new
subparagraph 39(1)(a) providing that matrimonial causes may be instituted in the Federal
Circuit and Family Court of Australia. The effect of this amendment is that, under paragraph
39(1)(a), matrimonial causes may be instituted in either the FCFC (Division 1) or the FCFC
(Division 2), collectively referred to as the FCFC.
Item 40 - Subsection 39(1A)
77. Under subsection 39(1A), matrimonial causes may be instituted in the Federal Circuit
Court.
78. Item 40 repeals subsection 39(1A) on the basis that item 39 of Schedule 1 of this Bill
amends paragraph 39(1)(a) to provide for matrimonial causes to be instituted in the Federal
Circuit and Family Court (Division 2). This renders subsection 39(1A) unnecessary given
that the Federal Circuit Court is continued in existence as the Federal Circuit and Family
Court (Division 2) (section 8 of the Federal Circuit and Family Court of Australia Act 2018).
23
Item 41 - Subsection 39(5)
79. Subsection 39(5) provides that the Family Court, and various other courts, are vested
with jurisdiction in relation to a variety of causes and proceedings instituted under the Family
Law Act.
80. Item 41 omits the reference to the 'Family Court' and substitutes a reference to the
'Federal Circuit and Family Court of Australia'. The effect of this amendment is that, under
subsection 39(5), the FCFC (Division 1) and the Federal Circuit Court as the FCFC
(Division 2) (collectively referred to as the FCFC) have jurisdiction in relation to the various
causes and proceedings under the Family Law Act. Both the FCFC (Division 1) and the
FCFC (Division 2) have identical jurisdiction under the new subsection 39(5), reflecting the
intention that the jurisdiction of the FCFC (Division 1) and the FCFC (Division 2) will
largely be coterminous under the new court structure.
Item 42 - Paragraph 39(5)(b)
81. Paragraph 39(5)(b) provides that, the courts specified in subsection 39(5) have
jurisdiction in relation to matrimonial causes continued in accordance with section 9.
82. Item 42 repeals paragraph 39(5)(b). This amendment follows the repeal of section 9
(see item 21 of Schedule 1 of this Bill) because there are now no proceedings to which
section 9 would apply.
Item 43 - Paragraph 39(5)(d)
83. Paragraph 39(5)(d) provides that the courts specified in subsection 39(5) have
jurisdiction in relation to proceedings instituted under regulations made for the purpose of
various sections of the Family Law Act, under paragraphs 125(1)(f) or (g) or under Rules of
Court made for the purpose of paragraph 123(1)(r).
84. Item 43 repeals paragraph 39(5)(d) and substitutes a new paragraph 39(5)(d), which
contains subparagraphs (i) to (iii). The new subparagraphs essentially cover the same
proceedings as are currently covered by paragraph 39(5)(d). The type of proceedings under
the applicable Rules of Court are described in subparagraph 39(5)(d)(iii) (rather than
identified by cross referencing the particular power in the Rules). The definition of
'applicable Rules of Court' is to be provided in subsection 4(1) (see item 3 of Schedule 1 of
this Bill).
Item 44 - Subsections 39(5AA) and (5A)
85. Subsection 39(5AA) provides that the Federal Circuit Court has, and is taken always
to have had jurisdiction under the Family Law Act in respect of which matrimonial causes
(with some exceptions) are instituted.
86. Subsection 39(5A) provides that the Federal Circuit Court has jurisdiction with
respect to matters outlined in 39(5A)(a) to (d). This subsection is the Federal Circuit Court
equivalent to subsection 39(5) which confers jurisdiction on various courts, including the
Family Court, in respect to various proceedings.
87. Item 44 repeals subsections 39(5AA) and (5A) as amendments to subsection 39(5)
(see item 38 of Schedule 1 of this Bill) render jurisdictional provisions specific to the FCFC
24
(Division 2) (the continuation of the Federal Circuit Court), unnecessary. With the repeal of
subsection 39(5AA), the exceptions that apply to the Federal Circuit Court in relation to
jurisdiction for particular matrimonial causes, will not apply to the FCFC (Division 2). This
reflects the intention that the jurisdiction of the FCFC (Division 1) and the FCFC (Division 2)
will largely be coterminous under the new court structure.
Item 45 - Paragraph 39(6)(b)
88. Paragraph 39(6)(b) provides that courts of summary jurisdiction specified in
subsection 39(6) have jurisdiction in relation to matrimonial causes continued in accordance
with section 9.
89. Item 45 repeals paragraph 39(6)(b), reflecting the repeal of section 9 (see item 21 of
Schedule 1 of this Bill) because there are now no proceedings to which section 9 would
apply.
Item 46 - Paragraph 39(6)(d)
90. Paragraph 39(6)(d) provides that the courts of summary jurisdiction specified in
subsection 39(6) have jurisdiction in relation to proceedings instituted under regulations
made for the purpose of various sections of the Family Law Act, under paragraphs 125(1)(f)
or (g), under Rules of Court made for the purpose of paragraph 123(1)(r) or under Rules of
Court made for the purpose of paragraph 87(1)(j) of the Federal Circuit Court Act.
91. Item 46 repeals paragraph 39(6)(d) and substitutes a new paragraph 39(6)(d), which
contains subparagraphs (i) to (iii). The new subparagraphs essentially cover the same
proceedings as are currently covered by paragraph 39(6)(d). The type of proceedings under
the applicable Rules of Court are described in subparagraph 39(6)(d)(iii) rather than
identified by cross referencing the particular power in the different sets of rules. This is
because with multiple sets of rules, referencing particular rules powers adds unnecessary
complexity to the provision. The definition of 'applicable Rules of Court' is to be provided in
subsection 4(1) (see item 3 of Schedule 1 of this Bill).
Item 47 - At the end of subsection 39(9)
92. Subsection 39(9) provides that jurisdiction conferred on or invested by section 39
includes jurisdiction with respect to matters arising under any law of the Commonwealth in
respect of which proceedings are transferred to that court in accordance with the Family Law
Act.
93. Item 47 inserts a reference to the Federal Circuit and Family Court of Australia Act
2018 at the end of the subsection to reflect that specific powers to transfer proceedings (in
particular circumstances) will be provided in the Family Law Act and the Federal Circuit and
Family Court of Australia Act 2018 (see, for example, sections 34 and 117 of the Federal
Circuit and Family Court of Australia Act 2018).
Item 48 - Paragraph 39A(1)(a) and (b)
94. Paragraphs 39A(1)(a) and (b) provide that a de facto financial cause may be instituted
in the Family Court and the Federal Circuit Court, respectively.
25
95. Item 48 repeals paragraphs 39A(1)(a) and (b) and substitutes a single
paragraph 39A(1)(a). New paragraph 39A(1)(a) provides that de facto financial causes can be
instituted in the FCFC (Division 1) and the FCFC (Division 2) by referring to the FCFC. This
reflects the name changes to the existing courts (see section 8 of the Federal Circuit and
Family Court of Australia Act 2018).
Item 49 - Paragraph 39B(1)(a) and (b)
96. Paragraphs 39B(1)(a) and (b) confer jurisdiction on the Family Court and the Federal
Circuit Court, respectively, for de facto financial causes instituted under the Family Law Act.
97. Item 49 repeals paragraphs 39B(1)(a) and (b) and substitutes a single
paragraph 39B(1)(a). New paragraph 39B(1)(a) confers jurisdiction for de facto financial
causes on the FCFC (Division 1) and the FCFC (Division 2) by referring to the FCFC. This
reflects the name changes to the existing courts (see section 8 of the Federal Circuit and
Family Court of Australia Act 2018).
Item 50 - Subsection 39B(1) (notes 1 and 2)
98. Note 1 to subsection 39B(1) provides that the exercise of the jurisdiction of the
Family Court is subject to section 40. Note 2 to subsection 39B(1) provides that the exercise
of the jurisdiction of the FCC is subject to section 40A.
99. Item 46 repeals notes 1 and 2 and substitutes a new note 1, which identifies that the
exercise of jurisdiction under subsection 39B(1) is subject to section 40. This amendment
reflect the jurisdiction of the FCFC (Division 1) and the FCFC (Division 2) provided in new
paragraph 39B(1)(a) (see item 49 of Schedule 1 of this Bill), and the consequential
amendments to section 40 and repeal of section 40A (see items 52 to 56 of Schedule 1 of this
Bill).
Item 51 - Section 39G
100. Section 39G provides that, if proceedings in relation to a matter arising under a law of
the Commonwealth are transferred under the Family Law Act to a court that has jurisdiction
under Division 3, of Part V of the Family Law Act, the jurisdiction of the court includes
jurisdiction in relation to that matter.
101. Item 51 repeals this section and replaces it with a new section 39G which includes a
reference to the Federal Circuit and Family Court of Australia Act 2018 to reflect that
specific powers to transfer proceedings (in particular circumstances) are provided in the
Family Law Act and the Federal Circuit and Family Court of Australia Act 2018 (see, for
example, sections 34 and 117 of the Federal Circuit and Family Court of Australia Act
2018).
Item 52 - Section 40 (heading)
102. Section 40 is headed 'Limitation on jurisdiction of Family Court and of State and
Territory Supreme Courts.
103. Item 52 omits 'Family Court' from the heading and substitutes 'Federal Circuit and
Family Court of Australia' to align with the new arrangements established under the Federal
Circuit and Family Court of Australia Act 2018, and reflect the continuation of the Family
26
Court as the FCFC (Division 1) and the Federal Circuit Court as the FCFC (Division 2) (by
section 8 of the Federal Circuit and Family Court of Australia Act 2018), collectively
referred to as the FCFC. The inclusion of the FCFC (Division 2) is necessitated by the repeal
of section 40A (see item 56 of Schedule 1 of this Bill) which currently provides a limit on the
exercise of jurisdiction of the Federal Circuit Court in certain States and Territories if the
corresponding jurisdiction of the Family Court is not capable of being exercised in the State
or Territory.
Item 53 - Subsection 40(1)
104. Under subsection 40(1), the Regulations may provide that the jurisdiction of the
Family Court, in relation to all or a particular class of proceedings, cannot be exercised in
specified States and Territories.
105. Item 53 omits 'Family Court' from subsection 40(1) and substitutes 'Federal Circuit
and Family Court of Australia' to appropriately reflect the continuation of the Family Court
as the FCFC (Division 1) and the Federal Circuit Court as the FCFC (Division 2) (by
section 8 of the Federal Circuit and Family Court of Australia Act 2018), collectively
referred to as the FCFC. The inclusion of both courts is necessitated by the repeal of section
40A (see item 56 of Schedule 1 of this Bill) which currently provides a limit on the exercise
of jurisdiction of the Federal Circuit Court in certain States and Territories.
106. The FCFC's exercise of jurisdiction is restricted by regulation 39BB of the Family
Law Regulations 1984 (as modified by items 131 to 134 of Schedule 3 of this Bill).
Item 54 - Subsection 40(6)
107. Subsection 40(6) provides that a party to proceedings instituted or continued under the
Family Law Act in the Supreme Court of a State or Territory, being proceedings that could
have been instituted in the Family Court, may apply to the Family Court to have the matter
transferred to it and the Family Court may order the transfer.
108. Item 54 omits and substitutes the part of the subsection referencing the Family Court
to make provision for an application to be made to the FCFC (Division 1) (paragraph
40(6)(a)), or the FCFC (Division 2) (paragraph 40(6)(b)), and providing those courts with the
power to order the transfer. This is consistent with the intention that the jurisdiction of the
FCFC (Division 1) and FCFC (Division 2) will largely be coterminous under the new court
structure.
Item 55 - Subsection 40(7)
109. Subsection 40(7) provides that the standard Rules of Court may make provision in
relation to a transfer under subsection 40(6).
110. Item 55 omits the reference to 'standard Rules of Court' and substitutes a reference to
the 'Federal Circuit and Family Court of Australia (Division 1) Rules and the related Federal
Circuit and Family Court (Division 2) Rules' to reflect that both Division 1 and Division 2 of
the FCFC are invested with a transfer power under subsection 40(6) (see item 54 of Schedule
1 of this Bill), and that each Division has its own set of Rules. A definition of 'applicable
Rules of Court' is to be provided in subsection 4(1) (see item 3 of Schedule 1 of this Bill).
27
Item 56 - Section 40A
111. Section 40A provides that the jurisdiction of the Federal Circuit Court under the
Family Law Act must not be exercised in respect of a particular proceeding in a State or
Territory if the corresponding jurisdiction of the Family Court is not capable of being
exercised in that State or Territory.
112. Item 56 repeals section 40A as section 40, which contains the power to prevent the
Family Court exercising jurisdiction, has been amended to cover both the FCFC (Division 1)
and the FCFC (Division 2) (see item 53 of Schedule 1 of this Bill), rendering section 40A
unnecessary.
Item 57 - Subsection 41(3)
113. Subsection 41(3) provides that where the Governor-General has issued a proclamation
under subsection 41(2) that section 41 applies to a Family Court created by a State, specific
references in the Family Law Act to the Supreme Court of a State, are to read as references to
the State Family Court.
114. Item 57 omits and substitutes specific section references in subsection 41(3) to
correctly identify the provisions where a reference to the Supreme Court of a State must be
read as a reference to the State Family Court. This amendment is necessary because of
amendments that will be made by this Bill to the sections currently identified in
subsection 41(3) and inserts a reference to subsection 24(2) of the Federal Court Act which
relates to appeals from State Supreme Courts.
Item 58 - Subsection 41(5)
115. Subsection 41(5) provides that references in the Family Law Act or the standard
Rules of Court to a court of summary jurisdiction should not be read as a reference to a court
to which section 41 applies.
116. Item 58 omits 'standard Rules of Court' and substitutes 'applicable Rules of Court' to
reflect that different sets of rules may now be relevant to this section and that this section
should apply to all relevant sets of rules. A definition of applicable Rules of Court is to be
provided in subsection 4(1) (see item 3 of Schedule 1 of this Bill).
Item 59 - Subsection 43(1)
117. Subsection 43(1) provides that, in exercising jurisdiction under the Act, the
Family Court and any other court exercising jurisdiction under the Act shall have regard to
the principles set out in paragraphs 43(1)(a) to (d).
118. Item 59 omits 'The Family Court shall, in the exercise of its jurisdiction under this
Act, and any other court exercising jurisdiction under this Act shall' and substitutes 'A court
exercising jurisdiction under this Act must.' This amendment removes the specific reference
to the Family Court given its name change to the FCFC (Division 1) (see section 8 of the
Federal Circuit and Family Court Act 2018). The operation of the section remains the same,
such that adherence to the principles is required by all courts exercising jurisdiction under the
Family Law Act.
28
Item 60 - Subparagraph 44(1B)(a)(ii)
119. Paragraph 44(1B)(a) provides that a divorce order shall not, without leave, be filed
within two years of the date of the marriage unless, filed with an application, is a certificate
stating that the parties have considered reconciliation with the assistance of a person specified
in subparagraphs 46(1B)(a)(i) to (iii). Subparagraph 44(1B)(a)(ii) provides that, in relation to
the Family Court, the Federal Circuit Court or the Family Court of a State, the specified
person is an individual or organisation nominated for the parties by a family consultant.
120. Item 60 omits 'Family Court, the Federal Circuit Court of Australia' from
subparagraph 44(1B)(a)(ii) and substitutes 'Federal Circuit and Family Court of Australia' to
align with the new arrangements established under the Federal Circuit and Family Court of
Australia Act 2018 and reflect the continuation of the Family Court as the FCFC (Division 1)
and the Federal Circuit Court as the FCFC (Division 2) (see section 8 of the Federal Circuit
and Family Court of Australia Act 2018),collectively referred to as the FCFC.
Item 61 - Subparagraph 44(1B)(a)(iii)
121. Paragraph 44(1B)(a) provides that a divorce order shall not, without leave, be filed
within two years of the date of the marriage unless, filed with an application, is a certificate
stating that the parties have considered reconciliation with the assistance of a person specified
in subparagraphs 46(1B)(a)(i) to (iii). Subparagraph 44(1B)(a)(iii) provides that, in relation to
a court that is not the Family Court, the Federal Circuit Court or the Family Court of a State,
the specified person is an individual or organisation nominated for the parties by an
appropriately qualified officer of the court.
122. Item 61 omits 'Family Court, the Federal Circuit Court of Australia' from
subparagraph 44(1B)(a)(iii) and substitutes 'Federal Circuit and Family Court of Australia' to
align with the new arrangements established under the Federal Circuit and Family Court of
Australia Act 2018 and reflect the continuation of the Family Court as the FCFC (Division 1)
and the Federal Circuit Court as the FCFC (Division 2) (see section 8 of the Federal Circuit
and Family Court of Australia Act 2018), collectively referred to as the FCFC.
Item 62 - Subsection 45(1)
123. Subsection 45(1) provides that where there are pending court proceedings that have
been instituted under the Family Law Act or continued in accordance with section 9, and it
appears to the court that other proceedings that relate to the same marriage, void marriage or
the same matter are pending in another court, the first-mentioned court may stay or dismiss
the proceedings.
124. Item 62 omits references to matters being continued in accordance with section 9
reflecting that section 9 is to be repealed because there are now no proceedings to which
section 9 would apply (see item 21 of Schedule 1 of this Bill).
29
Item 63 - Subsection 45(2)
125. Subsection 45(2) provides that, where there are pending court proceedings, instituted
under the Family Law Act, or continued in accordance with section 9, and it appears to the
court that the proceedings would better be dealt with in another court, the court may transfer
the proceedings to the other court.
126. Item 63 omits the reference to matters being continued in accordance with section 9
reflecting that section 9 is to be repealed because there are now no proceedings to which
section 9 would apply (see item 21 of Schedule 1 of this Bill).
Item 64 - Paragraphs 45(2)(a) and (b)
127. Paragraphs 45(2)(a) and (b) prohibit a transfer of pending court proceedings under
subsection 45(2) where the two courts involved (the transferring and receiving courts) are the
Family Court and the Federal Circuit Court.
128. Item 64 omits paragraphs 45(2)(a) and (b) and substitutes new paragraphs 45(2)(a)
and (b) with the same effect but using the new terminology to appropriately reflect the
continuation of the Family Court as the FCFC (Division 1) and the Federal Circuit Court as
the FCFC (Division 2) by section 8 of the Federal Circuit and Family Court of Australia Act
2018.
Item 65 - Subsection 45(2) (notes 1 and 2)
129. Notes 1 and 2 to subsection 45(2) identify the statutory provisions which allow
transfers between the Family Court and the Federal Circuit Court.
130. Item 65 repeals notes 1 and 2 and substitutes new notes 1 and 2. The new notes
identify the powers in the Federal Circuit and Family Court of Australia Act 2018 that
provide for transfers between the FCFC (Division 1) and FCFC (Division 2) using the new
terminology to reflect the continuation of the Family Court as the FCFC (Division 1) and the
Federal Circuit Court as the FCFC (Division 2).
Item 66 - Subparagraphs 46(1)(a)(i) to (iii)
131. Subsection 46(1)(a) provides that, where proceedings are instituted or transferred to a
court of summary jurisdiction in relation to property exceeding $20,000 and the respondent
seeks an order different from that sought in the application, the court must inform the parties
that unless they consent to the court hearing and determining the proceedings the court must
transfer the proceedings to one of the courts specified in subparagraphs 46(1)(a)(i) to (iii).
Subparagraph 46(1)(a)(i) specifies the Family Court and subparagraph 46(1)(a)(iii) specifies
the Federal Circuit Court.
132. Item 66 repeals subparagraphs 46(1)(a)(i) to (iii) and substitutes new paragraphs
46(1)(a)(i) to (iii). New paragraph 46(1)(a)(i) specifies the FCFC (Division 2) (the
continuation of the Federal Circuit Court) as one of the courts the court of summary
jurisdiction must inform the parties that it may be required to transfer proceedings to. The
FCFC (Division 1) (the continuation of the Family Court) is not included in the new
paragraphs as the court of summary jurisdiction will not be empowered to transfer to this
court under subsection 46(1). This will support an administratively efficient approach
whereby all matters will be transferred into the FCFC (Division 2) and, if required, may be
30
transferred to FCFC (Division 1) under section 117 of the Federal Circuit and Family Court
of Australia Act 2018.
Item 67 - Subparagraphs 46(1)(b)(i) to (iii)
133. Subsection 46(1)(b) provides that, where proceedings are instituted or transferred to a
court of summary jurisdiction in relation to property exceeding $20,000 and the respondent
seeks an order different from that sought in the application, unless the parties agree to the
court hearing and determining the proceedings the court must transfer the proceedings to one
of the courts specified in subparagraphs 46(1)(b)(i) to (iii). Subparagraph 46(1)(b)(i) specifies
the Family Court and subparagraph 46(1)(b)(iii) specifies the Federal Circuit Court.
134. Item 67 repeals subparagraphs 46(1)(b)(i) to (iii) and substitutes new paragraphs
46(1)(b)(i) to (iii) to provide for transfers of proceedings from a court of summary
jurisdiction to the FCFC (Division 2), a Family Court of a State or a Supreme Court of a State
or Territory unless the parties consent to the court of summary jurisdiction hearing and
determining the matter. The FCFC (Division 1) (the continuation of the Family Court) is not
listed as one of the courts to which the proceedings could be transferred. This will support an
administratively efficient approach whereby all matters will be transferred into the
FCFC (Division 2) and, if required, may be transferred to FCFC (Division 1) under
section 117 of the Federal Circuit and Family Court of Australia Act 2018. The amendment
makes no other change to the courts a matter is to be transferred to.
Item 68 - Paragraphs 46(1C)(a) to (c)
135. Subsection 46(1C) provides that a court of summary jurisdiction must transfer
proceedings to one of the courts set out in paragraphs 46(1C)(a) to (c), if the court has given a
party leave to object to the court hearing and determining the matter. Paragraph 46(1C)(a)
specifies the Family Court and paragraph 46(1C)(c) specifies the Federal Circuit Court.
136. Item 68 repeals paragraphs 46(1C)(a) to (c) and substitutes new paragraphs 46(1C)(a)
to (c) to provide for transfers of proceedings from a court of summary jurisdiction to the
FCFC (Division 2), a Family Court of a State or a Supreme Court of a State or Territory. The
FCFC (Division 1) (the continuation of the Family Court) is not be included in the new
paragraphs as the court of summary jurisdiction will not be empowered to transfer to this
court under subsection 46(1C). This will support an administratively efficient approach
whereby all matters will be transferred into the FCFC (Division 2) and, if required, may be
transferred to FCFC (Division 1) under section 117 of the Federal Circuit and Family Court
of Australia Act 2018.
Item 69 - Paragraphs 46(2A)(c) to (e)
137. Subsection 46(2A) provides that, where proceedings are instituted or transferred to a
court of summary jurisdiction in relation to a divorce order and the proceedings are defended,
the court is required to transfer the proceedings to a court specified in paragraph 46(2A)(c) to
(e). Paragraph 46(2A)(c) specifies the Family Court and paragraph 46(2A)(e) specifies the
Federal Circuit Court.
138. Item 69 repeals paragraphs 46(2A)(c) to (e) and substitutes new paragraphs 46(2A)(c)
to (e). New paragraph 46(2A)(c) specifies the FCFC (Division 2) (the continuation of the
Federal Circuit Court) as one of the courts the court of summary jurisdiction must transfer the
31
matter to. The FCFC (Division 1) (the continuation of the Family Court) is not to be included
in the new paragraphs as the court of summary jurisdiction will not be empowered to transfer
to this court under section subsection 46(2A). This will support an administratively efficient
approach whereby all matters will be transferred into the FCFC (Division 2) and, if required,
may be transferred to FCFC (Division 1) under section 117 of the Federal Circuit and Family
Court of Australia Act 2018. The amendment makes no other change to the courts a matter is
to be transferred to.
Item 70 - Subsection 46(3A)
139. Subsection 46(3A) provides that, if proceedings, instituted under the Family Law Act
or continued under section 9 are pending in a court of summary jurisdiction, the courts
specified in paragraphs 46(3A)(a) to (c) may, on application of a party or of its own motion,
order the proceedings to be removed to that court.
140. Item 70 omits 'or continued under section 9' as there are now no proceedings to
which section 9 would apply and section 9 is being repealed (see item 21 of Schedule 1 of
this Bill).
Item 71 - Paragraphs 46(3A)(a) to (c)
141. Paragraphs 46(3A)(a) to (c) specify the courts that may make an order transferring a
matter, pending in a court of summary jurisdiction, to that court on application by a party or
of its own motion.
142. Item 71 repeals paragraphs 46(3A)(a)to (c) and substitutes new paragraphs 46(3A)(a)
to (c). New paragraph 46(3A)(a) specifies the FCFC (Division 2) (the continuation of the
Federal Circuit Court) as one of the courts that may order that a matter be transferred to it.
The FCFC (Division 1) (the continuation of the Family Court) will not be included in the new
paragraphs as the court of summary jurisdiction will not be empowered to transfer to this
court under section 46. This will support an administratively efficient approach whereby all
matters will be transferred into the FCFC (Division 2) and, if required, may be transferred to
FCFC (Division 1) under section 117 of the Federal Circuit and Family Court of Australia
Act 2018. The amendment makes no other change to the courts that may order a matter be
transferred.
Item 72 - At the end of Part V
143. Item 72 inserts a new 'Division 4 - Appeals' at the end of Part V.
144. The Family Law Act appeals provisions of Part X are repealed by item 114 of
Schedule 1 of this Bill. The Family Law Appeal Division of the Federal Court will hear all
family law appeals, other than appeals from courts of summary jurisdiction (see item 227 of
Schedule 1 of this Bill) and as such provisions in relation to those appeals will be included in
the Federal Court Act. This is consistent with the new structure and functions of the FCFC
(as provided in the Federal Circuit and Family Court of Australia Act 2018).
145. New Division 4, section 47A of the Family Law Act, provides for appeals from a
decree of a court of summary jurisdiction of a State or Territory, replacing existing
section 96.
32
146. New subsection 47A(1) provides that an appeal from a court of summary jurisdiction
of a State or Territory, exercising jurisdiction under the Family Law Act, the Child Support
(Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988 lies to
either the FCFC (Division 1) (the continuation of the Family Court) or the FCFC (Division 2)
(the continuation of the Federal Circuit Court), collectively known as the FCFC (paragraph
47A(1)(d)); or to the Supreme Court of that State or Territory (paragraph 47A(1)(e)).
147. By virtue of subsection 41(3) (as amended by item 57 of Schedule 1 of this Bill) and a
proclamation made under subsection 41(2) of the Family Law Act, references to 'the
Supreme Court of a State' in new section 47A are to be read as a reference to the Family
Court of a State - which, in Western Australia, is the Family Court of Western Australia.
148. Additionally, item 133 of Schedule 3 of this Bill, amends subregulation 39BB(1) of
the Family Law Regulations 1984 to restrict, in Western Australia, the Territory of Christmas
Island or the Territory of Cocos (Keeling) Islands, the exercise of the FCFC's jurisdiction in
relation to appeals under section 47A (see new subparagraph 39BB(2)(e)(iii)). This reflects
the policy intention that, in Western Australia and the other listed territories, all appeals from
a decree of a court of summary jurisdiction exercising jurisdiction under the Family Law Act
(including a decree of the Magistrates Court of Western Australia constituted by a Family
Law Magistrate of Western Australia) will lie to the Family Court of Western Australia, and
not the FCFC.
149. New subsection 47A(2) provides the time within which the appeal must be filed is as
provided by the applicable Rules of Court that pertain to the particular court in which the
appeal is filed.
150. New subsection 47A(3) invests the Supreme Court of each State with federal family
law jurisdiction, and confers jurisdiction on the Supreme Court of each Territory, to hear
appeals on matters of family law from courts of summary jurisdiction that are instituted under
section 47A.
151. A note is inserted after subsection 47A(3) providing that, in relation to child support,
section 101 of the Child Support (Assessment) Act 1989 and section 106 of the Child Support
(Registration and Collection) Act 1988, are relevant as these are the sections that confer
appellate jurisdiction on the Supreme Court of the Northern Territory and a Family Court of
a State in relation to decrees of a court of summary jurisdiction in the relevant State or
Territory.
152. New subsection 47A(4) provides that the Governor-General may provide, by
proclamation, that a Supreme Court of the State or Territory will not institute appeals on
matters of family law from courts of summary jurisdiction from a certain date. The
proclamation may apply only to proceedings of a particular class to ensure that the ability of a
Supreme Court to hear appeals can differ in relation to the exercise of jurisdiction under the
Family Law Act, the Child Support (Assessment) Act 1989 or the Child Support (Registration
and Collection) Act 1988.
153. The proclamation made under section 96, relating to the jurisdiction of the Supreme
Courts of particular States and Territories to hear appeals is saved (see item 262 of
Schedule 1 of this Bill) and taken to be made for the purpose of subsection 47A(4).
33
154. New subsection 47A(5) provides how a court hearing an appeal under this subsection
is to proceed and what evidence the court can have regard to. The court must consider the
evidence that was given in the proceedings in the court of summary jurisdiction. The court
may draw inferences of fact, or if it so chooses receive additional evidence given by other
means that the court considers appropriate. This is consistent with the appellate jurisdiction
provided to the Family Court under subsections 93A(2) and 96(4) of Part X of the Family
Law Act, which is repealed by item 114 of Schedule 1 of this Bill. This jurisdiction will
therefore remain in the Family Court continuing in existence as the FCFC (Division 1), and
will extend to FCFC (Division 2), reflecting the intention that the jurisdiction of the FCFC
(Division 1) and FCFC (Division 2) will largely be coterminous under the new court
structure.
155. New section 47B provides that where an appeal is from a decree of a court of
summary jurisdiction of a State or Territory exercising jurisdiction under the Child Support
(Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988 then
leave of the relevant court (being the FCFC (Division 1), the FCFC (Division 2) or the
Supreme Court of a State or Territory) is required. Currently, section 105 of the Child
Support (Assessment) Act 1989 and section 110 of the Child Support (Registration and
Collection) Act 1998 provide for these appeals, including the need for leave to appeal. New
section 47B replicates the effect of these sections and provides for the time in which an
application for leave to appeal must be lodged to be prescribed in the applicable Rules of
Court that pertain to the particular court in which the application is being filed.
156. New section 47C provides that the court may dismiss an appeal instituted under
Division 4 of Part V, at any time, if it appears to the court to have no real prospect of success.
This section replicates section 96AA of Part X of the Family Law Act which is repealed by
item 114 of Schedule 1 of this Bill and is necessary because of the appeals jurisdiction that is
retained in the Family Law Act in relation to courts of summary jurisdiction.
157. New subsection 47D(1) provides that an appeal to the High Court does not lie from a
decree of a court of summary jurisdiction of a State or Territory, a Family Court of a State, or
a Supreme Court of a State or Territory constituted by a single judge exercising jurisdiction
under the Family Law Act. New subsection 47D(2) provides that if subsection 47D(1) is
inconsistent with section 73 of the Constitution (which outlines the appellate jurisdiction of
the High Court), subsection 47D(1) will have effect as though the words ", except by special
leave of the High Court" were added to the end of subsection 47D(1). This provision is
consistent with the approach taken to High Court appeals from judgments of the FCFC
(Division 1) and the FCFC (Division 2) (sections 37 and 122 of the Federal Circuit and
Family Court of Australia Act 2018), ensuring a consistent approach across all courts
exercising family law and child support jurisdiction (that is, only to permit an appeal with
special leave if the provision would otherwise be unconstitutional). This approach further
enforces the appeals pathways of section 47A and the Family Law Appeal Division of the
Federal Court (see item 227 of Schedule 1 of this Bill)
158. New section 47E provides that, despite the provisions of Division 4 of Part V of the
Family Law Act, a court only has appellate jurisdiction in relation to a matter arising under
regulations made for the purposes of section 111C of the Family Law Act, as provided by
those regulations. The effect of section 47E is that the FCFC and a Supreme Court of a State
or a Territory will not have appellate jurisdiction conferred on them by section 47A in
34
relation to matters arising under regulations made for the purpose of section 111C of the
Family Law Act. The appellate jurisdiction can only be conferred in the relevant regulation.
159. This section is necessary to ensure that appellate jurisdiction is not inadvertently
conferred on the FCFC and the Supreme Court of a State or Territory under new section 47A,
where the regulations made under section 111C have conferred or invested a federal,
Territory or State court with jurisdiction (either original or appellate). New section 47E is
intended to have the same effect as section 96A of Part X of the Family Law Act which is
repealed by item 114 of Schedule 1 of this Bill.
Item 73 - Subsection 55(5) (paragraphs (d) and (e) of the definition of appeal)
160. Subsection 55(5) provides a definition for an appeal in relation to a divorce order.
161. Item 73 repeals and replaces paragraphs 55(5)(d) and (e) to reflect the structure,
administration and officers of the new FCFC (Division 1) (the continuation of the Family
Court) and FCFC (Division 2) (the continuation of the Federal Circuit Court), respectively.
162. These amendments identify those officers that have had, and continue to have, the
authority to exercise certain powers and functions to which these paragraphs apply, and that
need to be specified as a result of the new, narrower, definition of Registrar (see item 12 of
Schedule 1 of this Bill).
163. New paragraph 55(5)(d) provides that for the FCFC (Division 1), an appeal includes a
review of orders made by the Chief Executive Officer, a Registrar or Deputy Registrar.
164. New paragraph 55(5)(e) reflects that for the FCFC(Division 2) an appeal includes a
review of orders made by the Chief Executive Officer or a Registrar.
Item 74 - Subsection 56(2)
165. Subsection 56(2) provides that, if a divorce order has taken effect, any person is
entitled, on application to the Registry Manager, to receive a certificate signed by the
Registrar of the court in which the divorce order has taken effect.
166. Item 74 omits all the words after 'certificate' in subsection 56(2) and substitutes
paragraphs 56(2)(a) to (c), to reflect the structure, administration and officers of the new
FCFC (Division 1) (the continuation of the Family Court), the FCFC (Division 2) (the
continuation of the Federal Circuit Court), and other courts exercising family law jurisdiction.
167. These amendments identify those officers that have had, and continue to have, the
authority to exercise certain powers and functions to which these paragraphs apply, but that
need to be specified as a result of the new, narrower, definition of Registrar (see item 12 of
Schedule 1 of this Bill).
Item 75 - At the end of Part VI
168. Item 75 inserts a new section 60 at the end of Part VI. New section 60 provides that
no appeal lies from a divorce order after the order takes effect. New section 60 replicates
section 93 of Part X of the Family Law Act which is repealed by item 114 of Schedule 1 of
this Bill.
35
Item 76 - Subsection 60F(5) (definition of this Act)
169. Subsection 60F(5) provides that, in section 60F a reference to this Act includes a
reference to the standard Rules of Court and the Federal Circuit Court Rules.
170. Item 76 repeals the definition of this Act in subsection 60F(5) and substitutes a new
definition providing that this Act includes the broader defined term of 'applicable Rules of
Court' to reflect that different sets of court rules that may now be relevant to this section as a
result of the FCFC (Division 1), FCFC (Division 2), the Family Law Appeals Division of the
Federal Court and other relevant courts exercising family law jurisdiction.
Item 77 - Section 60G (heading)
171. Item 77 omits 'Family Court may grant leave' from the heading and substitutes
'Leave may be granted', to reflect that the FCFC (Division 1) and FCFC (Division 2) and the
other courts as described in the section now exercise family law jurisdiction and may grant
leave (see item 78 of Schedule 1 of this Bill).
Item 78 - Subsection 60G(1)
172. Subsection 60G(1) provides the courts that may grant leave for proceedings to be
commenced for the adoption of a child by a prescribed adopting parent.
173. Item 78 omits the first occurring reference to 'Family Court' from subsection 60G(1)
and substitutes a reference to the 'Federal Circuit and Family Court of Australia' to provide
that the Family Court continuing in existence as the FCFC (Division 1) can grant leave under
this subsection, and expanding the provision to provide that the Federal Circuit Court
continuing as the FCFC (Division 2) may also grant leave. This is consistent with the objects
of the Federal Circuit and Family Court of Australia Act 2018 and reflects the intention that
the jurisdiction of the FCFC (Division 1) and FCFC (Division 2) will largely be coterminous
under the new court structure.
Item 79 - Subsection 60H(6) (definition of this Act)
174. Subsection 60H(6) provides that, in section 60H a reference to this Act includes a
reference to the standard Rules of Court and the Federal Circuit Court Rules.
175. Item 79 repeals the definition of this Act in subsection 60H(6) and substitutes a new
definition providing that this Act includes the broader defined term of 'applicable Rules of
Court' to reflect that different sets of court rules that may now be relevant to this section as a
result of the FCFC (Division 1), FCFC (Division 2), the Family Law Appeals Division of the
Federal Court and other relevant courts exercising family law jurisdiction.
Item 80 - Subsection 60HA(4) (definition of this Act)
176. Subsection 60HA(4) provides that, in section 60HA a reference to this Act includes a
reference to the standard Rules of Court and the Federal Circuit Court Rules.
177. Item 79 repeals the definition of this Act in subsection 60HA(4) and substitutes a new
definition providing that this Act includes the broader defined term of 'applicable Rules of
Court' to reflect that different sets of court rules that may now be relevant to this section as a
36
result of the FCFC (Division 1) , FCFC (Division 2), the Family Law Appeals Division of the
Federal Court and other relevant courts exercising family law jurisdiction.
Item 81 - Subsection 60HB(2) (definition of this Act)
178. Subsection 60HB(2) provides that, in section 60HB a reference to this Act includes a
reference to the standard Rules of Court and Federal Circuit Court Rules.
179. Item 81 repeals the definition of this Act in subsection 60HB(2) and substitutes a
new definition providing that this Act includes the broader defined term of 'applicable Rules
of Court' to reflect that different sets of court rules that may now be relevant to this section as
a result of the FCFC (Division 1), FCFC (Division 2), the Family Law Appeals Division of
the Federal Court and other relevant courts exercising family law jurisdiction.
Item 82 - Subsections 60I(2) to (5)
180. Subsections 60I(2) to (5) are transitional provisions providing for the family dispute
resolution requirements that applied between 2006 and 2008.
181. Item 82 repeals subsections 60I(2) to (5) as they no longer have application.
Item 83 - Subsection 60I(6) (heading)
182. Item 83 repeals the heading to subsection 60I(6) 'Phase 3 (from July 2008)' and
substitutes a new heading 'Application for a Part VII order'. This is required because the
repeal of subsections 60I(2) to (5) (see item 82 of Schedule 1 of this Bill) removes the
references to phases 1 and 2 and therefore renders the current phase 3 heading redundant. The
substituted heading reflects that subsection 60I(6) is relevant to all applications for a Part VII
order.
Item 84 - Paragraph 60J(1)(a)
183. Paragraph 60J(1)(a) refers to circumstances when subsections 60I(7) to 60I(12) apply
by referencing subsections 60I(5) and (6).
184. Item 84 omits 'subsections 60I(5) and (6)' and substitutes a reference to 'subsection
60I(6)' to reflect that subsection 60I(5) has been repealed (see item 82 of Schedule 1 of this
Bill).
Item 85 - Subsection 64B(9) (definition of this Act)
185. Subsection 64B(9) provides that in section 64B 'this Act' a reference to this Act
includes a reference to the standard Rules of Court and Federal Circuit Court Rules.
186. Item 85 repeals the definition of this Act in subsection 64B(9) and substitutes a new
definition providing that this Act includes the broader defined term of 'applicable Rules of
Court' to reflect that different sets of court rules that may now be relevant to this section as a
result of the FCFC (Division 1), FCFC (Division 2), the Family Law Appeals Division of the
Federal Court and other relevant courts exercising family law jurisdiction.
37
Item 86 - Subsection 65D(3) (note)
187. The note to subsection 65D(3) provides information about the statutory provisions
that provide for particular matters to be transferred between the Family Court and the Federal
Circuit Court.
188. Item 86 repeals the note and substitutes new notes 1 and 2. The new notes identify the
powers in the Federal Circuit and Family Court of Australia Act 2018 that provide for
transfers of matters between the FCFC (Division 1) and FCFC (Division 2) using the new
titles to appropriately reflect the continuation of the Family Court as the FCFC (Division 1)
and the Federal Circuit Court as the FCFC (Division 2).
Item 87 - Subsection 67Z(2)
189. Subsection 67Z(2) provides that, in circumstances outlined in subsection 67Z(1), an
interested person must file a notice in the prescribed form and serve a copy on the person
alleged to have abused the child or from whom the child is alleged to be at risk of abuse.
190. Item 87 omits the reference to 'prescribed form' and substitutes a reference to 'an
approved form' to reflect the changes made by item 88 of Schedule 1 of this Bill.
Item 88 - Subsection 67Z(4)
191. Item 88 inserts a definition of approved form into subsection 67Z(4) which provides
that 'approved form means a form approved for the purposes of this section under the
applicable Rules of Court.' The inclusion of this definition, in conjunction with the
amendments made by items 87 and 89 of Schedule 1 of this Bill has the effect that the form
required to be completed and served under subsection 67Z(2) does not need to be prescribed
in, but can be instead approved under, the applicable Rules of Court.
Item 89 - Subsection 67Z(4)
192. Item 89 repeals the definitions of prescribed form and Registry Manager in subsection
67Z(4).
193. The definition of prescribed form will no longer be required as a result of the
amendments made by items 87 and 88 of Schedule 1 of this Bill, which provide that the form
is now an approved form.
194. References in this section to a Registry Manager will instead rely on the definition
contained in subsection 4(1) (which is amended by item 13 of Schedule 1 of this Bill) to
ensure consistency throughout the Family Law Act.
Item 90 - Paragraph 67ZA(1)(a)
195. Item 90 omits paragraph 67ZA(1)(a), which specifies the persons in the Family Court
who have obligations under section 67ZA, and substitutes new paragraphs 67ZA(1)(a) to (ab)
to cover all relevant officers in the new FCFC Division 1 (the continuation of the Family
Court) and FCFC Division 2 (the continuation of the Federal Circuit Court).
38
196. These amendments identify those officers that have had, and continue to have,
obligations under section 67ZA, and that need to be specified as a result of a change to the
definition of Registrar (see item 12 of Schedule 1 of this Bill).
Item 91 - Paragraph 67ZA(1)(c)
197. Item 91 repeals paragraph 67ZA(1)(c), which specifies the persons in the Federal
Circuit Court who have obligations under section 67ZA, as it is redundant as a result of new
paragraph 67ZA(1)(ac) at item 90 of Schedule 1 of this Bill.
Item 92 - Subsection 67ZBA(2)
198. Subsection 67ZBA(2) provides that, in circumstances outlined in subsection
67ZBA(1), an interested person must file a notice in the prescribed form and serve a copy on
the party referred to in paragraph 67ZBA(1)(a) or (b).
199. Item 92 omits the reference to 'prescribed form' and substitutes a reference to 'an
approved form' to reflect the changes made by item 93 of Schedule 1 of this Bill.
Item 93 - Subsection 67ZBA(4)
200. Item 93 inserts a definition of approved form into subsection 67ZBA(4) which
provides that 'approved form means a form approved for the purposes of this section under
the applicable Rules of Court.' The inclusion of this definition, in conjunction with the
amendments made by items 92 and 94 of Schedule 1 of this Bill, has the effect that the form
required to be completed and served under subsection 67ZBA(2) does not need to be
prescribed in, but can be instead approved under, the applicable Rules of Court.
Item 94 - Subsection 67ZBA(4)
201. Item 94 repeals the definitions of prescribed form and Registry Manager in subsection
67ZBA(4).
202. The definition of prescribed form will no longer be required as a result of the
amendments made by items 92 and 93 of Schedule 1 of this Bill, which provide that the form
is now an approved form.
203. References in this section to a Registry Manager will instead rely on the definition
contained in subsection 4(1) (which is amended by item 13 of Schedule 1 of this Bill), to
ensure consistency throughout the Family Law Act.
Item 95 - Paragraph 68P(3)(d)
204. Subsection 68P(3) provides that, as soon as possible after making an order or granting
an injunction in circumstances set out in subsection 68P(1), the court must give a copy of the
order or injunction to the persons and bodies set out in paragraphs 68P(3)(a) to (f). Paragraph
68P(3)(d) specifies the relevant officers of the court to whom this paragraph applies.
205. Item 95 repeals paragraph 68P(3)(d) and substitutes a new paragraph with subsections
(i) to (iii) to reflect the structure, administration and officers of the new FCFC (Division 1)
(the continuation of the Family Court), the FCFC (Division 2) (the continuation of the
Federal Circuit Court), and other courts exercising family law jurisdiction.
39
206. The amendments identify those officers that had, and continue to have, the
requirement to receive a copy of the order or injunction, and that need to be specified as a
result of the new, narrower, definition of Registrar in the Family Law Act (see item 12 of
Schedule 1 of this Bill).
Item 96 - Section 69H (heading)
207. Item 96 omits the heading to section 69H and substitutes a new heading 'Jurisdiction
of Federal Court of Australia, Federal Circuit and Family Court of Australia, State Family
Courts and Northern Territory Supreme Court', which replaces the terms 'Family Court' and
'Federal Circuit Court' with the 'Federal Circuit and Family Court of Australia' which
collectively refers to the Family Court of Australia continuing in existence as the FCFC
(Division 1) and the Federal Circuit Court continuing in existence as the FCFC (Division 2).
Item 97 - Subsection 69H(1)
208. Section 69H(1) provides that jurisdiction is conferred on the Family Court in matters
arising under this Part.
209. Item 97 omits 'Family Court' as having jurisdiction under this Part and substitutes the
'Federal Circuit and Family Court of Australia' to provide that the FCFC (Division 1) (the
continuation of the Family Court) and the FCFC (Division 2) (the continuation of the Federal
Circuit Court), both have jurisdiction in relation to matters arising under Part VII of the
Family Law Act. The conferral of jurisdiction on the FCFC (Division 2) is not a new
conferral as the Federal Circuit Court is vested with jurisdiction by subsection 69H(4)
(which, now being provided for in this item, is repealed at item 99 of Schedule 1 of this Bill).
Both Divisions of the FCFC will have identical jurisdiction in relation to matters arising
under Part VII.
Item 98 - After subsection 69H(1)
210. Section 69H confers or vests various courts with jurisdiction in relation to matters
arising under Part VII of the Family Law Act.
211. Item 98 inserts new subsection 69H(1A) that provides that jurisdiction is conferred on
the Federal Court in relation to matters arising under Part VII, and is to be exercised in the
Family Law Appeals Division of the Court. This amendment is required because, under the
new court structure provided for by the Federal Circuit and Family Court of Australia Act
2018, and amendments to the Federal Court Act (see Schedule 1 Part 1), the Federal Court
will be responsible for the majority of appeals from decrees made under the Family Law Act
and, as a consequence, will be exercising family law jurisdiction.
Item 99 - Subsection 69H(4)
212. The requirement for Family Law Act Part VII jurisdiction to be conferred on the
Federal Circuit Court (which continues in existence as the FCFC Division 2) is redundant due
to the amendment in item 98 of Schedule 1 of this Bill, and therefore subsection 69H(4) is
repealed.
40
Item 100 - Paragraph 69N(2)(a) to (d) and (3)(a) to (d)
213. Subsection 69N(2) provides that, where proceedings for a parenting order are
instituted or transferred to a court of summary jurisdiction and the respondent seeks an order
different from that sought in the application, the court must inform the parties that unless they
consent to the court hearing and determining the proceedings the court must transfer the
proceedings to one of the courts specified in paragraphs 69N(2)(a) to (d).
214. Subsection 69N(3) provides that, where proceedings for a parenting order are
instituted or transferred to a court of summary jurisdiction and the respondent seeks an order
different from that sought in the application, unless the parties agree to the court hearing and
determining the proceedings the court must transfer the proceedings to one of the courts
specified in paragraphs 69N(3)(a) to (d).
215. Item 100 repeals paragraphs 69N(2) (a) to (d) and paragraphs 69N(3)(a) to (d) and
replaces them with new paragraphs 69N(2)(a) to (c) and 69N(3)(a) to (c), respectively. New
paragraphs 69N(2)(a) and 69N(3)(a) specify the FCFC (Division 2) (the continuation of the
Federal Circuit Court). The Family Court (continuing as the FCFC (Division 1)) is not
included in the subsection as the court of summary jurisdiction will not be empowered to
transfer to this court in line with the structure, administration and functions of the new FCFC.
This will support an administratively efficient approach whereby all matters will be
transferred into the FCFC (Division 2) and, if required, may be transferred to FCFC (Division
1) under section 117 of the Federal Circuit and Family Court of Australia Act 2018.
Item 101 - Subparagraph 69N(5)(b)(i) to (iv)
216. Paragraph 69N(5)(b) provides that despite a party not being entitled to object (without
leave) to a court of summary jurisdiction hearing and determining proceedings if the parties
have previously consented to the court hearing and determining the proceedings, the court
may, on its own initiative, transfer the proceedings to one of the courts specified in
subparagraphs 69N(5)(b)(i) to (iv).
217. Item 101 repeals subparagraphs 69N(5)(b)(i) to (iv) and substitutes new paragraphs
69N(5)(b)(i) to (iii). New paragraph 69N(5)(b)(i) specifies the FCFC (Division 2) (the
continuation of the Federal Circuit Court). The Family Court (continuing as the FCFC
(Division 1)) is not included in the subsection as the court of summary jurisdiction will not be
empowered to transfer to this court. This will support an administratively efficient approach
whereby all matters will be transferred into the FCFC (Division 2) and, if required, may be
transferred to FCFC (Division 1) under section 117 of the Federal Circuit and Family Court
of Australia Act 2018.
Item 102 - Paragraph 69N(6)(a) to (d)
218. Subsection 69N(6) provides that a court of summary jurisdiction must transfer
proceedings to one of the courts, specified in paragraphs 69N(6)(a) to (d), if the court has
given a party leave to object to the court hearing and determining the matter.
219. Item 102 repeals paragraphs 69N(6)(a) to (d) and substitutes new paragraphs
69N(6)(a) to (c). New paragraph 69N(6)(a) specifies the FCFC (Division 2) (the continuation
of the Federal Circuit Court). The Family Court (continuing as the FCFC (Division 1)) is not
included in the subsection as the court of summary jurisdiction will not be empowered to
41
transfer to this court. This will support an administratively efficient approach whereby all
matters will be transferred into the FCFC (Division 2) and, if required, may be transferred to
FCFC (Division 1) under section 117 of the Federal Circuit and Family Court of Australia
Act 2018.
Item 103 - Section 69ZO
220. Section 69ZO provides that certain persons (a judge, Judicial Registrar, Registrar or
magistrate), who is hearing child-related proceedings in Chambers, has all the duties and
powers a court has under Division 12A of Part VII of the Family Law Act.
221. Item 103 repeals and replaces section 69ZO to reflect the structure, administration and
officers of the new FCFC, including Division 1 (the continuation of the Family Court),
Division 2 (the continuation of the Federal Circuit Court), and other courts exercising family
law jurisdiction under this provision.
222. The amendments identify the persons that had, and continue to have, all the duties and
powers of a court under the division, but that need to be specified to reflect the relevant
officers of the FCFC, and as a result of the narrower definition of Registrar in the Family
Law Act (see item 12 of Schedule 1 of this Bill).
Item 104 - Subsection 69ZR(3)
223. Subsection 69ZR(3) provides that certain persons (a judge, Judicial Registrar,
Registrar or magistrate) who exercise a power under subsection 69ZR(1), is not required to
disqualify himself or herself from a further hearing of the proceedings.
224. Item 104 omits the reference to 'judge, Judicial Registrar, Registrar or magistrate'
and substitutes a reference to 'a person' to ensure that this subsection captures all the persons
who may exercise powers under subsection 69ZR(1).
Item 105 - Section 70M (heading)
225. Section 70M is headed 'Registrar to send documents etc. to overseas jurisdiction'.
226. Item 105 omits 'Registrar' from the heading and substitutes 'Registry Manager' to
accurately reflect the person who currently has obligations under section 70M.
Item 106 - Paragraph 70NFD(a)
227. Paragraph 70NFD(a) provides that, a community service order made under paragraph
70NFB(2)(a) by the Family Court or the Federal Circuit Court, may be varied or discharged
by either of those Courts.
228. Item 106 amends paragraph 70NFD(a) to remove the terms 'Family Court' and
'Federal Circuit Court' and replace them with the 'Federal Circuit and Family Court of
Australia (Division 1)' or the 'Federal Circuit and Family Court of Australia (Division 2)',
consistent with the new court structure and functions under the Federal Circuit and Family
Court of Australia Act 2018.
42
Item 107 - Paragraph 70NFD(b)
229. Paragraph 70NFD(b) provides that, a community service order made under paragraph
70NFB(2)(a) by a court other than the Family Court or the Federal Circuit Court, may be
varied or discharged by the Family Court.
230. Item 107 omits 'Family Court' from paragraph 70NFD(b) and substitutes with the
term 'Federal Circuit and Family Court of Australia', which captures both the FCFC
(Division 1) (the continuation of the Family Court) and the FCFC (Division 2) (the
continuation of the Federal Circuit Court) consistent with the new court structure and
functions under the Federal Circuit and Family Court of Australia Act 2018 and reflecting
the intention that the jurisdiction of the FCFC (Division 1) and FCFC (Division 2) will
largely become coterminous under the new court structure.
Item 108 - Subsection 79(9)
231. Subsection 79(9) provides that the Family Court or a Family Court of a State shall not
make an order under section 79 in property settlement proceedings unless one of the
circumstances in paragraphs 79(9)(a) to (c) is satisfied.
232. Item 108 replaces the first occurring reference to 'Family Court' with 'Federal Circuit
and Family Court (Division 1)' to reflect the continuation of the Family Court as the FCFC
(Division 1), consistent with the new court structure and functions under the Federal Circuit
and Family Court of Australia Act 2018.
Item 109 - Paragraph 79(9)(a)
233. Paragraph 79(9)(a) provides one of the circumstances that, having been satisfied,
would allow the Family Court or a Family Court of the State to make an order under section
79. The circumstance provided in paragraph 79(9)(a) is that the parties to proceedings have
attended a conference with a Registrar or Deputy Registrar of the Family Court or a Registrar
or Deputy Registrar of a Family Court of that State.
234. Item 109 repeals subparagraph 79(9)(a) and substitutes a new paragraph with a
subparagraph (i) - that replaces the term 'Family Court' with the 'Federal Circuit and Family
Court of Australia (Division 1)' (the continuation of the Family Court), and identifies those
officers that have exercised, and continue to exercise the certain powers and functions to
which the paragraph applies, and that need to be specified as a result of the new, narrower,
definition of Registrar (see item 12 of Schedule 1 of this Bill).
235. New subparagraph 79(9)(a)(ii) provides, in relation to the Family Court of a State,
that the parties must attend a conference with the Registrar or Deputy Registrar of that
Family Court and does not change the jurisdiction of the Family Court of a State, or its
officers, to which the paragraph applies.
Item 110 - Paragraph 79H(3)(c)
236. Paragraph 79H(3)(c) provides that the 'applicable Rules of Court' may make
provision for a person who satisfies the circumstances in paragraphs 79H(3)(a) to (c), to
notify a court exercising jurisdiction under the Family Law Act of the proceedings under the
Bankruptcy Act 1966. The circumstances provided by paragraph 79H(3)(c) are that the person
43
becomes a party to particular proceeding before the Federal Court or the Federal Circuit
Court under the Bankruptcy Act 1966.
237. Item 110 replaces the term 'Federal Circuit Court of Australia' with 'Federal Circuit
and Family Court of Australia (Division 2)' to reflect the continuation of the Federal Circuit
Court as the FCFC (Division 2) as provided by the Federal Circuit and Family Court of
Australia Act 2018.
Item 111 - Subsection 90SM(9)
238. Subsection 90SM(9) provides that the Family Court shall not make an order under
section 90SM in property settlement proceedings unless one of the circumstances in
paragraphs 90SM(9)(a) to (c) is satisfied.
239. Item 111 replaces the reference to 'Family Court' with 'Federal Circuit and Family
Court (Division 1)' to reflect the continuation of the Family Court as the FCFC (Division 1)
as provided by the Federal Circuit and Family Court of Australia Act 2018.
Item 112 - Paragraph 90SM(9)(a)
240. Paragraph 90SM(9)(a) provides one of the circumstances that, having been satisfied,
allowed the Family Court to make an order under section 90SM. The circumstance provided
in paragraph 90SM(9)(a) is that the parties to proceedings must have attended a conference
with a Registrar or Deputy Registrar of the Family Court.
241. Item 112 repeals subparagraph 90SM(9)(a) and substitutes a new paragraph
90SM(9)(a) that reflects the structure, administration and officers of the new FCFC
(Division 1) (the continuation of the Family Court), and identifies the officers that had, and
continue to have, the relevant duties to which the paragraph applies, but that need to be
specified as a result of the new, narrower, definition of Registrar (see item 12 of Schedule 1
of this Bill).
Item 113 - Paragraph 90SQ(3)(c)
242. Paragraph 90SQ(3)(c) provides that the 'applicable Rules of Court' may make
provision for a person who satisfies the circumstances in paragraphs 90SQ(3)(a) to (c), to
notify a court exercising jurisdiction under the Family Law Act of the proceedings under the
Bankruptcy Act 1966. The circumstances provided by paragraph 90SQ(3)(c) are that the
person becomes a party to particular proceeding before the Federal Court or the Federal
Circuit Court under the Bankruptcy Act 1966.
243. Item 113 replaces the term 'Federal Circuit Court of Australia' with 'Federal Circuit
and Family Court of Australia (Division 2)' to reflect the continuation of the Federal Circuit
Court as the FCFC (Division 2) as provided by the Federal Circuit and Family Court of
Australia Act 2018.
Item 114 - Part X
244. Item 114 repeals 'Part X - Appeals'. The Family Law Appeal Division of the Federal
Court will hear all family law appeals, other than appeals from courts of summary
jurisdiction (see item 227 of Schedule 1 of this Bill).
44
245. Appeals from courts of summary jurisdiction will continue to be governed by the
Family Law Act with the FCFC and State Supreme Courts vested with jurisdiction to hear
appeals from courts of summary jurisdiction under new Division 4 of Part 5 of the Family
Law Act (see item 72 of Schedule 1 of this Bill).
Item 115 - Subsection 97(1)
246. Subsection 97(1) provides that in all proceedings in the Family Court, Federal Circuit
Court or in a Court of a Territory (other than the Northern Territory), when exercising
jurisdiction under the Family Law Act, shall be heard in open court.
247. Item 115 omits 'Family Court, in the Federal Circuit Court of Australia' and
substitutes the 'Federal Circuit and Family Court of Australia' to reflect the continuation of
the Family Court as the FCFC (Division 1) and the Federal Circuit Court as the FCFC
(Division 2), as provided for in section 8 of the Federal Circuit and Family Court of
Australia Act 2018.
Item 116 - Subsection 97(1A)
248. Subsection 97(1A) provides that the regulations and the applicable Rules of Court
may authorise proceedings to be heard by a Judge, Judicial Registrar, Registrar or magistrate
sitting in Chambers.
249. Item 116 omits the words after 'heard' in subsection 97(1A) and substitutes
subparagraphs 97(1A)(a) to (b), to reflect the structure, administration and officers of the new
FCFC, including the FCFC (Division 1) (the continuation of the Family Court), the FCFC
(Division 2) (the continuation of the Federal Circuit Court), and other courts exercising
family law jurisdiction under this provision.
250. The amendments also identify the persons that the subsection applied, and continues
to apply, to and that need to be specified as a result of the narrower definition of Registrar in
the Family Law Act (see item 12 of Schedule 1 of this Bill).
Item 117 - Subsection 97(2)
251. Subsection 97(2) provides that in proceedings in the Family Court, or in another
court, the court may, on application or of its own motion, make one of the orders specified in
paragraphs 97(2)(a) to (c).
252. Item 117 omits 'Family Court,' and substitutes 'Federal Circuit and Family Court of
Australia (Division 1)' to simply and accurately reference the courts exercising jurisdiction
under the Family Law Act to which this subsection applies. The reference to 'Family Court'
is no longer accurate given the change to the FCFC (Division 1) as a result of the Federal
Circuit and Family Court of Australia Act 2018.
Item 118 - Subsection 98(1)
253. Subsection 98(1) provides that the standard Rules of Court may provide for evidence
of any material matter to be given on affidavit at certain types of hearings.
254. Item 118 omits '(1)', necessitated by the amendment made by item 120 of Schedule 1
of this Bill which deletes the only other subsection in section 98.
45
Item 119 - Subsection 98(1)
255. Subsection 98(1) provides that the standard Rules of Court may provide for evidence
of any material matter to be given on affidavit at certain types of hearings.
256. Item 119 omits 'standard Rules of Court' and substitutes 'applicable Rules of Court'
to reflect that different sets of court rules that may now be relevant to this section as a result
of the new FCFC (Division 1) and FCFC (Division 2), Family Law Appeals Division of the
Federal Court, and other relevant courts exercising family law jurisdiction.
Item 120 - Subsection 98(2)
257. Subsection 98(2) provided that section 98 (relating to the provision of evidence) does
not apply to the Federal Circuit Court. This is because the Federal Circuit Court is governed
by its own Act and Rules.
258. Item 119 of Schedule 1 of this Bill amends section 98 so that the applicable Rules of
Court may make provision in relation to particular evidence taking covered by this section.
Given the definition of applicable Rules of Court includes rules of court made by all the
courts exercising jurisdiction under the Family Law Act, (see item 3 of Schedule 1 of this
Bill) this rule making power extends to the FCFC (Division 2) (the continuation of the
Federal Circuit Court) and the Federal Court.
Item 121 - Sections 98AA and 98AB
259. Section 98AA governs the administration of oaths and affirmations in the Family
Court. Section 98AB governs how an affidavit, used in proceedings in the Family Court, is to
be sworn or affirmed.
260. Item 121 repeals subsections 98AA and 98AB as equivalent procedural provisions
have been provided for in Chapter 3 of the Federal Circuit and Family Court of Australia Act
2018.
Item 122 - Subsection 100B(2)
261. Subsection 100B(2) provides that a child must not be called as a witness or present
during proceedings in the Family Court, or another court exercising jurisdiction under the
Family Law Act, unless the court makes an order allowing a child to be called as a witness or
be present.
262. Item 122 omits 'the Family Court' from subsection 100B(2) and substitutes 'Federal
Circuit and Family Court of Australia (Division 1)' to simply and accurately reference the
courts exercising jurisdiction under the Family Law Act to which this subsection applies. The
reference to 'Family Court' is no longer accurate given the change to the FCFC (Division 1)
as a result of the Federal Circuit and Family Court of Australia Act 2018.
Item 123 - Subsection 102F(7) (definition of courtroom)
263. Subsection 102F(7) defines courtroom both in relation to a split court and in relation
to a court that is not split.
46
264. Item 123 replaces the definition of courtroom to remove the concept of a split court
that will, as a consequence of the structure of the FCFC, primarily be relevant to the Family
Law Appeals Division of the Federal Court. The Federal Court Act already makes provision
in relation to split courts. Section 27 of the Family Law Act, which provides for the Family
Court to sit as a split court, will be repealed (see item 38 of Schedule 1 of this Bill).
Item 124 - Subsection 102G(2)
265. Subsection 102G(2) provides the circumstance in which and how a court may direct
or allow documents to be put to a person in a court that is not a split court.
266. Item 124 omits in subsection 102G(2) '(that is not a split court)' as 'split court' will
no longer be a concept directly provided for in the Family Law Act (see items 15, 38 and 123
of Schedule 1 of this Bill).
Item 125 - Subsection 102G(3)
267. Subsection 102G(3) provides the circumstance in which and how a court may direct
or allow documents to be put to a person in a court that is a split court.
268. Item 125 repeals subsection 102G(3) as 'split court' will no longer be a concept
directly provided for in the Family Law Act (see items 15, 38 and 123 of Schedule 1 of this
Bill).
Item 126 - Section 102H
269. Section 102H provides how the circumstances in which and how a court may direct or
allow document to be put to a court that is a split court.
270. Item 126 repeals section 102H which exclusively applies to split courts as 'split court'
will no longer be a concept directly provided for in the Family Law Act (see items 15, 38 and
123 of Schedule 1 of this Bill).
Item 127 - Subsection 102J(1)
271. Subsection 102J(1) provides how an oath or affirmation is to be administered in
relation to a person giving testimony remotely.
272. Item 127 omits '(1)' which is necessitated by the amendment made by item 128 of
Schedule 1 of this Bill repealing the only other subsection in section 102J.
Item 128 - Subsection 102J(2)
273. Subsection 102J(2) defines 'courtroom or other place where the court or the Judge is
sitting' for the purpose of section 102J, by reference to 'split court'.
274. Item 128 repeals subsection 102J(2)' as 'split court' will no longer be a concept
directly provided for in the Family Law Act (see items 15, 38 and 123 of Schedule 1 of this
Bill).
47
Item 129 - Paragraph 102K(1)(c)
275. Item 129 omits in paragraph 102K(1)(c) 'Division; or' and substitutes 'Division'
which is required because of the repeal of paragraph 102K(1)(d) (see item 130 of Schedule 1
of this Bill).
Item 130 - Paragraph 102K(1)(d)
276. Subsection 102K(1) provides that the court or a judge may make such orders as the
court or judge thinks just for the payment of expenses , incurred in connection with the
circumstances outlined in paragraphs 102K(1)(a) to (d).
277. Paragraph 102K(1)(d) specifies the court sitting as a split court as one of the relevant
circumstances for the purpose of subsection 102K(1).
278. Item 130 repeals paragraph 102K(1)(d) as 'split court' will no longer be a concept
directly provided for in the Family Law Act (see items 15, 38 and 123 of Schedule 1 of this
Bill).
Item 131 - Division 3 of Part XI
279. Division 3 of Part XI exclusively deals with splits courts.
280. Item 131 repeals Division 3 of Part XI as 'split court' will no longer be a concept
directly provided for in the Family Law Act (see items 15, 38 and 123 of Schedule 1 of this
Bill).
Item 132 - Subsection 102Q(1) (paragraphs (a) and (b) of the definition of appropriate
court official)
281. Subsection 102Q(1) provides a list of definitions for the purpose of Part XIB -
Vexatious Proceedings. Paragraphs 102(Q)(a) and (b) provide the definition of 'appropriate
court official' in relation to the Family Court and the Federal Circuit Court, respectively.
282. Item 132 repeals paragraphs 102Q(1)(a) and (b) of the definition of 'appropriate court
official', and substitutes '(a) in relation to the Federal Circuit and Family Court of
Australia--the Chief Executive Officer; and'. This is to reflect that, under the new court
structure, the appropriate court official will be the same person for the FCFC (Division 1) and
the FCFC (Division 2) (collectively known as the FCFC).
Item 133 - Subsection 105(1) (note)
283. Subsection 105(1) provides that, subject to Part XIII of the Act, the regulations, and
the applicable Rules of Court, all decrees made under the Family Law Act may be enforced
by any court having jurisdiction under the Act.
284. The note to subsection 105(1) provides that, for example, the Federal Circuit Court
can enforce decrees made by the Family Court.
285. Item 133 repeals the note to subsection 105(1) as the references are no longer
applicable.
48
Item 134 - Subsection 109A(1)
286. Subsection 109A(1) provides that the power for judges to make Rules of Court under
section 123 of the Act extends to making rules for or in relation to, or anything incidental to,
the enforcement by the court of certain orders under the Family Law Act, the Child Support
(Registration and Collection) Act 1988, or the Child Support (Assessment) Act 1989.
287. Item 134 omits 'the Judges, or a majority of them' and substitutes 'the Chief Justice
of the Federal Circuit and Family Court of Australia (Division 1)' to appropriately reflect that
the Chief Justice of the FCFC (Division 1) has the power to make Rules of Court under
section 123 of the Act (see item 152 of Schedule 1 of this Bill).
Item 135 - Subsection 109A(5) (note)
288. Subsection 109A(5) provides that for the purposes of section 109A, property means
real or personal property. The note to subsection 109A(5) provides that the powers to make
Rules of Court are also contained in sections 26B and 37A of the Act.
289. Item 135 repeals the note to subsection 109A(5). The note is no longer required as
Part IV (which contains section 26B and 37A) is repealed by Item 38 of Schedule 1 of this
Bill, and substantially provided for in the Federal Circuit and Family Court of Australia Act
2018.
Item 136 - After section 109A
290. Item 136 inserts section 109AA, 'Rules of Court relating to enforcement - Family
Law Appeal Division of the Federal Court of Australia', and section 109AB, 'Rules of Court
relating to enforcement - Federal Circuit and Family Court of Australia (Division 1)', after
section 109A.
291. Section 109AA provides that the rule making power in the Federal Court Act includes
the rule making power in section 109A.
292. Section 109AB provides that the rule making power in relation to the FCFC (Division
1) includes the rule making power in section 109A.
293. These sections are required so that the rules of the kind covered under section 109A
can be made in the rules that apply to the Family Law Appeal Division of the Federal Court,
which will hear all family law appeals other than appeals from courts of summary jurisdiction
(see item 227 of Part 1 Schedule 1 of this Bill), and made in the rules that apply to the new
FCFC (Division 1) (the continuation of the Family Court). The application of this rule
making power to the FCFC (Division 2) (the continuation of the Federal Circuit Court) is
provided for in section 109B (as amended by items 137 to 141 of Schedule 1 of this Bill).
Item 137 - Section 109B (heading)
294. Section 109B is headed 'Rules of Court relating to enforcement - Federal Circuit
Court'.
295. Item 137 omits 'Federal Circuit Court' from the heading and substitutes 'Federal
Circuit and Family Court of Australia (Division 2)' to reflect that the Federal Circuit Court
49
continues as the FCFC (Division 2) as provided for in the Federal Circuit and Family Court
of Australia Act 2018.
Item 138 - Subsection 109B(1)
296. Subsection 109B(1) provides that section 109A applies to the making of Rules of
Court under section 81 of the Federal Circuit Court Act, in a corresponding way to how it
applies to the making of Rules of Court under section 123 of the Act.
297. Item 138 omits 'section 81 of the Federal Circuit Court of Australia Act 1999' and
substitutes 'Chapter 4 of the Federal Circuit and Family Court of Australia Act 2018' to
appropriately reference the appropriate rule making power in relation to the FCFC (Division
2), noting that the Federal Circuit Court Act is repealed Schedule 4 of this Bill.
Item 139 - Paragraphs 109B(2)(a) and (b)
298. Paragraphs 109B(2)(a) and (b) provide that, for the purpose of the application of
section 109A in accordance with subsection 109B(1), the references to 'the court' in
subsections 109A(1) and (2) are to be read as a reference to the 'Federal Circuit Court of
Australia'.
299. Item 139 omits 'Federal Circuit Court of Australia' and substitutes 'Federal Circuit
and Family Court of Australia (Division 2)' to appropriately reflect the continuation of the
Federal Circuit Court as the FCFC (Division 2) as provided for in the Federal Circuit and
Family Court of Australia Act 2018.
Item 140 - Paragraph 109B(2)(c)
300. Paragraph 109B(2)(c) provides that, for the purpose of the application of section
109A in accordance with subsection 109B(1), the reference to a 'Registrar' in subsection
109A(2) are to be read as a reference to a 'Registrar of the Federal Circuit Court of
Australia'.
301. Item 140 omits 'a Registrar of the Federal Circuit Court of Australia' and substitutes
'the Chief Executive Officer, or a Registrar of the Federal Circuit and Family Court of
Australia (Division 2)' to appropriately reflect the continuation of the Federal Circuit Court
as the FCFC (Division 2), and to identify those relevant officers of the court that the section
applied, and continues to apply, which needs to be specified as a result of the narrower
definition of Registrar in the Family Law Act (see item 12 of Schedule 1 of this Bill).
Item 141 - Subsection 109B(3)
302. Subsection 109B(3) provides that section 109A has no effect in relation to the Federal
Circuit Court except as provided by subsections 109B(1) and (2).
303. Item 141 replaces the term 'Federal Circuit Court of Australia' with 'Federal Circuit
and Family Court of Australia (Division 2)' to reflect the continuation of the Federal Circuit
Court as the FCFC (Division 2) as provided by the Federal Circuit and Family Court of
Australia Act 2018.
50
Item 142 - At the end of subsection 111C(5)
304. Subsection 111C(5) provides that regulations made for the purpose of section 111C
may confer jurisdiction on a federal court or a court of a territory, or invest a court of a state
with federal jurisdiction, in addition to any other jurisdiction provided for under the Family
Law Act.
305. Item 142 inserts, at the end of subsection 111C(5), ', the Federal Circuit and Family
Court of Australia Act 2018 or the Federal Court of Australia Act 1976', to recognise that
these Acts also provide family law jurisdiction.
Item 143 - Subsection 111C(7A)
306. Subsection 111C(7A) provides that the power of Judges to make Rules of Court under
section 123 extends to making Rules of Court for or in relation to the making of adoption
orders.
307. Item 143 omits 'the Judges, or a majority of them,' and substitutes 'the Chief Justice
of the Federal Circuit and Family Court of Australia (Division 1)' to reflect that the Chief
Justice of the FCFC (Division 1) has the power to make Rules of Court under section 123 of
the Family Law Act (see item 152 of Schedule 1 of this Bill).
Item 144 - After subsection 111C(7A)
308. Item 144 inserts, after subsection 111C(7A), subsections (7B), (7C) and (7D), to
extend the rule making power of the relevant courts exercising family law jurisdiction, as
provided in the Federal Circuit and Family Court of Australia Act 2018, and the amendments
to the Federal Court Act (Part 1 of Schedule 1 of this Bill).
309. Subsection 111C(7B) provides that the rule making power in the Federal Court Act
extends to the making of Rules of Court for or in relation to adoption orders.
310. Subsection 111C(7C) provides that the rule making power of the Chief Justice in
relation to the FCFC (Division 1) extends to the making of Rules of Court for or in relation to
adoption orders.
311. Subsection 111C(7D) provides that the rule making power of the Chief Judge in
relation to the FCFC (Division 2) extends to the making of Rules of Court for or in relation to
adoption orders.
Item 145 - Paragraph 111CV(1A)(b)
312. Section 111CV relates to the obligation to inform a competent authority about serious
danger to a child in relation to international protection of children. Subsection 111CV(1A)
specifies who this obligation applies to under the section. Paragraph 111CV(1A)(b) specifies
'the Registrar or a Deputy Registrar of a Registry of the Family Court of Australia'.
313. Item 145 repeals paragraph 111CV(1A)(b) and substitutes paragraphs 11CV(1A)(b)
and (bb), which specifies the Chief Executive Officer, Registrar or Deputy Registrar of the
FCFC (Division 1), and a Registrar of the FCFC (Division 2), respectively.
51
314. This reflects the structure, administration and officers of the Federal Court and new
FCFC exercising family law jurisdiction, including the FCFC (Division 1) (the continuation
of the Family Court), and the FCFC (Division 2) (the continuation of the Federal Circuit
Court).
315. The amendments identify the relevant officers to which the subsection applied, and
continues to apply, which needs to be specified as a result of the narrower definition of
Registrar in the Family Law Act (see item 12 of Schedule 1 of this Bill).
Item 146 - Paragraph 111CV(1A)(d)
316. Section 111CV relates to the obligation to inform a competent authority about serious
danger to a child in relation to international protection of children. Subsection 111CV(1A)
specifies who this obligation applies to under the section. Paragraph 111CV(1A)(d) specifies
'a Registrar of the Federal Circuit Court of Australia'.
317. Item 146 repeals paragraph 111CV(1A)(d) as the updated reference to a Registrar of
the FCFC (Division 2), consistent with the structure, administration and functions of the new
FCFC, is provided for in new paragraph 111CV(1A)(bb) (see item 145 of Schedule 1 of this
Bill).
Item 147 - Section 112AA (definition of applicable Rules of Court)
318. Item 147 repeals the definition of applicable Rules of Court, as item 3 of Schedule 1
of this Bill substitutes an amended definition that captures all the different rules applicable to
the different courts exercising jurisdiction under the Family Law Act.
Item 148 - Subsection 112AK(1)
319. Subsection 112AK(1) provides that orders made under section 112AD by the Family
Court may be varied or discharged by the Family Court (paragraph 112AK(1)(a)). If an order
was made by another court under section 112AD, it may be varied or discharged by the court
that made the order or the Family Court (paragraph 112AK(1)(b)).
320. Item 148 repeals subsection 112AK(1) and substitutes a new subsection 112AK(1)
providing that the relevant order may be varied or discharged by the court that made the order
or the FCFC, which includes FCFC (Division 1) (the continuation of the Family Court) and
the FCFC (Division 2) (the continuation of the Federal Circuit Court).
Item 149 - Subsection 115(2)
321. Section 115 provides for the establishment of a Family Law Council. Subsection
115(2) provides that the Council shall consist of, amongst others, a 'Judge of the Family
Court'.
322. Item 149 omits 'Family Court' and substitutes 'Federal Circuit and Family Court of
Australia' to appropriately reflect that both the FCFC (Division 1) (continuation of the
Family Court) and FCFC (Division 2) (continuation of the Federal Circuit Court) both
exercise identical family law jurisdiction as provided by the Federal Circuit and Family
Court of Australia Act 2018. Therefore, a judge from either the FCFC (Division 1) or the
FCFC (Division 2) is an appropriate person to sit on a Family Law Council.
52
Item 150 - At the end of subsection 117(2)
323. Subsection 117(2) relates to the court's ability to make orders as to costs and security
for costs as it considers just, subject to other subsections.
324. Item 150 inserts two notes at the end of subsection 117(2) directing readers to the
relevant provisions of the Federal Circuit and Family Court of Australia Act 2018, which
contain further provisions about the award of costs.
Item 151 - Subsection 121(10) (note)
325. The note to subsection 121(10) provides that powers to make Rules of Court are also
contained in sections 26B, 37A, 109A and 123 of the Act.
326. Item 151 omits '26B, 37A,' from the note as these sections are contained in Part IV of
the Family Law Act which is repealed by item 38 of Schedule 1 of this Bill.
Item 152 - Subsection 123(1)
327. Section 123 provides the Judges, or a majority of them, the power to make Rules of
Court in relation to the practice and procedure to be followed by the Family Court and other
courts exercising jurisdiction under the Family Law Act.
328. Item 152 omits 'Judges, or a majority of them,' and substitutes 'Chief Justice of the
Federal Circuit and Family Court of Australia (Division 1)' to reflect that the Chief Justice of
the FCFC (Division 1) has the power to make Rules of Court under section 123 of the Family
Law Act. By virtue of amendments made by item 164 of Schedule 1 of this Bill, Rules of
Court made under section 123 will not apply to the FCFC (Division 1) (the continuation of
the Family Court), the FCFC (Division 2) (the continuation of the Federal Circuit Court), or
the Federal Court, but will continue to apply to other courts exercising jurisdiction under the
Family Law Act.
Item 153 - Subsection 123(1)
329. Section 123 provides the Judges, or a majority of them, the power to make Rules of
Court in relation to the practice and procedure to be followed by the Family Court and other
courts exercising jurisdiction under the Family Law Act.
330. Item 153 omits 'the Family Court and any other courts' from subsection 123(1) and
substitutes 'a court' to reflect that, by virtue of amendments made by item 164 of Schedule 1
of this Bill, Rules of Court made under section 123 will not apply to the FCFC (Division 1)
(the continuation of the Family Court).
Item 154 - Subsection 123(1)
331. Section 123 provides the Judges, or a majority of them, the power to make Rules of
Court in relation to the practice and procedure to be followed by the Family Court and other
courts exercising jurisdiction under the Family Law Act.
332. Item 154 omits 'those courts' from subsection 123(1) and substitutes 'the court',
which is required as a result of the amendments made by item 153 of Schedule 1 of this Bill
to ensure that the language used throughout subsection 123(1) is consistent.
53
Item 155 - Paragraph 123(1)(b)
333. Paragraph 123(1)(b) provides that the rule making power in section 123 includes a
power providing for and in relation to the manner of service of process of the Family Court or
another court exercising jurisdiction under the Act.
334. Item 155 omits 'the Family Court or another court' from paragraph 123(1)(b) and
substitutes 'a court' necessitated by the amendments made by items 153 and 164 Schedule 1
of this Bill.
Item 156 - Paragraphs 123(1)(bb), (c) and (d)
335. Paragraphs 123(1)(bb), (c) and (d) specify particular, Family Court specific practices
and procedures that are covered by the rule making power in section 123.
336. Item 156 repeals paragraphs 123(1)(bb), (c) and (d), as Rules of Court made under
section 123 will not govern the FCFC (Division 1) (the continuation of the Family Court)
(see item 164 of Schedule 1 of this Bill).
Item 157 - Paragraph 123(1)(f)
337. Paragraph 123(1)(f) expressly refers to the Family Court in relation to a particular
practice that is covered by the rule making power in section 123.
338. Item 157 omits the 'Family Court or another court' in paragraph 123(1)(b) and '
substitutes 'a court' as the Rules of Court, made under section 123, will not govern the FCFC
(Division 1) (see item 164 of Schedule 1 of this Bill) but this paragraph will still be relevant
to other courts governed by the section 123 Rules of Court.
Item 158 - Paragraph 123(1)(ma)
339. Paragraph 123(1)(ma) expressly refers to Division 2 and 3 of Part XI in relation to a
particular practice that is covered by the rule making power in section 123.
340. Item 158 omits 'Divisions 2 and 3' from paragraph 123(1)(ma) and substitutes
'Division 2', as Division 3 of Part XI, which relates to split courts, is repealed by this Bill
(see item 131 of Schedule 1 of this Bill).
Item 159 - Subparagraph 123(1)(sda)(i)
341. Paragraph 123(1)(sda) provides that the procedures to be followed by family
counsellors is covered by the rule making power in section 123.
342. Item 159 omits 'subsection 38BD(1) of this Act' from subparagraph 123(1)(sda)(i)
and substitutes 'subsection 247(1) of the Federal Circuit and Family Court of Australia Act
2018', to provide the correct legislative reference relating to the authorisation of family
counsellors as Part IVA is repealed by this Bill (see item 38 of Schedule 1 of this Bill) and
substantially replicated in the Federal Circuit and Family Court of Australia Act 2018.
54
Item 160 - Subparagraph 123(1)(sdb)(i)
343. Paragraph 123(1)(sdb) provides that the procedures to be followed by family dispute
resolution practitioners is covered by the rule making power in section 123.
344. Item 160 omits 'subsection 38BD(2) of this Act' from subparagraph 123(1)(sdb)(i)
and substitutes 'subsection 247(2) of the Federal Circuit and Family Court of Australia Act
2018' to provide the correct legislative reference relating to the authorisation of family
dispute resolution practitioners as Part IVA is repealed by this Bill (see item 38 of Schedule 1
of this Bill) and substantially replicated in the Federal Circuit and Family Court of Australia
Act 2018.
Item 161 - Paragraph 123(1)(sea)
345. Paragraph 123(1)(sea) provides that matters relating to the costs of family counselling
is covered by the rule making power in section 123.
346. Item 161 omits 'subsection 38BD(1) of this Act' from paragraph 123(1)(sea) and
substitutes 'subsection 247(1) of the Federal Circuit and Family Court of Australia Act 2018'
to provide the correct legislative reference relating to the authorisation of family counsellors,
as Part IVA is repealed by this Bill (see item 38 of Schedule 1 of this Bill) and substantially
replicated in the Federal Circuit and Family Court of Australia Act 2018.
Item 162 - Paragraph 123(1)(seb)
347. Paragraph 123(1)(seb) provides that matters relating to the costs of family dispute
resolution is covered by the rule making power in section 123.
348. Item 162 omits 'subsection 38BD(2) of this Act' from paragraph 123(1)(seb) and
substitutes 'subsection 247(2) of the Federal Circuit and Family Court of Australia Act 2018'
to provide the correct legislative reference relating to the authorisation of family dispute
resolution practitioners , as Part IVA is repealed by this Bill (see item 38 of Schedule 1 of
this Bill) and substantially replicated in the Federal Circuit and Family Court of Australia
Act 2018.
Item 163 - At the end of subsection 123(1)
349. Section 123 provides the Judges, or a majority of them, the power to make Rules of
Court in relation to the practice and procedure to be followed by the Family Court and other
courts exercising jurisdiction under the Family Law Act.
350. Item 163 inserts, at the end of subsection 123(1), a note specifying 'For other powers
to make Rules of Court, see section 109A and subsection 111C(7A)', to direct readers to
these other rule making powers.
Item 164 - Subsection 123(1A)
351. Subsection 123(1A) provides that a reference in subsection 123(1) to a 'court
exercising jurisdiction under this Act' does not include a reference to the Federal Circuit
Court of Australia.
55
352. Item 164 omits 'Federal Circuit Court of Australia', and substitutes 'Federal Court of
Australia or the Federal Circuit and Family Court of Australia'. This provides that the Rules
of Court made for the purposes of section 123(1) continue to not apply to the FCFC
(Division 2) (the continuation of the Federal Circuit Court), and extends this exclusion to the
FCFC (Division 1) and the Federal Court. The rule making powers for these courts are
provided in sections 56 and 184 of the Federal Circuit and Family Court of Australia Act
2018, and the Federal Court Act.
Item 165 - Subsection 123(2)
353. Subsection 123(2) provides how the Legislation Act 2003 is to apply to Rules of
Court made by Judges.
354. Item 165 omits 'made by Judges under this section or any other Act' in subsection
123(2) and substitutes 'made by the Chief Justice of the Federal Circuit and Family Court of
Australia (Division 1) under this section or any other Act (other than the Federal Circuit and
Family Court of Australia Act 2018)'. This reflects that the Chief Justice of the FCFC
(Division 1) will be empowered to make Rules of Court under section 123 of the Act (see
item 153 Schedule 1 of this Bill) for certain courts exercising family law jurisdiction, other
than the FCFC (Division 1) and the FCFC (Division 2) which have their own rule making
provisions under the Federal Circuit and Family Court of Australia Act 2018.
Item 166 - Paragraph 123(2)(b)
355. Paragraph 123(2)(b) provides how references to a 'rule-maker' in the Legislation Act
2003 are to be read in relation to Rules of Court made by Judges. Specifically paragraph
123(2)(b) provides that the Legislation Act is to be read as if a reference to a 'rule-maker' is
a reference to the Chief Justice acting on behalf of the Judges.
356. Item 166 repeals paragraph 123(2)(b) as it is no longer necessary as the 'rule-maker'
under subsection 123(1) will be a single person (the Chief Justice of the FCFC (Division 1))
as a result of amendments made by item 153 of Schedule 1 of this Bill.
Item 167 - Subsection 123(2A)
357. Subsection 123(2A) provides that despite section 16 of the Legislation Act 2003
(which relates to Office of Parliamentary Counsel assistance with drafting) not applying in
relation to rules of court made by Judges under this or any other Act, the Office of
Parliamentary Counsel may provide assistance in the drafting of rules if the Chief Justice so
desires.
358. Item 167 omits 'made by Judges under this or any other Act' from 123(2A) and
substitutes 'made by the Chief Justice of the Federal Circuit and Family Court of Australia
(Division 1) under this section' to reflect that the Chief Justice of the FCFC (Division 1) has
the power to make Rules of Court under section 123 (see item 153 Schedule 1 of this Bill),
and provide that the Office of Parliamentary Counsel may assist in drafting Rules of Court
made under section 123.
Item 168 - Subsection 123(3) (including the note)
359. Subsection 123(3) provides a definition of Judge for the purpose of the section. The
note to subsection 123(3) states that the power to make Rules of Court conferred by this
56
section is extended by section 109A and subsection 111C(7A) and that powers to make Rules
of Court are also contained in section 26B and 37A.
360. Item 168 repeals subsection 123(3) and the note. The definition of 'Judge' in relation
to this section is no longer required, as it is only the Chief Justice of the FCFC (Division 1)
that has rule making powers under section 123 (see item 153 of Schedule 1 of this Bill). The
note includes references to sections 26B and 37A that will be repealed (see item 38 of
Schedule 1 of this Bill) and refers to other rule making sections that are now provided for in
item 163 of Schedule 1 of this Bill.
Item 169 - Subsection 124(1)
361. Subsection 124(1) provides that there shall be a Rules Advisory Committee consisting
of judges of the Family Court, Family Courts of States and other persons appointed in
accordance with the section.
362. Item 169 omits 'Family Court of Australia' and substitutes 'Federal Circuit and
Family Court of Australia (Division 1), such judges of the Federal Circuit and Family Court
of Australia (Division 2)' to appropriately reflect the continuation of the Family Court as the
FCFC (Division 1) as provided in the Federal Circuit and Family Court of Australia Act
2018 and to provide that judges of both the FCFC (Division 1) and the FCFC (Division 2)
can be members of the Rules Advisory Committee.
Item 170 - Subsection 124(1)
363. Subsection 124(1) provides that there shall be a Rules Advisory Committee consisting
of judges of the Family Court, Family Courts of States and other persons appointed 'in
accordance with the section'.
364. Subsection 124(3) requires members of the Rules Advisory Committee to be
appointed by the Governor-General on the nomination of the Attorney-General after
consultation with the Chief Judge of the Family Court.
365. Item 170 omits 'in accordance with this section' from subsection 124(1) and
substitutes 'by the Chief Justice of the Federal Circuit and Family Court of Australia
(Division 1)' as the current appointment process is unduly onerous, Item 173 of Schedule 1 of
this Bill repeals subsection 124(3).
Items 171 and 172 - Subsection 124(2)
366. Subsection 124(2) provides that the function of the Rules Advisory Committee is to
provide the Judges referred to in section 123 such advice in relation to the making of standard
Rules of Court as is requested from time to time by those Judges.
367. Item 171 omits 'the Judges referred to in section 123' from subsection 124(2) and
substitutes 'the Chief Justice of the Federal Circuit and Family Court of Australia (Division
1)' to reflect that the Chief Justice of the FCFC (Division 1) possesses the rule making power
under section 123 (see item 153 of Schedule 1 of this Bill).
368. Item 172 omits 'those Judges' from subsection 124(2) and substitutes 'the Chief
Justice of the Court', referring to the Chief Justice of the FCFC (Division 1) who is the only
Judge now relevant in this subsection.
57
Item 173 - Subsection 124(3)
369. Subsection 124(3) provides how members of the Rules Advisory Committee shall be
appointed. Appointments are made by the Governor-General, on the nomination of the
Attorney-General after consultation with the Chief Justice of the Family Court of Australia.
370. Item 173 repeals subsection 124(3) as this appointment process is considered to be
unnecessarily onerous and amendments made by item 170 of Schedule 1 of this Bill provide
that the appointments can be made by the Chief Justice of the FCFC (Division 1).
Item 174 - Subsection 124(6)
371. Subsection 124(6) provides that members of the Rules Advisory Committee may
resign in writing to the Governor-General.
372. Item 174 omits 'Governor-General' and substitutes 'Chief Justice of the Federal
Circuit and Family Court of Australia (Division 1)' to align with the amendment to
subsection 124(1) made by items 170 and 173 of Schedule 1 of this Bill, which provides for
the appointment of members to the Committee to be made by the Chief Justice of the FCFC
(Division 1).
Item 175 - Paragraph 125(1)(ba)
373. Subsection 125(1) provides that the Governor-General may make regulations
prescribing all matters that are required or permitted by the Family Law Act to be prescribed,
or are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Paragraph 125(1)(ba) provides that regulations may be made in relation to the authorisation
of officers or staff members of the Family Court as family counsellors or family dispute
resolution practitioners under subsections 38BD(1) and (2), respectively.
374. Item 175 repeals paragraph 125(1)(ba), as Part IVA of the Act is repealed by this Bill
(see item 38 Schedule 1 of this Bill) and equivalent authorisation provisions and regulation
making powers are included in the Federal Circuit and Family Court of Australia Act 2018.
Item 176 - Paragraph 125(1)(baa)
375. Subsection 125(1) provides that the Governor-General may make regulations
prescribing all matters that are required or permitted by the Act to be prescribed, or are
necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Paragraph 125(1)(baa) provides that regulations may be made modifying or adapting the
provisions of the Legislation Act 2003 (except certain sections) in their application to the
Family Court and any other court exercising jurisdiction under the Act.
376. Item 176 omits 'the Family Court and any other court' and substitutes 'a court'.
Reference to Family Court is omitted because an equivalent regulation making power that
applies to the FCFC (Division 1) (the continuation of the Family Court) is included in the
Federal Circuit and Family Court of Australia Act 2018.
58
Item 177 - Paragraph 125(1)(ca)
377. Paragraph 125(1)(ca) provides that regulations may be made prescribing fees payable
for services provided by the Family Court in circumstances other than where a court orders
the provision of the services.
378. Item 177 repeals paragraph 125(1)(ca) as an equivalent regulation making power that
applies to the FCFC (Division 1) (the continuation of the Family Court) is included in the
Federal Circuit and Family Court of Australia Act 2018, and, given the new court structure,
this regulation making power will no longer appropriately lie in section 125.
Item 178 - Paragraphs 125(1)(d) and (e)
379. Paragraphs 125(1)(d) and (e) provide that the section 125 regulation making power
includes exempting persons from paying court (and other) fees and refunding court (and
other) fees, respectively.
380. Item 178 omits 'and fees prescribed under paragraph (ca)' from paragraphs 125(1)(d)
and (e) as paragraph 125(1)(ca) is repealed by item 177 of Schedule 1 of this Bill.
Federal Court of Australia Act 1976
Item 179 - Section 4 (definition of administrative affairs)
381. Item 179 repeals the existing definition of 'administrative affairs' in section 4 of the
Federal Court of Australia Act 1976 and replaces it with a new definition. The new definition
makes it clear that references to administrative affairs have different meanings in relation to
the Federal Court and the FCFC. In relation to the Federal Court, new paragraph (a) of the
definition provides that administrative affairs has a meaning affected by subsection 18A(1A).
In relation to the FCFC (Division 1), administrative affairs has the meaning given to it by the
definition in the Federal Circuit and Family Court of Australia Act 2018 in relation to that
Division. In relation to the FCFC (Division 2) administrative affairs has the meaning given to
it by the definition in the Federal Circuit and Family Court of Australia Act 2018 in relation
to that Division.
Item 180 - Section 4 (definition of corporate services)
382. Item 180 repeals the existing definition of 'corporate services' in section 4 and
replaces it with a new definition. The definition makes it clear that references to corporate
services have different meanings in relation to different courts. In relation to the Federal
Court, corporate services has the meaning given to it by subsection 18A(1B). In relation to
the FCFC (Division 1), corporate services has the meaning given to it by the definition in the
Federal Circuit and Family Court of Australia Act 2018 in relation to that Division. In
relation to the FCFC (Division 2) corporate services has the meaning given to it by the
definition in the Federal Circuit and Family Court of Australia Act 2018 in relation to that
Division.
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Item 181 - Section 4 (definition of Division)
383. Item 181 makes amendments to the definition of 'Division' in section 4 to reflect the
introduction of the new Family Law Appeal Division. In particular, Item 181 includes a
reference to the Family Law Appeal Division so that the definition of Division captures all
the Divisions of the Federal Court (see item 191).
Item 182 - Section 4 (definition of Family Court Chief Executive Officer)
384. Item 182 repeals the definition of 'Family Court Chief Executive Officer' in section 4.
Under the new reforms, the Chief Executive Officer of the Federal Court will also support the
Chief Justice of the FCFC (Division 1) and the Chief Judge of the FCFC (Division 2). Having
a single Chief Executive Officer across all of the courts will assist in providing for the
consistent management of federal courts (excluding the High Court). As there will no longer
be the position of the Family Court Chief Executive Officer, the definition is not necessary.
Item 183 - section 4
385. Item 183 inserts definitions for the 'Family Court of a State', 'family law or child
support proceeding' and 'Federal Circuit and Family Court of Australia' in section 4 of the
Act. 'Family Court of a State' means a court to which section 41 of the Family Law Act
applies. 'Family law or child support proceeding' means a proceeding under the Family Law
Act, the Child Support (Assessment) Act 1989, or the Child Support (Registration and
Collection) Act 1988 (other than a proceeding under section 72Q of that Act). The 'Federal
Circuit and Family Court of Australia' means either the FCFC (Division 1) or the FCFC
(Division 2). The definition is flexible in that it allows references to the FCFC in the Act to
capture either or both Divisions depending on the circumstances in which it is used. Where
reference in the Act needs to be made to a specific Division of the FCFC, reference is made
specifically to the FCFC (Division 1) or the FCFC (Division 2).
Item 184 - section 4
386. Item 184 repeals the definitions of 'Federal Circuit Court' and 'Federal Circuit Court
Chief Executive Officer' from section 4. The definition of 'Federal Circuit Court' is no
longer required as the Federal Circuit Court will be continued as the FCFC (Division 2). The
definition of 'Federal Circuit Court Chief Executive Officer' is no longer necessary as there
will not be a Federal Circuit Court Chief Executive Officer under the new federal court
structure.
Item 185 - Section 4 (at the end of the definition of judgment)
387. Item 185 amends to definition of 'judgment' in section 4 of the Act to clarify that, for
the purposes of a matter before the Family Law Appeal Division, the definition includes a
decision and a refusal to make a decree or order. The inclusion of these additional words
reflects the definition of 'decree' in the Family Law Act, which includes a refusal to make a
decree or order.
Item 186 - Subsection 6(2)
388. Item 186 amends the requirements for being appointed as a Judge in subsection 6(2).
In particular, the structure of the subsection is amended to add an additional requirement that
a person must have the appropriate knowledge, skills and experience to deal with the kinds of
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matters that may come before the Court. This is to ensure that not only does a person need to
have the necessary duration of experience as outlined in new paragraph (a), but also the
appropriate type of knowledge, skill and experience to be appointed as a Judge of the Federal
Court. The inclusion of this additional requirement reflects the current practice for appointing
Judges.
Item 187 - Section 6A (note)
389. Item 187 repeals the existing note to section 6A and replaces it with a new note.
Section 6A provides that the Governor-General may assign a Judge to one of the Divisions of
the Federal Court and vary any such assignment with the consent of the relevant Judge. The
new note is not substantively different from the existing note, except that it reflects that there
are now three Divisions of the Federal Court rather than two Divisions. The new note
provides that a Judge (including the Chief Justice) who is not assigned to a Division of the
Federal Court may exercise the powers of the Federal Court in any Division.
Item 188 - Subsection 7(2)
390. Item 188 amends subsection 7(2), which provides that a person who is acting as the
Chief Justice in accordance with subsection 7(1) is taken not be assigned to a Division of the
Court. The item replaces the word 'either' with 'any' to reflect that there will be three
Divisions of the Federal Court, rather than two Divisions.
Item 189 - Subsection 7(2) (note)
391. Item 189 repeals the existing note to subsection 7(2) and replaces it with a new note.
The existing note provides that a Judge (including the Chief Justice) who is not assigned to
either Division of the Federal Court may exercise the powers of the Federal Court in either
Division. The new note is not substantively different from the existing note, except that it
reflects that there are now three Divisions of the Federal Court rather than two Divisions. The
new note provides that a Judge (including the Chief Justice) who is not assigned to a Division
of the Federal Court may exercise the powers of the Federal Court in any Division.
Item 190 - Section 13 (heading)
392. Item 190 repeals the heading to section 13 and replaces it with a new heading that
refers to the Family Law Appeal Division. The new heading will now read 'General, Fair
Work and Family Law Appeal Divisions of the Court'.
Item 191 - Subsection 13(1)
393. Item 191 repeals subsection 13(1) of and replaces it with a new subsection.
Subsection 13(1) currently provides that for the purpose of the organisation and conduct of
the business of the Federal Court, the Federal Court comprises the General Division and the
Fair Work Division. New subsection 13(1) is similar to existing paragraph 13(1), except that
it also provides for the Family Law Appeal Division. The existing General Division and Fair
Work Division are specified under new paragraphs 13(1)(a) and (b), respectively. The Family
Law Appeal Division is specified as a new Division of the Federal Court under new
paragraph 13(1)(c).
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Item 192 - After subsection 13(3)
394. Item 192 adds new subsection 13(3A) to provide for the exercise of the jurisdiction of
the Federal Court in the Family Law Appeal Division. In particular, new subsection 13(3A)
provides that the Family Law Appeal Division can exercise the jurisdiction that is required by
Division 2 of Part III of the Act to be exercised in the Family Law Appeal Division, and
jurisdiction incidental to such jurisdiction. This will mean the Fair Work Division will
continue to hear and determine matters that is required to be exercised in that Division (for
example, in accordance with section 562 of the Fair Work Act 2009). The General Division
will hear and determine matters where jurisdiction is not required to be exercised in the Fair
Work Division or the Family Law Appeal Division.
395. In circumstances where a proceeding gives rise to issues which are required to be
heard in multiple Divisions (for example, the General Division and the Family Law Appeal
Division), existing subsection 13(5) will operate to allow the Chief Justice to give a direction
about the allocation of the matter to a particular Division.
Item 193 - Subsection13(4)
396. Item 193 amends subsection 13(4) by repealing the existing subsection and inserting a
new subsection. Subsection 13(4) currently provides that the jurisdiction of the Federal Court
is to be exercised by the General Division in circumstances where the jurisdiction of the
Federal Court is not required to be exercised by the Fair Work Division. The item amends the
current operation of the subsection so that the General Division can exercise jurisdiction that
is not required to be exercised in either the Fair Work Division or the Family Law Appeal
Division.
Item 194 - Subsection 13(5)
397. Item 194 amends subsection 13(5), which allows the Chief Justice to give a direction
about the allocation of the matter to a particular Division in circumstances where the Court's
jurisdiction in relation to particular proceedings or proceedings of a particular kind is
required to be exercised by both Divisions. The item repeals the existing subsection and
replaces it with a new subsection 13(5) providing that the Chief Justice may give a direction
about the allocation of a matter to a particular Division in circumstances where the Court's
jurisdiction in relation to a particular proceedings or proceedings of a particular kind is
required to be exercised in more than one Division. This amendment appropriately reflects
the introduction of the Family Law Appeal Division of the Court.
Item 195 - After section 13
398. Item 195 introduces new section 13A. Section 13A provides that the Chief Justice
may authorise a Judge to manage a class or classes of proceedings. The purpose of this
clause is to enable more specialist management of particular classes of proceedings.
399. Subsection 13A(1) provides that the Chief Justice may, by written instrument,
authorise a Judge to manage a class or classes of proceedings. The class or classes of
proceedings may be specified in the instrument of authorisation or by the Rules of Court.
Such instrument would not be a legislative instrument by virtue of the operation of paragraph
(c) of item 8 in the table in section 6 of the Legislation (Exemptions and Other Matters)
Regulations 2015.
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400. Subsection 13A(2) provides that in managing a class or classes of proceedings, a
Judge is subject to any direction from the Chief Justice.
401. Subsection 13A(3) provides that a Judge may be authorised even though the Judge is
not assigned to a Division.
402. Subsection 13A(4) provides that the authorisation of a Judge does not affect the rank,
title, status and precedence that the Judge would otherwise have.
403. Subsection 13A(5) provides that, if the Chief Justice gives a direction under
subsection 13A(2) in writing, that direction is not a legislative instrument. This subsection is
to assist readers as the direction would not be a legislative instrument within the meaning of
subsection 8(1) of the Legislation Act 2003.
Item 196 - Subsection 15(1AAA)
404. Item 196 amends subsection 15(1AAA), which relates to the dealing of a complaint
about a Judge. The item clarifies that the subsection applies to a complaint about 'another
Judge of the Court'. The clarification is necessary to ensure that the subsection does not apply
in relation to a Judge of a court other than the Federal Court.
Item 197 - Subsection 15(1A) (heading)
405. Item 197 repeals the heading to subsection 15(1A) and replaces it with a new heading
that refers to the Family Law Appeal Division. The new heading will now read 'Exercise of
powers of General, Fair Work and Family Law Appeal Divisions of the Court'.
Item 198 - Subsection 15(1B)
406. Item 198 amends subsection 15(1B) by substituting the reference to 'the other
Division' with 'another Division'. Subsection 15(1B) currently provides that the Chief Justice
may arrange for a Judge who is assigned to a particular Division of the Court to exercise the
powers of the other Division of the Court. The item amends the current operation of the
subsection to account for the creation of the Family Law Appeal Division in the Federal
Court.
Item 199 - Subsection 15(1C)
407. Item 199 repeals subsection 15(1C) and replaces it with a new subsection. Existing
subsection 15(1C) is an avoidance of doubt provision which provides that a Judge who is not
assigned to either Division of the Federal Court may exercise, or participate in exercising, the
powers of the Federal Court in either Division. New 15(1C) is not substantially different from
the existing subsection, except that it contains the necessary language changes to extend the
operation of the subsection so that it applies in relation to any Division of the Court,
including the Family Law Appeal Division rather than 'either Division' (which currently only
captures the General Division and Fair Work Division).
Item 200 - Sections 15A and 16
408. Item 200 repeals section 15A and 16, and substitutes new section 16. Section 15A
outlines that the Chief Justice of the Federal Court and the Chief Justice of Family Court can
consult about the transfer of proceedings pending in the Federal Court to the Family Court.
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The removal of the section does not prevent the Chief Justice of the Federal Court consulting
with the Chief Justice of the FCFC (Division 1) or the Chief Judge of the FCFC (Division 2)
about the transfer of proceedings as this can occur regardless of the existence of the section.
Transfers from the Federal Court to the FCFC (Division 1) will now be able to made pursuant
to section 32AB by virtue of the amendments made by items 243 to 247 of this Schedule.
409. New section 16 provides that if the opinion of the Judges constituting the Full Court
of the Federal Court is divided, the majority opinion will prevail. However, if Judges of the
Full Court of Federal Court are equally divided in opinion in an appeal from the FCFC
(Division 1) (or a Federal Court judgment of a single Judge, or from a Supreme Court of a
State or Territory), that the judgment of the FCFC (Division 1) (or single Judge, or Supreme
Court of a State or Territory) is affirmed. For equally divided opinions of the Full Court in
respect of appeals from decisions of other courts, the opinion of the Chief Justice, or if the
Chief Justice is not a member of the Full Court, the next most Senior Judge, is to prevail.
These amendments appropriately continue the effect of paragraph 30(a) of the Family Law
Act, which is repealed by item 38 of Schedule 1 of this Bill.
Item 201 - After paragraph 18A(1B)(e)
410. Item 201 inserts two new paragraphs into subsection 18A(1B). Subsection 18A(1B)
provides that the matters specified in the subsection are the corporate services of the Federal
Court. In accordance with subsection 18(1) and (1A), the Chief Justice is responsible for
managing the administrative affairs of the Federal Court except for corporate services. Under
section 18Z of the Act, the Chief Executive Officer is responsible for providing the corporate
services of the Federal Court. New paragraphs (ea) and (eb) provide that records management
and administrative matters relating to judgments (to the extent that such matters do not
involve the exercise of judicial power) are included in the corporate services of the Court.
The Chief Executive Officer of the Federal Court already takes responsibility for these
matters. These updates are therefore intended to clarify the delineation of matters as between
administrative affairs and corporate services.
411. Records management includes the development of record keeping and management
policies and practices, management of Records Authorities agreed with the National Archives
of Australia, management on behalf of the Courts and the National Native Title Tribunal of
digital and physical case and administrative files. It also includes transferring digital and
physical files required for retention to the National Archives of Australia, management of
records contracts (for example with offsite storage providers) and support for information
governance.
412. Administrative matters relating to judgments, to the extent that such matters do not
involve the exercise of judicial power, includes development of judgment templates, style
guides, systems and applications, redaction of personal and other identifying information
from judgments where appropriate or required at law or by order. It also includes electronic
publication of judgments on court websites and intranets, the distribution of all judgments as
appropriate to legal publishers, and provision of training in the use of templates and systems.
Item 202 - After paragraph 18A(1B)(h)
413. Item 202 inserts new paragraph 18A(1B)(h). Subsection 18A(1B) provides that the
matters specified in the subsection are the corporate services of the Federal Court. In
accordance with subsection 18(1) and (1A), the Chief Justice is responsible for managing the
64
administrative affairs of the Federal Court except for corporate services. Under section 18Z
of the Act, the Chief Executive Officer is responsible for providing the corporate services of
the Federal Court. New paragraph (h) provides that court security is included in the corporate
services of the Court. The Chief Executive Officer of the Federal Courts already takes
responsibility for this matter. The update is therefore intended to clarify the delineation of
matters as between administrative affairs and corporate services.
414. Court security includes the development of policies, procedures and practices for the
security of the Courts, judges and other court personnel as well as for court premises. It also
includes the development of policies, procedures and practices for emergency and threat
management, management of the acquisition, maintenance and replacement of security
equipment and apparatus (for example for monitoring appropriate areas of premises,
screening of persons, bags and mail on entry, controlling and monitoring access to the
premises and parts of premises as appropriate), management of security contracts (for
example for guarding), compliance with all external regulatory and similar requirements
regarding court security, and security training for judges and court personnel.
Item 203 - At the end of subsection 18D(1)
415. Item 203 inserts a new note to subsection 18D(1). Subsection 18D(1) provides that the
Chief Executive Officer has the power to do all things necessary or convenient to be done for
the purpose of assisting the Chief Justice of the Court. Under the new reforms, the Chief
Executive Officer of the Federal Court will also support the Chief Justice of the FCFC
(Division 1) and the Chief Judge of the FCFC (Division 2). The new note outlines that the
Chief Executive Officer has similar powers to those in subsection 18D(1) in relation to
supporting the Chief Justice of the FCFC (Division 1) and the Chief Judge of the FCFC
(Division 2).
Item 204 - At the end of subsection 18D(3)
416. Item 204 inserts a new note to subsection 18D(3). Subsection 18D(3) provides that the
Chief Justice may give the Chief Executive Officer directions regarding the exercise of his or
her power under Part IIA of the Act. As outlined in item 203 above, the Chief Executive
Officer of the Federal Court will also support the Chief Justice of the FCFC (Division 1) and
the Chief Judge of the FCFC (Division 2). The new note outlines that the Chief Executive
Officer may also be given similar directions to those in subsection 18D(3) by the Chief
Justice of the FCFC (Division 1) and the Chief Judge of the FCFC (Division 2).
Item 205 - After paragraph 18N(1)(d)
417. Item 205 inserts new paragraphs 18N(1)(da) and (db). The new paragraphs provide
for there to be a Marshal of the Federal Court and such Deputy Marshals of the Federal Court
as are necessary as officers of the Federal Court. The offices of Marshal and Deputy Marshal
are new to the Federal Court, although they already exist for the Family Court and the
Federal Circuit Court (and will continue as positions of the FCFC (Division 1) and FCFC
(Division 2)). The creation of the offices in the Federal Court recognises that family law
matters are often highly emotional and can involve potentially unsafe situations for families
and children. The creation of the Marshal and Deputy Marshal offices will ensure the
continued safety for families and children and other persons who attend the Federal Court.
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Item 206 - Subsection 18N(4)
418. Item 206 amends subsection 18N(4), which currently provides that the officers of the
Federal Court (other than the Chief Executive Officer, the Deputy Sheriffs and the Marshals
for the purposes of the Admiralty Act 1988) are to be persons engaged under the Public
Service Act 1999. The item omits the words 'and the Marshals' and replaces them with 'the
Deputy Marshals of the Court and the Marshals for the purposes of the Admiralty Act 1988.
This amendment includes Deputy Marshals within the operation of the subsection. This
approach is consistent with the approach proposed for Deputy Marshals of the FCFC
(Division 1) and the FCFC (Division 2).
Item 207 - Subsection 18N(5)
419. Item 207 amends subsection 18N(5), which currently provides that the Deputy
Sheriffs and the Marshals for the purposes of the Admiralty Act 1988 may be persons
engaged under the Public Service Act 1999. The item omits the words 'and the Marshals' and
replaces them with 'the Deputy Marshals of the Court and the Marshals for the purposes of
the Admiralty Act 1988. This amendment includes Deputy Marshals within the operation of
the subsection. This approach is consistent with the approach proposed for Deputy Marshals
of the FCFC (Division 1) and the FCFC (Division 2).
Item 208 - Section 18P
420. Item 208 repeals section 18P and replaces it with a new section. Existing section 18P
outlines the responsibilities of the Sheriff of the Federal Court. New section 18P is similar to
existing 18P, except that the responsibilities of the Sheriff under existing subsection 18P(2)
are removed and placed within the responsibilities of the new Marshal of the Federal Court.
This is consistent with the approach in the FCFC (Division 2).
421. New subsection 18P(1) provides that the Sheriff of the Federal Court is responsible
for the service and execution of all process of the Federal Court directed to the Sheriff. This
provision is the same as existing subsection 18P(1).
422. New subsection 18P(2) provides that the Sheriff of the Federal Court is also
responsible for dealing, on behalf of the Court, with police in relation to the services and
execution of process of the Federal Court directed to members of any of those police forces.
423. Subsection 18P(3) provides that the Sheriff of the Federal Court is also responsible for
matters under Division 1A of Part III of the Act directed to the Sheriff. This provision is the
same as existing subsection 18P(2A).
18PA - Deputy Sheriffs
424. This item inserts new section 18PA. New section 18PA provides that a Deputy Sheriff
of the Federal Court may, subject to any directions of the Sheriff of the Federal Court,
exercise or perform any of the powers or functions of the Sheriff. New section 18PA is
substantively the same as existing 18P(3) of the Act.
18PB - Authorised persons to assist the Sheriff or Deputy Sheriff
425. This item inserts new section 18PB. New subsection 18PB(1) provides that the Sheriff
of the Federal Court may authorise persons to assist the Sheriff in exercising powers or
66
performing functions as the Sheriff. New subsection 18PB(2) provides that a Deputy Sheriff
of the Federal Court may authorise persons to assist the Sheriff in exercising powers or
performing functions as the Deputy Sheriff. New section 18PB is substantively the same as
existing 18P(4) of the Act.
18PC - Marshal
426. This item inserts new section 18PC. New section 18PC establishes the position of
Marshal of the Federal Court. As outlined in item 205, the Marshal position is new to the
Federal Court, although it already exists for the Family Court and the Federal Circuit Court
(and will continue as a position of the FCFC (Division 1) and FCFC (Division 2),
respectively). The inclusion of the position in the Federal Court recognises that family law
matters are often highly emotional and can involve potentially unsafe situations for families
and children. The position is designed to ensure the continued safety for families and children
and other persons who attend the Federal Court, following the introduction of the Family
Law Appeal Division of the Federal Court.
427. Subsection 18PC(1) provides that the Marshal of the Federal Court is responsible for
the security of the Federal Court and the personal security of the Judges and officers and staff
of the Federal Court. Subsection 18PC(2) provides that the Marshal of the Federal Court is
also responsible for taking, receiving and detaining all persons committed to the Marshal's
custody by the Federal Court and discharging such persons when so directed by the Federal
Court or otherwise required by law.
18PD - Deputy Marshals
428. This item inserts new section 18PD. For the same reasons outlined in the item above,
new section 18PD establishes the position of Deputy Marshal of the Federal Court. New
section 18PD provides that a Deputy Marshall of the Federal Court may, subject to any
discretions of the Marshal of the Federal Court, exercise or perform any of the powers or
functions of the Marshal.
18PE - Authorised persons to assist the Marshal or Deputy Marshals
429. This item inserts new section 18PE. Subsection 18PE(1) provides that the Marshal of
the Federal Court may authorise persons to assist the Marshal in exercising powers or
performing functions as the Marshal. Subsection 18PE(2) provides that a Deputy Marshal of
the Federal Court may authorise persons to assist the Deputy Marshal in exercising powers or
performing functions as the Deputy Marshal. Allowing authorised persons to assist the
Marshal and Deputy Marshal is consistent with the approach already taken by the Act in
relation to Sheriffs and Deputy Sheriffs. Further, it is consistent with the approach adopted by
the Family Court and Federal Circuit Court in relation to the existing Marshal and Deputy
Marshal positions within each of those courts.
Item 209 - Paragraphs 18Z(1)(b) and (c)
430. Item 209 repeals paragraphs 18Z(1)(b) and (c) and replaces them with new
paragraphs. Paragraphs 18Z(1)(b) and (c) currently provide that the Chief Executive Officer
provides corporate services to the Family Court and Federal Circuit Court, respectively. The
item replaces these paragraphs with new ones which provide that the Chief Executive Officer
provides corporate services to the FCFC (Division 1) and the FCFC (Division 2),
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respectively. The new paragraphs ensure the continuation of the shared corporate services
across the federal courts (excluding the High Court) that was introduced by the Courts
Administration Legislation Amendment Act 2016.
Item 210 - Paragraphs 18Z(3)(b) to (e)
431. Item 210 repeals paragraphs 18Z(3)(b) to (e) and replaces them with new paragraphs
18(3)(b) and (c). Subsection 18Z(3) provides that the Chief Executive Officer must consult
certain persons in the performance of functions and exercise of powers under section 18Z.
Paragraphs (b) to (e) provide that the Chief Executive Officer must consult the Chief Justice
of the Family Court, Chief Judge of the Federal Circuit Court, the Chief Executive Officer of
the Family Court and the Chief Executive Officer of the Federal Circuit Court. Consultation
with the Family Court and Federal Circuit Court Chief Executive Officers is no longer
required as those positions are being removed under the reforms. The new paragraphs provide
that the Chief Executive Officer must consult with the Chief Justice of FCFC (Division 1)
and the Chief Judge of FCFC (Division 2) the performance of functions and exercise of
powers under section 18Z.
Item 211 - Subsection 18Z(5)
432. Item 211 repeals subsection 18Z(5) of the Act and replaces it with a new subsection.
Subsection 18Z(5) currently provides that the Chief Executive Officer must not make a
decision that imposes expenditure obligations on the Courts in relation to providing corporate
services unless the relevant Chief Justice or Chief Judge is consulted and consents to the
decision, or the Attorney-General consents after consulting the relevant Chief Justice or Chief
Judge. The provision ensures that the Chief Executive Officer, in managing corporate
services, cannot impose spending obligations on the Courts without input from the relevant
head of jurisdiction.
433. The new subsection departs slightly from the approach introduced in the Courts
Administration Legislation Amendment Act 2016. In particular, while consultation is still
required before the Chief Executive Officer can impose an expenditure obligation on the
courts in relation to providing corporate services, the consent of the relevant Chief Justice or
Chief Judge is not required. Further, the Attorney-General will no longer have a role to
consent to the imposition of an expenditure obligation.
434. At a practical level, the Chief Executive Officer works closely with the Chief Justices
and Chief Judge in imposing expenditure obligations in relation to corporate services on the
courts. The requirement that the Chief Executive Officer obtain the consent of the relevant
Chief Justice or Chief Judge adds an extra layer of administration that is not required.
Additionally, the courts themselves should be responsible for their administration, and it is
not necessary to provide that the Attorney-General can consent to an expenditure obligation
on the courts. The new subsection also provides greater opportunity for the Chief Justice of
the Federal Court to be involved in expenditure decisions across the courts. The new
subsection provides that the Chief Executive Officer must not make a decision that imposes
expenditure obligations on the courts, unless:
In relation to the Federal Court - the Chief Justice of the Federal Court is consulted,
In relation to FCFC (Division 1) - the Chief Justice of the Federal Court and Chief
Justice of Division 1 are consulted, and
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In relation to FCFC (Division 2) - the Chief Justice of the Federal Court and Chief
Judge of Division 2 are consulted.
Item 212- Subparagraphs 18ZB(a)(iv) to (ix)
435. Item 212 repeals subparagraphs 18ZB(a)(iv) to (ix) and replaces them with new
paragraphs. Paragraph 18ZB(a) provides that, for the purposes of the finance law (which has
the same meaning as 'finance law' in section 8 of the Public Governance, Performance and
Accountability Act 2013), the group of persons specified in subparagraphs (a)(i) to (xiii) form
the listed entity known as the 'Federal Court of Australia'. Under the reforms introduced in
Courts Administration Legislation Amendment Act 2016, the administrative entities for the
Family Court and the Federal Circuit Court were merged into one administrative entity, the
Federal Court, for the purposes of the finance law.
436. Subparagraphs ZB(a)(iv) to (ix) currently refer either to existing positions within the
Family Court or Federal Circuit Court or to the Chief Executive Officer positions within the
Family Court and Federal Circuit Court. The item repeals these subparagraphs and replaces
them with new subparagraphs (iv) to (vii). The new subparagraphs refer to positions within
the FCFC (Division 1) and the FCFC (Division 2), rather than the Family Court and Federal
Circuit Court, and do not include the Chief Executive Officer positions of the Family Court
and Federal Circuit Court as these positions will no longer exist. The amendments reflect the
continuation of the Family Court as the FCFC (Division 1) and the Federal Circuit Court as
the FCFC (Division 2).
Item 213 - Subparagraphs 18ZB(e)(ii) and (iii)
437. Item 213 repeals subparagraphs 18ZB(e)(ii) and (iii) and replaces them with a new
paragraph. Paragraph (e) currently provides that the purposes of the listed entity (the 'Federal
Court of Australia') include the functions of the Chief Executive Officers of the Federal
Court, Family Court and Federal Circuit Court. The item repeals the functions relating to the
Chief Executive Officers of the Family Court and Federal Circuit Court as these positions
will no longer exist. New subparagraph 18ZB(e)(ii) includes the functions that the Chief
Executive Officer will be responsible for in relation to the FCFC (Division 1) and the FCFC
(Division 2).
Item 214 - Section 18ZC
438. Item 214 repeals section 18ZC and replaces it with a new section. Existing section
18ZC relates to the application of section 110 of the Public Governance, Performance and
Accountability Act 2013. The section refers to the Family Court, Federal Circuit Court and
the respective Chief Executive Officers for each court. New section 18ZC is substantially the
same as the existing section, except that it is updated to reflect that the Family Court will be
continued as the FCFC (Division 1), the Federal Circuit Court will be continued as the FCFC
(Division 2), and the positions of Chief Executive Officer of the Family Court and the
Federal Circuit Court will no longer exist.
Item 215 - Subparagraphs 18ZD(1)(b)(ii) to (iv)
439. Item 215 repeals subparagraphs 18ZD(1)(b)(ii) to (iv) and replaces them with new
paragraphs. Subsection (1) provides the criteria for the application of the section. 18ZB(1)(b)
provides that the section applies (subject also to paragraphs (a) and (c)) if there is an outcome
69
for the listed entity that relates to the administrative affairs of the Court, the Family Court or
the Federal Circuit Court or the corporate services of the Federal Court, the Family Court, or
the Federal Circuit Court. The item replaces existing subparagraphs (b)(ii) to (iv) with
paragraphs which refer to the administrative affairs of the FCFC (Division 1), the FCFC
(Division 2), and the corporate services of the Federal Court, the FCFC (Division 1) and the
FCFC (Division 2). The substantive operation of the existing paragraphs is not changed by
the new paragraphs, only references to the names of the courts.
Item 216 - Subsections 18ZD(2) and (3)
440. Item 216 repeals subsections 18ZD(2) and (3) and replaces them with new a new
subsection. Subsection (2) currently provides that before spending a part of the outcome
amount for another outcome the Chief Executive Officer must first both consult the relevant
Chief Justice or Chief Judge and obtain their consent, or obtain the consent of the Attorney-
General. Subsection (3) currently provides that before the Attorney-General can give consent
under subsection (2) the Attorney-General must consult with relevant Chief Justice or Chief
Judge.
441. Similar to the reasoning provided for the changes at item 211, the requirement in
subsection (2) that the Chief Executive Officer obtain the consent of the relevant Chief
Justice or Chief Judge adds an extra layer of administration that is not required. At a practical
level, the Chief Executive Officer works closely with the Chief Justices and Chief Judge in
spending outcomes amounts. Additionally, the courts themselves should be responsible for
their administration, and it is not necessary to provide that the Attorney-General can consent
to an expenditure obligation on the courts.
442. As such, new subsection (2) provides that before spending a part of an outcome
amount for another outcome, if the outcome amount relates to the administrative affairs of the
Federal Court, the FCFC (Division 1) or the FCFC (Division 2) the Chief Executive Officer
must consult with relevant Chief Justice or Chief Judge. The new subsection also provides
greater opportunity for the Chief Justice of the Federal Court to be involved in expenditure
decisions across the courts. The table in the new subsection provides that before spending
part of the outcome amount for another outcome the Chief Executive Officer must:
in relation to the Federal Court - consult the Chief Justice of the Federal Court,
in relation to Division 1 - consult the Chief Justice of the Federal Court and Chief
Justice of Division 1, and
in relation to Division 2 - consult Chief Justice of the Federal Court and Chief Judge
of Division 2.
Item 217- Subparagraphs 18ZE(2)(b)(ii) and (iii)
443. Item 217 repeals subparagraphs 18ZE(2)(b)(ii) and (iii) and replaces them with a new
subparagraph. Subsection (2) currently specifies the persons who constitute a Statutory
Agency for the purposes of the Public Service Act 1999. Subparagraphs (2)(b)(ii) and (iii)
specify that the persons listed in section 38N of the Family Law Act and section 101,
subsection 106(1), subsection 107(1), subsection 109(1), subsection 110(1), section 111A and
section 112 of the Federal Circuit Court Act are amongst the persons who constitute the
Statutory Agency. The item repeals these subparagraphs and replaces them with new
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subparagraph (iii), which refers to the correct provisions of the new Federal Circuit and
Family Court of Australia Act 2018. The amendments do no change the intent of subsection
18ZE(2).
Item 218 - Sections 18ZF and 18ZG
444. Item 218 repeals existing sections 18ZF and 18ZG and replaces them with a new
section. Existing subsection 18ZF provides that the Chief Executive Officer must make the
services of APS employees who are officers of the Family Court, or staff of the Registries of
the Family Court, available for the purposes of assisting the Family Court Chief Executive
Officer in the performance of his or her functions. In performing services, the persons made
available must do so in accordance with the directions of the Chief Justice of the Family
Court and the Family Court Chief Executive Officer. Subsection 18ZF also provides for
similar arrangements in relation to the Federal Circuit Court.
445. New subsection 18ZF will not substantively depart from existing subsection 18ZF,
except that APS employees who are officers of the FCFC (Division 1), or staff of the
Registries of the FCFC (Division 1), must be made available to Chief Executive Officer of
the Federal Court in the performance of the Chief Executive Officer's functions in relation to
the FCFC (Division 1). New subsection 18ZF will provide similar arrangement in relation to
the FCFC (Division 2).
446. Item 18ZG is no longer required as it relates to delegations concerning the Family
Court Chief Executive Officer and the Federal Circuit Court Chief Executive Officer,
positions which will no longer exist under the new court structure.
Item 219 - Paragraphs 18ZH(1)(b) and (c)
447. Item 219 repeals existing paragraphs 18ZH(1)(b) and (c) and replaces them with new
paragraphs. In accordance with subsection 18ZH(1), the Chief Executive Officer has the
power to appoint specified officers. Subsections (b) and (c) provide that the Chief Executive
Officer has the power to appoint certain officers of the Family Court and the Federal Circuit
Court. Similar to the existing subparagraphs, new subparagraphs (b) and (c) will allow the
Chief Executive Officer to appoint specified officers of the FCFC (Division 1) and the FCFC
(Division 2).
Item 220 - Subsections 18ZH(2) and (3)
448. Item 220 repeals subsections 18ZH(2) and (3) as they are no longer required. Under
the subsections, the Chief Executive Officer is given the power to delegate his or her
appointment powers to the Family Court Chief Executive Officer and the Federal Circuit
Court Chief Executive Officer. As these positions will no longer exist the provisions are no
longer required.
449. The item also inserts new subsection (2), which provides that the appointment of a
person to more than one office, or an office or offices of more than one court, mentioned in
subsection 18ZH(1) may be made in a single instrument. This insertion of this provision
seeks to improve the practicality of appointments by allowing more than one to be made in a
single instrument, reducing the administrative burden.
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Item 221 - Paragraphs 18ZI(1)(b) and (c)
450. Item 221 repeals paragraphs 18ZI(1)(b) and (c) and replaces them with new
paragraphs. Subsection 18ZI(1) currently provides that the Chief Executive Officer may
engage persons having suitable qualifications and experience as consultants to, or to perform
services for, the Federal Court, the Family Court, the Federal Circuit Court and the National
Native Title Tribunal. New paragraphs (b) and (c) will correctly refer to the FCFC
(Division 1) and the FCFC (Division 2), rather than the Family Court and Federal Circuit
Court, respectively.
Item 222 - Subsections 18ZI(4) and (5)
451. Item 222 repeals subsections 18ZI(4) and (5), which relate to the delegation of powers
to the Family Court Chief Executive Officer and the Federal Circuit Court Chief Executive
Officer. As these positions will no longer exist the provisions are no longer required.
Item 223 - Section 18ZJ
452. Item 223 repeals subsections 18ZJ, which relates to the delegation of powers to the
Family Court Chief Executive Officer and the Federal Circuit Court Chief Executive Officer.
As these positions will no longer exist, section 18ZJ is no longer required.
Item 224 - Section 18ZK
453. Item 224 repeals existing section 18ZK and replaces it with a new section. Section
18ZK provides that a person may be an officer of one or more of the Federal Court, Family
Court, or Federal Circuit Court. New subsection 18ZK(1) is similar to the existing section,
except that it is updated to refer to the FCFC (Division 1) and the FCFC (Division 2).
Additionally, in a similar manner to existing subsection 18ZK(2), new subsection 18ZK(2)
will provide that subsection (1) has effect despite anything in the Federal Court Act or the
Federal Circuit and Family Court of Australia Act 2018.
Item 225 - Before subsection 24(1)
454. Item 225 inserts a subheading before subsection 24(1). The subheading provides
'Appellate jurisdiction - general matters', and is necessary to distinguish the Federal Court's
appellate jurisdiction for general matters in subsection 24(1) with its new appellate
jurisdiction for family law matters (refer to item 227).
Item 226 - Paragraphs 24(1)(d) and (e)
455. Item 226 amends paragraphs 24(1)(d) and (e) to replace references to the Federal
Circuit Court with references to the FCFC (Division 2). Subsections (d) and (e) relate to the
Federal Court's jurisdiction to hear appeals from judgments of the Federal Circuit Court. The
item updates the reference to the Federal Circuit Court to be the FCFC (Division 2), but does
not change the substantive operation of the paragraphs.
Item 227 - Subsections 24(1AA) to (1E)
456. Item 227 repeals existing subsections 24(1AA) to (1E) and replaces them with new
subsections (2) to (7). In particular, new subsection (2) provides for the Federal Court's
appellate jurisdiction in relation to family law and child support proceedings. New paragraph
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(2)(a) provides for the jurisdiction of the Court for appeals from the FCFC (Division 1) or the
FCFC (Division 2) in relation to matters arising under:
the Family Law Act
the Child Support (Assessment) Act 1989
the Child Support (Registration and Collection) Act 1988 (other than section 72Q of
that Act)
regulations made under an Act referred to in the preceding three dot points
any other law in relation to a matter in a family law or child support proceeding.
457. New paragraph (2)(b) provides that the Federal Court has jurisdiction for appeals
from a judgment of a Family Court of a State or a Supreme Court of a State or Territory
constituted by a single Judge where that court is exercising original or appellate jurisdiction
under the Family Law Act, the Child Support (Assessment) Act 1989, or the Child Support
(Registration and Collection) Act 1988. Paragraph (2)(c) also provides that the Federal Court
has jurisdiction for a judgment or decision of a Judge exercising original or appellate
jurisdiction rejecting an application that the Judge disqualify himself or herself from further
hearing the matter.
458. The appellate jurisdiction of the Federal Court for family law and child support
matters will be largely the same as that currently invested in the Family Court. However, the
Federal Court will not be given jurisdiction to hear appeals from state and territory courts of
summary jurisdiction, which will be retained by the FCFC (Division 1) and given to the
FCFC (Division 2) (see item 72 of Schedule 1 of this Bill)). The conferral of appellate
jurisdiction for family law and child support matters is central to the structural reform of the
courts. By investing the Federal Court with appellate jurisdiction, and removing most of the
appellate jurisdiction of the Family Court, judicial resources of the FCFC (Division 1) will be
able to be redirected to hear more first instance family law matters. It is appropriate for
appellate jurisdiction to be conferred on the Federal Court as it is a superior court with
experienced Judges. Further, the inclusion of the list provisions and a specialised Division -
the Family Law Appeal Division - will allow Judges with more experience in dealing with
family law matters to be allocated specific family law appeal matters.
459. New subsection (3) provides that the Federal Court's appellate jurisdiction in relation
to family law and child support matters is to be exercised by the Family Law Appeal
Division.
460. New subsections (4) to (7) largely reflect existing subsections (1AA) to (1E).
Item 228 - After section 24
461. Item 228 inserts new section 24A. New subsection 24A(1) provides that for leave of
the Federal Court is required to appeal to the Family Law Appeal Division in some family
law or child support matters. Paragraph (1)(a) provides that leave to appeal is required for
particular judgments of a court (other than a court of summary jurisdiction) exercising
jurisdiction under the Child Support (Assessment) Act 1989 or the Child Support
(Registration and Collection) Act 1988 (other than section 72Q of that Act). The Federal
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Circuit and Family Court of Australia Act 2018 vests jurisdiction in both the FCFC (Division
1) and the FCFC (Division 2) to hear and determine appeals of a judgment of a court of
summary jurisdiction of a State or Territory exercising jurisdiction under the Child Support
(Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988. Unless
granted leave by the Family Law Appeal Division, those particular appeals should lie either
to the FCFC (Division 1) or the FCFC (Division 2) in the first instance.
462. Paragraph (1)(b) provides that prescribed judgments of the FCFC, a Family Court of a
State, or a Supreme Court of a State or Territory constituted by a single Judge requires leave
of the Family Law Appeal Division to appeal to the Family Law Appeal Division. Item 57 of
Schedule 3 of this Bill will provide what constitutes a 'prescribed judgment' for the purposes
of paragraph 24A(1)(b) of the Federal Court Act.
463. Subsection (2) provides that, for the purposes of paragraph (1)(a), a Family Court of a
State is not a court of summary jurisdiction.
464. Subsection (3) provides that the Rules of Court may make provisions for enabling
application for leave to be dealt with, subject to conditions prescribed by the Rules, without
an oral hearing. This provision seeks to allow the Federal Court to expedite the process for
determining applications for leave to appeal subject to the conditions the Federal Court thinks
are necessary. This provision will allow, where appropriate, applications for leave to be dealt
with quickly and fairly without the need for an oral hearing.
Item 229 - Subsection 25(1AA)
465. Item 229 amends subsection 25(1AA) by omitting the reference to 'Federal Circuit
Court' and substituting 'Federal Circuit and Family Court of Australia (Division 2)'.
Subsection 25(1AA) currently provides that the appellate jurisdiction of the Federal Court in
relation to an appeal from the Federal Circuit Court is to be exercised by a single Judge or by
a Full Court if a Judge considers that it is appropriate for the appellate jurisdiction of the
Federal Court to be exercised by a Full Court. This amendment will apply in respect of
appeals to the Family Law Appeal Division, the General Division and the Fair Work Division
of the Federal Court from both of the family law and general federal law jurisdictions of the
FCFC (Division 2). As such, the amendment appropriately reflects the continuation of the
Federal Circuit Court as the FCFC (Division 2) and the conferral of family law appellate
jurisdiction upon the Family Law Appeal Division of the Federal Court.
Item 230 - After paragraph 25(2)(b)
466. Item 230 inserts new paragraph (ba) after subsection 25(2)(b). New paragraph (ba)
provides that an application for an extension of time within which to file an application for
leave to appeal to the Family Law Appeal Division of the Federal Court must be heard and
determined by a single Judge unless the Judge directs the application to be heard and
determined by a Full Court or the application is made in a proceeding that has already been
assigned to a Full Court and the Full Court considered it is appropriate to hear and determine
the application. The inclusion of the paragraph is consistent with the approach adopted in
existing paragraph (2)(a) in relation to applications for leave or special leave to appeal to the
Federal Court, and ensures that applications for leave to the Family Law Appeal Division are
only heard by a Full Court when necessary.
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Item 231 - Paragraph 25(2)(d)
467. Item 231 amends paragraph 25(2)(d) by omitting the current reference to 'a Full
Court' and substituting 'a Full Court or of a single Judge of the Family Law Appeal Division
of the Court; or'. Paragraph 25(2)(d) currently provides that applications to stay an order of a
Full Court must be heard and determined by a single Judge, unless the Judge directs the
application to be heard and determined by a Full Court or the application is made in a
proceeding that has already been assigned to a Full Court and the Full Court considered it is
appropriate to hear and determine the application. The amendment to paragraph (d) will
provide that the provision not only applies to the Full Court, but also to a single Judge of the
Family Law Appeal Division. This amendment is appropriate to ensure that applications to
stay an order of the Family Law Appeal Division are only heard by a Full Court when
necessary.
Item 232 - After paragraph 25(2)(d)
468. Item 232 inserts new paragraph (da) after existing paragraph 25(2)(d). New paragraph
(da) will operate so that an application for security for costs in relation to an appeal to the
Family Law Appeal Division must be heard and determined by a single Judge unless the
Judge directs the application to be heard and determined by a Full Court or the application is
made in a proceeding that has already been assigned to a Full Court and the Full Court
considered it is appropriate to hear and determine the application. This is appropriate so as to
ensure that applications for security for costs in relation to an appeal for the Family Law
Appeal Division are only heard by a Full Court when necessary.
Item 233 - At the end of section 25
469. Item 233 inserts new subsection 25(7). New subsection (7) provides that no appeal
lies under section 25 from an, order or direction of a kind mentioned in paragraph (2B)(b) or
(c) given by the Court while exercising its jurisdiction in the Family Law Appeal Division .
This subsection does not affect rights of appeal currently available under the Family Law
Act, but ensures the continuing efficiency of the Federal Court by ensuring that the Family
Law Appeal Division is not burdened with appeals in relation to matters it has already
determined.
Item 234 - After section 25
470. Item 234 inserts new section 25A. New subsection 25A(1) provides that an appeal
under subsection 24(2) may be dealt with by the Court in family law or child support
proceedings without an oral hearing if the parties to the appeal consent to the appeal being
dealt with in that way. The note to new subsection 25A(1) clarifies for the reader that
subsection 24(3) of the Federal Court Act requires that the appellate jurisdiction of the Court
in respect of family law or child support proceedings (item 227 of Schedule 1 of this Bill
refers) must be exercised in the Family Law Appeal Division. This provision seeks to
facilitate the just and efficient resolution of family law and child support disputes by avoiding
oral hearings when appropriate. The provision is similar to existing section 94AAB of the
Family Law Act.
471. Subsection (2) provides that subsection (1) does not apply if the Family Law Appeal
Division orders otherwise. This is to ensure that even when parties consent to an appeal being
dealt with without an oral hearing, the Federal Court can determine that an oral hearing is still
75
required. The Federal Court may determine as such if, for example, it believes that a
disadvantaged party should be heard at an oral hearing despite providing consent.
472. Subsection (3) provides that a consent given for the Family Law Appeal Division to
deal with the appeal without an oral hearing may only be withdrawn with the leave of the
Family Law Appeal Division.
Item 235 - Subsection 26(2)
473. Item 235 repeals existing subsection 26(2) and replaces it with a new subsection.
Section 26 relates to cases stated and questions reserved. New subsection 26(2) builds on
existing subsection (2) to account for the introduction of the Family Law Appeal Division. In
particular it provides that, subject to any other Act, when the Court's jurisdiction is being
exercised by the Family Law Appeal Division, if the court stating the case or reserving the
question is not the FCFC (Division 2), the jurisdiction must be exercised by a Full Court. The
effect of this provision is to make clear that a case stated or a question reserved from the
FCFC (Division 1), the Family Court of Western Australia, or from a Supreme Court of a
State or Territory in a family law or child support proceeding, is to be heard by a Full Court
of the Federal Court.
474. New subsection 26(2) further provides that when the Court's jurisdiction is being
exercised by the Family Law Appeal Division and the court stating the case or reserving the
question is the FCFC (Division 2), subparagraph 26(2)(a)(ii) requires that a single Judge is to
exercise jurisdiction under subsection (1), except where a Judge considers that it is
appropriate for the jurisdiction of the Federal Court in relation to the matter to be exercised
by a Full Court (in which case a Full Court would exercise jurisdiction). Paragraph 26(2)(b)
will apply to exercise of the Court's jurisdiction other than by the Family Law Appeal
Division and maintain the existing arrangements for how the Federal Court deals with cases
stated and questions reserved in non-family law matters.
Item 236 - After paragraph 27(c)
475. Item 236 inserts new paragraph (ca) after paragraph 27(c). New paragraph (ca)
provides that in an appeal the Federal Court shall have regard to the evidence given in the
proceedings out of which the appeal arose, and has the power to draw inferences of fact and,
in its direction, to receive further evidence, which evidence may be taken, in the case of an
appeal being heard in the Family Law Appeal Division, as provided for in Division 2 of Part
XI of the Family Law Act.
Item 237 - After subsection 28(1)
476. Item 237 inserts new subsection (1A) after subsection 28(1) of the Act. New
subsection 28(1A) provides that if, in dismissing an appeal under subsection 24(2), the Court
is of the opinion that the appeal does not raise any question of general principle, it may give
reasons for its decision in short form. The note to new subsection 28(1A) clarifies for the
reader that subsection 24(3) of the Federal Court Act requires that the appellate jurisdiction of
the Court in respect of family law or child support proceedings (Item 227 of Schedule 1 of
this Bill refers) must be exercised in the Family Law Appeal Division. This provision will
continue the efficiency of the Federal Court as Judges will not be required to draft long
reasons where the basis for the decision is relatively straightforward.
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Item 238 - Paragraph 29(1)(a)
477. Item 238 amends subsection 29(1)(a) by replacing the reference to the 'Federal Circuit
Court' with the 'Federal Circuit and Family Court of Australia (Division 2)'. This will mean
that the Federal Court has the power to grant a stay of a decision of the FCFC (Division 2)
where such decision is the subject of an appeal to the Federal Court, but that the FCFC
(Division 2) does not have the power to grant a stay in the circumstances. Replacing the name
will also mean that the Federal Court will have the power to stay proceedings in relation the
family law matters. It is appropriate that a similar power in not provided for in relation to the
FCFC (Division 1) as it is a superior court.
Item 239 - At the end of Division 2 of Part III
478. Item 239 inserts new section 30AAA. New subsection 30AAA(1) deals with
application of Division 2 of Part III of the Act in relation to the making, variation or
revocation of a court security order under Part 4 of the Court Security Act 2013 by a member
of the FCFC or the Family Court of Western Australia. Subsection 30A(2) provides that
Division 2 of Part III applies as if the making, variation or revocation were a decree of the
member's court in the exercise of original jurisdiction under the Family Law Act. The
provision is similar to existing section 94AB of the Family Law Act, which is being repealed
(refer to item 114).
479. The item also inserts new section 30AAB. New section 30AAB provides that, despite
the provisions of Part III, Division 2 of the Federal Court Act, the Federal Court only has
appellate jurisdiction in relation to a matter arising under regulations made for the purposes
of section 111C of the Family Law Act, as provided by those regulations (paragraph
30AAB(a)) and that the exercise of that jurisdiction is as provided by those regulations
(paragraph 30AAB(b)).
480. New section 30AAB is intended to have the same effect as current section 96AA in
that jurisdiction and procedures in relation to matters arising under regulations made for the
purpose of section 111C of the Family Law Act are governed by the regulation rather than by
Part III, Division 2 of the Federal Court Act.
Item 240 - Section 32AA (heading)
481. Item 240 amends the heading to section 32AA to replace the reference to the 'Federal
Circuit Court' with the 'Federal Circuit and Family Court of Australia (Division 2)'. The
heading now reads 'Proceedings not to be instituted in the Court if an associated matter is
before the Federal Circuit and Family Court (Division 2)'.
Item 241 - Paragraphs 32AA(1)(a) and (b)
482. Item 241 amends paragraph 32AA(1)(a) and (b) to replace references to the 'Federal
Circuit Court' with the 'Federal Circuit and Family Court of Australia (Division 2)'.
Subsection 32AA(1) currently provides that proceedings must not be instituted in the Federal
Court in respect of a matter if the Federal Circuit Court has jurisdiction in that matter and
proceedings in respect of an associated matter are pending in the Federal Circuit Court. The
amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC
(Division 2) and do not substantively alter the operation of the subparagraphs.
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Item 242 - Paragraph 32AA(2)(b)
483. Item 242 amends paragraph 32AA(2)(b) to replace the reference to the 'Federal
Circuit Court' with the 'Federal Circuit and Family Court of Australia (Division 2)'.
Subsection 32AA(2)(b) provides that if proceedings are instituted in the Federal Court in
contravention of subsection 32AA(1) and the proceedings are subsequently transferred to the
Federal Circuit Court the proceedings are taken to be as valid as they would have been if
subsection (1) had not been enacted. The amendment appropriately reflects the continuation
of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the
operation of the subparagraph.
Item 243 - Section 32AB (heading)
484. Item 243 amends the heading to section 32AB to replace the reference to the 'Federal
Circuit Court' with the 'Federal Circuit and Family Court of Australia'. The heading now
reads 'Discretionary transfer of civil proceedings to the Federal Circuit and Family Court of
Australia'.
Item 244 - Subsection 32AB(1)
485. Item 244 amends subsection 32AB(1). Section 32AB currently provides the power for
the Federal Court to transfer a matter pending in the Federal Court, by order, to the Federal
Circuit Court on the application of a party to the proceedings or on its own motion. The
amendments provide that the Court cannot transfer a matter pending in the Federal Court
using its discretionary power in section 32AB if the matter is a proceeding before the Family
Law Appeal Division. This will ensure that the Family Law Appeal Division cannot transfer
an appeal from a decision of the FCFC to the FCFC.
Item 245 - Subsections 32AB(1), (3), (4) , (5) and (6)
486. Item 245 amends subsections 32AB(1), (3), (4), (5) and (6) by replacing references to
the 'Federal Circuit Court' with the 'Federal Circuit and Family Court of Australia'. Section
32AB currently provides the power for the Federal Court to transfer a matter pending in the
Federal Court, by order, to the Federal Circuit Court on the application of a party to the
proceedings or on its own motion. This item expands the discretionary transfer power of the
Court in section 32AB to both Divisions of the FCFC. Expanding the power is necessary as
there may be related proceedings to a matter pending in the Federal Court in either Division
of the FCFC. By expanding the power to cover both Divisions of the FCFC, the provision
will assist in ensuring that the federal courts are able to deal with matters most efficiently. It
is not intended that transfers would be made to the FCFC (Division 1) that did not
appropriately reflect its continuing character as a court specialising in family law matters.
Item 246 - Subsection 32AB(7)
487. For the reasons outlined in item 245, this item amends subsection 32AB(7) to replace
the reference to 'Federal Circuit Court' with the 'Federal Circuit and Family Court of
Australia'. The amendment ensures the provisions operate in the same manner as they
currently do, but in relation to the FCFC rather than the Federal Circuit Court.
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Item 247 - Subsection 32AB(8A)
488. Item 247 amends subsection 32AB(8A) by repealing the existing subsection and
substituting new subsections 32AB(8A) and (8B). New subsection 32AB(8A) provides that
the FCFC (Division 1) has jurisdiction in a matter that is the subject of a proceeding
transferred to it under section 32AB, and is a matter in which the FCFC (Division 1) does not
have jurisdiction apart from this subsection. New subsection 32AB(8B) provides that the
FCFC (Division 2) has jurisdiction in a matter that is the subject of a proceeding transferred
to it under section 32AB, and is a matter in which the FCFC (Division 2) does not have
jurisdiction apart from this subsection. For the avoidance of doubt, the jurisdiction of the
FCFC (Division 1) and the FCFC (Division 2) provided in subsections 32AB(8A) and (8B) is
not subject to limits set by another provision. However, it is not intended that transfers would
be made to the FCFC (Division 1) that did not appropriately reflect its continuing character as
a court specialising in family law matters.
Item 248 - After section 32AB
489. Item 248 inserts new section 32AC. New section 32AC provides a power for the
discretionary transfer of civil proceedings from the FCFC (Division 2) by the Federal Court
to the Federal Court. The provision will enable the Federal Court to 'uplift' matters that are
not family law matters from the FCFC (Division 2). This will provide for efficiencies where,
for example, there is a related matter pending in the Federal Court that could be dealt with at
the same time as the matter pending in the FCFC (Division 2).
490. Subsection 32AC(1) provides that if a proceeding is pending in the FCFC (Division 2)
and it relates to a matter other than a family law or child support matter, the Federal Court
may, by order, transfer the proceeding from the FCFC (Division 2) to the Federal Court. It is
necessary to exclude family law matters from the subsection as the Federal Court does not
have original jurisdiction for such matters.
491. Subsection 32AC(2) provides that the Federal Court may transfer a proceeding on the
application of a party or on its own motion.
492. Subsection 32AC(3) provides that the Rules of Court may make provision in relation
to transfers of proceedings from the FCFC (Division 2) under section 32AB. This will
empower the Federal Court to appropriately manage such transfers. Subsection 32AC(5)
provides that before making Rules of Court, the Federal Court must consult the FCFC
(Division 2). This is appropriate given that the Federal Court can uplift matters without the
consent of the FCFC (Division 2). However, the FCFC (Division 2) should be consulted on
the making of Rules of Court to ensure that the most efficient practices are put in place for
the transferring of matters between the two courts.
493. Subsection 32AC(4) provides that the Rules of Court may set out factors to be taken
into account in deciding whether to transfer a proceeding. Subsection 32AC(6) provides for
specific matters that the Federal Court must have regard to in deciding whether to transfer a
proceeding. In particular, this includes any Rules of Court made for the purposes of
subsection 32AC(4), whether proceedings in respect of an associated matter are pending in
the Federal Court, whether the resources of the Federal Court are sufficient to hear and
determine the proceeding, and the interests of the administration of justice. These
requirements are similar to the requirements under existing subsection 32AB(6).
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494. Subsection 32AC(7) provides that an appeal does not lie from a decision of the
Federal Court in relation to the transfer of a proceeding. This is to ensure that the Federal
Court is not burdened by appeals on matters it has already determined.
495. Subsection 32AC(8) provides that the Federal Court has jurisdiction in a matter that is
the subject of a proceeding transferred to the Federal Court under this section and is a matter
in which the Federal Court does not have jurisdiction apart from the subsection.
496. Subsections 32AC(9) and (10) provide that the section does not apply to criminal
proceedings or proceedings of a kind specified in the regulations.
497. The item also inserts new subsection 32AD. New section 32AD provides for the
confirmation of civil proceedings transferred from the FCFC (Division 2). Under
subsection 120(1) of the Federal Circuit and Family Court of Australia Act 2018, if a
proceeding is pending in the FCFC (Division 2) that relates to a matter other than a family
law matter the FCFC (Division 2) may, by order, transfer the proceeding to the Federal Court.
New section 32AD seeks to limit the power of the FCFC (Division 2) to transfer matters.
498. Subsection 32AD(1) provides that if the FCFC (Division 2) makes an order to transfer
a matter under subsection 120(1) of the Federal Circuit and Family Court of Australia Act
2018, the Federal Court may, by order, confirm the transfer of the proceeding to the Federal
Court. The matter will only be transferred if the order is confirmed by the Federal Court
under subsection 32AD(1). If the Federal Court decides not to confirm the transfer, it will not
be transferred to the Federal Court and will remain with the FCFC (Division 2). This allows
the Federal Court to maintain power over the proceedings before it and prevent the transfer of
proceedings unnecessarily or in circumstances where the Federal Court does not (at the time)
have the judicial resources to finalise the proceedings.
499. Subsection 32AD(2) provides that the Federal Court may, in its discretion, receive
further evidence to decide whether to make an order under subsection 32AD(1). The evidence
may be taken in any of the ways mentioned in section 27 of the Act.
500. Subsection 32AD(3) provides that the Federal Court has jurisdiction in a matter that is
the subject of a proceeding transferred to it by the FCFC (Division 2) and is a matter in which
the Federal Court does not have jurisdiction apart from this subsection.
501. Subsection 32AD(4) provides that an appeal does not lie from a decision of the
Federal Court in relation to an order made under subsection (1) confirming the transfer of
proceedings. This is to ensure the Federal Court is not burdened with appeals in relation to
matters it has already determined.
Item 249 - Subsection 32A(4)
502. Item 249 amends subsection 32A(4) by repealing the current subsection 32A(4) and
substituting a new subsection. New subsection 32A(4) provides that section 32A does not
apply to a proceeding that is an indictable primary proceeding, an Australian market
proceeding within the meaning of the Trans-Tasman Proceedings Act 2010 or in relation ot
the Supreme Court of State or Territory specified in a Proclamation made under subsection
40(3) of the Family Law Act in relation to a proceeding to which the Proclamation applies.
This provision appropriately reflects that a Supreme Court of a State or Territory that is
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unable to exercise original jurisdiction under the Family Law Act does not gain appellate
jurisdiction by operation of section 32A of the Federal Court Act.
Item 250 - Subsection 34(1) and (2)
503. Item 250 amends subsections 34(1) and (2), which provide for the Governor-General
to make Registries of the Federal Court and to designate one of the Registries as the Principal
Registry with each other Registry being a District Registry in respect of such District as
specified by the Governor-General. The item amends subsection 34(1) and (2) so that it is the
Minister, rather than the Governor-General, who holds the power to make Registries.
Currently, there are different arrangements for the establishment of Registries between the
Federal Court, Family Court and Federal Circuit Court. The amendment makes the
establishment of Registries consistent across the Federal Court and both Divisions of the
FCFC.
Item 251 - Subsection 32(2)
504. For the same reasons as outlined at item 250 above, this item replaces references to
'Governor-General' in subsection 34(2) with 'Minister'.
Item 252 - Subsection 49(2)
505. Item 252 repeals subsection 49(2) and replaces it with a new subsection. New
subsection (2) builds on the intent of existing subsection (2) by seeking to provide alternative
options to publish orders and reasons prepared by a Judge. In particular, new subsection (2)
provides that if the Federal Court reserves a judgment and the Judge who heard the
proceeding (whether as a single Judge or as a member of a Full Court) subsequently prepares
orders and reasons, those orders and reasons may be made public by another Judge on behalf
of the Judge who heard the proceeding or as otherwise provided for by the Rules of Court.
The intention of the provision is to provide for the expeditious publishing of orders and
reasons, so parties to the proceeding are not left waiting for those orders and reasons to be
made public where they have already been prepared. For example, it would allow another
Judge to make public orders and reasons of another Judge where that other Judge is unable to
do so for reasons of ill health.
506. The item also inserts new subsection 49(2A) into the Act. New subsection 49(2A)
provides that if the Federal Court reserves reasons for its decision in a proceeding and the
Judge who heard the proceedings (whether as a single Judge or as a member of a Full Court)
has prepared reasons, those reasons may be made public by another Judge on behalf of the
Judge who heard the proceeding or as otherwise provided for by the Rules of Court. This
provision has a similar intention to new subsection (2) in that it provides for the expeditious
publishing of reasons, so parties to the proceeding are not left waiting for those reasons to be
made public where they have already been prepared.
Item 253 - Subsection 49(3)
507. Item 253 amends subsection 49(3) by replacing the words 'subsection (2)' with 'this
section'. The amendment is necessary to account for the inclusion of subsection 49(2A) in
item 252 above.
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Item 254 - Section 55
508. Item 254 repeals existing section 55 and replaces it with a new section. Existing
section 55 provides for the direction of writs, summonses, orders, warrants, precepts, process
and commands that would ordinarily be directed to the Sheriff in a proceeding to which the
Sheriff or a Deputy Sheriff is party. The new section will expand the operation of the
existing provision to also provide for direction of writs, summonses, orders, warrants,
precepts, process and commands that would ordinarily be directed to the Marshal in a
proceeding to which the Marshal or a Deputy Marshal is party. This is necessary due to the
creation of the offices of Marshal and Deputy Marshall as Officers of the Court in items 205
and 208.
Item 255 - After subsection 59(1)
509. Item 255 inserts new subsection 59(1A). New subsection (1A) provides that the
Judges of the Federal Court, or a majority of them, may make Rules of Court prescribing
matters required or permitted by any other provisions of this Act or any other law of the
Commonwealth to be prescribed by the Rules of Court. The insertion of the new subsection is
necessary to capture the new sections of the Act which provide for the making of Rules of
Court. The making of Rules of Court by the Judges of the Federal Court, or a majority of
them, is consistent with the approach to making Rules of Court in subsection 59(1).
Item 256 - After paragraph 59(2)(r)
510. Item 256 inserts new paragraphs (ra) and (rb) into subsection 59(2). These new
paragraphs provide that the Rules of Court may make provision for the practice and
procedure of the Family Law Appeal Division and the transfer of proceedings from the FCFC
(Division 2), including matters relating to costs.
Part 2 - Application, saving and transitional provisions
Division 1 - Application of amendments
Item 257 - Application
511. Item 257 is an application provision, which provides that the amendments of the
Family Law Act and the Federal Court Act made by Schedule 1 of the Bill apply in relation
to a proceeding commenced before, on or after 1 January 2019. 1 January 2019 is the date
that the FCFC will commence operation.
Division 2 - Saving and transitional provisions: Family Law Act 1975 amendments
Item 258 - Authorisation about handling complaints
512. Item 258 provides that an authorisation made under subsection 21B(3A) of the Family
Law Act and in force immediately before 1 January 2019 continues as if it had been made
under subsection 32(2) of the Federal Circuit and Family Court of Australia Act 2018.
513. Under subclause 32(2), the Chief Justice may authorise, in writing, a person or body
to assist the Chief Justice to handle complaints, to decide whether or not to handle
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complaints, to dismiss complaints, or to handle complaints. Previous subsection 21B(3A) of
the Family Law Act provided for a similar authorisation.
514. This amendment reflects the continuation of the Family Court in the Federal Circuit
and Family Court of Australia (Division 1) (see section 8 of the Federal Circuit and Family
Court of Australia Act 2018). The saving of an authorisation made under subsection 21B(3A)
of the Family Law Act is appropriate given the instrument will survive in effect through
subsection 32(2) of the Federal Circuit and Family Court of Australia Act 2018 and it would
be administratively cumbersome and unnecessary to remake every subsection 21B(3A)
authorisation.
Item 259 - Arrangements with other courts
515. Item 259 provides that an arrangement made under subsection 38BAA(1) of the
Family Law Act and in force immediately before 1 January 2019 continues as if it had been
made under subsection 58(1) of the Federal Circuit and Family Court of Australia Act 2018.
516. Subsection 58(1) enables the Chief Justice of the Federal Circuit and Family Court of
Australia (Division 1) to arrange with the chief judicial officer of another federal, state or
territory court, for an officer or officers of that court to perform a series of functions on the
behalf of the Federal Circuit and Family Court of Australia (Division 1). Previous
subsection 38BAA(1) of the Family Law Act allowed similar arrangements.
517. This amendment reflects the continuation of the Family Court in the Federal Circuit
and Family Court of Australia (Division 1) (see section 8 of the Federal Circuit and Family
Court of Australia Act 2018). The saving of an arrangement made under
subsection 38BAA(1) of the Family Law Act is appropriate given the instrument will survive
in effect through subsection 58(1) of the Federal Circuit and Family Court of Australia Act
2018 and it would be administratively cumbersome and unnecessary to remake every
subsection 38BAA(1) arrangement.
Item 260 - Arrangements with agencies or organisations
518. Item 260 provides that an arrangement made under subsection 38BAB(1) of the
Family Law Act and in force immediately before 1 January 2019 continues as if it had been
made under subsection 59(1) of the Federal Circuit and Family Court of Australia Act 2018.
519. Subsection 59(1) enables the Chief Justice of the Federal Circuit and Family Court of
Australia (Division 1) to arrange with the chief executive officer of another organisation,
including a government agency, for an employee of that organisation or agency to receive
documents or perform non judicial functions on behalf of the FCFC (Division 1). Previous
subsection 38BAB(1) of the Family Law Act allowed similar arrangements.
520. This amendment reflects the continuation of the Family Court in the FCFC
(Division 1) (see section 8 of the Federal Circuit and Family Court of Australia Act 2018).
The saving of an arrangement made under subsection 38BAB(1) of the Family Law Act is
appropriate given the instrument will survive in effect through subsection 59(1) of the
Federal Circuit and Family Court of Australia Act 2018 and it would be administratively
cumbersome and unnecessary to remake every subsection 38BAB(1) arrangement.
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Item 261 - Delegation
521. Item 261 provides that an instrument made under section 38W of the Family Law Act
and in force immediately before 1 January 2019 continues as if it had been made under
section 76 of the Federal Circuit and Family Court of Australia Act 2018.
522. Section 76 provides that the Chief Justice of the Federal Circuit and Family Court of
Australia (Division 1) may, in writing, delegate any or all of his or her powers under
section 56 to the Judges of the FCFC (Division 1). Previous subsection 38W of the Family
Law Act allowed a similar delegation.
523. This amendment reflects the continuation of the Family Court in the Federal Circuit
and Family Court of Australia (Division 1) (see section 8 of the Federal Circuit and Family
Court of Australia Act 2018). The saving of an instrument made under section 38W of the
Family Law Act is appropriate given the instrument will survive in effect through section 76
of the Federal Circuit and Family Court of Australia Act 2018 and it would be
administratively cumbersome and unnecessary to remake every section 38W instrument.
Item 262 - Proclamation
524. Item 262 provides that a Proclamation made under subsection 96(3) of the Family
Law Act and in force immediately before 1 January 2019 continues as if it had been made
under new subsection 47A(4) of the Family Law Act (as inserted by item 72 of this Bill).
525. New subsection 47A(4) provides that the Governor-General may, by Proclamation,
fix a date as the date on or after which appeals to the Supreme Court of a specified State or
Territory under this section may not be instituted. Previous subsection 96(3) of the Family
Law Act had the same effect. Subsection 96(3) is repealed by item 114 as part of the repeal of
Part X. These amendments are consequential to the amendments providing for the new court
structure.
526. Item 262 has the effect of saving the operation of the existing Proclamation, made
under subsection 96(3), ceasing the jurisdiction of Supreme Courts of specified States and
Territories from hearing appeals from courts of summary jurisdiction. Additionally,
paragraph (b) provides that the Supreme Courts, specified in the saved proclamation, are also
specified for appeals in relation to the Child Support (Assessment) Act 1989 or the Child
Support (Registration and Collection) Act 1988. This has been included to ensure that the
inclusion of these Acts in section 47A does not have the unintended result that a Supreme
Court of a State or Territory, that has not been conferred with jurisdiction to hear appeals
from courts of summary under the Child Support (Assessment) Act 1989 or the Child Support
(Registration and Collection) Act 1988 can hear appeal appeals.
527. Under new section 101 of the Child Support (Assessment Act) 1989 (see item 167 of
Schedule 3 of this Bill) and section 106 of the Child Support (Registration and Collection)
Act 1988 (see item 181 of Schedule 3 of this Bill), only the Supreme Court of the
Northern Territory and the Family Court of a State are conferred jurisdiction to hear appeals
from a court of summary jurisdiction in the relevant Territory or State.
528. The saving of a Proclamation made under subsection 96(3) of the Family Law Act is
appropriate as it would be administratively cumbersome and unnecessary to remake the
subsection 96(3) Proclamation.
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Item 263 - Oaths and Affirmations
529. Item 263 provides that an authorisation made under subsection 98AA(2) of the Family
Law Act and in force immediately before 1 January 2019 continues as if it had been made
under subsection 52(2) of the Federal Circuit and Family Court of Australia Act 2018.
530. Subsection 52(2) provides that a Judge may cause the administration of oaths and
affirmations and for this purpose the Federal Circuit and Family Court of Australia
(Division 1) may either orally or in writing authorise any person (whether they are in or
outside Australia) to administer oaths and affirmations. The Chief Executive Officer may, in
writing, authorise a Registrar or Deputy Registrar, or a staff member of the Federal Circuit
and Family Court of Australia (Division 1) to administer oaths and affirmations for the
purposes of the Court. Previous subsection 98AA(2) of the Family Law Act allowed the same
arrangements. This subsection has been repealed by item 121 of Schedule, above.
531. This amendment reflects the continuation of the Family Court in the Federal Circuit
and Family Court of Australia (Division 1) (see section 8 of the Federal Circuit and Family
Court of Australia Act 2018). The saving of an authorisation made under subsection 98AA(2)
of the Family Law Act is appropriate given the power will survive in effect through
subsection 52(2) of the Federal Circuit and Family Court of Australia Act 2018 and it would
be administratively cumbersome and unnecessary to remake every subsection 98AA(2)
authorisation.
Item 264 - Continuity of Rules of Court
532. Item 264 provides that amendments made by items 134, 143, 152, 165 and 167 of this
Schedule do not affect the continuity, amendment or repeal of any Rules of Court made for
the purposes of section 123 of the Family Law Act that are in force immediately before 1
January 2019. These amendments omit references to the Rules of Court being made by
Judges and substitute 'the Chief Justice of the Federal Circuit and Family Court of Australia
(Division 1)' consistent with the amendment in item 152 which provides that the Chief
Justice of Division 1 has the power to make Rules of Court under section 123 of the Act.
533. This amendment reflects the continuation of the Family Court in the Federal Circuit
and Family Court of Australia (Division 1) (see section 8 of the Federal Circuit and Family
Court of Australia Act 2018), and clarifies that the change in who has the power to make the
Rules of Court does not affect their continuity or their ability to be amended or repealed.
Division 3 - Saving and transitional provisions: Federal Court of Australia Act 1976
amendments
Item 265 - Registries of the Federal Court of Australia
534. Item 265 relates to the Registries of the Federal Court. Subsection (1) provides that,
despite the amendment of section 34 of the Federal Court Act, a Registry of the Federal Court
existing immediately before 1 January 2019 continues in existence on and after that day. This
provision ensures that Registries of the Federal Court that have already been established will
continue in operation.
535. Subsection (2) provides that the amendment of section 34 of the Federal Court Act by
Schedule 1 does not affect the designation, before 1 January 2019, of a Registry of the
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Federal Court as the Principal Registry of the Federal Court or the specification, before
1 January 2019, of a District (in respect of which a District Registry of the Federal Court
exists).
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Schedule 2 - Further consequential amendments
Administrative Appeals Tribunal Act 1975
Item 1 - Paragraph 7(2)(a)
536. Item 1 updates the reference to the 'Family Court of Australia' to be 'Federal Circuit
and Family Court of Australia (Division 1)' in paragraph 7(2)(a) of the Administrative
Appeals Tribunal Act 1975. Paragraph 7(2)(a) currently provides for qualifications for
appointment as a Deputy President of the Administrative Appeals Tribunal ('Tribunal'). The
amendment appropriately reflects the continuation of the Family Court as the FCFC
(Division 1) and does not alter the eligibility requirements for appointment as a Deputy
President of the Tribunal as provided by paragraph 7(2)(a).
Item 2 - Subsection 43(5C)
537. Item 2 updates the reference to the 'Federal Circuit Court of Australia' to be 'Federal
Circuit and Family Court of Australia (Division 2)' in subsection 43(5C).Where the Tribunal
has stayed the operation or implementation of a decision under review to allow the Tribunal
to effectively consider the decision and the Tribunal makes a decision, subsection 43(5C)
currently provides for the Tribunal's decision on review to be stayed until the end of the
period to appeal or the appeal is determined, unless the Tribunal, the Federal Court or the
Federal Circuit Court otherwise orders. The amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively
alter the operation of subsection 43(5C).
Item 3 - Subsection 44(1) (note 2)
538. Item 3 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in the notes to subsection 44(1). Note 2 to
subsection 44(1) currently provides that a party to a child support first review may in some
instances appeal instead to the Federal Circuit Court and directs to section 44AAA. The
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2) and does not substantively alter the operation of the note.
Item 4 - Section 44AAA (heading)
539. Item 4 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in the heading to section 44AAA. The heading now
reads 'Appeals to the Federal Circuit and Family Court of Australia (Division 2) from
decisions of the Tribunal in relation to child support first reviews'. The amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).
Item 5 - Subsections 44AAA(1) and (2)
540. Item 5 updates references to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in subsections 44AAA(1) and (2). Section 44AAA
currently provides for appeals to the Federal Circuit Court from decisions of the Tribunal in
relation to child support first reviews. Subsection 44AAA(1) provides that if the Tribunal as
constituted during a child support first review did not include a presidential member, a party
may appeal to the Federal Circuit Court on a question of law from any decision of the
Tribunal. Subsection 44AAA(2) provides provisions that apply in relation to such an appeal
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and a reference in those provisions to the Federal Court apply as if they were a reference to
the Federal Circuit Court. The amendments appropriately reflect the continuation of the
Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of
subsections 44AAA(1) and (2).
Item 6 - Subsection 44AAA(3)
541. Item 6 updates the reference in subsection 44AAA(3) to the 'Federal Circuit Court of
Australia Act 1999' to be 'Chapter 4 of the Federal Circuit and Family Court of Australia
Act 2018'.
542. Section 44AAA currently provides for appeals to the Federal Circuit Court from
decisions of the Tribunal in relation to child support first reviews. Subsection (3) applies
paragraph 44(2A)(b) to an appeal under the section and provides that a reference to rules of
court made under the Federal Court Act is a reference to Rules of Court made under the
Federal Circuit Court Act. The amendment updates the legislative reference and does not
affect the intent of subsection 44AAA(3).
Item 7 - Section 44AA (heading)
543. Item 7 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in the heading to section 44AA. The heading now
reads 'Transfer of appeals from Federal Court to Federal Circuit and Family Court of
Australia (Division 2)'. The amendment appropriately reflects the continuation of the Federal
Circuit Court as the FCFC (Division 2).
Item 8 - Subsections 44AA(1), (2), (4), (5), (6), (7), (8) and (9)
544. Item 8 updates references to the ''Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)'in section 44AA. Section 44AA currently deals with
transfer of appeals from the Federal Court to the Federal Circuit Court. The amendments
appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2)
and do not substantively alter the operation of subsections 44AA(1), (2), (4), (5), (6), (7), (8)
and (9).
Item 9 - Subsection 44AA(11) (heading)
545. Item 9 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in the heading to subsection 44AA(11). The heading
now reads 'Federal Circuit and Family Court of Australia (Division 2) may make findings of
fact'. The amendment appropriately reflects the continuation of the Federal Circuit Court as
the FCFC (Division 2).
Item 10 - Subsections 44AA(11) and (12)
546. Item 10 updates references to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in subsections 44AA(11) and (12).
Subsections 44AA(11) and (12) currently deal with the Federal Circuit Court being able to
make findings of fact. The amendments appropriately reflect the continuation of the Federal
Circuit Court as the FCFC (Division 2) and do not substantively change the operation of
subsections 44AA(11) and (12).
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Item 11 - Subsection 44A(2A)
547. Item 11 updates the reference to the 'Federal Circuit Court of Australia, the Federal
Circuit Court of Australia or a Judge of the Federal Circuit Court of Australia' to the 'Federal
Circuit and Family Court of Australia (Division 2), the Federal Circuit and Family Court of
Australia (Division 2) or a Judge of that Court' in subsection 44A(2A). Subsection 44A(2A)
currently provides that the Federal Circuit Court or a Judge of the Federal Circuit Court may
order a stay of all or part of a Tribunal decision which is the subject of an appeal in the Court.
The amendment appropriately reflects the continuation of the Federal Circuit Court as the
FCFC (Division 2). The use of 'that Court' refers to the FCFC (Division 2) and saves
repeating the name again in full. The amendment does not substantively alter the operation of
subsection 44A(2A).
Item 12 - Subsection 44A(2A)
548. Item 12 updates the reference to the 'Federal Circuit Court of Australia or Judge of
the Federal Circuit Court of Australia' to be 'Federal Circuit and Family Court of Australia
(Division 2) or a Judge of the Court' in subsection 44A(2A). Subsection 44A(2A) currently
provides that the Federal Circuit Court or a Judge of the Federal Circuit Court may order a
stay of all or part of a Tribunal decision which is the subject of an appeal in the Federal
Circuit Court. The amendment appropriately reflects the continuation of the Federal Circuit
Court as the FCFC (Division 2). The use of 'the Court' refers to the FCFC (Division 2) and
saves repeating the name again in full. The amendment does not substantively alter the
operation of subsection 44A(2A).
Item 13 - Paragraph 44A(3)(b)
549. Item 13 updates the reference to the 'Federal Circuit Court of Australia' to be 'Federal
Circuit and Family Court of Australia (Division 2)' in paragraph 44A(3)(b). Section 44A
currently deals with the operation and implementation of a decision that is subject to appeal.
Paragraph 44A(3)(b) provides for the Federal Circuit Court to make an order varying or
revoking an order made under subsection 44A(2) or (2A). The amendment appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
substantively alter the operation of paragraph 44A(3)(b).
Item 14 - Section 46 (heading)
550. Item 14 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in the heading to section 46. The heading now reads
'Sending of documents to, and disclosure of documents by, the Federal Court and the FCFC
(Division 2)'. The amendment appropriately reflects the continuation of the Federal Circuit
Court as the FCFC (Division 2).
Item 15 - Subsections 46(1), (2) and (3)
551. Item 15 updates references to the 'Federal Circuit Court of Australia' to be 'Federal
Circuit and Family Court of Australia (Division 2)' in subsections 46(1), (2) and (3). Section
46 currently provides for the sending of documents to, and disclosure of documents by, the
Federal Court and the Federal Circuit Court. The amendments appropriately reflect the
continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively
alter the operation of subsections 46(1), (2) and (3).
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Administrative Decisions (Judicial Review) Act 1977
Item 16 - Subsection 3(1) (definition of Family Court Judge)
552. Item 16 repeals the definition of 'Family Court Judge' in subsection 3(1) of the
Administrative Decisions (Judicial Review) Act 1977. Subsection 3(1) provides definitions to
assist in interpreting the Act. The definition currently provides that 'Family Court Judge'
means 'a Judge of the Family Court (including the Chief Justice, the Deputy Chief Justice or
a Senior Judge)'. The definition is no longer required as the Family Court will be continued
as the FCFC (Division 1). Where references in the Act are made to a Judge of the FCFC
(Division 1), the reference is provided in full.
Item 17 - Subsection 3(1)
553. Item 17 inserts a definition of the FCFC (Division 2) Rules into subsection 3(1).
Subsection 3(1) provides definitions to assist in interpreting the Act. The new definition
provides that the 'Federal Circuit and Family Court of Australia (Division 2) Rules means the
Rules of Court made under Chapter 4 of the Federal Circuit and Family Court of Australia
Act 2018'. The amendment appropriately references the new enabling Act under which the
FCFC (Division 2) Rules will be made.
Item 18 - Subsection 3(1)
554. Item 18 repeals the definitions of 'Federal Circuit Court', 'Federal Circuit Court
Rules' and 'the Family Court' in subsection 3(1). Subsection 3(1) provides definitions to
assist in interpreting the Act. These definitions are no longer required as the Federal Circuit
Court will be continued as the FCFC (Division 2), the applicable Rules will be the FCFC
(Division 2) Rules, and the Family Court will be continued as the FCFC (Division 1). Where
references in the Act are made to either Division of the FCFC, the title of that Court is
provided in full. See item 17 for the definition of the 'Federal Circuit and Family Court of
Australia (Division 2) Rules'.
Item 19 - Subsection 3(10)
555. Item 19 amends references to the way matters may be transferred from the FCFC
(Division 2) to the Federal Court in subsection 3(10). Subsection 3(10) currently provides
that a reference in the Act to an application made to the Federal Court includes a reference to
an application made in the Federal Circuit Court and subsequently transferred to the Federal
Court under Part 5 of the Federal Circuit Court Act. The provision will now refer to the
updated transfer provisions. New section 32AC of the Federal Court Act provides the Federal
Court with the power to transfer matters, other than proceedings relating to family law
matters, on its own initiative or on the application of a party from the FCFC (Division 2). See
item 248 of Schedule 1 of this Explanatory Memorandum for further guidance. Section 120
of the Federal Circuit and Family Court of Australia Act 2018 similarly provides the FCFC
(Division 2) with the power to transfer matters, other than proceedings relating to family law
matters, on its own initiative or on the application of a party to the Federal Court, though the
Federal Court must confirm such a transfer under new section 32AD of the Federal Court of
Act. See item 250 of Schedule 1 of this Explanatory Memorandum for further guidance. This
item amends subsection 3(10) to reflect the new law.
Item 20 - Subsection 3(11)
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556. Item 20 updates references to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in subsection 3(11). Subsection 3(11) currently
provides that a reference in the Act to an application made to the Federal Circuit Court
includes a reference to an application made in the Federal Court and subsequently transferred
to the Federal Circuit Court under section 32AB of the Federal Court Act, and an application
that could have been made directly to the Federal Circuit Court. The amendments
appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2)
and do not substantively alter the operation of subsection 3(11).
Item 21 - Subsection 3(12)
557. Item 21 repeals subsection 3(12). Subsection 3(12) currently provides for section 19
of the Federal Circuit Court Act to be disregarded. This Act will be repealed and so is no
longer relevant.
Item 22 - Subsections 5(1) and 6(1)
558. Item 22 updates references to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in subsections 5(1) and 6(1). Section 5 currently
deals with applications for review of decisions. Section 6 deals with applications for review
of conduct related to making of decisions. The amendments appropriately reflect the
continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively
alter the operation of subsections 5(1) or 6(1).
Item 23 - Section 7
559. Item 23 updates references to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in section 7. Section 7 currently deals with
applications in respect of failures to make decisions. The amendments appropriately reflect
the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not
substantively alter the operation of section 7.
Item 24 - Section 8 (heading)
560. Item 24 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in the heading to section 8. The heading now reads
'Jurisdiction of Federal Court and Federal Circuit and Family Court of Australia
(Division 2)'. The amendment appropriately reflects the continuation of the Federal Circuit
Court as the FCFC (Division 2).
Item 25 - Subsection 8(2)
561. Item 25 repeals subsection 8(2) and replaces it with a new subsection. Section 8
currently provides for the jurisdiction of the Federal Court and Federal Circuit Court to hear
and determine applications made to the respective courts under the Act. The main change
made by the new subsection is that it refers to the 'Federal Circuit and Family Court of
Australia (Division 2)', rather than the 'Federal Circuit Court'. The use of 'the Court' refers
to the FCFC (Division 2) and saves repeating the name again in full. The note no longer
refers to subsection 3(12), as this subsection will be repealed by item 21. The substitution
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).
Item 26 - Section 10
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562. Item 26 updates references to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in section 10. Section 10 currently provides for rights
conferred by the Act to be in addition to other rights. The amendments appropriately reflect
the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not
substantively alter the operation of section 10.
Item 27 - Subsection 11(1)
563. Item 27 updates the first reference to the 'Federal Circuit Court' in subsection 11(1) to
be 'Federal Circuit and Family Court of Australia (Division 2)'. Section 11 currently provides
for the manner of making applications to the Federal Court or Federal Circuit Court.
Subsection 11(1) provides how to make applications to the Federal Court or the Federal
Circuit Court for an order of review, and what to include. The amendment appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
substantively alter the operation of subsection 11(1).
Item 28 - Subparagraph 11(1)(a)(ii)
564. Item 27 updates the reference to the 'Federal Circuit Court-Federal Circuit Court
Rules' to be 'Federal Circuit and Family Court of Australia (Division 2)- Federal Circuit and
Family Court of Australia (Division 2) Rules' in subparagraph 11(1)(a)(ii). Subparagraph
11(1)(a)(ii) currently provides that an application to the Federal Circuit Court for an order of
review of a decision is to be made in a manner as prescribed by the Federal Circuit Court
Rules. See item 16 for the definition of the 'Federal Circuit and Family Court of Australia
(Division 2) Rules'. The amendment appropriately reflects the continuation of the Federal
Circuit Court as the FCFC (Division 2) and refers to the appropriate applicable Rules for that
court and does not substantively alter the operation of subparagraph 11(1)(a)(ii).
Item 29 - Subsection 11(2)
565. Item 29 updates the first reference to the 'Federal Circuit Court' in subsection 11(2) to
be 'Federal Circuit and Family Court of Australia (Division 2)' in subsection 11(2).
Subsection 11(2) currently deals with the manner of making applications to the Federal Court
or the Federal Circuit Court for any application other than an order of review. The
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2).
Item 30 - Paragraph 11(2)(b)
566. Item 30 updates the reference to the 'Federal Circuit Court-Federal Circuit Court
Rules' to be 'Federal Circuit and Family Court of Australia (Division 2)- Federal Circuit and
Family Court of Australia (Division 2) Rules' in paragraph 11(2)(b). Paragraph 11(2)(b)
currently provides that an application to the Federal Circuit Court for any application other
than order of review is to be made as prescribed by the Federal Circuit Court Rules. See item
17 for the definition of the 'Federal Circuit and Family Court of Australia (Division 2)
Rules'. The amendment appropriately reflects the continuation of the Federal Circuit Court as
the FCFC (Division 2) and refers to the appropriate applicable Rules for that court and does
not substantively alter the operation of paragraph 11(2)(b).
Items 31 and 32 - Subparagraph 11(3)(b)(ii) and subsections 11(4) and (7)
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567. Items 31 and 32 update references to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in subsections 11(3), (4) and (7). Subsections
11(3) and (4) currently set out the period in which to lodge an application with the Federal
Court or the Federal Circuit Court for an order of review. Subsection 11(7) provides for the
Federal Court or the Federal Circuit Court to permit a document lodged with a registry of the
Court in connection with an application under the Act be amended or direct such a document
be amended. The amendments appropriately reflect the continuation of the Federal Circuit
Court as the FCFC (Division 2) and do not substantively alter the operation of subparagraph
11(3)(b)(ii), or subsections 11(4) and (7).
Item 33 - subsection 11(8A)
568. Item 33 repeals subsection 11(8A) and replaces it with a new subsection. The main
change made by the new subsection is that it updates references to the 'Federal Circuit Court
Rules' to be 'Federal Circuit and Family Court of Australia (Division 2) Rules' and 'Registry
of the Federal Circuit Court' to be 'Registry of the Federal Circuit and Family Court of
Australia (Division 2)'. Subsection 11(8A) currently provides that the Federal Circuit Court
Rules may make provision in relation to service of documents. See item 17 for the definition
of the 'Federal Circuit and Family Court of Australia (Division 2) Rules'. The amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2)
and applicable Rules for that Court and does not substantively alter the operation of
subsection 11(8A).
Item 34 - Subsection 11(9)
569. Item 34 updates the reference to the 'Federal Circuit Court Rules' to be 'Federal
Circuit and Family Court of Australia (Division 2) Rules' in subsection 11(9). Subsection
11(9) currently provides that substantial, rather than strict, compliance with the Federal Court
Rules or the Federal Circuit Court Rules is sufficient for the purposes of section 11. See item
17 for the definition of the 'Federal Circuit and Family Court of Australia (Division 2)
Rules'. The amendment appropriately reflects what will be the applicable Rules of the FCFC
(Division 2) and does not substantively alter the operation of subsection 11(9).
Items 35 - Subsection 12(1)
570. Item 35 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in subsection 12(1). Subsection 12(1) currently
provides that an interested person may apply to either the Federal Court or the Federal Circuit
Court to be made a party to the application. The amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively
alter the operation of subsection 12(1).
Item 36 - Section 13
571. Item 36 updates references to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in section 13. Section 13 currently provides that a
person aggrieved by a decision to which the Act applies may request the decision-maker to
provide reasons for the decision. The amendments appropriately reflect the continuation of
the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the
operation of section 13.
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Item 37 - Subsections 13A(4) and 14(4)
572. Item 37 updates references to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in subsections 13A(4) and 14(4). Section 13A
currently deals with certain information that is not required to be disclosed. Section 14
provides for certification by the Attorney-General concerning the disclosure of information.
Subsections 13A(4) and 14(4) provide that the Federal Court or the Federal Circuit Court
retain power to make an order for the discovery of documents or to require the giving of
evidence or the production of documents to the Court. The amendments appropriately reflect
the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not
substantively alter the operation of subsections 13A(4) and 14(4).
Item 38 - Section 15A (heading)
573. Item 38 repeals the heading of section 15A and replaces it with '15A Stay of
proceedings- Federal Circuit and Family Court of Australia (Division 2)'. The amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).
Item 39 - Subsection 15A(1)
574. Item 39 updates the reference to the 'Federal Circuit Court of Australia' to be 'Federal
Circuit and Family Court of Australia (Division 2)' in subsection 15A(1). Subsection 15A(1)
currently provides for the Federal Circuit Court to, by order, suspend the operation of a
decision and stay all or any of the proceedings under review in the Court. The amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2)
and does not substantively alter the operation of subsection 15A(1).
Items 40 and 41 - Paragraphs 15A(1)(a) and (b) and subsection 15A(2)
575. Items 40 and 41 update references to the 'Federal Circuit Court of Australia or a
Judge' to be 'Federal Circuit and Family Court of Australia (Division 2) or a Judge of that
Court' in paragraphs 15A(1)(a) and (b), and subsection 15A(2). Paragraphs 15(1)(a) and (b)
currently provide for the Federal Circuit Court to, by order, suspend the operation of a
decision and stay all or any of the proceedings under review in the Federal Circuit Court.
Subsection 15A(2) provides for the Federal Circuit Court to make such an order on the
initiative of the Federal Circuit Court or on application. The use of 'that court' refers to the
FCFC (Division 2) and saves repeating the name again in full. The amendments appropriately
reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not
substantively alter the operation of paragraphs 15A(1)(a) and (b), and subsection 15A(2).
Item 42 - Subsection 15A(3)
576. Item 42 repeals subsection 15A(3). Subsection 15A(3) currently defines the
expression 'the Federal Circuit Court of Australia or a Judge' for the purposes of section 15A
by reference to the definition in the Federal Circuit Court Act . An equivalent of this section
is no longer required as paragraphs 15A(1)(a) and (b) and subsection 15A(2) will now refer
to the 'Federal Circuit and Family Court of Australia (Division 2) or a Judge of that Court',
making it clear that a Judge authorised to make these orders will be a Judge of the FCFC
(Division 2).
Item 43 - Section 16 (heading)
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577. Item 43 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in the heading to section 16. The heading now reads
'Powers of the Federal Court and the FCFC (Division 2) in respect of applications for order
of review'. The amendment appropriately reflects the continuation of the Federal Circuit
Court as the FCFC (Division 2).
Item 44 - Section 16
578. Item 44 updates references to the 'Federal Circuit Court' to be the 'Federal Circuit
and Family Court of Australia (Division 2)' in section 16. Section 16 currently deals with the
powers of the Federal Court and the Federal Circuit Court in respect of applications for order
of review. The amendments appropriately reflect the continuation of the Federal Circuit
Court as the FCFC (Division 2) and do not substantively alter the operation of section 16.
Item 45 - Paragraph 17(a)
579. Item 45 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in paragraph 17(a). Section 17 currently deals with
the situation where a person has made a decision in performing duties of an office but is no
longer performing those duties. Paragraph 17(a) deals with where a person has, in the
performance of the duties of an office, made a decision in respect of which an application
may be made to the Federal Court or the Federal Circuit Court under the Act. The
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2) and does substantively not alter the operation of paragraph 17(a).
Item 46 - Subsection 18(1)
580. Item 46 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in subsection 18(1). Subsection 18(1) currently
provides for the Attorney-General, on behalf of the Commonwealth, to intervene in a
proceeding before the Federal Court or the Federal Circuit Court under the Act. The
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2) and does not substantively alter the operation of subsection 18(1).
Item 47 - Section 18A (heading)
581. Item 47 updates reference to the 'Family Court' to be 'Federal Circuit and Family
Court of Australia (Division 1)' in the heading to section 18A. The heading now reads
'Transfer of proceedings to Federal Circuit and Family Court of Australia (Division 1)'. The
amendment appropriately reflects the continuation of the Family Court as the FCFC
(Division 1).
Items 48 to 50 - Subsections 18A(1), (2) and (3), paragraphs 18A(3)(a), (b), (c), (d) and
(e), and subparagraph 18A(3)(f)(i)
582. Items 48 to 50 update references to the 'Family Court' to be 'Federal Circuit and
Family Court of Australia (Division 1)' in subsections 18A(1), (2) and (3). Section 18A
currently deals with transfer of proceedings to the Family Court from the Federal Court. The
amendments appropriately reflect the continuation of the Family Court as the FCFC (Division
1) and do not alter the operation of subsections 18A(1), (2) and (3), paragraphs 18A(3)(a),
(b), (c), (d) and (e), and subparagraph 18A(3)(f)(i).
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Item 51 - Subparagraphs 18A(3)(f)(ii) and (iii)
583. Item 51 updates references to 'Family Court Judge' to be 'Judge of the Federal Circuit
and Family Court of Australia (Division 1)' in subparagraphs 18A(3)(f)(ii) and (iii).
Subparagraphs 18A(3)(f)(ii) and (iii) currently provide that a reference to a 'Judge of the
Federal Court' includes a reference to a Family Court Judge and a reference to 'the Court or a
Judge' when used in relation to the Federal Court includes a reference to a Family Court
Judge sitting in Chambers. The amendments appropriately reflect the continuation of Judges
of the Family Court as Judges of the FCFC (Division 1).
Items 52 and 53 - Subparagraph 18A(3)(f)(iv) and subsections 18A(4) and (5)
584. Items 52 and 53 update references to the 'Family Court' to be 'Federal Circuit and
Family Court of Australia (Division 1)' in subparagraph 18A(3)(f)(iv) and subsections
18A(4) and (5). Subparagraph 18A(3)(f)(iv) currently provides for a reference to a Registrar
of the Federal Court to include a reference to a Registrar of the Family Court. Subsection
18A(4) currently provides for the Family Court to give directions and make orders to resolve
difficulties arising in the granting of remedies, making orders and issuing writs. Subsection
18A(5) provides that parties cannot appeal a Federal Court decision to transfer a proceeding
under the Act to the Family Court. The amendments appropriately reflect the continuation of
the Family Court as the FCFC (Division 1) and do not substantively alter the operation of
subparagraph 18A(3)(f)(iv) and subsections 18A(4) and (5).
Item 54 - Subsection 19(1)
585. Item 54 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in subsection 19(1). Subsection 19(1) currently
provides that regulations may declare that a class or classes of decisions not be subject to
judicial review by the Federal Court or the Federal Circuit Court under the Act. The
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2) and does not substantively alter the operation of subsection 19(1).
Item 55 - Paragraph (zd) of Schedule 1
586. Item 55 repeals paragraph (zd) of Schedule 1. Schedule 1 lists classes of decisions
that are not decisions to which this Act applies. Paragraph (zd) currently provides for certain
decisions made under the Family Law Act. These decisions are being repealed because the
equivalent decisions that will be made under the Federal Circuit and Family Court of
Australia Act 2018 are included in the new paragraph (zf) of Schedule 1. The amendment
appropriately reflects the structural changes of the courts and, in combination with item 56,
does not affect the intent of Schedule 1.
Item 56 - Paragraph (zf) of Schedule 1
587. Item 56 repeals the paragraph and substitutes a new paragraph (zf). Schedule 1 lists
classes of decisions that are not decisions to which this Act applies. Paragraph (zf) currently
provides for certain decisions made by the Chief Judge of the Federal Circuit Court under the
Federal Circuit Court Act. These decisions are being repealed and the equivalent decisions
that will be made under the Federal Circuit and Family Court of Australia Act 2018 are being
included in the new paragraph (zf). The amendment appropriately reflects the structural
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changes of the courts and, in combination with item 55, does not affect the intent of
Schedule 1.
Admiralty Act 1988
Item 57 - Subsection 3(1) (definition of Federal Circuit Court)
588. Item 57 repeals the definition of 'Federal Circuit Court' in subsection 3(1) of the
Admiralty Act 1988. Subsection 3(1) provides definitions to assist in interpreting the Act. The
definition is no longer required as the Federal Circuit Court will be continued as the FCFC
(Division 2). Where references in the Act are made to the FCFC (Division 2), the reference is
provided in full.
Item 58 - Subsections 9(1) and 27(1)
589. Item 58 updates references to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in subsections 9(1) and 27(1). Subsection 9(1)
confers jurisdiction on the Federal Court, the Federal Circuit Court and on the Courts of the
Territories, and invests federal jurisdiction in the Courts of the States, for in personam actions
on a maritime claim or on a claim for damage done to a ship. Subsection 27(1) currently
provides for a transfer of proceedings between courts with jurisdiction to hear admiralty
actions in rem. The amendments appropriately reflect the continuation of the Federal Circuit
Court as the FCFC (Division 2) and do not substantively alter the operation of subsections
9(1) and 27(1).
Item 59 - Paragraph 28(1)(aa)
590. Item 59 repeals paragraph 28(1)(aa) and replaces it with new paragraph (aa), which
refers to 'the Federal Circuit and Family Court of Australia (Division 2)'. Section 28 deals
with remittal of action in rem proceedings. Paragraph 28(1)(aa) currently provides that where
an action in rem has already commenced in the Federal Court or in the Supreme Court of a
State, the Court may remit the proceeding for hearing to the Federal Circuit Court. The
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2) and does not substantively alter the operation of paragraph 28(1)(aa).
Item 60 - Subsection 28(7)
591. Item 60 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in subsection 28(7). Section 28 deals with remittal of
action in rem proceedings. Subsection 28(7) currently provides that the second court is
invested with federal jurisdiction, or jurisdiction is conferred on the second court if the
second court is the Federal Circuit Court or a court of a Territory, to hear the matter. The
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2) and does not substantively alter the operation of subsection 28(7).
Item 61 - Subsection 41(4)
592. Item 61 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in subsection 41(4). Section 41 provides for the
Governor-General to make Rules for courts exercising jurisdiction under the Act. Subsection
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41(1) currently confers jurisdiction on the Federal Court, the Federal Circuit Court and on the
Courts of the Territories, and the Courts of the States are invested with federal jurisdiction, in
respect of matters arising under the Rules made under the Act. The amendment appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
substantively alter the operation of subsection 41(4).
Aged Care Act 1997
Item 62 - Paragraph 95C-1(3)(b)
593. Item 62 repeals paragraph 95C-1(3)(b) in the Aged Care Act 1997 and replaces it with
new paragraph (b), which refers to 'the Federal Circuit and Family Court of Australia
(Division 2)'. Paragraph 95C-1(3)(b) currently gives jurisdiction to the Federal Circuit Court
to enforce civil penalty provisions of the Act. The amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively
alter the operation of subsection 95C-1(3).
Age Discrimination Act 2004
Item 63 - Schedule 1 (table item 26)
594. Item 63 repeals table item 26 in Schedule 1 of the Age Discrimination Act 2004 and
replaces it with 'Federal Circuit and Family Court of Australia Act 2018'. Schedule 1
provides a list of legislation for the purposes of section 39(1). Section 39(1) provides that Part
4 of the Act does not make unlawful anything done in direct compliance with the Acts listed
in Schedule 1. The amendment updates the legislative reference to reflect the change in law
and does not affect the intent of Schedule 1.
A New Tax System (Family Assistance) (Administration) Act 1999
Item 64 - Subsection 102D(1) (note)
595. Item 64 updates the reference to the 'Federal Circuit Court of Australia' to be 'Federal
Circuit and Family Court of Australia (Division 2)' in the note to subsection 102D(1) of the A
New Tax System (Family Assistance) (Administration) Act 1999. The note to
subsection 102D(1) currently refers to Subdivision E as it deals with appeals to the Federal
Court or the Federal Circuit Court against the making of departure prohibition orders. The
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2) and does not substantively alter the effect of the note to subsection 102D(1).
Item 65 - Subsection 102N(1)
596. Item 65 updates the reference to the 'Federal Circuit Court of Australia' to be 'Federal
Circuit and Family Court of Australia (Division 2)' in subsection 102N(1). Subsection
102N(1) currently deals with appeals to the Federal Court or the Federal Circuit Court against
the making of a departure prohibition order. The amendment appropriately reflects the
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continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively
alter the operation of subsection 102N(1).
Item 66 - Subparagraph 219UA(4)(c)(i)
597. Item 66 repeals subparagraph 219UA(4)(c)(i) and replaces it with new subparagraph
(i), which refers to 'a Judge of the Federal Circuit and Family Court of Australia (Division
2)'. Subparagraph 219UA(4)(c)(i) currently provides that a Judge of the Federal Circuit Court
is an issuing officer for the purposes of Part 2 of the Regulatory Powers (Standard
Provisions) Act 2014. The amendment appropriately reflects the continuation of Judges of the
Federal Circuit Court as Judges of the FCFC (Division 2).
Item 67 - Subparagraph 219UA(4)(e)(ii)
598. Item 67 repeals subparagraph 219UA(4)(e)(ii) and replaces it with new subparagraph
(ii), which refers to 'the Federal Circuit and Family Court of Australia (Division 2)'.
Subparagraph 219UA(4)(e)(ii) currently provides that the Federal Circuit Court is a relevant
court for the purposes of Part 2 of the Regulatory Powers (Standard Provisions) Act 2014.
The amendment appropriately reflects the continuation of the Federal Circuit Court as the
FCFC (Division 2) and does not substantively alter the operation of paragraph 219UA(4)(e).
Item 68 - Paragraph 219VA(3)(b)
599. Item 68 repeals paragraph 219VA(3)(b) and replaces it with new paragraph (b), which
refers to 'the Federal Circuit and Family Court of Australia (Division 2)'. Paragraph
219VA(3)(b) currently provides for the Federal Circuit Court to be a relevant court for the
purposes enforcing civil penalty provisions of the Act under Part 4 of the Regulatory Powers
(Standard Provisions) Act 2014. The amendment appropriately reflects the continuation of
the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the
operation of subsection 219VA(3).
Item 69 - Subsection 219VB(5)
600. Item 69 updates the reference to the 'Federal Circuit Court of Australia' to be 'Federal
Circuit and Family Court of Australia (Division 2)' in subsection 219VB(5). Subsection
219VB(5) currently provides that the Secretary may apply to the Federal Court or the Federal
Circuit Court to order that a person comply with a requirement to give all reasonable
assistance in connection with an application for a civil penalty order. The amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2)
and does not substantively alter the operation of subsection 219VB(5).
Antarctic Treaty (Environment Protection) Act 1980
Item 70 - Subsection 3(1) (paragraph (b) of the definition of Court)
601. Item 70 repeals paragraph (b) of the definition of 'Court' in subsection 3(1) of the
Antarctic Treaty (Environment Protection) Act 1980 and replaces it with new paragraph (b),
which refers to 'the Federal Circuit and Family Court of Australia (Division 2)'. Currently,
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paragraph (b) of the definition of Court defines 'Court' as being 'the Federal Circuit Court of
Australia'. The amendment appropriately reflects the continuation of the Federal Circuit
Court as the FCFC (Division 2) and does not substantively alter the meaning of 'Court' in
subsection 3(1).
Archives Act 1983
Item 71 - Subsections 53(6) and (7) and 55A(4) and (5)
602. Item 71 updates references to the 'Federal Circuit Court of Australia' to be 'Federal
Circuit and Family Court of Australia (Division 2)' in subsections 53(6) and (7) and 55A(4)
and (5) of the Archives Act 1983. Section 53 deals with the production of exempt records.
Section 55A deals with the automatic stay of certain decisions on appeal. The amendments
appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2)
and do not substantively alter the operation of subsections 53(6) and (7) and 55A(4) and (5).
Australian Charities and Not-for-profits Commission Act 2012
Item 72 - Section 300-5 (definition of issuing officer)
603. Item 72 updates the reference to the 'Federal Circuit Court of Australia' to be 'Federal
Circuit and Family Court of Australia (Division 2)' in section 300-5 of the Australian
Charities and Not-for-profits Commission Act 2012. Currently, 'issuing officer' is defined as
'a magistrate or a Judge of the Federal Circuit Court of Australia. The amendment
appropriately reflects the continuation of Judges of the Federal Circuit Court as Judges of the
FCFC (Division 2) and does not substantively alter the meaning of 'issuing officer' in section
300-5.
Australian Crime Commission Act 2002
Item 73 - Subsection 4(1) (definition of Federal Circuit Court)
604. Item 73 repeals the definition of 'Federal Circuit Court' in subsection 4(1) of the
Australian Crime Commission Act 2002. Subsection 4(1) provides definitions to assist in
interpreting the Act. The definition is no longer required as the Federal Circuit Court will be
continued as the FCFC (Division 2). Where references in the Act are made to the FCFC
(Division 2), the reference is provided in full.
Item 74 - Subsection 4(1) (paragraph (aa) of the definition of issuing officer)
605. Item 74 updates the reference to the 'Federal Circuit Court' to be the 'Federal Circuit
and Family Court of Australia (Division 2)' in subsection 4(1). Paragraph (aa) of the
definition of 'issuing officer' in subsection 4(1) currently provides that it means 'a Judge of
the Federal Circuit Court'. The amendment appropriately reflects the continuation of Judges
of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not substantively
alter the meaning of 'issuing officer' in subsection 4(1).
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Item 75 - Paragraph 25E(2)(b)
606. Item 75 updates the reference to the 'Family Court of Australia' to be 'Federal Circuit
and Family Court of Australia (Division 1)' in paragraph 25E(2)(b). Paragraph 25E(2)(b)
currently excludes the Family Court from ordering that material may be disclosed. The
amendment appropriately reflects the continuation of the Family Court as the FCFC (Division
1) and does not substantively alter the operation of paragraph 25E(2)(b).
Item 76 - Subsection 27(2A)
607. Item 76 updates references to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in subsection 27(2A). Subsection 27(2A) currently
permits applicants or potential applicants to the Federal Circuit Court to apply to the
Attorney-General requesting assistance in respect of the application. The amendments
appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2)
and do not substantively alter the operation of subsection 27(2A).
Item 77 - Paragraph 55A(1)(c)
608. Item 77 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in paragraph 55A(1)(c). Paragraph 55A(1)(c)
currently provides a Judge of the Federal Court or a Judge of the Federal Circuit Court with
legislative consent as to the conferral of certain duties, functions and powers under State
laws. The amendment appropriately reflects the continuation of Judges of the Federal Circuit
Court as Judges of the FCFC (Division 2) and does not substantively alter the operation of
paragraph 55A(1)(c).
Item 78 - Subsection 55A(5B) (heading)
609. Item 78 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in the heading to subsection 55A(5B). The heading
now reads 'Judge of the Federal Court or Judge of the Federal Circuit and Family Court of
Australia (Division 2)'. The amendment appropriately reflects the continuation of the
Federal Circuit Court as the FCFC (Division 2).
Item 79- Subsections 55A(5B) and (5C)
610. Item 79 updates references to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in subsections 55A(5B) and (5C). Section 55A deals
with the operation of State laws. Subsections 55A(5B) and (5C) currently provide for the
duty, function or power that may be conferred on a Judge of the Federal Court or a Judge of
the Federal Circuit Court by a law of a State. The amendments appropriately reflect the
continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively
alter the operation of subsections 55A(5B) and (5C).
Item 80 - Paragraphs 55A(8)(c) and (9)(c)
611. Item 80 updates references to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in paragraphs 55A(8)(c) and (9)(c). Subsections
55A(8) and (9) provide for concurrent operation of State laws. Paragraph 55A(8)(c) currently
provides that the Act does not intend to exclude or limit the operation of a State law that
confers any duties, functions or powers on a Judge of the Federal Court or a Judge of the
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Federal Circuit Court. Paragraph 55A(9)(c) provides that the Act is not intended to prevent a
Judge of the Federal Court or a Judge of the Federal Circuit Court from having concurrent
duties, functions or powers under a law of a State. The amendments appropriately reflect the
continuation of the Judges of the Federal Circuit Court as Judges of the FCFC (Division 2).
Item 81 - Subsection 55A(13)
612. Item 81 inserts a definition of 'Judge of the Federal Circuit and Family Court of
Australia (Division 2)' into subsection 55A(13). Subsection 55A(13) provides definitions for
the purposes of section 55A. The new definition provides that 'Judge of the Federal Circuit
and Family Court of Australia (Division 2) means a Judge of the Federal Circuit and Family
Court of Australia (Division 2) in a personal capacity and not as a court or a member of a
court'. The amendment appropriately reflects the continuation of Judges of the Federal
Circuit Court as Judges of the FCFC (Division 2). Item 82 repeals the definition of 'Judge of
the Federal Circuit Court'.
Item 82 - Subsection 55A(13) (definition of Judge of the Federal Circuit Court)
613. Item 82 repeals the definition of 'Judge of the Federal Circuit Court' in subsection
55A(13). Subsection 55A(13) provides definitions for the purposes of section 55A. The
definition currently provides that 'Judge of the Federal Circuit Court means a Judge of the
Federal Circuit Court in a personal capacity and not as a court or a member of a court'. The
definition is no longer required as Judges of the Federal Circuit Court will continue as Judges
of the 'Federal Circuit and Family Court of Australia (Division 2)'. Item 81 inserts a
definition of 'Judge of the Federal Circuit and Family Court of Australia (Division 2)'.
Item 83 - Subsection 55C(2)
614. Item 83 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in subsection 55C(2). Subsection 55C(2) currently
provides that neither the Act or any other law of the Commonwealth imposes an obligation
on a Judge of the Federal Court or a Judge of the Federal Circuit Court to perform duties
relating to a relevant criminal activity if it is not a federal criminal activity or the imposition
of the obligation is in contravention of a constitutional doctrine. The amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2)
and does not substantively alter the operation of subsection 55C(2).
Item 84 - Subsection 55C(3)
615. Item 84 inserts a new definition of 'Judge of the Federal Circuit and Family Court of
Australia (Division 2)' in subsection 55C(3). Subsection 55C(3) provides definitions for the
purposes of section 55C. The new definition provides that 'Judge of the Federal Circuit and
Family Court of Australia (Division 2) means a Judge of the FCFC (Division 2) in a personal
capacity and not as a court or member of a court'. The amendment appropriately reflects the
continuation of Judges of the Federal Circuit Court as the Judges of FCFC (Division 2). Item
85 repeals the definition of 'Judge of the Federal Circuit Court'.
Item 85 - Subsection 55C(3) (definition of Judge of the Federal Circuit Court)
616. Item 85 repeals the definition of 'Judge of the Federal Circuit Court' in subsection
55C(3). Subsection 55C(3) provides definitions for the purposes of section 55C. The
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definition currently provides that 'Judge of the Federal Circuit Court means a Judge of the
Federal Circuit Court in a personal capacity and not as a court or a member of a court'. The
definition is no longer required as Judges of the Federal Circuit Court will continue as Judges
of the 'Federal Circuit and Family Court of Australia (Division 2)'. Item 84 inserts a
definition of 'Judge of the Federal Circuit and Family Court of Australia (Division 2)'.
Item 86 - Section 57
617. Item 86 updates the reference to the first occurring 'Federal Circuit Court' to be
'Federal Circuit and Family Court of Australia (Division 2)' in section 57. Section 57 applies
section 11 of the Administrative Decisions (Judicial Review) Act 1977 as if subsections 11(1)
to (5) of that Act were replaced with the text provided in section 57 of the Australian Crime
Commission Act 2002. The amendment appropriately reflects the continuation of the Federal
Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of
section 57.
Item 87 - Section 57
618. Item 87 updates the reference to 'Federal Circuit Court-Federal Circuit Court Rules'
to be 'Federal Circuit and Family Court of Australia (Division 2) -Federal Circuit and Family
Court of Australia (Division 2) Rules' in section 57. Section 57 applies section 11 of the
Administrative Decisions (Judicial Review) Act 1977 as if subsections 11(1) to (5) of that Act
were replaced with the text provided in section 57 of the Australian Crime Commission Act
2002. The amendment appropriately reflects the continuation of the Federal Circuit Court as
the FCFC (Division 2) and the applicable Rules for that Court.
Item 88 - Subparagraph 61(2)(g)(ii)
619. Item 88 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in subparagraph 61(2)(g)(ii).
Subparagraph 61(2)(g)(ii) currently provides that the annual report by the Chair of the Board
shall include particulars of the number and results of applications made to the Federal Court
or the Federal Circuit Court under the Administrative Decisions (Judicial Review) Act 1977
for orders of review in respect of matters arising under the Act. The amendment appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
substantively alter the operation of subparagraph 61(2)(g)(ii).
Item 89 - Schedule 1
620. Item 79 updates the reference to the 'Federal Circuit Court of Australia Act 1999,
Part 6A' to be 'Federal Circuit and Family Court of Australia Act 2018, Part 7 of Chapter 4'
in Schedule 1. Schedule 1 lists prescribed provisions for the purpose of section 20. This
amendment updates the legislative reference to reflect the change in law and does not affect
the intent of Schedule 1.
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Australian Energy Market Act 2004
Item 90 - Subsection 11(1) (definition of magistrate)
621. Item 90 updates the reference to the 'Federal Circuit Court of Australia' to be 'Federal
Circuit and Family Court of Australia (Division 2)' in subsection 11(1) of the Australian
Energy Market Act 2004. Section 11 exists to assist with the interpretation of some
expressions in the National Electricity (Commonwealth) Law and Regulations. Subsection
11(1) currently defines 'magistrate' to mean 'a Judge of the Federal Circuit Court of
Australia'. The amendment appropriately reflects the continuation of Judges of the Federal
Circuit Court as Judges of the FCFC (Division 2) and does not substantively alter the
meaning of 'magistrate' in subsection 11(1).
Item 91 - Subsection 11H(1) (definition of magistrate)
622. Item 91 updates the reference to the 'Federal Circuit Court of Australia' to be 'Federal
Circuit and Family Court of Australia (Division 2)' in subsection 11H(1). Section 11H exists
to assist with interpretation of some expressions in the National Gas (Commonwealth) Law
and Regulations. Subsection 11H(1) currently defines 'magistrate' to mean 'a Judge of the
Federal Circuit Court of Australia'. The amendment appropriately reflects the continuation of
Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not
substantively alter the meaning of 'magistrate' in subsection 11H(1).
Australian Human Rights Commission Act 1986
Item 92 - Subsection 3(1) (definition of Federal Circuit Court)
623. Item 92 repeals the definition of 'Federal Circuit Court' in subsection 3(1) of the
Australian Human Rights Commission Act 1986. Subsection 3 provides definitions for the
purposes of the Act. The definition currently provides that 'Federal Circuit Court means the
Federal Circuit Court of Australia'. The definition is no longer required as the Federal Circuit
Court will be continued as the FCFC (Division 2). Where references in the Act are made to
the FCFC (Division 2), the reference is provided in full.
Items 93 and 94 - Paragraph 46PH(1)(h) and subsections 46PH(1C), (2A) and (4)
624. Items 93 and 94 update references to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in paragraph 46PH(1)(h) and subsections 46PH
(1C), (2A) and (4). Section 46PH enables the President of the AHRC to terminate a
complaint. Paragraph 46PH(1)(h) currently provides that the President may terminate a
complaint if satisfied that the subject matter of the complaint involves an issue of public
importance that should be considered by the Federal Court or the Federal Circuit Court.
Subsection 46PH(1C) provides that the President must terminate a complaint if satisfied that
there would be no reasonable prospect that the Federal Court or the Federal Circuit Court
would find unlawful discrimination. If the President terminates a complaint, subsection
46PH(2A) provides that a notice notifying the complainants must explain that the Federal
Court and the Federal Circuit Court can award costs in proceedings. Subsection 46PH(4)
provides that the President may revoke the termination of a complaint but not after an
application is made to the Federal Court or the Federal Circuit Court. The amendments
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appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2)
and do not substantively alter the operation of paragraph 46PH(1)(h), and subsections
46PH(1C), (2A) and (4).
Item 95 - Division 2 of Part IIB (heading)
625. Item 95 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in the heading to Division 2 of Part IIB. The heading
now reads 'Proceedings in the Federal Court and the Federal Circuit and Family Court of
Australia (Division 2)'. The amendment appropriately reflects the continuation of the Federal
Circuit Court as the FCFC (Division 2).
Item 96 - Subsection 46PO(1)
626. Item 96 updates the reference to the 'Federal Circuit Court' to be the 'Federal Circuit
and Family Court of Australia (Division 2)' in subsection 46PO(1). Subsection 46PO(1)
currently provides that if a complaint is terminated by the President, an affected person may
make an application to the Federal Court or the Federal Circuit Court in relation to the
complaint alleging unlawful discrimination. The amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively
alter the operation of subsection 46PO(1).
Item 97 - Subsection 46PO(4) (note 2)
627. Item 97 repeals note 2 to subsection 46PO(4) and replaces it with the words provided.
Note 2 currently refers to the Federal Circuit Court's ability to award costs in proceedings
under section 79 of the Federal Circuit Court Act. The amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2) and updates the legislative
reference to reflect the change in law and does not affect the intent of note 2 to subsection
46PO(4).
Item 98 - Subsection 46PP(1)
628. Item 98 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in subsection 46PP(1). Subsection 46PP(1) currently
provides the Federal Court and the Federal Circuit Court with the power, at any time after a
complaint is lodged with the AHRC, to grant an interim injunction to maintain the status quo
or to maintain the rights or any complainant, respondent or affected person. The amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2)
and does not substantively alter the operation of subsection 46PP(1).
Item 99 - Section 46PR
629. Item 99 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)'. Section 46PR provides that the Federal Court and
the Federal Circuit Court are not bound by technicalities in proceedings under Division 2 of
Part IIB of the Act. The amendment appropriately reflects the continuation of the Federal
Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of
section 46PR.
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Item 100 - Subsection 46PS(1)
630. Item 100 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in subsection 46PS(1). Subsection 46PS(1)
currently provides that the President may provide the Federal Court or the Federal Circuit
Court with a written report on a complaint that has been terminated. The amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2)
and does not substantively alter the operation of subsection 46PS(1).
Item 101 - Section 46PSA (note 2)
631. Item 101 repeals note 2 to section 46PSA and replaces it with the words provided.
Note 2 currently refers to the Federal Circuit Court's ability to award costs in proceedings
under section 79 of the Federal Circuit Court Act . The amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2). It updates the legislative
reference to reflect the change in law and does not affect the intent of note 2 to section
46PSA.
Items 102 and 103 - Paragraphs 46PU(1)(a) and (b), and subsection 46PV(1)
632. Items 102 and 103 update references to the 'Federal Circuit Court' to be 'Federal
Circuit and Family Court of Australia (Division 2)' in subsections 46PU(1) and 46PV(1).
Section 46PU currently provides that a person may make an application to the
Attorney-General for the provision of assistance in respect of proceedings in the Federal
Court or the Federal Circuit Court under Division 2 of Part IIB of the Act. Paragraph
46PU(1)(a) provides that a person who has commenced or proposes to commence
proceedings in the Federal Court or the Federal Circuit Court under Division 2 of Part IIB of
the Act may apply for assistance. Paragraph 46PU(1)(b) currently provides that a respondent
may apply for assistance. Subsection 46PV(1) currently provides that a special-purpose
Commissioner may be amicus curiae to assist the Federal Court and the Federal Circuit Court
in certain proceedings. The amendments appropriately reflect the continuation of the Federal
Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of
paragraphs 46PU(1)(a) and (b), and subsection 46PV(1).
Item 104 - Section 49B (heading)
633. Item 104 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in the heading to section 49B. The heading now
reads 'Jurisdiction of Federal Court and Federal Circuit and Family Court of Australia
(Division 2)'. The amendment appropriately reflects the continuation of the Federal Circuit
Court as the FCFC (Division 2).
Item 105 - Section 49B
634. Item 105 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in section 49B. Section 49B currently provides
for the Federal Court and the Federal Circuit Court to have concurrent jurisdiction with
respect to civil matters arising under Part IIB or IIC of the Act. The amendment appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
substantively alter the operation of section 49B.
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Item 106 - Subsection 49C(2)
635. Item 106 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in subsection 49C(2). Section 49C provides for
Commonwealth compensation for acquisition of property from a person otherwise than on
just terms. Subsection 49C(2) currently provides that the Federal Court and the Federal
Circuit Court have concurrent jurisdiction to deal with these matters. The amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2)
and does not substantively alter the operation of subsection 49C(2).
Australian Jobs Act 2013
Item 107 - Section 5 (paragraph (b) of the definition of prescribed court)
636. Item 107 repeals paragraph (b) of the definition of 'prescribed court' and replaces it
with new paragraph (b), which refers to 'the Federal Circuit and Family Court of Australia
(Division 2)' in section 5 of the Australian Jobs Act 2013. Section 5 provides definitions to
assist in interpreting the Act. Paragraph (b) of the definition of 'prescribed court' currently
provides for the Federal Circuit Court to be a prescribed court. The amendment appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
substantively alter the meaning of 'prescribed court' in section 5.
Australian Passports Act 2005
Item 108 - Subsection 6(2)
637. Item 108 updates the reference to the 'Family Court of Australia' to be 'Federal
Circuit and Family Court of Australia (Division 1)' in subsection 6(2) of the Australian
Passports Act 2005. Subsection 6(2) currently provides that for the purposes of the Act, if an
overseas child order within the meaning of the Family Law Act is registered, the order has
the same force and effect as if it were an order of the Family Court of Australia made in
accordance with that Act. The amendment appropriately reflects the continuation of the
Family Court of Australia as the FCFC (Division 1) and does not substantively alter the
operation of subsection 6(2).
Australian Securities and Investments Commission Act 2001
Item 109 - Subsection 12BA(1) (definition of Family Court Judge)
638. Item 109 repeals the definition of a Family Court Judge. Subsection 12BA(1)
provides definitions that apply in Division 2 of Part 2 of the Australian Securities and
Investments Commission Act 2001. The definition of Family Court Judge is no longer
appropriate, and the references to a Family Court Judge are replaced by item 115 with
references to a Judge of the FCFC (Division 1) to reflect the continuation of the Judges of the
Family Court as Judges of the FCFC (Division 1).
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Item 110 - Section 12GL (heading)
639. Item 110 updates the reference to the 'Family Court' to be 'Federal Circuit and
Family Court of Australia (Division 1)' in the heading to section 12GL. The heading now
reads 'Transfer of certain proceedings to the FCFC (Division 1). The amendment
appropriately reflects the continuation of the Family Court as the FCFC (Division 1).
Items 111 to 114 - Subsections 12GL(1) and (3), Paragraphs 12GL(3)(a), (b), (c), (d) and
(e), and Subparagraph 12GL(3)(f)(i)
640. Items 111 to 114 update the references to the 'Family Court' to be 'Federal Circuit
and Family Court of Australia (Division 1)' in subsections 12GL(1) and (3), paragraphs
12GL(3)(a), (b), (c), (d), (e), and subparagraph 12GL(3)(f)(i). Section 12GL provides for
proceedings that are on foot in the Federal Court to be transferred to the Family Court. The
amendments appropriately reflects the continuation of the Family Court as the FCFC
(Division 1) and do not substantively alter the operation of section 12GL.
Item 115 - Subparagraphs 12GL(3)(f)(ii) and (iii)
641. Item 115 updates the reference to 'Family Court Judge' to be a 'Judge of the Federal
Circuit and Family Court of Australia (Division 1)' in subparagraphs 12GL(3)(f)(ii) and (iii).
Subparagraph 12GL(f)(ii) currently provides that, for the purposes of paragraph (f), a
reference to a Judge of the Federal Court includes a reference to a Family Court Judge.
Subparagraph 12GL(f) (iii) provides that a reference to the expression 'the Court or a Judge'
when used in relation to the Federal Court includes a reference to a Family Court Judge
sitting in Chambers. The amendments appropriately reflect the continuation of Judges of the
Family Court as Judges of the FCFC (Division 1) and do not substantively alter the operation
of subparagraphs 12GL(3)(f)(ii) and (iii).
Items 116 and 117 - Subparagraph 12GL(3)(f)(iv) and Subsections 12GL(4) and (5)
642. Items 116 and 117 update the references to the 'Family Court' to be 'Federal Circuit
and Family Court of Australia (Division 1)' in subparagraph 12GL(3)(f)(iv) and subsections
12GL(4) and (5). Section 12GL provides for proceedings that are on foot in the Federal
Court to be transferred to the Family Court. The amendments appropriately reflects the
continuation of the Family Court as the FCFC (Division 1) and do not substantively alter the
operation of section 12GL.
Australian Security Intelligence Organisation Act 1979
Item 118 - Section 34A (paragraph (c) of the definition of superior court)
643. Item 118 repeals paragraph (c) of the definition of 'superior court' and replaces it with
new paragraph (c), which refers to 'the Federal Circuit and Family Court of Australia
(Division 1)' in section 34A of the Australian Security Intelligence Organisation Act 1979.
Section 34A provides definitions to assist in interpreting Division 3 of Part III of the Act.
Paragraph (c) of the definition of 'superior court' currently provides that the Family Court of
Australia or of a State is a superior court. The amendment appropriately reflects the
continuation of the Family Court as the FCFC (Division 1) and, combined with item 119,
does not affect the meaning of 'superior court' in section 34A.
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Item 119 - Section 34A (after paragraph (d) of the definition of superior court)
644. Item 119 inserts new paragraph (da) in the definition of 'superior court' in section
34A. Section 34A provides definitions to assist in interpreting Division 3 of Part III of the
Act. New paragraph (da) reads '(da) a State Family Court (being a court to which section 41
of the Family Law Act applies)'. The amendment clarifies that a State Family Court is one
established under section 41 of the Family Law Act. The amendment does not substantively
affect the meaning of 'superior court' in section 34A.
Australian Sports Anti-Doping Authority Act 2006
Item 120 - Paragraph 72(3)(b)
645. Item 120 repeals paragraph 72(3)(b) of the Australian Sports Anti-Doping Authority
Act 2006 and replaces it with new paragraph (b), which refers to 'the Federal Circuit and
Family Court of Australia (Division 2)'. Paragraph 72(3)(b) was inserted by Schedule 2 to the
Regulatory Powers (Standardisation Reform) Act 2017, and currently lists the Federal Circuit
Court as a relevant court in relation to the civil penalty provisions of the Australian Sports
Anti-Doping Authority Act 2006. The amendment appropriately reflects the continuation of
the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the
operation of paragraph 72(3)(b).
Bankruptcy Act 1966
Item 121 - Subsection 5(1)
646. Item 121 repeals the definitions of 'Family Court Judge' and 'Federal Circuit Court'
in subsection 5(1) of the Bankruptcy Act 1966. Subsection 5(1) provides definitions to assist
in interpreting the Act. These definitions are no longer required as Family Court Judges will
be continued as Judges of the FCFC (Division 1), and the Federal Circuit Court will be
continued as the FCFC (Division 2). Where references in the Act are made to the Judges of
the FCFC (Division 1) or to the FCFC (Division 2), the reference is provided in full.
Item 122 - Subsection 5(1) (paragraph (b) of the definition of Registrar)
647. Item 122 repeals paragraph (b) of the definition of 'Registrar' in subsection 5(1) and
replaces it with new paragraph (b), which refers to 'a Registrar of the Federal Circuit and
Family Court of Australia (Division 2)'. Subsection 5(1) provides for definitions to assist in
interpreting the Act. Under the reforms, the Chief Executive Officer and Principal Registrar
position of the Federal Circuit Court will be removed, but Registrars of the Federal Circuit
Court will be retained. New paragraph (b) provides for this change and reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2).
Item 123 - Subsection 5(1) (definition of the Family Court)
648. Item 123 repeals the definition of 'the Family Court' in subsection 5(1). Subsection
5(1) provides for definitions for the purposes of the Act. The definition is no longer required
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as the Family Court will be continued as the FCFC (Division 1). Where references in the Act
are made to the FCFC (Division 1), the reference is provided in full.
Item 124 - Subsection 27(1)
649. Item 124 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in subsection 27(1). Subsection 27(1) currently
provides for the Federal Court and the Federal Circuit Court to have concurrent jurisdiction in
bankruptcy. The amendment appropriately reflects the continuation of the Federal Circuit
Court as the FCFC (Division 2) and does not substantively alter the operation of subsection
27(1).
Item 125 - Paragraph 27(1)(b)
650. Item 125 updates the reference to the 'Family Court' to be 'Federal Circuit and
Family Court of Australia (Division 1)' of paragraph 27(1)(b). Paragraph 27(1)(b) currently
provides that the Family Court has jurisdiction to hear bankruptcy matters under section 35 or
35A of the Act. The amendment appropriately reflects the continuation of the Family Court
as the FCFC (Division 1) and does not substantively alter the operation of paragraph
27(1)(b).
Item 126 - Section 35 (heading)
651. Item 126 updates the reference to the 'Family Court's jurisdiction' to be 'Jurisdiction
of the Federal Circuit and Family Court of Australia (Division 1)' in the heading to section
35. The heading now reads 'Jurisdiction of the Federal Circuit and Family Court of Australia
(Division 1) in bankruptcy where trustee is a party to property settlement or spousal
maintenance proceedings etc.'. The amendment appropriately reflects the continuation of the
Family Court as the FCFC (Division 1).
Item 127 - Subsections 35(1) and (1A)
652. Item 127 updates references to the 'Family Court' to be 'Federal Circuit and Family
Court of Australia (Division 1)' in subsections 35(1) and (1A). Subsections 35(1) and (1A)
currently give the Family Court jurisdiction to hear bankruptcy matters in the listed
circumstances. The amendments appropriately reflect the continuation of the Family Court as
the FCFC (Division 1) and do not substantively alter the operation of subsections 35(1) and
(1A).
Item 128 - Subsection 35(2)
653. Item 128 updates the reference to 'Family Court's jurisdiction' to be 'jurisdiction of
the Federal Circuit and Family Court of Australia (Division 1)' in subsection 35(2).
Subsection 35(2) currently provides that the Family Court's jurisdiction to hear bankruptcy
matters under section 35A of the Act is not limited by subsections 35(1) and (1A). The
amendment appropriately reflects the continuation of the Family Court as the FCFC (Division
1) and does not substantively alter the operation of subsection 35(2).
Item 129 - Section 35A (heading)
654. Item 129 updates the reference to the 'Family Court' to be 'Federal Circuit and
Family Court of Australia (Division 1)' in the heading to section 35A. The heading now reads
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'Transfer of proceedings to Federal Circuit and Family Court of Australia (Division 1)'. The
amendment appropriately reflects the continuation of the Family Court as the FCFC (Division
1).
Item 130 - Subsection 35A(1)
655. Item 130 repeals subsection 35A(1) and replaces it with a new subsection.
Section 35A currently provides for transfer of proceedings to the Family Court. The
amendment provides that the Federal Court may transfer proceedings to the FCFC (Division
1) on the application of a party or of its own motion. The new subsection appropriately
reflects the continuation of the Family Court as the FCFC (Division 1).
Item 131 - Subsection 35A(2)
656. Item 131 repeals subsection 35A(2). Section 35A(2) currently provides that where a
proceeding is pending in the Federal Court at the commencement of the section shall not be
transferred to the Family Court unless the parties to the proceeding consent to the transfer.
The section commenced operation in 1988, and there should be no proceedings still pending
in the Federal Court from that time. As such, the provision is no longer required.
Item 132 - Subsection 35A(2A)
657. Item 132 repeals subsection 35A(2A) and replaces it with a new subsection.
Subsection 35A(2A) currently provides for the Federal Circuit Court to transfer a proceedings
to the Family Court. The main change made by the new subsection is that it updates the
reference to the 'Federal Circuit Court' to be 'Federal Circuit and Family Court of Australia
(Division 2)' and the reference to the 'Family Court' to be 'Federal Circuit and Family Court
of Australia (Division 1)'. The amendment appropriately reflects the continuation of the
Federal Circuit Court as the FCFC (Division 2) and the Family Court as the FCFC (Division
1) and does not substantively alter the operation of subsection 35A(2A).
Item 133 - Subsection 35A(3)
658. Item 133 updates the first reference to the 'Family Court' to be 'Federal Circuit and
Family Court of Australia (Division 1)' in subsection 35A(3). See item 134 for updates to
following references to the Family Court. Subsection 35A(3) currently deals with the Family
Court's jurisdiction and powers in relation to proceedings transferred to it. The amendment
appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does
not substantively alter the operation of subsection 35A(3).
Item 134 - Paragraphs 35A(3)(a) to (e)
659. Item 134 updates references to the 'Family Court' to be 'the Court' (which means the
FCFC (Division 1)) in paragraphs 35A(3)(a) to (e). See item 133 for further guidance on the
initial reference to the FCFC (Division 1). Subsequent references have been shortened to 'the
Court' to save repeating the full title of the Court. Subsection 35A(3) currently deals with the
Family Court's jurisdiction and powers in relation to proceedings transferred to it. The
amendments appropriately reflect the continuation of the Family Court as the FCFC (Division
1) and do not substantively alter the operation of paragraphs 35A(3)(a) to (e).
Item 135 - Subparagraph 35A(3)(f)(i)
111
660. Item 135 updates the reference to the 'Family Court' to be 'Federal Circuit and
Family Court of Australia (Division 1)' in subparagraph 35A(3)(f)(i). Subparagraph
35A(3)(f)(i) currently provides that, for the purposes of paragraph (f), a reference to the
Federal Court includes a reference to the Family Court. The name of the Court is provided in
full to ensure there is no confusion with the Federal Court. The amendment appropriately
reflects the continuation of the Family Court as the FCFC (Division 1) and does not
substantively alter the operation of subparagraph 35A(3)(f)(i).
Item 136 - Subparagraphs 35A(3)(f)(ii) and (iii)
661. Item 136 updates reference to 'Family Court Judge' to be 'Judge of the Federal
Circuit and Family Court of Australia (Division 1)' in subparagraphs 35A(3)(f)(ii) and (iii).
Subparagraph 35A(3)(f)(ii) currently provides that, for the purposes of paragraph (f), a
reference to a Judge of the Federal Court includes a reference to a Family Court Judge.
Subparagraph 35A(3)(f)(iii) provides that a reference to the expression 'the Court or a Judge'
when used in relation to the Federal Court includes a reference to a Family Court Judge
sitting in Chambers. The amendments appropriately reflect the continuation of Judges of the
Family Court as Judges of the FCFC (Division 1) and do not substantively alter the operation
of subparagraphs 35A(3)(f)(ii) and (iii).
Item 137 - Subparagraph 35A(3)(f)(iv)
662. Item 137 updates reference to the 'Family Court' to be 'Federal Circuit and Family
Court of Australia (Division 1)' in subparagraph 35A(3)(f)(iv). Subparagraph 35A(3)(f)(iv)
currently provides that a reference to a Registrar includes a reference to a Registrar of the
Family Court. The amendment appropriately reflects the continuation of the Family Court as
the FCFC (Division 1) and does not substantively alter the operation of subparagraph
35A(3)(f)(iv).
Item 138 - Subsection 35A(3) (note)
663. Item 138 repeals the note to subsection 35A(3) and replaces it with a new note to
subsection 35A(3). The note currently outlines the Rules of Court made under the Family
Law Act apply in relation to proceedings transferred to the Family Court under section 35A.
The new note provides that the Rules of Court that apply are those made under Chapter 3 of
the Federal Circuit and Family Court of Australia Act 2018. The new note refers to the
appropriate Rules of Court that will apply in the FCFC (Division 1) and does not affect the
intent of the note to subsection 35A(3).
Item 139 - Subsection 35A(4)
664. Item 139 updates the reference to the 'Family Court' to be 'Federal Circuit and
Family Court of Australia (Division 1)' in subsection 35A(4). Subsection 35A(4) currently
provides for the Family Court to give directions and make orders to resolve difficulties. The
amendment appropriately reflects the continuation of the Family Court as the FCFC (Division
1) and does not substantively alter the operation of the subsection 35A(4).
Item 140 - Subsection 35A(5)
665. Item 140 repeals subsection 35A(5) and replaces it with a new subsection.
Subsection 35A(5) currently provides that an appeal does not lie from a decision of the
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Federal Court or Federal Circuit Court to transfer a proceeding to the Family Court. The
substitution updates reference to the 'Federal Circuit Court' to be 'Federal Circuit and Family
Court of Australia (Division 2)' and reference to the 'Family Court' to be 'Federal Circuit
and Family Court of Australia (Division 1)', appropriately reflecting the continuation of the
Courts. This amendment will not substantively alter the operation of subsection 35A(5).
Item 141 - Subsection 35B(1)
666. Item 141 updates the reference to the 'Family Court of Australia' to be 'Federal
Circuit and Family Court of Australia (Division 1)' in subsection 35B(1). The updated
reference appropriately reflects the continuation of the Family Court as the FCFC (Division
1).
Item 142 - Paragraph 35B(2)(a)
667. Item 142 updates the reference to 'Family Court Judge' to be 'Judge of the Federal
Circuit and Family Court of Australia (Division 1)' in paragraph 35B(2)(a). Paragraph
35B(2)(a) currently provides that references to 'a Family Court judge' in subparagraphs
35A(3)(f)(ii) or (iii) be read as reference to 'a judge of the Family Court of Western
Australia'. The amendment appropriately reflects the continuation of Judges of the Family
Court as Judges of the FCFC (Division 1) and does not substantively alter the operation of
paragraph 35B(2)(a).
Item 143 - Paragraph 35B(2)(b)
668. Item 143 updates the reference to 'Registrar of the Family Court' to be 'Registrar of
the Federal Circuit and Family Court of Australia (Division 1)' in paragraph 35B(2)(b).
Paragraph 35B(2)(b) currently provides that references to 'a Registrar of the Family Court' in
subparagraphs 35A(3)(f)(iv) be read as reference to 'a registrar of the Family Court of
Western Australia'. The amendment appropriately reflects the continuation of the Family
Court as the FCFC (Division 1) and does not substantively alter the operation of paragraph
35B(2)(b).
Biosecurity Act 2015
Item 144 - Section 9 (definition of Federal Circuit Court)
669. Item 144 repeals the definition of 'Federal Circuit Court' in section 9 of the
Biosecurity Act 2015. Section 9 provides for definitions to assist in interpreting the Act. The
definition is no longer required as the Federal Circuit Court will be continued as the FCFC
(Division 2). Where references in the Act are made to the FCFC (Division 2), the reference is
provided in full.
Item 145 - Section 9 (paragraph (c) of the definition of issuing officer)
670. Item 145 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in section 9. Paragraph (c) of the definition of
'issuing officer' in section 9 currently provides that a Judge of the Federal Court or the
Federal Circuit Court is an issuing officer. The amendment appropriately reflects the
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continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and
does not substantively alter the meaning of 'issuing officer' in section 9.
Item 146 - Section 9 (paragraph (b) of the definition of relevant court)
671. Item 146 repeals paragraph (b) of the definition of 'relevant court' in section 9 and
replaces it with new paragraph (b), which refers to 'the Federal Circuit and Family Court of
Australia (Division 2)'. Paragraph (b) of the definition of 'relevant court' currently provides
that the Federal Circuit Court is a relevant court. The amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively
alter the meaning of 'relevant court' in section 9.
Item 147 - Section 486
672. Item 147 omits the first paragraph of section 486 and replaces it with a new
paragraph. Section 486 provides a simplified outline of Part 3 of Chapter 9 of the Act. It
explains who may issue a warrant to authorise entry to premises, taking possession of
premises or a conveyance, how they may be issued and how to execute them in relation to an
aircraft or vessel. The amendment appropriately reflects the continuation of the Federal
Circuit Court as the FCFC (Division 2) and does not alter the intent of section 486.
Broadcasting Legislation Amendment (Broadcasting Reform) Act 2017
Item 148 - Subparagraph 41(7)(b)(ii) of Schedule 6
673. Item 148 repeals subparagraph 41(7)(b)(ii) of Schedule 6 of the Broadcasting
Legislation Amendment (Broadcasting Reform) Act 2017 and replaces it with new
subparagraph (ii), which refers to 'the Federal Circuit and Family Court of Australia
(Division 2)'. Subparagraph 41(7)(b)(ii) of Schedule 6 currently provides that the Federal
Circuit Court is a court in which the Secretary, on behalf of the Commonwealth, may recover
an amount payable by a company to the Commonwealth. The amendment appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
substantively alter the operation of subparagraph 41(7)(b)(ii).
Broadcasting Services Act 1992
Item 149 - Subsection 6(1) (definition of Federal Circuit Court)
674. Item 149 repeals the definition of 'Federal Circuit Court' in subsection 6(1) of the
Broadcasting Services Act 1992. Subsection 6(1) provides for definitions to assist in
interpreting the Act. The definition is no longer required as the Federal Circuit Court will be
continued as the FCFC (Division 2). Where references in the Act are made to the FCFC
(Division 2), the reference is provided in full.
Item 150 - Paragraph 121FS(1)(b)
675. Item 150 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in paragraph 121FS(1)(b).
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Paragraph 121FS(1)(b) currently provides that a person who is entitled to make an
application to the Federal Court or the Federal Circuit Court under section 5 of the
Administrative Decisions (Judicial Review) Act 1977 in relation to a decision made under
subsection 121FD(1) or 121FL(3) or (5), that person may request a written statement from
the Minister for Foreign Affairs setting out the reasons for the decision. The amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2)
and does not substantively alter the operation of paragraph 121FS(1)(b).
Item 151 - Subparagraphs 205AD(b)(ii) and 205AF(5)(b)(ii)
676. Item 151 repeals subparagraphs 205AD(b)(ii) and 205AF(5)(b)(ii) and replaces them
with new subparagraphs (ii), which refer to 'the Federal Circuit and Family Court of
Australia (Division 2)'. Subparagraph 205AD(b)(ii) currently provides that the Australian
Communications and Media Authority (ACMA), on behalf of the Commonwealth, may
recover interim tax in the Federal Circuit Court. Subparagraph 205AF(5)(b)(ii) provides that
the ACMA, on behalf of the Commonwealth, may recover a late payment penalty in the
Federal Circuit Court. The amendments appropriately reflect the continuation of the Federal
Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of
subparagraphs 205AD(b)(ii) and 205AF(5)(b)(ii).
Budget Savings (Omnibus) Act 2016
Item 152 - Subitem 33(2) of Schedule 7
677. Item 152 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)'in subitem 33(2) of Schedule 7 of the Budget
Savings (Omnibus) Act 2016. Schedule 7 provides for the abolishment of the National Health
Performance Authority. Item 33 provides for Commonwealth compensation for acquisition of
property from a person otherwise than on just terms. Subitem 33(2) currently provides that if
the person and the Commonwealth do not agree on the amount of compensation, the person
may institute proceedings in the Federal Court and the Federal Circuit Court. The amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2)
and does not substantively alter the operation of subitem 33(2) of Schedule 7.
Building and Construction Industry (Improving Productivity) Act 2016
Item 153 - Section 5 (definition of Federal Circuit Court)
678. Item 153 repeals the definition of 'Federal Circuit Court' in section 5 of the Building
and Construction Industry (Improving Productivity) Act 2016. Section 5 provides definitions
to assist in interpreting the Act. The definition is no longer required as the Federal Circuit
Court will be continued as the FCFC (Division 2). Where references in the Act are made to
the FCFC (Division 2), the reference is provided in full.
Item 154 - Section 5 (paragraph (b) of the definition of relevant court)
679. Item 154 repeals paragraph (b) of the definition of 'relevant court' in section 5 and
replaces it with new paragraph (b), which refers to 'the Federal Circuit and Family Court of
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Australia (Division 2)'. Paragraph (b) of the definition of 'relevant court' currently provides
that the Federal Circuit Court is a relevant court. The amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively
alter the meaning of 'relevant court' in section 5.
Item 155 - Paragraphs 114(1)(e), (f) and (g)
680. Item 155 updates references to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in subsection 114(1). Subsection 114(1) outlines
situations in which the jurisdiction of the Federal Court is to be exercised in the Fair Work
Division of the Federal Court. The amendments appropriately reflect the continuation of the
Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of
paragraphs 114(1)(e), (f) and (g).
Building Energy Efficiency Disclosure Act 2010
Item 156 - Section 3 (paragraph (b) of the definition of Court)
681. Item 156 repeals paragraph (b) of the definition of 'Court' and replaces it with new
paragraph (b), which refers to 'the Federal Circuit and Family Court of Australia (Division
2)' in section 3 of the Building Energy Efficiency Disclosure Act 2010. Paragraph (b) of the
definition of 'Court' currently provides that the Federal Circuit Court is a Court. The
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2) and does not substantively alter the meaning of 'Court' in section 3.
Item 157 - Paragraph 51(5)(b)
682. Item 140 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in paragraph 51(5)(b). Paragraph 51(5)(b) is to
be inserted in the Act by item 8 of Schedule 3 to the Regulatory Powers (Standardisation
Reform) Act 2017. Paragraph 51(5)(b) currently provides that the Federal Circuit Court is a
relevant court in relation to the civil penalty provisions of the Building Energy Efficiency
Disclosure Act 2010. The amendment appropriately reflects the continuation of the Federal
Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of
paragraph 51(5)(b).
Child Support (Assessment) Act 1989
Items 158 to 160 - Subsection 5(1)
683. Items 158 and 159 amend subsection 5(1) of the Child Support (Assessment) Act 1989
by inserting new definitions of:
'Federal Circuit and Family Court of Australia'
'Federal Circuit and Family Court of Australia (Division 1) Rules'
'Federal Court'
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'Federal Court Rules'
'Related Federal Circuit and Family Court of Australia (Division 2) Rules'.
684. Item 160 amends subsection 5(1) by repealing the definition of related Federal
Circuit Court Rules.
685. Subsection 5(1) of the Act provides the definitions applicable for the interpretation of
the Act. These amendments appropriately reflect the continuation of the Family Court as the
FCFC (Division 1), the continuation of the Federal Circuit Court as the FCFC (Division 2),
and the conferral of family law and child support jurisdiction upon the Family Law Appeal
Division of the Federal Court.
Item 161 - Subsection 17(1)
686. Item 161 amends subsection 17(1) of the Act by omitting the first occurrence of
'Family Court' and substituting 'Federal Circuit and Family Court of Australia'.
Subsection 17(1) provides that that a parent of an eligible child (or eligible carer thereof),
may seek the assistance of the counselling facilities of the Family Court or a Family Court of
a State. This amendment appropriately reflects the continuation of the Family Court as the
FCFC (Division 1) and does not alter the operation of the subsection.
Item 162 - Subsection 17(2)
687. Item 162 amends subsection 17(2) by repealing the subsection and substituting that an
appropriate officer of the FCFC or the Family Court of the State must, as far as practicable,
make the counselling facilities available. Subsection 17(2) currently provides that the
Principal Director of Court Counselling of the Family Court or an appropriate officer of the
Family of the Family Court of the State must, as far as practicable, make the counselling
facilities available. This amendment appropriately reflects the continuation of the Family
Court as the FCFC (Division 1), as well as the streamlined corporate management
arrangements between the two divisions of the FCFC. The terminology of an 'appropriate
officer' of the FCFC allows greater flexibility for the provision of appropriate counselling
facilities.
Item 163 - Section 98X
688. Item 163 amends section 98X by repealing the section and substituting that
'Jurisdiction under this Act is conferred on the Family Law Appeal Division of the Federal
Court, Federal Circuit and Family Court of Australia and certain State and Territory Courts'.
Section 98X provides a simplified outline of Division 1 of Part 7 of the Act, which relates to
the jurisdiction of courts review specified decisions. This amendment appropriately reflects
the continuation of the Family Court as the FCFC (Division 1), the continuation of the
Federal Circuit Court as the FCFC (Division 2), and the conferral of family law jurisdiction
upon the Family Law Appeal Division of the Federal Court.
Item 164 - Subsection 99(1)
689. Item 164 amends subsection 99(1) by omitting 'Family Court and the Federal Circuit
Court of Australia' and substituting 'Family Law Appeal Division of the Federal Court, the
Federal Circuit and Family Court of Australia'. Subsection 99(1) provides that jurisdiction is
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conferred by the Act on the Family Court, the Federal Circuit Court, the Supreme Court of
the Northern Territory (as specified in that section), and each Family Court of a State. This
amendment appropriately reflects the continuation of the Family Court as the FCFC
(Division 1), the continuation of the Federal Circuit Court as the FCFC (Division 2), and the
conferral of family law and child support appellate jurisdiction upon the Family Law Appeal
Division of the Federal Court.
Item 165 - At the end of section 99
690. Item 165 adds a note at the end of section 99 directing readers to see sections 25 and
102 of the Federal Circuit and Family Court of Australia Act 2018, section 47A of the
Family Law Act, and section 24 of the Federal Court Act, in respect of appeals against
proceedings under the Child Support (Assessment) Act 1988. Sections 25 and 102 of the
Federal Circuit and Family Court of Australia Act 2018 relate to appeals from courts of
summary jurisdiction in relation to family law matters in Division 1 and Division 2 of the
FCFC, respectively. Section 24 of the Federal Court Act relates to the appellate jurisdiction
of that Court, as amended by this Act to reflect the conferral of family law and child support
jurisdiction upon the Family Law Appeal Division. This amendment appropriately directs
readers to the appropriate appeals provisions in the Federal Circuit and Family Court of
Australia Act 2018 and Federal Court Act, rather than replicating those provisions in the
Child Support (Assessment) Act 1989.
Item 166 - subsection 100(1)
691. Item 166 amends subsection 100(1) by omitting the words '(other than Part X of that
Act), the standard Rules of Court and the related Federal Circuit Court Rules', and
substituting '(other than Division 4 of Part V of that Act), the Federal Court Rules, the
standard Rules of Court, the Federal Circuit and Family Court of Australia (Division 1) Rules
and the related Federal Circuit and Family Court of Australia (Division 2) Rules'. Subsection
100(1) provides that the Family Law Act and various Court Rules apply to proceedings under
the Child Support (Assessment) Act 1988 as if the proceedings were proceedings under Part
VII of the Family Law Act (Children). This amendment appropriately reflects the
continuation of the Family Court as the FCFC (Division 1), the continuation of the Federal
Circuit Court as the FCFC (Division 2), the conferral of the majority of the appellate family
law and child support jurisdiction upon the Family Law Appeal Division of the Federal Court
and the inclusion of appeal provisions relating to child support decisions in new Division 4 of
Part V of the Family Law Act (see item 72 of Schedule 1 of this Bill).
Item 167 - Sections 101 to 105
692. Item 167 repeals sections 101 to 105 Child Support (Assessment) Act 1988 and
substitutes new sections 101 and 102.
693. Current section 101 relates to the appellate jurisdiction of the Family Court under the
Act. Section 102 relates to appeals to the Full Court of the Family Court from courts other
than the Federal Circuit Court and the Magistrates Court of Western Australia. Section 102A
relates to appeals to the Full Court of the Family Court from the Federal Circuit Court and the
Magistrates Court of Western Australia. Section 103 relates to cases stated in relation to
proceedings in which a decree in sections 102 and 102A -appeals to the Full Court of the
Family Court - applies. Section 104 relates to appeals to the High Court and section 105
relates to appeals from courts of summary jurisdiction.
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694. New section 101 confers jurisdiction on the Family Court of a State to hear and
determine appeals from a court of summary jurisdiction of the State (subsection 101(1)) and
on the Supreme Court of the Northern Territory to hear and determine appeals from a court of
summary jurisdiction in the Northern Territory (subsection 101(2)). The jurisdiction
conferred by new section 101 is currently conferred by subsection 105(4) (which is being
repealed by this item).
695. New subsection 102(1) provides that appeals do not lie from a decree of a court
exercising original jurisdiction under the Child Support (Assessment) Act 1988 to the High
Court, and includes a note that similar procedures are set out in sections 37 and 122 of the
Federal Circuit and Family Court of Australia Act 2018 which apply to the FCFC (Division
1) and the FCFC (Division 2). New subsection 102(2) provides that if subsection 102(1) is
inconsistent with section 73 of the Constitution (which outlines the appellate jurisdiction of
the High Court), subsection 102(1) will have effect as though the words ", except by special
leave of the High Court" were added to the end of subsection 102(1). This provision is
consistent with the approach taken to High Court appeals from judgments of the FCFC
(Division 1) and the FCFC (Division 2) (sections 37 and 122 of the Federal Circuit and
Family Court of Australia Act 2018) and from decrees of state and territory courts exercising
appellate jurisdiction (new section 47D of the Family Law Act at item 72 of Schedule 1 of
this Bill). This ensures a consistent approach across all courts exercising family law and child
support jurisdiction (that is, only to permit an appeal to the High Court with special leave if
the provision would otherwise be unconstitutional).
696. The repeal of section 101 to 105 is considered appropriate given that the relevant
appeal provisions are provided for (with the exception of that provided for by new section
101) in sections 25 and 102 of the Federal Circuit and Family Court of Australia Act 2018,
section 47A and 47B of the Family Law Act and section 24 of the Federal Court Act
(consistently with the note at item 165, above). It would be unnecessary to duplicate these
provisions in the Child Support (Assessment) Act 1989.
Item 168 - Paragraph 144(a)
697. Item 168 amends paragraph 144(a) by omitting the reference to 'a Full Court of the
Family Court' and substituting 'the Family Law Appeal Division of the Federal Court or the
Federal Circuit and Family Court of Australia'. Paragraph 144(a) provides that a decision of a
court becomes final if and when it is not a decision of the Full Court of the Family Court, and
an application for leave to appeal against the decision is not made within the requisite period
for making such an application. This amendment appropriately reflects the continuation of
the Family Court as the FCFC (Division 1), the Federal Circuit Court as the FCFC
(Division 2) and the conferral of family law appellate jurisdiction upon the Family Law
Appeal Division of the Federal Court, instead of on the FCFC (Division 1).
Item 169 - After paragraph 144(a)
698. Item 169 inserts new paragraph 144(aa) after amended paragraph 144(a) (item 168
above refers). New paragraph 144(aa) would provide that if the decision is one of the FCFC
and an application is not made for leave to appeal to the Family Law Appeal Division of the
Federal Court within the request period, the decision becomes final at the end of that period.
This amendment appropriately reflects the continuation of the Family Court as the FCFC
(Division 1), the Federal Circuit Court as the FCFC (Division 2), and the conferral of family
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law appellate jurisdiction upon the Family Law Appeal Division of the Federal Court, instead
of on the FCFC (Division 1).
Item 170 - Paragraph 144(b)
699. Item 170 amends paragraph 144(b) by omitting 'a Full Court of the Family Court' and
substituting 'the Family Law Appeal Division of the Federal Court'. Paragraph 144(b)
currently provides that a decision of a court becomes final if and when it is a decision of the
Full Court of the Family Court, and an application for special leave to appeal to the High
Court against the decision is not made within 30 days. This amendment appropriately
reflects the conferral of family law (appeals) jurisdiction upon the Family Law Appeal
Division of the Federal Court, instead of on the FCFC (Division 1).
Child Support (Registration and Collection) Act 1988
Items 171 to 175 - Subsection 4(1)
700. Items 172 and 174 amend subsection 4(1) of the Child Support (Registration and
Collection) Act 1988 by inserting new definitions of:
'Federal Circuit and Family Court of Australia'
'Federal Circuit and Family Court of Australia (Division 1) Rules'
'Federal Court'
'Federal Court Rules'
'Related Federal Circuit and Family Court of Australia (Division 2) Rules'.
701. Items 171, 173 and 175 amend subsection 4(1) by repealing the definitions of 'Family
Court', 'Family Law Magistrate of Western Australia', 'Full Court', 'Judge', and 'related
Federal Circuit Court Rules'.
702. Subsection 4(1) of the Act provides the definitions applicable for the interpretation of
the Act. These amendments appropriately reflect the continuation of the Family Court as the
FCFC (Division 1), the continuation of the Federal Circuit Court as the FCFC (Division 2),
and the conferral of family law jurisdiction upon the Family Law Appeal Division of the
Federal Court.
Item 176 - Subsection 72Q(1)
703. Item 176 amends subsection 72Q(1) of the Act by omitting 'Federal Circuit Court'
and substituting 'Federal Circuit and Family Court of Australia (Division 2)'. Subsection
72Q(1) provides that a person aggrieved by the making of a departure prohibition order may
appeal to the listed courts against the making of the order This amendment appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
alter the operation of the subsection.
Item 177 - Section 103ZC
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704. Item 177 amends section 103ZC by repealing the section and substituting that
'Jurisdiction under this Act is conferred on the Family Law Appeal Division of the Federal
Court, Federal Circuit and Family Court of Australia and certain State and Territory Courts'.
Section 103ZC provides a simplified outline of Division 2 of Part VIII of the Act, which
relates to the jurisdiction of courts to review certain decisions. This amendment appropriately
reflects the continuation of the Family Court as the FCFC (Division 1), the continuation of
the Federal Circuit Court as the FCFC (Division 2), and the conferral of family law
jurisdiction upon the Family Law Appeal Division of the Federal Court.
Item 178 - Subsection 104(1)
705. Item 178 amends subsection 104(1) by omitting 'Family Court and the Federal Circuit
Court of Australia' and substituting 'Family Law Appeal Division of the Federal Court, the
Federal Circuit and Family Court of Australia'. Subsection 104(1) provides that jurisdiction
is conferred by the Act on the Family Court, the Federal Circuit Court, the Supreme Court of
the Northern Territory (as specified in that section), and each Family Court of a State. This
amendment appropriately reflects the continuation of the Family Court as the FCFC
(Division 1), the continuation of the Federal Circuit Court as the FCFC (Division 2), and the
conferral of appellate family law and child support jurisdiction upon the Family Law Appeal
Division of the Federal Court.
Item 179 - At the end of section 104
706. Item 179 adds a note at the end of section 104 directing readers to see sections 25 and
102 of the Federal Circuit and Family Court of Australia Act 2018, section 47A of the
Family Law Act, and section 24 of the Federal Court Act, in respect of appeals against
proceedings under the Child Support (Registration and Collection) Act 1988. Sections 25 and
102 of the Federal Circuit and Family Court of Australia Act 2018 relate to appeals from
courts of summary jurisdiction in relation to family law matters in Division 1 and Division 2
of the FCFC, respectively. Section 24 of the Federal Court Act relates to the appellate
jurisdiction of that Court, as amended by this Act to reflect the conferral of appellate family
law and child support jurisdiction upon the Family Law Appeal Division. This amendment
appropriately directs readers to the appropriate appeals provisions in the Federal Circuit and
Family Court of Australia Act 2018 and Federal Court Act, rather than replicating those
provisions in the Child Support (Registration and Collection) Act 1988.
Item 180 - subsection 105(1)
707. Item 180 amends subsection 105(1) by omitting the words '(other than Part X of that
Act), the standard Rules of Court and the related Federal Circuit Court Rules', and
substituting '(other than Division 4 of Part V of that Act), the Federal Court Rules, the
standard Rules of Court, the Federal Circuit and Family Court of Australia (Division 1) Rules
and the related Federal Circuit and Family Court of Australia (Division 2) Rules'. Subsection
105(1) provides that the Family Law Act and various Court Rules apply to proceedings under
the Child Support (Registration and Collection) Act 1988 as if the proceedings were
proceedings under the Family Law Act. This amendment appropriately reflects the
continuation of the Family Court as the FCFC (Division 1), the continuation of the Federal
Circuit Court as the FCFC (Division 2) the conferral of the majority of the appellate family
law and child support jurisdiction upon the Family Law Appeal Division of the Federal Court
and the inclusion of appeal provisions relating to child support decisions in new Division 4 of
Part V of the Family Law Act (see item 72 of Schedule 1 of this Bill).
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Item 181 - Sections 106 to 110
708. Item 181 repeals sections 106 to 110 of the Child Support (Registration and
Collection) Act 1988 and substitutes new sections 106 and 107.
709. Current section 106 relates to the appellate jurisdiction of the Family Court under the
Act. Section 107 relates to appeals to the Full Court of the Family Court from courts other
than the Federal Circuit Court and the Magistrates Court of Western Australia. Section 107A
relates to appeals to the Full Court of the Family Court from the Federal Circuit Court and the
Magistrates Court of Western Australia. Section 108 relates to cases stated in relation to
proceedings in which a decree in sections 107 and 107A - appeals to the Full Court of the
Family Court - applies. Section 109 relates to appeals to the High Court and section 110
relates to appeals from courts of summary jurisdiction.
710. New section 106 confers jurisdiction on the Family Court of a State to hear and
determine appeals from a court of summary jurisdiction of the State (subsection 106(1)) and
on the Supreme Court of the Northern Territory to hear and determine appeals from a court of
summary jurisdiction in the Northern Territory (subsection 106(2)). The jurisdiction
conferred by new section 106 is currently conferred by subsection 110(4) (which is being
repealed by this item).
711. New subsection 107(1) provides that appeals do not lie from a decree of a court
exercising original jurisdiction under the Child Support (Registration and Collection) Act
1989 to the High Court and includes a note that similar procedures are set out in sections 37
and 122 of the Federal Circuit and Family Court of Australia Act 2018 which apply to the
FCFC (Division 1) and the FCFC (Division 2). New subsection 107(2) provides that if
subsection 107(1) is inconsistent with section 73 of the Constitution (which outlines the
appellate jurisdiction of the High Court), subsection 107(1) will have effect as though the
words ", except by special leave of the High Court" were added to the end of subsection
107(1). This provision is consistent with the approach taken to High Court appeals from
judgments of the FCFC (Division 1) and the FCFC (Division 2) (sections 37 and 122 of the
Federal Circuit and Family Court of Australia Act 2018) and from decrees of state and
territory courts exercising appellate jurisdiction (new section 47D of the Family Law Act at
item 72 of Schedule 1 of this Bill). This ensures a consistent approach across all courts
exercising family law and child support jurisdiction (that is, only to permit an appeal to the
High Court with special leave if the provision would otherwise be unconstitutional).
712.
713. The repeal of section 106 to 110 is considered appropriate given that the relevant
appeal provisions are provided for (with the exception of that provided for by new section
106) under sections 25 and 102 of the Federal Circuit and Family Court of Australia Act
2018, section 47A and 47B of the Family Law Act (see item 72 of Schedule 1 of this Bill)
and section 24 of the Federal Court Act (consistently with the new note at item 179, above).
It would be unnecessary to duplicate these provisions in the Child Support (Registration and
Collection) Act 1988 also.
Item 182 - Subsection 110W(2) (heading)
714. Item 182 amends the heading in subsection 110W(2) by repealing the current heading
'Full Court of the Family Court' and substituting 'Family Law Appeal Division of the
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Federal Court'. This amendment appropriately reflects the conferral of family law and child
support appellate jurisdiction upon the Family Law Appeal Division of the Federal Court,
instead of on the FCFC (Division 1).
Item 183 - Paragraph 110W(2)(a)
715. Item 183 amends paragraph 110W(2)(a) by repealing the paragraph and substituting
'a decision is a decision of the Family Law Appeal Division of the Federal Court; and'.
Paragraph 110W(2)(a) provides that a decision of a court becomes final if and when it is
decision of the Full Court of the Family Court, and an application for special leave to appeal
against the decision to the High Court is not made within 30 days. This amendment
appropriately reflects the conferral of appellate family law and child support jurisdiction upon
the Family Law Appeal Division of the Federal Court, instead of on the FCFC (Division 1).
Item 184 - After subsection 110W(2)
716. Item 184 inserts new paragraph 110W(2A) after amended paragraph 110W(2) - item
183, above refers. New paragraph 110W(2A) would provide that if the decision is one of the
FCFC under Part VIII and an application is not made for leave to appeal to the Family Law
Appeal Division of the Federal Court within 30 days of the making of the decision, the
decision becomes final at the end of that period. This amendment appropriately reflects the
continuation of the Family Court as the FCFC (Division 1) and the conferral of appellate
family law and child support jurisdiction upon the Family Law Appeal Division of the
Federal Court, instead of on the FCFC (Division 1).
Item 185 - Paragraphs 110W(3)(a) and (b)
717. Item 185 amends paragraphs 110W(3) (a) and (b) by repealing the paragraphs and
substituting that subsection 110(3) applies if a decision is a decision of a court (other than as
mentioned in paragraphs (2)(a) and (2A)(a)) and an application may be made for leave to
appeal against the decision. Subsection 110(3) provides that if the criteria in paragraphs (a)
and (b), and an application is not made within the period for doing so (paragraph (c)), the
decision of the other court becomes final at the end of that period. This amendment
appropriately supports and gives effect to the amendments at items 183 and 184, above.
Civil Dispute Resolution Act 2011
Item 186 - Section 5 (paragraph (b) of the definition of eligible court)
718. Item 186 repeals paragraph (b) of the definition of 'eligible court' and replaces it with
new paragraph (b), which refers to 'the Federal Circuit and Family Court of Australia
(Division 2)' in section 5 of the Civil Dispute Resolution Act 2011. Section 5 provides
definitions to be used in the interpretation of the Act. Paragraph (b) of the definition of
'eligible court' currently provides that the Federal Circuit Court is an eligible court. The
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2) and does not substantively alter the meaning of 'eligible court' in section 5.
Item 187 - Section 18
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719. Item 187 updates the reference to the Federal Circuit Court Act to be 'Chapter 4 of the
Federal Circuit and Family Court of Australia Act 2018'. Section 18 provides for Rules of
Court made under certain Acts to include certain provisions. This amendment updates the
legislative reference to reflect that the Rules of Court for the FCFC (Division 2) will be made
under Chapter 4 of the Federal Circuit and Family Court of Australia Act 2018. The
amendment does not affect the substantive operation of section 18.
Coal Mining Industry (Long Service Leave) Administration Act 1992
Item 188 - Subsection 4(1) (definition of Federal Circuit Court)
720. Item 188 repeals the definition of 'Federal Circuit Court' in subsection 4(1) of the
Coal Mining Industry (Long Service Leave) Administration Act 1992. Subsection 4(1)
provides definitions to assist in interpreting the Act. The definition currently provides that
'Federal Circuit Court means the Federal Circuit Court of Australia'. The definition is no
longer required as the Federal Circuit Court will be continued as the FCFC (Division 2).
Where references in the Act are made to the FCFC (Division 2), the reference is provided in
full.
Item 189 - Sections 39DA and 39DB
721. Item 189 updates references to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in sections 39DA and 39DB. Section 39DA currently
provides that employees, employee organisations and industrial associations may apply to the
Federal Court or the Federal Circuit Court for an order under section 39DB in relation to
contraventions or proposed contraventions of the civil penalty provisions under Part 5A.
Section 39DB provides for orders that can be made by the Federal Court or the Federal
Circuit Court. The amendments appropriately reflect the continuation of the Federal Circuit
Court as the FCFC (Division 2) and do not substantively alter the operation of sections 39DA
and 39DB.
Item 190 - Paragraph 49A(4)(b)
722. Item 190 repeals paragraph 49A(4)(b) and replaces it with new paragraph (b), which
refers to 'the Federal Circuit and Family Court of Australia (Division 2)'. Paragraph
49A(4)(b) is inserted by item 27 of Schedule 4 of the Regulatory Powers (Standardisation
Reform) Act 2017 and currently makes the Federal Circuit Court a relevant court for the
purposes of Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 in relation to the
civil penalty provisions of the Coal Mining Industry (Long Service Leave) Administration Act
1992. The amendment appropriately reflects the continuation of the Federal Circuit Court as
the FCFC (Division 2) and does not substantively alter the operation of paragraph 49A(4)(b).
Item 191 - Section 52C (heading)
723. Item 191 updates reference to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in the heading to section 52C. The heading now reads
'Conferral of jurisdiction on the Federal Court and the Federal Circuit and Family Court of
Australia (Division 2)'. The amendment appropriately reflects the continuation of the Federal
Circuit Court as the FCFC (Division 2).
124
Items 192 and 193 - Subsection 52C(1) and paragraphs 52C(2)(e), (f) and (g)
724. Items 192 and 193 update references to the 'Federal Circuit Court' to be 'Federal
Circuit and Family Court of Australia (Division 2)' in subsection 52C(1) and paragraphs
52C(2)(e), (f) and (g). Section 52C(1) currently confers jurisdiction on the Federal Court and
the Federal Circuit Court in relation to any civil matter arising under the Act or the Coal
Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992. Section 52C(2)
provides that the jurisdiction conferred on the Federal Court is to be exercised is the Fair
Work Division of the Federal Court in the circumstances specified in paragraphs 52C(2)(a) to
(i). The amendments appropriately reflect the continuation of the Federal Circuit Court as the
FCFC (Division 2) and do not substantively alter the operation of subsection 52C(1) and
paragraphs 52C(2)(e), (f) and (g).
Item 194 - Subsection 52C(3)
725. Item 194 updates subsection 52C(3) with the words provided. In effect, the first
reference to the 'Federal Circuit Court' changes to be 'Federal Circuit and Family Court of
Australia (Division 2)' and the second reference to be 'the Court'. The second reference
states 'the Court' as it would be repetitive to include the full reference a second time.
Subsection 52C(3) currently provides that the jurisdiction conferred on the Federal Circuit
Court under subsection (1) is to be exercised in the Fair Work Division of the Federal Circuit
Court in the circumstances specified in paragraphs 52C(3)(a) to (e). The amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2)
and does not substantively alter the operation of subsection 52C(3).
Item 195 - Paragraph 52C(3)(a)
726. Item 195 omits reference to 'Federal Circuit' in paragraph 52C(3)(a), leaving a
reference to 'the Court'. This reference to 'the Court' means the FCFC (Division 2) by virtue
of the amendment in item 194. Paragraph 52C(3)(a) currently provides that when an
application is made to the Federal Circuit Court under the Act or the Coal Mining Industry
(Long Service Leave) Payroll Levy Collection Act 1992, the jurisdiction is to be exercised in
the Fair Work Division of the Federal Circuit Court. The amendment appropriately reflects
the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
substantively alter the operation of paragraph 52C(3)(a).
Item 196 - Paragraph 52C(3)(b)
727. Item 196 updates the paragraph 52C(3)(b) reference to 'section 15 of the Federal
Circuit Court of Australia Act 1999 to be 'section 108 of the Federal Circuit and Family
Court of Australia Act 2018'. Paragraph 52C(3)(b) currently provides that if an injunction is
sought from the Federal Circuit Court under section 15 of the Federal Circuit Court Act in
relation to a matter arising under the Act or the Coal Mining Industry (Long Service Leave)
Payroll Levy Collection Act 1992, the jurisdiction is to be exercised in the Fair Work
Division of the Federal Circuit Court. Section 15 of the Federal Circuit Court Act will be
reflected in section 108 of the Federal Circuit and Family Court of Australia Act 2018. The
amendment updates the legislative reference to reflect the change in law and does not
substantively affect the intent of paragraph 52C(3)(b).
Item 197 - Paragraph 52C(3)(c)
125
728. Item 197 updates the paragraph 52C(3)(c) reference to 'section 16 of the Federal
Circuit Court of Australia Act 1999' to be 'section 109 of the Federal Circuit and Family
Court of Australia Act 2018'. Paragraph 52C(3)(c) currently provides that if a declaration is
sought from the Federal Circuit Court under section 16 of the Federal Circuit Court Act in
relation to a matter arising under the Act or the Coal Mining Industry (Long Service Leave)
Payroll Levy Collection Act 1992, the jurisdiction is to be exercised in the Fair Work
Division of the Federal Circuit Court. Section 16 of the Federal Circuit Court Act will be
reflected in section 109 of the Federal Circuit and Family Court of Australia Act 2018. The
amendment updates the legislative reference to reflect the change in law and does not
substantively affect the intent of paragraph 52C(3)(c).
Item 198 - Paragraphs 52C(3)(d) and (e)
729. Item 198 updates references to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in paragraphs 52C(3)(d) and (e).
Paragraph s 52C(3)(d) and (e) currently provide that when proceedings are transferred from
the Federal Court to the Federal Circuit Court or the High Court remits a matter to the
Federal Circuit Court under the Act or the Coal Mining Industry (Long Service Leave)
Payroll Levy Collection Act 1992, the jurisdiction is to be exercised in the Fair Work
Division of the Federal Circuit Court. The amendments appropriately reflect the continuation
of the Federal Circuit Court as the FCFC (Division 2) and do not alter the intent of
paragraphs 52C(3)(d) and (e).
Item 199 - Section 52D
730. Item 199 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in section 52D. Section 52D currently provides
that the powers conferred on the Federal Court and the Federal Circuit Court by the Act are in
addition to any other powers of the Court. The amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively
alter the operation of section 52D.
Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992
Item 200 - Paragraph 13A(4)(b)
731. Item 200 repeals paragraph 13A(4)(b) of the Coal Mining Industry (Long Service
Leave) Payroll Levy Collection Act 1992 and replaces it with new paragraph (b), which refers
to 'the Federal Circuit and Family Court of Australia (Division 2)'. Paragraph 13A(4)(b) is to
be inserted by item 44 of Schedule 4 of the Regulatory Powers (Standardisation Reform) Act
2017 and currently makes the Federal Circuit Court a relevant court for the purposes of Part 4
of the Regulatory Powers (Standard Provisions) Act 2014 in relation to the civil penalty
provisions of the Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act
1992. The amendment appropriately reflects the continuation of the Federal Circuit Court as
the FCFC (Division 2) and does not substantively alter the operation of paragraph 13A(4)(b).
Coastal Trading (Revitalising Australian Shipping) Act 2012
126
Item 201 - Subsection 6(1) (definition of Federal Circuit Court)
732. Item 201 repeals the definition of 'Federal Circuit Court' in subsection 6(1) of the
Coastal Trading (Revitalising Australian Shipping) Act 2012. Subsection 6(1) provides
definitions to assist in interpreting the Act. The definition currently provides that 'Federal
Circuit Court means the Federal Circuit Court of Australia'. The definition is no longer
required as the Federal Circuit Court will be continued as the FCFC (Division 2). Where
references in the Act are made to the FCFC (Division 2), the reference is provided in full.
Item 202 - Subsection 86(1)
733. Item 202 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in subsection 86(1). Subsection 86(1) currently
provides that the Secretary may apply to the Federal Court or the Federal Circuit Court for an
order that a person, who is alleged to have contravened a civil penalty provision, pay the
Commonwealth a pecuniary penalty. The amendment appropriately reflects the continuation
of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the
operation of subsection 86(1).
Competition and Consumer Act 2010
Item 203 - Subsection 4(1)
734. Item 203 repeals the definitions of 'Federal Circuit Court' and 'the Family Court' in
subsection 4(1) of the Competition and Consumer Act 2010. Subsection 4(1) provides
definitions to assist in interpreting the Act. The definition currently provides that 'Federal
Circuit Court means the Federal Circuit Court of Australia' and 'the Family Court means the
Family Court of Australia'. The definitions are no longer required as the Federal Circuit
Court will be continued as the FCFC (Division 2) and the Family Court will be continued as
the FCFC (Division 1). Where references in the Act are made to either the FCFC (Division 1)
or the FCFC (Division 2), the reference is provided in full.
Items 204 and 205 - Subsection 86(1A) and paragraph 86(4)(a)
735. Items 204 and 205 update references to the 'Federal Circuit Court' to be 'Federal
Circuit and Family Court of Australia (Division 2)' in subsection 86(1A) and paragraph
86(4)(a). Section 86 provides for the jurisdiction of courts. Subsection 86(1A) currently
confers jurisdiction on the Federal Circuit Court in certain matters. Paragraph 86(4)(a)
provides that jurisdiction conferred on the Federal Court under subsection 86(1) is exclusive
of the jurisdiction of any other court other than the jurisdiction of the Federal Circuit Court
under subsection 86(1A). The amendments appropriately reflect the continuation of the
Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of
subsection 86(1A) and paragraph 86(4)(a).
Item 206 - Section 86AA (heading)
736. Item 206 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in the heading to section 86AA. The heading
now reads 'Limit on jurisdiction of FCFC (Division 2)'. The amendment appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).
127
Item 207 - Section 86AA
737. Item 207 updates section 86AA with the words provided. In effect, the first reference
to the 'Federal Circuit Court' changes to be 'Federal Circuit and Family Court of Australia
(Division 2)' and the second reference to be 'the Court'. The reference to 'the Court' means
the FCFC (Division 2) and is used as it would be repetitive to include the full reference a
second time. Section 86AA currently limits jurisdiction of the Federal Circuit Court to award
damages of $750,000 or less in proceedings under section 82, or another amount specified in
the regulations. The amendment appropriately reflects the continuation of the Federal Circuit
Court as the FCFC (Division 2) and does not substantively alter the operation of section
86AA.
Item 208 - Section 86AA (note)
738. Item 208 repeals the note to section 86AA and inserts the two notes provided. The
existing note currently provides a direction to legislative references that provide for transfers
between the Federal Court and the Federal Circuit Court. The new notes update references
from the Federal Circuit Court to the FCFC (Division 2), and update the legislative references
for the transfer provisions. There are two notes because it is clearer to deal with transfers
from the FCFC (Division 2) to the Federal Court separately from transfers from the Federal
Court to the FCFC (Division 2). New note 1 outlines that transfers to the Federal Court from
the FCFC (Division 2) are undertaken either in accordance with section 120 of the Federal
Circuit and Family Court of Australia Act 2018 or the new power of the Federal Court in
section 32AC of the Federal Court Act. New note 2 provides that transfers from the Federal
Court to the FCFC (Division 2) are undertaken in accordance with 32AB of the Federal Court
Act. See item 248 of Schedule 1 of this explanatory memorandum for further guidance.
Item 209 - Section 130 (definition of Family Court Judge)
739. Item 209 repeals the definition of 'Family Court Judge' in section 130. Section 130
provides for definitions to assist in interpreting Part XI of the Act. 'Family Court Judge'
means 'a Judge of the Family Court (including the Chief Justice, the Deputy Chief Justice or
a Senior Judge)'. This definition is no longer required as Judges of the Family Court will
continue as Judges of the FCFC (Division 1). Where references in the Act are made to Judges
of the FCFC (Division 1), the reference is provided in full.
Item 210 - Paragraph 138(2)(a)
740. Item 210 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in paragraph 138(2)(a). Section 138 confers
jurisdiction on the Federal Court. Paragraph 138(2)(a) currently provides that jurisdiction
conferred on the Federal Court under subsection 138(1) is exclusive of the jurisdiction of any
other court other than the jurisdiction of the Federal Circuit Court under section 138A. The
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2) and does not substantively alter the operation of paragraph 138(2)(a).
Item 211 - Section 138A (heading)
741. Item 211 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in the heading to section 138A. The heading now
reads 'Conferring jurisdiction on the Federal Circuit and Family Court of Australia
128
(Division 2)'. The amendment appropriately reflects the continuation of the Federal Circuit
Court as the FCFC (Division 2).
Item 212 - Subsection 138A(1)
742. Item 212 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in subsection 138A(1). Subsection 138A(1)
currently confers jurisdiction on the Federal Circuit Court in relation to any matter arising
under Part XI of the Act or the Australian Consumer Law in respect of which a civil
proceeding is instituted by a person other than the Commonwealth Minister. The amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2)
and does not substantively alter the operation of subsection 138A(1).
Item 213 - Subsection 138A(2)
743. Item 213 updates subsection 138A(2) with the words provided. In effect, the first
reference to the 'Federal Circuit Court' changes to be the 'Federal Circuit and Family Court
of Australia (Division 2)' and the second reference to be 'the Court'. The reference to 'the
Court' means the FCFC (Division 2) and is used as it would be repetitive to include the full
reference a second time. Subsection 138A(2) currently limits the jurisdiction of the Federal
Circuit Court to award damages of $750,000 or less in proceedings under Part 3-5 or section
236 of the Australian Consumer Law, or another amount specified in the regulations. The
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2) and does not substantively alter the operation of subsection 138A(2).
Item 214 - Subsection 138A(2) (note)
744. Item 214 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in the note to subsection 138A(2). The note
currently provides a direction to legislative references that provide for transfers of
proceedings from the Federal Court to the Federal Circuit Court. The amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).
Item 215 - Section 138E (heading)
745. Item 215 repeals the heading of section 138E and replaces it with a new heading. The
new heading reads 'Transfer of proceedings to the Federal Circuit and Family Court of
Australia (Division 1)'. The amendment appropriately reflects the continuation of the Family
Court as the FCFC (Division 1).
Item 216 - Subsection 138E(1)
746. Item 216 updates the reference to the 'Family Court' to be 'Federal Circuit and
Family Court of Australia (Division 1)' in subsection 138E(1). Subsection 138E(1) currently
provides the power for the Federal Court to transfer proceedings to the Family Court if a civil
proceeding is before the Federal Court and a matter for determination in the proceedings
arises under Part IX of the Act or the Australian Consumer Law. The amendment
appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does
not substantively alter the operation of subsection 138E(1).
Item 217 - Subsection 138E(2)
129
747. Item 217 updates the first reference to the 'Family Court' to be 'Federal Circuit and
Family Court of Australia (Division 1)' in subsection 138E(2). Subsection 138E(2) currently
provides for the jurisdiction and powers of the Family Court where a matter is transferred to
it under subsection 138E(1). The amendment appropriately reflects the continuation of the
Family Court as the FCFC (Division 1) and does not substantively alter the operation of
subsection 138E(2).
Item 218 - Paragraphs 138E(2)(a) and (b)
748. Item 218 updates references to the 'Family Court' to be 'Court' in paragraphs
138E(2)(a) and (b). Subsection 138E(2) currently provides for the jurisdiction and powers of
the Family Court where a matter is transferred to it under subsection 138E(1). The reference
to 'Court' means the FCFC (Division 1) and is used as it would be repetitive to include the
full reference. See item 217 for further guidance. The amendments appropriately reflect the
continuation of the Family Court as the FCFC (Division 1) and do not substantively alter the
operation of paragraphs 138E(2)(a) and (b).
Item 219 - Paragraph 138E(2)(c)
749. Item 219 updates the reference to the 'Family Court' to be 'Federal Circuit and
Family Court of Australia (Division 1)' in paragraph 138E(2)(c). This reference is provided
in full, as it would be unclear whether 'the Court' referred to the FCFC (Division 1) or the
Federal Court as mentioned in paragraph 138E(2)(b)(ii). Subsection 138E(2) currently
provides for the jurisdiction and powers of the Family Court where a matter is transferred to
it under subsection 138E(1). The amendment appropriately reflects the continuation of the
Family Court as the FCFC (Division 1) and does not substantively alter the operation of
paragraph 138E(2)(c).
Item 220 - Paragraph 138E(2)(d)
750. Item 220 updates the first reference to the 'Family Court' to be 'Federal Circuit and
Family Court of Australia (Division 1)' in paragraph 138E(2)(d). Subsection 138E(2)
currently provides for the jurisdiction and powers of the Family Court where a matter is
transferred to it under subsection 138E(1). The amendment appropriately reflects the
continuation of the Family Court as the FCFC (Division 1) and does not substantively alter
the operation of paragraph 138E(2)(d).
Item 221 - Paragraph 138E(2)(d)
751. Item 221 updates the reference to 'Family Court' to be 'that Court' in paragraph
138E(2)(d). Subsection 138E(2) currently provides for the jurisdiction and powers of the
Family Court where a matter is transferred to it under subsection 138E(1). The amendment
refers to the FCFC (Division 1) and is used as it would be repetitive to include the full
reference. See item 220 for further guidance. The amendment appropriately reflects the
continuation of the Family Court as the FCFC (Division 1) and does not substantively alter
the operation of paragraph 138E(2)(d).
Items 222 and 223 - Paragraph 138(2)(e) and subparagraph 138E(2)(f)(i)
752. Items 222 and 223 update references to the 'Family Court' to be 'Federal Circuit and
Family Court of Australia (Division 1)' in paragraph 138(2)(e) and subparagraph
130
138E(2)(f)(i). Subsection 138E(2) currently provides for the jurisdiction and powers of the
Family Court where a matter is transferred to it under subsection 138E(1). The amendments
appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and do
not substantively alter the operation of paragraph 138(2)(e) and subparagraph 138E(2)(f)(i).
Item 224 - Subparagraphs 138E(2)(f)(ii) and (iii)
753. Item 224 updates references to 'Family Court Judge' to be 'Judge of the Federal
Circuit and Family Court of Australia (Division 1)' in subparagraphs 138E(2)(f)(ii) and (iii).
Subparagraphs 138E(2)(f)(ii) and (iii) currently provide that, for the purposes of paragraph
138E(2)(f), a reference to a 'Judge of the Federal Court' includes a reference to a Family
Court Judge and a reference to 'the Court or a Judge' when used in relation to the Federal
Court includes a reference to a Family Court Judge sitting in Chambers. The amendments
appropriately reflect the continuation of Judges of the Family Court as Judges of the FCFC
(Division 1) and do not substantively alter the operation of subparagraphs 138E(2)(f)(ii) and
(iii).
Items 225 and 226 - Subparagraph 138E(2)(f)(iv) and subsections 138E(3) and (4)
754. Items 225 and 226 update references to the 'Family Court' to be 'Federal Circuit and
Family Court of Australia (Division 1)' in subparagraph 138E(2)(f)(iv) and subsections
138E(3) and (4). Section 138E currently provides the power for the Federal Court to transfer
a proceeding to the Family Court. Subparagraph 138E(2)(f)(iv) provides that a reference to a
Registrar of the Federal Court includes a reference to a Registrar of the Family Court.
Subsection 138E(3) provides for the Family Court to give directions and make orders to
resolve difficulties arising in the granting of remedies, making orders and issuing writs.
Subsection 138E(4) provides that parties cannot appeal a Federal Court decision to transfer a
proceeding under the Act to the Family Court. The amendments appropriately reflect the
continuation of the Family Court as the FCFC (Division 1) and do not substantively alter the
operation of subparagraph 138E(2)(f)(iv) and subsections 138E(3) and (4).
Item 227 - Paragraph 151AQA(4)(a)
755. Item 227 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in paragraph 151AQA(4)(a).
Subsection 151AQA(4) currently provides that if a person applies to the Federal Court under
the Administrative Decisions (Judicial Review) Act 1977 for a review of a decision to issue a
competition notice and any relevant proceedings have been instituted under Division 7 of
Part XIB of the Act the Federal Circuit Court or a Judge of the Federal Circuit Court may
stay those proceedings. The amendment appropriately reflects the continuation of the Federal
Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of
paragraph 151AQA(4)(a).
Item 228 - Subsection 151AQA(4)
756. Item 228 updates subsection 151AQA(4) with the words provided. In effect the first
reference to the 'Federal Circuit Court' changes to be 'Federal Circuit and Family Court of
Australia (Division 2)' and 'Judge of the Federal Circuit Court' to be 'Judge of the Court'.
The reference to 'the Court' means the FCFC (Division 2) and is used as it would be
repetitive to include the full reference a second time. The amendments appropriately reflect
the continuation of the Federal Circuit Court as the FCFC (Division 2), and Judges of the
131
Federal Circuit Court as Judges of the FCFC (Division 2). The amendments do not
substantively alter the operation of subsection 151AQA(4).
Copyright Act 1968
Item 229 - Section 131D (heading)
757. Item 229 updates the reference to the 'Federal Circuit Court of Australia' to be
'Federal Circuit and Family Court of Australia (Division 2)' in the heading of section 131D
of the Copyright Act 1968. The heading now reads 'Jurisdiction of Federal Circuit and
Family Court of Australia (Division 2)'. The amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2).
Item 230 - Section 131D
758. Item 230 updates the reference to the 'Federal Circuit Court of Australia' to be
'Federal Circuit and Family Court of Australia (Division 2)' in section 131D. Section 131D
currently confers jurisdiction on the Federal Circuit Court with respect to civil actions under
Part V of the Act excluding section 115A. The amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively
alter the operation of section 131D.
Item 231 - Section 135AS (heading)
759. Item 231 updates the reference to the 'Federal Circuit Court of Australia' to be
'Federal Circuit and Family Court of Australia (Division 2)' in the heading to section 135AS.
The heading now reads 'Jurisdiction of Federal Circuit and Family Court of Australia
(Division 2)'. The amendment appropriately reflects the continuation of the Federal Circuit
Court as the FCFC (Division 2).
Item 232 - Section 135AS
760. Item 232 updates the reference to the 'Federal Circuit Court of Australia' to be
'Federal Circuit and Family Court of Australia (Division 2)' in section 135AS.
Section 135AS currently confers jurisdiction on the Federal Circuit Court with respect to
actions under Part VAA of the Act. The amendment appropriately reflects the continuation of
the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the
operation of section 135AS.
Item 233 - Subsection 195AZGH(5)
761. Item 233 updates the reference to the 'Federal Circuit Court of Australia' to be
'Federal Circuit and Family Court of Australia (Division 2)' in subsection 195AZGH(5).
Subsection 195AZGH(5) currently provides that the Federal Circuit Court has jurisdiction
with respect to matters arising under Part IX of the Act. The amendment appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
substantively alter the operation of subsection 195AZGH(5).
Item 234 - Section 248MA (heading)
132
762. Item 234 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in the heading to section 248MA. The heading
now reads 'Jurisdiction of Federal Circuit and Family Court of Australia (Division 2)'. The
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2).
Item 235 - Section 248MA
763. Item 235 updates the reference to the 'Federal Circuit Court of Australia' to be
'Federal Circuit and Family Court of Australia (Division 2)' in section 248MA.
Section 248MA currently confers jurisdiction on the Federal Circuit Court with respect to
actions for unauthorised use under section 248J of the Act. The amendment appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
substantively alter the operation of section 248MA.
Corporations (Aboriginal and Torres Strait Islander) Act 2006
Item 236 - Section 586-10 (heading)
764. Item 236 updates the reference to the 'Family Court' in the heading to section 586-10
of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 to be 'Federal Circuit
and Family Court of Australia (Division 1)'. The heading now reads 'Jurisdiction of Federal
Circuit and Family Court of Australia (Division 1) and State Family Courts'. The amendment
appropriately reflects the continuation of the Family Court as the FCFC (Division 1).
Item 237 - Subsection 586-10(1)
765. Item 237 updates the reference to the 'Family Court' to be 'Federal Circuit and
Family Court of Australia (Division 1)' in subsection 586-10(1). Subsection 586-10(1)
currently confers jurisdiction on the Family Court with respect to civil matters arising under
the Aboriginal and Torres Strait Islander Corporations legislation. The amendment
appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does
not substantively alter the operation of subsection 586-10(1).
Item 238 - Paragraphs 586-15(1)(a), (2)(c) and (5)(a)
766. Item 238 updates references to the 'Family Court' to be 'Federal Circuit and Family
Court of Australia (Division 1)' in paragraphs 586-15(1)(a), (2)(c) and (5)(a). Section 586-15
deals with the jurisdiction of courts when Commonwealth officers make decisions to
prosecute and decisions on related criminal justice processes. The amendments appropriately
reflect the continuation of the Family Court as the FCFC (Division 1) and do not
substantively alter the operation of paragraphs 586-15(1)(a), (2)(c) and (5)(a).
Item 239 - Paragraphs 586-25(1)(b) and (2)(b)
767. Item 239 repeals the paragraphs and replaces them with new paragraphs (1)(b) and
(2)(b), which refer to 'the Federal Circuit and Family Court of Australia (Division 1)'.
Paragraph 586-25(1)(b) currently provides that an appeal may not be instituted from a
133
decision of the Federal Court to the Family Court. Paragraph 586-25(2)(b) provides that an
appeal may not be instituted from a decision of a court of the Australian Capital Territory to
the Family Court. The amendments appropriately reflect the continuation of the Family Court
as the FCFC (Division 1) and do not substantively alter the operation of paragraphs 586-
25(1)(b) and (2)(b).
Item 240 - Paragraph 586-25(3)(c)
768. Item 240 repeals the paragraph and replaces it with new paragraph (c), which refers to
'the Federal Circuit and Family Court of Australia (Division 1)'. Paragraph 586-25(3)(c)
currently provides that an appeal may not be instituted from a decision of a court (not being a
State Family Court) of a State or the Northern Territory to the Family Court. The amendment
appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does
not substantively alter the operation of paragraph 586-25(3)(c).
Item 241 - Subsection 586-25(4)
769. Item 241 repeals subsection 586-25(4) and replaces it with a new subsection (4).
Subsection 586-25(4) currently provides that an appeal may not be instituted from a decision
of the Family Court to the Federal Court or a State or Territory court. The amendment
replaces the reference to the 'Family Court' to be 'Federal Circuit and Family Court of
Australia (Division 1)'. The amendment permits appeals from a decision of the FCFC
(Division 1) to be heard in the Federal Court. This reflects the change in law as appeals from
Family Court decisions will now be heard in the Family Law Appeal Division in the Federal
Court rather than by a Full Court of the Family Court. See items 191 and 192 of Schedule 1
of this explanatory memorandum for further guidance on the creation of the Family Law
Appeal Division.
Item 242 - Paragraph 586-25(5)(a)
770. Item 242 repeals paragraph 586-25(5)(a). Paragraph 586-25(5)(a) currently provides
that an appeal may not be instituted from a decision of a State Family Court of a State to the
Federal Court. The amendment permits appeals from a decision of a State Family Court of a
State to be heard in the Federal Court. This reflects the change in law as appeals from State
Family Court decisions will now be heard in the Family Law Appeal Division in the Federal
Court rather than by a Full Court of the Family Court. See items 191 and 192 of Schedule 1
of this explanatory memorandum for further guidance on the creation of the Family Law
Appeal Division.
Item 243 - Section 586-40 (heading)
771. Item 243 updates the reference to the 'Family Court' to be 'the Federal Circuit and
Family Court of Australia (Division 1)' in the heading to section 586-40. The heading now
reads 'Transfer of proceedings by the Federal Circuit and Family Court of Australia (Division
1) and State Family Courts'. The amendment appropriately reflects the continuation of the
Family Court as the FCFC (Division 1).
Item 244 - Subparagraphs 586-40(1)(b)(i) and (3)(a)(i) and (b)(i)
772. Item 244 repeals subparagraphs 586-40(1)(b)(i) and (3)(a)(i) and (b)(i)and replaces
them with new subparagraphs which refer to 'the Federal Circuit and Family Court of
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Australia (Division 1)'. Section 586-40 currently deals with the transfer of proceedings by the
Family Court and State Family Courts. The amendments appropriately reflect the
continuation of the Family Court as the FCFC (Division 1) and do not substantively alter the
operation of subparagraphs 586-40(1)(b)(i) and (3)(a)(i) and (b)(i).
Item 245 - Paragraph 586-65(3)(a)
773. Item 245 updates the reference to the 'Family Court' to be 'Federal Circuit and
Family Court of Australia (Division 1)' in paragraph 586-65(3)(a). Paragraph 586-65(3)(a)
currently provides that subsection (3) applies to jurisdiction conferred on the Federal Court or
the Family Court with respect to civil matters arising under the Aboriginal and Torres Strait
Islander Corporations legislation. The amendment appropriately reflects the continuation of
the Family Court as the FCFC (Division 1) and does not substantively alter the operation of
subparagraph 586-65(3)(a).
Item 246 - Section 586-90 (heading)
774. Item 246 repeals the heading to section 586-90 and replaces it with 'Rules of the
Federal Circuit and Family Court of Australia (Division 1)'. The substitution appropriately
reflects the continuation of the Family Court as the FCFC (Division 1).
Item 247 - Section 586-90
775. Item 247 updates the section 586-90 reference to rules of court conferred by section
123 of the Family Law Act to be 'Rules of Court under Chapter 3 of the Federal Circuit and
Family Court of Australia Act 2018'. Section 586-90 currently provides that the power to
make rules of court conferred by section 123 of the Family Law Act extends to making rules
of court for the purposes of the Aboriginal and Torres Strait Islander Corporations legislation.
The amendment refers to the correct Chapter of the Federal Circuit and Family Court of
Australia Act 2018 which contains the power for the FCFC (Division 1) to make Rules of
Court. The amendment does not affect the intent of section 586-90.
Item 248 - Paragraphs 586-90(a) and (c)
776. Item 248 updates references to the 'Family Court' to be 'Federal Circuit and Family
Court of Australia (Division 1)' in paragraphs 586-90(a) and (c). Section 586-90 provides
that the power to make rules of court conferred by section 123 of the Family Law Act extends
to making rules of court for the purposes of the Aboriginal and Torres Strait Islander
Corporations legislation. Paragraph 586-90(a) currently provides that the power to make rules
of court extends to rules with respect to proceedings and the practice and procedure of the
Family Court under Aboriginal and Torres Strait Islander Corporations legislation. Paragraph
586-90(c) provides the power extends to rules without limitation, with respect to costs and
with respect to rules about meetings ordered by the Family Court. The amendments
appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and do
not substantively alter the operation of paragraphs 586-90(a) and (c).
Item 249 - Subsection 694-35(1) (paragraph (c) of the definition of Court)
777. Item 249 repeals paragraph (c) of the definition of 'Court' in subsection 694-35(1)
and replaces it with new paragraph (c), which refers to 'the Federal Circuit and Family Court
of Australia (Division 1)'. Section 694-35 provides for the meaning of 'court' and 'Court' in
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the Act. The amendment appropriately reflects the continuation of the Family Court as the
FCFC (Division 1) and does not substantively alter the operation of paragraph (c) of the
definition of 'Court' in subsection 694-35(1).
Item 250 - Section 700-1 (paragraph (b) of the definition of Aboriginal and Torres Strait
Islander Corporations legislation)
778. Item 250 updates the reference to the 'Family Court' in paragraph (b) of the definition
of Aboriginal and Torres Strait Islander Corporations legislation in section 700-1 to be
'Chief Justice of the Federal Circuit and Family Court of Australia (Division 1)'. Section
700-1 provides definitions to assist in interpreting the Act. Paragraph (b) of the definition
currently refers to rules of court made by the Federal Court, the Supreme Court of the
Australian Capital Territory, or the Family Court, because of a provision of the Act. The
amendment reflects the change in law as to how rules of court will be made in the FCFC
(Division 1); rules of court in the FCFC (Division 1) will be made by the Chief Justice of the
FCFC (Division 1). This does not affect the intent of the definition of 'Aboriginal and Torres
Strait Islander Corporations legislation' in section 700-1.
Item 251 - Section 700-1 (definition of Family Court)
779. Item 224 repeals the definition of 'Family Court' in section 700-1. Section 700-1
provides definitions to assist in interpreting the Act. The definition currently provides that
'Family Court means the Family Court of Australia'. This definition is no longer required as
the Family Court will be continued as the FCFC (Division 1). Where references in the Act are
made to the FCFC (Division 1), the reference is provided in full.
Item 251 - Section 700-1 (definition of superior court)
780. Item 251 updates the reference to 'the Family Court' in the definition of 'superior
court' in section 700-1 to be 'the Federal Circuit and Family Court of Australia (Division 1)'.
Section 700-1 provides definitions to assist in interpreting the Act. Relevantly, the definition
of superior court currently includes the Family Court. The amendment appropriately reflects
the continuation of the Family Court as the FCFC (Division 1) and does not alter the
definition of 'superior court' in section 700-1.
Corporations Act 2001
Item 253 - Section 9 (paragraph (c) of the definition of Corporations legislation)
781. Item 253 amends paragraph (c) of the definition of 'Corporations legislation' in
section 9 of the Corporations Act 2001. Paragraph (c) of the definition provides that
Corporations legislation means rules of court made by the Federal Court, the Supreme Court
of the Capital Territory, or the Family Court, because of a provision of the Act. This item
replaces the reference to 'Family Court' with 'Federal Circuit and Family Court of Australia
(Division 1)'. The FCFC (Division 1) will be able to make Rules of Court under the new
Court structure, with the amendment making the necessary nomenclature change.
Item 254 - Section 9 (definition of Family Court)
136
782. Item 254 repeals the definition of 'Family Court' in section 9 of the Act. 'Family
Court' currently means the 'Family Court of Australia'. The definition is no longer required
as the Family Court will be continued as FCFC (Division 1). Where references in the Act are
made to the 'Federal Circuit and Family Court of Australia (Division 1)' the title of that
Court is provided in full.
Item 255 - Section 9 (definition of superior court)
783. Item 255 amends the definition of 'superior court' in section 9 of the Act by replacing
the reference to the 'Family Court' with 'Federal Circuit and Family Court of Australia
(Division 1)'. Under the new court structure the FCFC (Division 1) will continue to be a
superior court of record. The amendments appropriately reflect the continuation of the Family
Court as the FCFC (Division 1) and the continuation of the Court as a superior court.
Item 256 - Subsection 58AA(1) (paragraph (c) of the definition of Court)
784. Item 256 repeals and replaces paragraph (c) of the definition of 'Court' in subsection
58AA(1) of the Act. Paragraph (c) currently provides that the definition of Court includes the
Family Court of Australia. This item replaces existing paragraph (c) to provide that the
definition of Court includes the FCFC (Division 1).
Item 257 - Paragraph 908CI(3)(b)
785. Item 257 amends subsection 908CI(3) of the Act, which prescribes the courts that are
relevant courts in relation to subsection 908CF(1). In particular, this item repeals paragraph
908CI(3)(b), which refers to the 'Federal Circuit Court of Australia', and replaces it with new
paragraph 908CI(3)(b) which provides that the FCFC (Division 2) is a relevant court in
relation to subsection 908CF(1). The amendment does not change the operation of the
section.
Item 258 - Section 1337C (heading)
786. Item 258 amends the heading to section 1337C by replacing the reference to the
'Family Court' with 'Federal Circuit and Family Court of Australia (Division 1)'. The
heading will now read 'Jurisdiction of Federal Circuit and Family Court of Australia
(Division 1) and State Family Courts'.
Items 259 and 260 - Subsection 1337C(1) and paragraphs 1337D(1)(a), (2)(c) and (5)(a)
787. Items 259 to 260 replace references to the 'Family Court' in subsection 1337C(1) and
paragraphs 1337D(1)(a), 2(c) and 5(a) with 'Federal Circuit and Family Court of Australia
(Division 1)'. Both section 1337C and 1337D relate to the jurisdiction of courts, including the
jurisdiction of the Family Court. These items appropriately reflect the continuation of the
Family Court as the FCFC (Division 1) and do not change the operation of the relevant
sections.
Items 261 and 262 - Paragraphs 1337F(1)(b), (2)(b) and (3)(c)
788. Items 261 and 262 repeal paragraphs 1337F(1)(b), (2)(b) and (3)(c) of the Act.
Section 1337F provides for the appeal avenues from decisions of the specified courts. These
items repeal the paragraphs that refer to the 'Family Court' and replace them with paragraphs
that refer to the 'Federal Circuit and Family Court of Australia (Division 1)'. These items do
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not change the operation of the paragraphs and provide for the necessary nomenclature
changes to accurately reflect the new structure of the courts.
Item 263 - Subsection 1337F(4)
789. Item 263 repeals subsection 1337F(4) and replaces it with a new subsection (4).
Existing subsection 1337F(4) provides that an appeal may not be instituted from a decision of
the Family Court to the Federal Court a State or Territory Court. New subsection (4) provides
that an appeal may not be instituted from a decision of the FCFC (Division 1) to a State or
Territory Court. New subsection (4) reflects the new appeal structure of the federal courts,
with most of the appellate jurisdiction of the Family Court being transferred to a new
Division of the Federal Court - the Family Law Appeal Division. Appeals from decisions of
the FCFC (Division 1) will now be heard in the Family Law Appeal Division of the Federal
Court. Consequently, subsection (4) needs to be amended to allow appeals from the FCFC
(Division 1) to lie to the Federal Court.
Item 264 - Paragraph 1337F(5)(a)
790. Item 264 repeals paragraph 1337F(5)(a), which currently provides that an appeal may
not be instituted from a decision of a State Family Court of a State to the Federal Court.
Paragraph (a) is no longer required due to the new appeal structure of the federal courts. As
noted in the item above, most of the appellate jurisdiction of the Family Court is being
transferred to a new Division of the Federal Court - the Family Law Appeal Division.
Appeals from a State Family Court (such as the Family Court of Western Australia) will now
lie to the Federal Court rather than the FCFC (Division 1). To facilitate this, paragraph (a)
needs to be removed from subsection 1337(5).
Item 265 - Section 1337J (heading)
791. Item 265 amends the heading to section 1337J by replacing the reference to the
'Family Court' with 'Federal Circuit and Family Court of Australia (Division 1)'. The
heading will now read 'Transfer of proceedings by Federal Circuit and Family Court of
Australia (Division 1) and State Family Courts'.
Item 266 - Subparagraphs 1337J(1)(b)(i) and (3)(a)(i) and (b)(i)
792. Item 266 repeals subparagraphs 1227J(1)(b)(i) and (3)(a)(i) and (b)(i), which refer to
the 'Family Court of Australia' and replaces them with new subparagraphs that refer to the
'Federal Circuit and Family Court of Australia (Division 1)'. The amendments appropriately
reflect the continuation of the Family Court as the FCFC (Division 1).
Item 267 - Subsection 1337P(3) (paragraph (a) of the definition of relevant jurisdiction)
793. Item 267 amends paragraph (a) of the definition of 'relevant jurisdiction' in
subsection 1337P(3) by replacing the reference to the 'Family Court' with 'Federal Circuit
and Family Court of Australia (Division 1)'. Paragraph 1337P(3)(a) will now provide that
relevant jurisdiction means jurisdiction conferred on the Federal Court or the FCFC
(Division 1) with respect to civil matters arising under the Corporations Legislation.
Item 268 - Section 1337U (heading)
138
794. Item 268 amends the heading to section 1337U by replacing the reference to the
'Family Court' with 'Federal Circuit and Family Court of Australia (Division 1)'. The
heading will now read 'Rules of the Federal Circuit and Family Court of Australia
(Division 1)'.
Item 269 - Subsection 1337U(1)
795. Item 269 amends subsection 1337U(1), which provides that the power to make rules
of court conferred by section 123 of the Family Law Act extends to making rules of court for
the matters specified in paragraphs 1337U(1)(a)-(c). This item replaces the reference to
'rules of court conferred by section 123 of the Family Law Act 1975' with 'Rules of Court
under Chapter 3 of the Federal Circuit and Family Court of Australia Act 2018'. This is to
accurately reflect that the power to make rules of the FCFC (Division 1) will be contained in
new Chapter 3 of the Federal Circuit and Family Court of Australia Act 2018 rather than
section 123 of the Family Law Act.
Item 270 - Paragraphs 1337U(1)(a) and (c)
796. Item 270 amends paragraphs 1337U(1)(a) and (c) by replacing references to the
'Family Court' with 'Federal Circuit and Family Court of Australia (Division 1)'.
Section 1337U provides that the power to make rules of court conferred by section 123 of the
Family Law Act extends to making Rules of Court for the matters specified in paragraphs
1337U(1)(a)-(c). The amendments appropriately reflect the continuation of the Family Court
as the FCFC (Division 1) and do not change the operation of the section.
Court Security Act 2013
Item 271 - Section 5 (table item 3 in the definition of administrative head)
797. Item 271 repeals table item 3 in the definition of 'administrative head' in section 5 of
the Court Security Act 2013 and replaces it with the text provided for new table items 3 and
4. Section 5 provides definitions to assist in interpreting the Act. New table item 3 updates
the reference to the 'Family Court of Australia' to be 'Federal Circuit and Family Court of
Australia (Division 1)' and updates the administrative head to be the 'Chief Executive Officer
and Principal Registrar of the Federal Court of Australia'.
798. New table item 4, in combination with item 272, updates the reference to the 'Federal
Circuit Court of Australia' to be 'Federal Circuit and Family Court of Australia (Division 2)'
and updates the administrative head to be the 'Chief Executive Officer and Principal
Registrar of the Federal Court of Australia'.
799. The amendments to the names of the Courts appropriately reflect the continuation of
the Family Court as the FCFC (Division 1) and the Federal Circuit Court as the FCFC
(Division 2). The amendments to the administrative head column reflects the change in law,
that the administrative head of the FCFC will be the Chief Executive Officer and Principal
Registrar of the Federal Court as introduced by the Federal Circuit and Family Court of
Australia Act 2018. The amendments, in combination with item 272, appropriately reflect the
change in name and administrative structure.
Item 272 - Section 5 (table item 6 in the definition of administrative head)
139
800. Item 272 repeals table item 6 in the definition of 'administrative head' in section 5.
Table item 6 provides the administrative head for the Federal Circuit Court. See item 271 for
further guidance.
Item 273 - Section 5 (cell at table item 7 in the definition of administrative head, column
headed 'Court')
801. Item 273 updates the cell at table item 7 in the definition of 'administrative head'
under the column headed 'Court' in section 5. Table item 7 provides for the administrative
head of federal courts not mentioned elsewhere in the table. Item 244 removes the reference
to table item 6, as it is being repealed by item 243. This amendment does not substantively
alter the operation of table item 7 in the definition of 'administrative head' in section 5.
Item 274 - Subsection 41(1)
802. Item 274 updates the reference to the 'Family Court of Australia' and the 'Federal
Circuit Court' to be 'Federal Circuit and Family Court of Australia (Division 1)' and 'Federal
Circuit and Family Court of Australia (Division 2)', respectively in subsection 41(1).
Subsection 41(1) currently provides that a member of the Family Court of Australia, the
Family Court of Western Australia or the Federal Circuit Court may make an order
prohibiting a specified person from doing a specified act for a specified period. The
amendments appropriately reflect the continuation of the Family Court as the FCFC
(Division 1) and the Federal Circuit Court as the FCFC (Division 2) and re-order the names
of the Courts to group the Divisions of the FCFC together. The amendments do not
substantively alter the operation of subsection 41(1).
Item 275 - Subsection 41(1) (note 3)
803. Item 275 repeals note 3 to subsection 41(1) and replaces it with a new note 3 to
subsection 41(1). New note 3 refers to section 30A of the Federal Court Act, which applies in
relation to appeals from the variation or revocation of an order if the order was made by a
member of the FCFC (Division 1), the FCFC (Division 2) or the Family Court of Western
Australia. The new note reflects the new appeal structure of the federal courts. The
amendments appropriately reflect the continuation of the Family Court as the FCFC
(Division 1) and the Federal Circuit Court as the FCFC (Division 2) and do not affect the
intent of the note.
Item 276 - Section 45 (note)
804. Item 276 repeals the note to section 45 and replaces it with a new note to section 45.
Section 45 provides that a member of a court who may make a court security order may vary
or revoke such an order relating to their court. The new note refers to section 30A of the
Federal Court Act, which applies in relation to appeals from the variation or revocation of an
order if the order was made by a member of the FCFC (Division 1), the FCFC (Division 2) or
the Family Court of Western Australia. The new note reflects the new appeal structure of the
federal courts. The amendments appropriately reflect the continuation of the Family Court as
the FCFC (Division 1) and the Federal Circuit Court as the FCFC (Division 2) and do not
affect the intent of the note.
Item 277 - Section 51 (table item 2)
140
805. Item 277 repeals table item 2 in section 51 and replaces it with new table items 2 and
3. Section 51 deals with delegation by an administrative head of a court to a person listed in
the table. New table item 2 updates the reference to the 'Family Court of Australia' to be '
Federal Circuit and Family Court of Australia (Division 1)' and updates the person to whom
the administrative head may delegate powers and functions to be 'The Marshal of the Federal
Circuit and Family Court of Australia (Division 1)'. New table item 3, in combination with
item 278, updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' and updates the person to whom the administrative
head may delegate powers and functions to be 'The Marshal of the Federal Circuit and
Family Court of Australia (Division 2)'. The amendments to the names of the Court and the
Marshals appropriately reflect the continuation of the Family Court as the FCFC (Division 1)
and the Federal Circuit Court as the FCFC (Division 2).
Item 278 - Section 51 (table item 5)
806. Item 278 repeals table item 5 in section 51. Table item 5 provides for the person to
whom the administrative head of the Federal Circuit Court may delegate. See item 277 for
further guidance.
Item 279 - Section 51 (cell at table item 6, column headed 'Court')
807. Item 279 updates the cell at table item 6 in section 51 under the column headed
'Court'. Table item 6 provides for persons to whom administrative heads of federal courts not
mentioned elsewhere in the table may delegate powers and functions. This item removes the
reference to table item 5, as it is being repealed by item 277. This amendment does not
substantively alter the operation of table item 6 in section 51.
Crimes Act 1914
Item 280 - Subsection 3ZQO(1)
808. Item 280 updates the reference to the 'Federal Circuit Court of Australia' to be
'Federal Circuit and Family Court of Australia (Division 2)' in subsection 3ZQO(1) of the
Crimes Act 1914. Subsection 3ZQO(1) currently provides that an authorised Australian
Federal Police (AFP) officer may apply to a Judge of the Federal Circuit Court for a notice
under section 3ZQO of the Act in respect of a person if the AFP officer considers on
reasonable grounds that the person has documents (including in electronic form) that are
relevant to, and will assist, the investigation of a serious offence. The amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2)
and does not substantively alter the operation of subsection 3ZQO(1).
Item 281 - Section 3ZQQ (heading)
809. Item 281 updates the reference to 'Federal Circuit Court Judges' to be 'Judges of the
Federal Circuit and Family Court of Australia (Division 2)' in the heading to section 3ZQQ.
The heading now reads 'Powers conferred on Judges of the FCFC (Division 2) in their
personal capacity'. The amendment appropriately reflects the continuation of Judges of the
Federal Circuit Court as Judges of the FCFC (Division 2).
Item 282 - Section 3ZQQ
141
810. Item 282 updates references to the 'Federal Circuit Court of Australia' to be 'Federal
Circuit and Family Court of Australia (Division 2)' in section 3ZQQ. Section 3ZQQ currently
provides that with powers conferred on Federal Circuit Court Judges by section 3ZQO are
conferred on those Judges in their personal capacity. The amendment appropriately reflects
the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
substantively alter the operation of section 3ZQQ.
Item 283 - Paragraph 3ZZNF(3)(a)
811. Item 283 updates the reference to the 'Federal Circuit Court of Australia' to be
'Federal Circuit and Family Court of Australia (Division 2)' in paragraph 3ZZNF(3)(a).
Section 3ZZNF provides for the Commonwealth to pay compensation in specified
circumstances for damage to electronic equipment operated under Part IAAB of the Act.
Paragraph 3ZZNF(3)(a) currently provides that if the Commonwealth and the owner or user
fail to agree on the amount of compensation, the owner or user may institute proceedings in
the Federal Court or the Federal Circuit Court. The amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively
alter the operation of section 3ZZNF.
Item 284 - Paragraph 4AAA(1)(ab)
812. Item 284 repeals paragraph 4AAA(1)(ab) and replaces it with a new paragraph which
refers to 'a Judge of the Federal Circuit and Family Court of Australia (Division 2)'.
Section 4AAA provides for Commonwealth laws that confer non-judicial functions and
powers on officers. Paragraph 4AAA(1)(ab) currently provides that the section sets out the
rules that apply if, under a law of the Commonwealth relating to criminal matters, a function
or power that is neither judicial nor incidental to a judicial function or power, is conferred on
a Judge of the Federal Circuit Court. The amendment appropriately reflects the continuation
of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not
substantively alter the operation of paragraph 4AAA(1)(ab).
Item 285 - Subsections 4AAA(2) and (3A)
813. Item 285 updates references to the 'Federal Circuit Court of Australia' to be 'Federal
Circuit and Family Court of Australia (Division 2)' in subsections 4AAA(2) and (3A).
Section 4AAA provides for Commonwealth laws that confer non-judicial functions and
powers on officers. Subsection 4AAA(2) currently provides that the function or power is
conferred on the person in their personal capacity. Subsection 4AAA(3A) provides for a
Judge of the Federal Court or a Judge of the Federal Circuit Court performing a conferred
function or exercising a conferred power to have the same protection and immunity as a
Justice of the High Court in relation to proceedings in the High Court. The amendments
appropriately reflect the continuation of Judges of the Federal Circuit Court as Judges of the
FCFC (Division 2) and do not substantively alter the operation of subsections 4AAA(2) and
(3A).
Criminal Code Act 1995
Item 286 - Subsection 100.1(1) of the Criminal Code (paragraph (c) of the definition of
issuing court)
142
814. Item 286 amends paragraph (c) of the definition of 'issuing court' in
subsection 100.1(1) of the Criminal Code. The definition is relevant to Division 104 which
relates to the making of control orders. Item 257 amends paragraph (c) to remove the
reference to 'the Federal Circuit Court of Australia' and replace it with 'the Federal Circuit
and Family Court of Australia (Division 2)'. This amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2). The amendment does not
impact on the operation of the definition, nor does it extend the operation of the definition so
that it applies to the FCFC (Division 1), which will be a continuation of the Family Court.
Item 287 - Paragraph 105.2(1) (b) of the Criminal Code
815. Item 287 amends paragraph 105.2(1)(b) of the Criminal Code. Section 105.2 outlines
who the Attorney-General may appoint as an issuing authority for continued preventative
detention orders. Item 287 amends the paragraph by removing the reference to the 'Federal
Circuit Court of Australia' and replacing it with 'Federal Circuit and Family Court of
Australia (Division 2)'. This amendment makes the necessary nomenclature changes to
reflect the new court structure and does not alter who can be appointed as an issuing authority
for the purpose of issuing continued preventative detention orders.
Item 288 - Subsections 105.43(4), (5) and (7) of the Criminal Code
816. Item 288 amends subsections 105.43(4), (5) and (7) of the Criminal Code. These
subsections outline the powers of police officers to take fingerprints, samples of handwriting
or photographs. Item 288 removes all references to the 'Federal Circuit Court of Australia'
and replaces them with 'Federal Circuit and Family Court of Australia (Division 2)'. This
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2) and does not impact on the operation of this section.
Item 289 - Section 105.46 of the Criminal Code (heading)
817. Item 289 amends the heading to section 105.46 of the Criminal Code by replacing the
reference to 'Federal Circuit Court Judge' with 'Judge of the Federal Circuit and Family
Court of Australia (Division 2)'. The heading will now read 'Nature of functions of Judge of
the Federal Circuit and Family Court of Australia (Division 2)'.
Item 290 - Section 105.46 of the Criminal Code
818. Item 290 amends section 105.46 of the Criminal Code, which deals with the nature of
functions of Federal Circuit Court judges. Item 261 removes references to the 'Federal
Circuit Court of Australia' and replaces them with 'Federal Circuit and Family Court of
Australia (Division 2)'. This amendment appropriately reflects the continuation of the Federal
Circuit Court as the FCFC (Division 2) and does not impact on the nature of Judges'
functions.
Item 291 - Section 106.4 of the Criminal Code
819. Item 291 amends section 106.4 of the Criminal Code, which is a savings provision for
items relating to and things done by Federal Magistrates. Existing section 106.4 was required
to save appointments made and consents given under section 105.2 and things done by
Federal Magistrates as issuing authorities when the Federal Magistrates Court of Australia
was changed to be the Federal Circuit Court. Now that the Federal Circuit Court will be
143
continued as the FCFC (Division 2) a similar savings provisions is required to save
appointments made and consents given under section 105.2 and things done by Judges of the
Federal Circuit Court FCFC as issuing authorities.
820. The new savings provisions will also operate so that it applies to appointments made
and consents given under section 105.2 and things done by Federal Magistrates as issuing
authorities. New section 106.4 also includes specific references to the commencement of the
operation of the section, being 1 January 2019.
821. Item 291 repeals and replaces section 106.4, including the heading. The new heading
removes the reference to 'Federal Magistrates' and replaces it with 'Judges of the Federal
Circuit Court'. The new heading will now read 'Saving -- Judges of the Federal Circuit
Court'.
822. New subsection 106.4(1) provides that an appointment that is in force immediately
before 1 January 2019 under subsection 105.2(1) in respect of a Judge of the Federal Circuit
Court of Australia continues in force, on and after that day, as an appointment in respect of a
Judge of the FCFC (Division 2) under that subsection.
823. New subsection 106.4(2) provides that a consent that is in force immediately before
1 January 2019 under subsection 105.2(2) in respect of a Judge of the Federal Circuit Court
of Australia continues in force, on and after that day, as an appointment in respect of a Judge
of the FCFC (Division 2) under that subsection.
824. New subsection 106.4(3) provides that a thing done by, or in relation to, a Judge of
the Federal Circuit Court of Australia, as an issuing authority for continued preventative
detention orders, under Division 105 before 1 January 2019 has effect, on and after that day,
as if it had been done by, or in relation to, a Judge of the FCFC (Division 2), as an issuing
authority for continued preventative detention orders, under that Division.
Item 292 - Subparagraph 123.1(2)(b)(ii) of the Criminal Code
825. Item 292 amends subparagraph 123.1(2)(b)(ii) of the Criminal Code, by repealing the
subparagraph and substituting a new subparagraph which refers to the FCFC (Division 2).
Subparagraph 123.1(2)(b) provides that a relevant court for the purposes of Part 7 of the
Regulatory Powers (Standard Provisions) Act 2014 is the Federal Circuit Court. This
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2) and does not impact on the operation of this section.
Item 293 - Paragraph 150.5(3)(b) of the Criminal Code
826. Item 293 amends paragraph 150.5(3)(b) of the Criminal Code, which provides that the
Federal Circuit Court of Australia is a relevant court with respect to injunctions made under
Part 7 of the Regulatory Powers (Standard Provisions) Act 2014. Item 293 repeals the
paragraph which references the 'Federal Circuit Court of Australia' and replaces it with a
new paragraph (b), which refers to 'the Federal Circuit and Family Court of Australia
(Division 2)'. This amendment appropriately reflects the continuation of the Federal Circuit
Court as the FCFC (Division 2) and does not impact on the operation of this section.
Customs Act 1901
144
Item 294 - Subsection 4(1) (paragraph (a) of the definition of Division 1B Judge)
827. Item 294 updates the reference to the 'Family Court of Australia' to be 'Federal
Circuit and Family Court of Australia (Division 1)' in paragraph (a) of the definition of
'Division 1B Judge' in subsection 4(1) of the Customs Act 1901. Subsection 4(1) provides
definitions to assist in interpreting the Act. Relevantly, paragraph (a) of the definition of
'Division 1B Judge' currently includes 'a Judge of the Family Court of Australia' in relation
to whom a consent under subsection 219RA(1) and a nomination under subsection 219RA(2)
are in force. The amendment appropriately reflects the continuation of Judges of the Family
Court as Judges of the FCFC (Division 1) and does not substantively alter the operation of
paragraph (a) of the definition of 'Division 1B Judge'.
Item 295 - Subsections 219RA(1) and 219ZL(1)
828. Item 295 updates references to the 'Family Court of Australia' to be 'Federal Circuit
and Family Court of Australia (Division 1)' in subsections 219RA(1) and 219ZL(1).
Subsection 219RA(1) currently provides that a Judge of the Family Court of Australia, and
the other listed Judges, may consent to be nominated by the Minister to be a Division 1B
Judge. Subsection 219ZL(1) provides that a Judge issuing a warrant or giving an order under
Part XII, including a Judge of the Family Court, has the same protection and immunity that a
Justice of the High Court has in relation to proceedings in the High Court. The amendments
appropriately reflect the continuation of Judges of the Family Court as Judges of the FCFC
(Division 1) and do not substantively alter the operation of subsections 219RA(1) and
219ZL(1).
Defence Act 1903
Item 296 - Subparagraph 117AE(3)(e)(ii)
829. Item 296 repeals subparagraph 117AE(3)(e)(ii) of the Defence Act 1903 and replaces
it with new subparagraph (ii), which refers to 'the Federal Circuit and Family Court of
Australia (Division 2)'. Subparagraph 117AE(3)(e)(ii) currently provides that the Federal
Circuit Court is a relevant court for the purposes of Part 2 of the Regulatory Powers
(Standard Provisions) Act 2014. The amendment appropriately reflects the continuation of
the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the
operation of paragraph 117AE(3)(e).
Defence Force (Home Loans Assistance) Act 1990
Item 297 - Section 3 (definition of Family Court)
830. Item 297 repeals the definition of 'Family Court' in section 3 of the Defence Force
(Home Loans Assistance) Act 1990. Section 3 provides definitions to assist in interpreting the
Act. The definition currently provides that 'Family Court' means 'the Family Court of
Australia'. The definition is no longer required as the Family Court will be continued as the
FCFC (Division 1). Where references in the Act are made to the FCFC (Division 1), the
reference is provided in full.
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Item 298 - Paragraphs 18(1)(a) and 29(d) and (e)
831. Item 298 updates references to the 'Family Court' to be 'Federal Circuit and Family
Court of Australia (Division 1)' in paragraphs 18(1)(a) and 29(d) and (e). Paragraph 18(1)(a)
currently provides that the Secretary of Defence must grant approval in relation to the sale,
purchase or transfer of a house subject to a subsidised loan if satisfied that the proposed sale,
purchase or transfer has not been ordered by the Family Court.
832. Section 29 specifies when a subsidy stops being payable on a subsidised loan to a
person who is a subsidised borrower. Paragraph 29(d) provides that the subsidy stops being
payable when the property to which the loan relates is transferred under an order of the
Family Court to the person's spouse or de facto partner, or former spouse or former de facto
partner, or to the person and his or her former spouse or former de facto partner, whether as
joint tenants or as tenants in common. Paragraph 29(e) provides that the subsidy stops being
payable when the property to which the loan relates, or any interest in it, is sold or transferred
to another person (other than under an order of the Family Court) without an approval under
section 18.
833. The amendments appropriately reflect the continuation of the Family Court as the
FCFC (Division 1) and do not substantively alter the operation of paragraphs 18(1)(a) and
29(d) and (e).
Defence Reserve Service (Protection) Act 2001
Items 299 and 300 - Paragraphs 76A(3)(b) and 77(1)(b), and subsection 77(2)
834. Items 299 and 300 update references to the 'Federal Circuit Court of Australia' to be
'Federal Circuit and Family Court of Australia (Division 2)' in paragraphs 76A(3)(b) and
77(1)(b) and subsection 77(2) of the Defence Reserve Service (Protection) Act 2001.
Paragraph 76A(3)(b) currently provides that the Federal Court or the Federal Circuit Court is
a relevant court in relation to the civil penalty provisions of the Act for the purposes of Part 4
of the Regulatory Powers (Standard Provisions) Act 2014. Paragraph 77(1)(b) provides that
the Federal Court or the Federal Circuit Court may hear and determine matters arising under
the Defence Reserve Service (Protection) Act 2001. Subsection 77(2) clarifies that this Act
does not confer any criminal jurisdiction on the Federal Court of Australia or the Federal
Circuit Court. The amendments appropriately reflect the continuation of the Federal Circuit
Court as the FCFC (Division 2) and do not substantively alter the operation of
paragraphs 76A(3)(b) and 77(1)(b), and subsection 77(2).
Designs Act 2003
Item 301 - Section 5 (definition of Federal Circuit Court)
835. Item 301 repeals the definition of 'Federal Circuit Court' in section 5 of the Designs
Act 2003. Section 5 provides definitions to assist in interpreting the Act. The definition
provides that 'Federal Circuit Court' means 'the Federal Circuit Court of Australia'. The
definition is no longer required as the Federal Circuit Court will be continued as the FCFC
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(Division 2). Where references in the Act are made to the FCFC (Division 2), the reference is
provided in full.
Item 302 - Section 5 (paragraph (aa) of the definition of prescribed court)
836. Item 302 repeals paragraph (aa) of the definition of 'prescribed court' in section 5 and
replaces it with new paragraph (aa), which refers to 'the Federal Circuit and Family Court of
Australia (Division 2)'. Section 5 provides definitions to assist in interpreting the Act.
Currently, the Federal Circuit Court is defined as being a prescribed court under paragraph
(aa) of the definition of 'prescribed court'. The amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2) and does not alter the
effect of the definition of 'prescribed court' in section 5.
Item 303 - Subsections 28(5), 50(6), 52(7), 54(4), 67(4) and 68(6)
837. Item 303 updates references to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in subsections 28(5), 50(6), 52(7), 54(4), 67(4) and
68(6). These subsections currently provide that appeals lie to the Federal Court or the Federal
Circuit Court against decisions of the Registrar under the relevant sections. The amendments
appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2)
and do not substantively alter the operation of subsections 28(5), 50(6), 52(7), 54(4), 67(4)
and 68(6).
Item 304 - Section 82
838. Item 304 omits the second paragraph of the simplified outline of section 82 of Chapter
7 of the Act. The new paragraph updates the reference to the 'Federal Circuit Court' in the
second paragraph to be 'Federal Circuit and Family Court of Australia (Division 2)'. The
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2) and does not alter the intent of section 82.
Item 305 - Paragraph 83(2)(a)
839. Item 305 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in paragraph 83(2)(a). Paragraph 83(2)(a)
currently provides that the jurisdiction of the Federal Court to hear and determine appeals
from decisions of the Registrar is exclusive of the jurisdiction of any other court other than
the jurisdiction of the Federal Circuit Court under subsection 83A(2). The amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2)
and does not substantively alter the operation of paragraph 83(2)(a).
Item 306 - Section 83A (heading)
840. Item 306 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in the heading to section 83A. The heading now
reads 'Jurisdiction of the Federal Circuit and Family Court of Australia (Division 2)'. The
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2).
Items 307 to 309 - Section 83A, subsection 84(1), and subsection 86(3)
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841. Items 307 to 309 update references to the 'Federal Circuit Court' to be 'Federal
Circuit and Family Court of Australia (Division 2)' in section 83A, subsection 84(1), and
subsection 86(3). Section 83A currently deals with the jurisdiction of the Federal Circuit
Court to deal with matters arising under the Act. Section 84 deals with jurisdiction of
prescribed courts other than the Federal Court or the Federal Circuit Court to deal with
matters arising under the Act that may be brought in a prescribed court. Subsection 86(3)
provides that section 86, dealing with transfer of proceedings, does not apply in relation to a
transfer of proceeding between the Federal Court and the Federal Circuit Court. The
amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC
(Division 2) and do not substantively alter the operation of section 83A, subsection 84(1), and
subsection 86(3).
Item 310 - Subsection 86(3) (note)
842. Item 310 repeals the note to subsection 86(3) and replaces it with two notes. The note
currently provides a direction to legislative references that provide for transfers between the
Federal Court and the Federal Circuit Court. The new notes update references from the
Federal Circuit Court to the FCFC (Division 2), and update the legislative references for the
transfer provisions. Section 120 of the Federal Circuit and Family Court of Australia Act
2018 provides the FCFC (Division 2) with the power to transfer matters, other than
proceedings relating to family law matters, on its own initiative or on the application of a
party to the Federal Court, though the Federal Court must confirm such a transfer under new
section 32AD of the Federal Court Act. New section 32AC of the Federal Court Act
provides the Federal Court with the power to transfer matters, other than proceedings relating
to family law matters, on its own initiative or on the application of a party from the FCFC
(Division 2). Amended section 32AB provides for discretionary transfer of civil proceedings
to the FCFC. There are two notes because it is clearer to deal with transfers from the FCFC
(Division 2) to the Federal Court separately from transfers from the Federal Court to the
FCFC (Division 1). See item 248 of Schedule 1 of this explanatory memorandum for further
guidance.
Item 311 - Subsection 87(2)
843. Item 311 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in subsection 87(2). Subsection 87(2) currently
provides that an appeal does not lie to the Full Court of the Federal Court from a judgment or
order of a single judge of the Federal Court or the Federal Circuit Court in the exercise of its
jurisdiction to hear and determine appeals from decisions of the Registrar other than with
leave of the Federal Court. The amendment appropriately reflects the continuation of the
Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation
of subsection 87(2).
Item 312 - Section 88 (heading)
844. Item 312 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in the heading to section 88. The heading now
reads 'Powers of Federal Court and Federal Circuit and Family Court of Australia
(Division 2) on hearing an appeal'. The amendment appropriately reflects the continuation of
the Federal Circuit Court as the FCFC (Division 2).
Item 313 - Sections 88 and 89
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845. Item 313 updates references to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in sections 88 and 89. Section 88 currently deals with
the powers of the Federal Court and the Federal Circuit Court on hearing an appeal against a
decision or direction of the Registrar. Section 89 provides that the Registrar may appear and
be heard at the hearing of an appeal against a decision or direction of the Registrar, even if
the Registrar is not a party to the appeal. The amendments appropriately reflect the
continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively
alter the operation of sections 88 and 89.
Do Not Call Register Act 2006
Item 314 - Section 4 (definition of Federal Circuit Court)
846. Item 314 repeals the definition of 'Federal Circuit Court' in section 4 of the Do Not
Call Register Act 2006. Section 4 provides definitions to assist in interpreting the Act.
Currently, the 'Federal Circuit Court' is defined as being the 'Federal Circuit Court of
Australia'. The definition is no longer required as the Federal Circuit Court will be continued
as the FCFC (Division 2). Where references in the Act are made to the FCFC (Division 1),
the reference is provided in full.
Item 315 - Section 23
847. Item 315 omits the second dot point of the simplified outline of Part 4 of the Act and
replaces it with a new dot point in section 23. The reference to the 'Federal Circuit Court' in
the second dot point is updated to be 'Federal Circuit and Family Court of Australia
(Division 2)'. The amendment appropriately reflects the continuation of the Federal Circuit
Court as the FCFC (Division 2) and does not alter the intent of section 23.
Items 316 to 322 - Subsection 24(1), paragraphs 25(2)(a), (3)(b), (4)(b), (5)(b) and (6)(b),
sections 26 and 28, paragraph 30(1)(a), subsection 30(3), paragraph 31(1)(a), and
subsection 31(2)
848. Items 316 to 322 update references to the 'Federal Circuit Court' to be 'Federal
Circuit and Family Court of Australia (Division 2)' in sections 24, 25, 26, 28, 30 and 31.
Subsection 24(1) currently provides that the Federal Court or Federal Circuit Court may order
a person pay to the Commonwealth a pecuniary penalty. Section 25 provides for the
maximum penalties for contravention of the civil penalty provisions. Section 26 provides that
the Federal Court or Federal Circuit Court may direct that 2 or more proceedings for civil
penalty orders are to be heard together. Section 28 provides that the rules of evidence and
procedure for civil matters must be applied in proceedings for a civil penalty order. Section
30 provides that the Federal Court or Federal Circuit Court may make an ancillary order of
compensation. Section 31 provides that the Federal Court or Federal Circuit Court may make
an ancillary order of recovery of financial benefit to the Commonwealth.
849. The amendments appropriately reflect the continuation of the Federal Circuit Court as
the FCFC (Division 2) and do not substantively alter the operation of subsection 24(1),
paragraphs 25(2)(a), (3)(b), (4)(b), (5)(b) and (6)(b), sections 26 and 28, paragraph 30(1)(a),
subsection 30(3), paragraph 31(1)(a), and subsection 31(2).
149
Item 323 - Section 33
850. Item 323 omits the dot point of the simplified outline of Part 5 of the Act and replaces
it with a new dot point in section 33. The new dot point updates the reference to the 'Federal
Circuit Court' to be 'Federal Circuit and Family Court of Australia (Division 2)'. The
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2) and does not alter the intent of section 33.
Item 324 - Sections 34, 35, 36 and 37
851. Item 324 updates references to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in sections 34, 35, 36 and 37. Section 34 currently
deals with the ability of the Federal Court and Federal Circuit Court to grant restraining and
performance injunctions. Section 35 provides that the Federal Court and Federal Circuit
Court may grant an interim injunction but the courts are not to require any undertakings as to
damages. Section 36 provides that the Federal Court or Federal Circuit Court may discharge
or vary an injunction granted by it under Part 5 of the Act. Section 37 provides that certain
limits on granting injunctions are not to apply. The amendments appropriately reflect the
continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively
alter the operation of sections 34, 35, 36 and 37.
Item 325 - Section 38 (heading)
852. Item 325 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in the heading to section 38. The heading now
reads 'Other powers of the Federal Court or the Federal Circuit and Family Court of Australia
(Division 2) unaffected'. The amendment appropriately reflects the continuation of the
Federal Circuit Court as the FCFC (Division 2).
Items 326 and 327 - Section 38, and paragraph 44(2)(a)
853. Items 326 and 327 update references to the 'Federal Circuit Court' to be 'Federal
Circuit and Family Court of Australia (Division 2)' in section 38 and paragraph 44(2)(a).
Section 38 currently provides that powers of the Federal Court and Federal Circuit Court
under Part 5 are in addition to any other powers of courts. Section 44 provides that the
regulations may give effect to international conventions. Paragraph 44(2)(a) provides that
these regulations may vest the Federal Court or the Federal Circuit Court with jurisdiction in
a matter or matters arising under the regulations. The amendments appropriately reflect the
continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively
alter the operation of section 38, and paragraph 44(2)(a).
Item 328 - Clause 1 of Schedule 3
854. Item 328 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in clause 1 of Schedule 3. Clause 1 of Schedule 3
currently outlines the object of the Schedule, which is to set up a system of infringement
notices for contraventions of civil penalty provisions as an alternative to the institution of
proceedings in the Federal Court or the Federal Circuit Court. The amendment appropriately
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reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
alter the intent of clause 1 of Schedule 3.
Item 329 - Paragraph 3(1)(d) of Schedule 3
855. Item 329 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in paragraph 3(1)(d) of Schedule 3. Clause 3 lists
the matters to include in infringement notices. Paragraph 3(1)(d) currently provides that
infringement notices must contain a statement to the effect that the matter or matters will not
be dealt with by the Federal Court or Federal Circuit Court if the penalty specified in the
notice is paid to the ACMA, on behalf of the Commonwealth, within the specified timeframe.
The amendment appropriately reflects the continuation of the Federal Circuit Court as the
FCFC (Division 2) and does not substantively alter the operation of paragraph 3(1)(d) of
Schedule 3.
Item 330 - Paragraph 7(c) of Schedule 3
856. Item 330 updates the reference to the 'Federal Court's or the Federal Circuit Court's
discretion' to be 'discretion of the Federal Court or the Federal Circuit and Family Court of
Australia (Division 2)' in paragraph 7(c) of Schedule 3. Paragraph 7(c) currently provides
that Schedule 3 does not limit the discretion of the Federal Court or Federal Circuit Court to
determine the amount of a penalty to be imposed on a person who is found in proceedings
under Part 4 of the Act to have committed a civil contravention. The amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2)
and does not substantively alter the operation of paragraph 7(c) of Schedule 3.
Education Services for Overseas Students Act 2000
Item 331 - Subsection 110B(1)
857. Item 331 updates the reference to the 'Federal Circuit Court of Australia' to be
'Federal Circuit and Family Court of Australia (Division 2)' in subsection 110B(1) of the
Education Services for Overseas Students Act 2000. Section 110B currently provides for the
enforcement of undertakings in the Federal Court or Federal Circuit Court. The amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2)
and does not substantively alter the operation of subsection 110B(1).
Enhancing Online Safety Act 2015
Item 332 - Subsections 46(3), 47(3) and 48(3)
858. Item 332 updates references to the 'Federal Circuit Court of Australia' to be 'Federal
Circuit and Family Court of Australia (Division 2)' in subsections 46(3), 47(3) and 48(3) of
the Enhancing Online Safety Act 2015. These subsections currently provide that the Federal
Circuit Court is a relevant court for the purposes of Parts 4, 6 and 7, respectively of the
Regulatory Powers (Standard Provisions) Act 2014. The amendments appropriately reflect
the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not
substantively alter the operation of subsections 46(3), 47(3) and 48(3).
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Evidence Act 1995
Item 333 - Subsection 4(5A)
859. Item 333 updates the reference to the 'Family Court of Australia' to be 'Federal
Circuit and Family Court of Australia' in subsection 4(5A) of the Evidence Act 1995. Section
4 outlines the courts and proceedings to which the Act applies. Subsection 4(5A) currently
makes clear that the Act applies to an appeal to the Family Court of Australia from a court of
summary jurisdiction of a State or Territory exercising jurisdiction under the Family Law
Act. Section 25 of the Federal Circuit and Family Court of Australia Act 2018 provides that
appeals from a court of summary jurisdiction of a State or Territory exercising jurisdiction
under the Family Law Act may be heard by the FCFC (Division 1). Section 102 of the
Federal Circuit and Family Court of Australia Act 2018 provides that the same appeals may
also be heard by the FCFC (Division 2). When referring to either or both divisions of the
FCFC, the courts are referred to as the 'Federal Circuit and Family Court of Australia'. See
item 303 for further guidance. The amendment appropriately reflects the change in law for
appeal pathways from State and Territory courts of summary jurisdiction exercising
jurisdiction under the Family Law Act.
Item 334 - Part 1 of the Dictionary
860. Item 334 inserts a definition of the 'Federal Circuit and Family Court of Australia'
into Part 1 of the Dictionary. Part 1 of the Dictionary provides definitions to assist in
interpreting the Act. The new definition provides that the FCFC means the FCFC (Division
1) or the FCFC (Division 2). A reference to the 'Federal Circuit and Family Court of
Australia' throughout the Act is to be taken to refer to either the FCFC (Division 1) or the
FCFC (Division 2) or both. The Federal Circuit and Family Court of Australia Act 2018
provides that appeals from a court of summary jurisdiction of a State or Territory exercising
jurisdiction under the Family Law Act may go to either the FCFC (Division 1) or the FCFC
(Division 2). See item 333 for further guidance. The definition assists in interpreting the
reference to the FCFC throughout the Act.
Extradition Act 1988
Item 335 - Section 5 (definition of eligible Federal Circuit Court Judge)
861. Item 335 repeals the definition of 'eligible Federal Circuit Court Judge' in section 5 of
the Extradition Act 1988. Section 5 provides definitions of expressions used in the Act. This
definition will be replaced by use of the term 'eligible Judge' throughout provisions in the
Act under which Judges of the Federal Circuit Court of Australia can currently perform
functions (see item 306). This is a consequential amendment to reflect the continuation of
Judges of the Federal Circuit Court as Judges of the FCFC (Division 2).
Item 336 - Section 5
862. Item 336 inserts a definition of 'eligible Judge' in section 5. Section 5 provides
definitions of expressions used in the Act. An 'eligible Judge' will mean a Judge of the
FCFC (Division 2). The expression 'eligible Judge' will be used throughout provisions in the
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Act under which FCFC (Division 2) Judges can perform functions. This item operates with
item 335, which removes the definition of 'eligible Federal Circuit Court Judge'.
863. The new expression 'eligible Judge' will not alter the nature of the functions which
are conferred under the legislation on Federal Circuit Court Judges under the new title.
Item 337 - Subsection 11(6)
864. Item 337 replaces the reference to 'eligible Federal Circuit Court Judge' with 'eligible
Judge' in subsection 11(6). Section 11 provides for the modification of the Act in relation to
certain countries, including clarifying the effect on the powers of magistrates in determining
eligibility for surrender. Subsection 11(6) provides that certain provisions in regulations
applying to the Act to extradition countries are not to modify the Act by expanding the
operation of subsection 19(2). The expression 'eligible Judge' will be defined in the Act (see
item 336). This is a consequential amendment that reflects the continuation of Judges of the
Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the functions
which are conferred under subsection 11(6).
Item 338 - Paragraph 12(1)(a)
865. Item 338 replaces the reference to 'eligible Federal Circuit Court Judge' with 'eligible
Judge' in paragraph 12(1)(a). Subsection 12(1) provides for eligible Federal Circuit Court
Judges to issue extradition arrest warrants in specified circumstances. The expression
'eligible Judge' will be defined in the Act (see item 336). This is a consequential amendment
that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC
(Division 2) and does not alter the functions which are conferred under subsection 12(1).
Item 339 - Subsections 12(3) and 14(1)
866. Item 339 replaces the reference to 'eligible Federal Circuit Court Judge' with 'eligible
Judge' in subsection 12(3). Subsection 12(3) provides for the Attorney-General to direct an
eligible Federal Circuit Court Judge to cancel an extradition arrest warrant in certain
circumstances. The expression 'eligible Judge' will be defined in the Act (see item 305).
This is a consequential amendment that reflects the continuation of Judges of the Federal
Circuit Court as Judges of the FCFC (Division 2) and does not alter the functions which are
conferred under subsection 12(3).
867. This item also replaces the reference to 'eligible Federal Circuit Court Judge' with
'eligible Judge' in subsection 14(1). Subsection 14(1) provides that following receipt of
necessary affidavit evidence, an eligible Federal Circuit Court Judge may issue a warrant
authorising specified police officers to enter premises, search and seize a place or thing. The
expression 'eligible Judge' will be defined in the Act (see item 336). This is a consequential
amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of
the FCFC (Division 2) and does not alter the functions which are conferred under
subsection 14(1).
Item 340 - Sections 15 and 15A
868. Item 340 replaces the reference to 'eligible Federal Circuit Court Judge' with 'eligible
Judge' wherever it occurs in section 15. Section 15 provides for the remanding in custody or
on bail of a person arrested under an extradition arrest warrant. The expression 'eligible
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Judge' will be defined in the Act (see item 336). This is a consequential amendment that
reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC
(Division 2) and does not alter the functions which are conferred under section 15.
869. This item also replaces the reference to 'eligible Federal Circuit Court Judge' with
'eligible Judge' wherever it occurs in section 15A. Section 15A sets out a process for certain
categories of person who may elect to waive extradition. This is a consequential amendment
that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC
(Division 2) and does not alter the functions which are conferred under section 15A.
Item 341 - Subsections 15B(1) and (4) and 16(1)
870. Item 341 replaces the reference to 'eligible Federal Circuit Court Judge' with 'eligible
Judge' in subsections 15B(1) and (4). Subsections 15B(1) and (4) provide that where a
magistrate or eligible Federal Circuit Court Judge has informed the Attorney-General that a
person wishes to waive extradition and the Attorney-General determines that the person is not
to be surrendered, the Attorney-General must, by notice in the statutory form, direct a
magistrate or eligible Federal Circuit Court Judge to order the release of the person from
custody. The expression 'eligible Judge' will be defined in the Act (see item 336). This is a
consequential amendment to reflect the new name of the Court and does not alter the
functions which are conferred under section 15B.
871. This item also replaces the reference to 'eligible Federal Circuit Court Judge' with
'eligible Judge' in subsection 16(1). Subsection 16(1) provides that the Attorney-General
may provide notice to any magistrate or eligible Federal Circuit Court Judge that an
extradition request from an extradition country in relation to a person has been received. This
is a consequential amendment that reflects the continuation of Judges of the Federal Circuit
Court as Judges of the FCFC (Division 2) and does not alter the functions which are
conferred under section 16.
Item 342 - Subsections 16A(2) and (3)
872. Item 342 replaces the reference to 'eligible Federal Circuit Court Judge' with 'eligible
Judge' in subsections 16A(2) and (3). Subsections 16A(2) and (3) provide for the Attorney-
General to give an amended notice to a magistrate or eligible Federal Circuit Court Judge in
writing in the statutory form before the magistrate or eligible Federal Circuit Court Judge has
determined in accordance with section 19 that the person is eligible for surrender in relation
to the extradition offence/s. The expression 'eligible Judge' will be defined in the Act (see
item 336). This is a consequential amendment that reflects the continuation of Judges of the
Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the functions
which are conferred under section 16A.
Item 343 - Section 17
873. Item 343 replaces the references to 'eligible Federal Circuit Court Judge' with
'eligible Judge' wherever it occurs in section 17. Section 17 provides for the release of a
person from custody or discharge of the recognizances on which bail was granted where a
person is on remand under section 15 and the Attorney-General decides either not to give a
notice under subsection 16(1) in relation to the person or that for any other reason remand
should cease. The expression 'eligible Judge' will be defined in the Act (see item 336). This
is a consequential amendment that reflects the continuation of Judges of the Federal Circuit
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Court as Judges of the FCFC (Division 2) and does not alter the functions which are
conferred under section 17.
Item 344 - Subsections 18(1), (3) and (4)
874. Item 344 replaces the references to 'eligible Federal Circuit Court Judge' with
'eligible Judge' in subsections 18(1), (3) and (4). Section 18 provides a process for a person
to consent to their surrender to the extradition country. The expression 'eligible Judge' will
be defined in the Act (see item 336). This is a consequential amendment that reflects the
continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and
does not alter the functions which are conferred under section 17.
Item 345 - Paragraph 19(1)(c)
875. Item 345 replaces the reference to 'eligible Federal Circuit Court Judge' with 'eligible
Judge' in paragraph 19(1)(c). Subsection 19(1) provides for a magistrate or eligible Federal
Circuit Court Judge to conduct proceedings to determine whether a person is eligible for
surrender in relation to the extradition offence or extradition offences for which surrender is
sought by the extradition country. The expression 'eligible Judge' will be defined in the Act
(see item 336). This is a consequential amendment that reflects the continuation of Judges of
the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the functions
which are conferred under section 19.
Item 346 - Subsection 19(9A)
876. Item 346 replaces the reference to 'eligible Federal Circuit Court Judge' with 'eligible
Judge' in paragraph 19(9A). Subsection 19(9A) provides that a magistrate or eligible Federal
Circuit Court Judge must not release a person on bail under paragraph 19(9)(a) unless there
are special circumstances justifying such release. The expression 'eligible Judge' will be
defined in the Act (see item 336). This is a consequential amendment that reflects the
continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and
does not alter the functions which are conferred under section 19.
Item 347 - Subparagraphs 19A(1)(b)(ii) and 20(1)(a)(ii)
877. Item 347 replaces the reference to 'eligible Federal Circuit Court Judge' with 'eligible
Judge' in subparagraph 19A(1)(b)(ii). Section 19A provides for a person to consent to being
surrendered in respect of one or more extradition offences not specified in the notice given
under subsection 16(1) in certain circumstances. The expression 'eligible Judge' will be
defined in the Act (see item 336). This is a consequential amendment that reflects the
continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and
does not alter the functions which are conferred under section 19A.
878. This item also replaces the reference to 'eligible Federal Circuit Court Judge' with
'eligible Judge' in subparagraph 20(1)(a)(ii). Section 20 provides for a person to consent to
being surrendered in respect of one or more offences that are not extradition offences in
certain circumstances. This is a consequential amendment that reflects the continuation of
Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the
functions which are conferred under section 20.
Item 348 - Subsection 21(1)
155
879. Item 348 replaces the reference to 'eligible Federal Circuit Court Judge' with 'eligible
Judge' in subsection 21(1). Section 21 provides for the Federal Court to review an order of a
magistrate or eligible Federal Circuit Court Judge made under subsection 19(9) or 19(10).
The expression 'eligible Judge' will be defined in the Act (see item 336). This is a
consequential amendment to reflect the new name of the Court and does not alter the
operation of section 21.
Item 349 - Subsection 22(1) (paragraph (a) of the definition of eligible person)
880. Item 349 replaces the reference to 'eligible Federal Circuit Court Judge' with 'eligible
Judge' in paragraph (a) of the definition of 'eligible person' in subsection 22(1). Section 22
provides for the Attorney-General to determine whether an eligible person is to be
surrendered to the extradition country. The expression 'eligible Judge' will be defined in the
Act (see item 336). This is a consequential amendment that reflects the continuation of
Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the
operation of section 22.
Item 350 - Paragraphs 22(5)(a) and (b)
881. Item 350 replaces the reference to 'eligible Federal Circuit Court Judge' with 'eligible
Judge' in paragraphs 22(5)(a) and (b). Subsection 22(5) provides for the Attorney-General to
direct a magistrate or eligible Federal Circuit Court Judge to order an eligible person's release
or discharge of bail recognisances where the Attorney-General has determined that the person
is not to be surrendered to the extradition country. The expression 'eligible Judge' will be
defined in the Act (see item 336). This is a consequential amendment that reflects the
continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and
does not alter the functions which are conferred under section 22.
Item 351 - Paragraph 26(1)(ca)
882. Item 351 replaces the reference to 'eligible Federal Circuit Court Judge' with 'eligible
Judge' in paragraph 26(1)(ca). Subsection 26(1) provides requirements for a surrender
warrant or temporary surrender warrant in relation to a person. Paragraph 26(1)(ca) provides
that if the person has been released on bail, the warrant shall allow a police officer to take the
person into custody and bring the person before a magistrate or eligible Federal Circuit Court
Judge for the purposes of the discharge of the recognisances on which bail was granted. The
expression 'eligible Judge' will be defined in the Act (see item 336). This is a consequential
amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of
the FCFC (Division 2) and does not alter the functions which are conferred under section 26.
Item 352 - Subsection 26(2A)
883. Item 352 replaces the reference to 'eligible Federal Circuit Court Judge' with 'eligible
Judge' in subsection 26(2A). Subsection 26(2A) provides that where a person is brought
before a magistrate or eligible Federal Circuit Court Judge as referred to in paragraph
26(1)(ca), the magistrate or Judge must order the discharge of the recognisances on which
bail was granted and that the person be committed to prison to await surrender under the
warrant. The expression 'eligible Judge' will be defined in the Act (see item 336). This is a
consequential amendment that reflects the continuation of Judges of the Federal Circuit Court
as Judges of the FCFC (Division 2) and does not alter the functions which are conferred
under section 26.
156
Item 353 - Paragraphs 28(a) and 29(a)
884. Item 353 replaces the reference to 'eligible Federal Circuit Court Judge' with 'eligible
Judge' in paragraph 28(a). Section 28 provides for the indorsement of a New Zealand
warrant by a magistrate or eligible Federal Circuit Court Judge. The expression 'eligible
Judge' will be defined in the Act (see item 336). This is a consequential amendment that
reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC
(Division 2) and does not alter the functions which are conferred under section 28.
885. This item also replaces the reference to 'eligible Federal Circuit Court Judge' with
'eligible Judge' in paragraph 29(a). Section 29 provides for the issue of a warrant for a
person's arrest where an application is made on behalf of New Zealand to a magistrate or
eligible Federal Circuit Court Judge in certain circumstances. This is a consequential
amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of
the FCFC (Division 2) and does not alter the functions which are conferred under section 29.
Item 354 - Subsection 31(1)
886. Item 354 replaces the reference to 'eligible Federal Circuit Court Judge' with 'eligible
Judge' in subsection 31(1). Section 31 provides circumstances in which a magistrate or
eligible Federal Circuit Court Judge may issue a search and seizure warrant in relation to a
request for extradition from Australia to New Zealand. The expression 'eligible Judge' will
be defined in the Act (see item 336). This is a consequential amendment that reflects the
continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and
does not alter the functions which are conferred under section 31.
Item 355 - Section 32
887. Item 355 replaces the reference to 'eligible Federal Circuit Court Judge' with 'eligible
Judge' in section 32. Section 32 provides for a person who is arrested under an indorsed New
Zealand warrant or under a provisional arrest warrant to be remanded in custody or on bail.
The expression 'eligible Judge' will be defined in the Act (see item 336). This is a
consequential amendment that reflects the continuation of Judges of the Federal Circuit Court
as Judges of the FCFC (Division 2) and does not alter the functions which are conferred
under section 32.
Item 356 - Paragraphs 33(c) and 34(1)(b)
888. Item 356 replaces the reference to 'eligible Federal Circuit Court Judge' with 'eligible
Judge' in paragraph 33(c). Section 33 provides circumstances for the release from remand of
a person in relation to a request for extradition from Australia to New Zealand. The
expression 'eligible Judge' will be defined in the Act (see item 336). This is a consequential
amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of
the FCFC (Division 2) and does not alter the functions which are conferred under section 33.
889. This item also replaces the reference to 'eligible Federal Circuit Court Judge' with
'eligible Judge' in paragraph 34(1)(b). Section 34 provides for the issuing of surrender
warrants by a magistrate or eligible Federal Circuit Court Judge in certain circumstances.
The expression 'eligible Judge' will be defined in the Act (see item 305 of Schedule 2 to this
Bill). This is a consequential amendment to reflect the new name of the Court and does not
alter the functions which are conferred under section 34.
157
Item 357 - Subsections 35(1) and (2)
890. Item 357 replaces the reference to 'eligible Federal Circuit Court Judge' with 'eligible
Judge' in subsections 35(1) and (2). Subsection 35(1) provides for the review of an order
made by a magistrate or eligible Federal Circuit Court Judge under section 34. The
expression 'eligible Judge' will be defined in the Act (see item 336). This is a consequential
amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of
the FCFC (Division 2) and does not alter the operation of section 35.
Item 358 - Subsections 43(1), (2) and (3)
891. Item 358 replaces the reference to 'eligible Federal Circuit Court Judge' with 'eligible
Judge' in subsections 43(1), (2) and (3). Section 43 provides for the taking of evidence by a
magistrate or eligible Federal Circuit Court Judge proceedings to be conducted before review
of an order made by a magistrate or eligible Federal Circuit Court Judge under section 34.
The expression 'eligible Judge' will be defined in the Act (see item 305 of Schedule 2 to this
Bill). This is a consequential amendment that reflects the continuation of Judges of the
Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the functions
which are conferred under section 43.
Item 359 - Paragraph 45(1)(a)
892. Item 359 replaces the reference to 'eligible Federal Circuit Court Judge' with 'eligible
Judge' in paragraph 45(1)(a). Section 45 provides a process for prosecuting a person in lieu
of their extradition. The expression 'eligible Judge' will be defined in the Act (see item 336).
This is a consequential amendment that reflects the continuation of Judges of the Federal
Circuit Court as Judges of the FCFC (Division 2) and does not alter the operation of
section 45.
Item 360 - Section 45A (heading)
893. Item 360 replaces the reference to 'Federal Circuit Court Judges' with 'Judges of the
Federal Circuit and Family Court (Division 2)' in the heading to section 45A. This is a
consequential amendment that reflects the continuation of Judges of the Federal Circuit Court
as Judges of the FCFC (Division 2) and does not alter the operation of the section.
Item 361 - Subsections 45A(1) and (2)
894. Item 361 replaces the references to 'Federal Circuit Court of Australia' with 'Federal
Circuit and Family Court (Division 2)' in subsections 45A(1) and (2). These are
consequential amendments that reflects the continuation of Judges of the Federal Circuit
Court as Judges of the FCFC (Division 2) and do not alter the operation of those subsections.
Item 362 - Subsection 45A(2)
895. Item 362 replaces the reference to 'eligible Federal Circuit Court Judge' with 'eligible
Judge' in subsection 45A(2). Section 45A provides for a Federal Circuit Court Judge to, with
their consent, be nominated by the Attorney-General as an eligible judge for the purposes of
the Extradition Act 1988. The expression 'eligible Judge' will be defined in the Act (see item
336). This is a consequential amendment to that reflects the continuation of Judges of the
Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the operation of
the section.
158
896. The validity of existing consents and nominations would not be affected by these
amendments by virtue of item 17 of Schedule 10.
Item 363 - Subsection 45B (heading)
897. Item 363 replaces the reference to 'Federal Circuit Court Judges' with 'Judges of the
Federal Circuit and Family Court (Division 2)' in the heading to section 45A. This is a
consequential amendment that reflects the continuation of Judges of the Federal Circuit Court
as Judges of the FCFC (Division 2) and does not alter the operation of section 45B.
Item 364 - Subsections 45B(1) and (3)
898. Item 364 replaces the references to 'eligible Federal Circuit Court Judge' with
'eligible Judge' in subsections 45B(1) and (3). Section 45B provides that a function or power
conferred on an eligible Federal Circuit Court Judge is conferred in a personal capacity and
not as a court or a member of a court. The expression 'eligible Judge' will be defined in the
Act (see item 336). This is a consequential amendment that reflects the continuation of
Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the
functions which are conferred under section 45B.
Item 365 - Section 46A
899. Item 365 replaces the references to 'eligible Federal Circuit Court Judge' with
'eligible Judge' wherever they occur in section 46A. Section 46A provides for how a notice is
to be given under subsections 12(3), 15B(4), 16(1), 16A(2), 17(1) or 43(1) of the Act to an
eligible Federal Circuit Court Judge. The expression 'eligible Judge' will be defined in the
Act (see item 336). This is a consequential amendment that reflects the continuation of
Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the
operation of the section.
Item 366 - Subparagraphs 48(1)(b)(iii) and (iv)
900. Item 366 replaces the references to 'eligible Federal Circuit Court Judge' with
'eligible Judge' in subparagraphs 48(1)(b)(iii) and (iv). Section 48 provides for the transit of
a person in custody through Australia where the person is being surrendered to an extradition
country or New Zealand from a third country. The expression 'eligible Judge' will be
defined in the Act (see item 336). This is a consequential amendment that reflects the
continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and
does not alter the functions which are conferred under section 48.
Item 367 - Subsection 49(2)
901. Item 367 replaces the reference to 'eligible Federal Circuit Court Judge' with 'eligible
Judge' in subsection 49(2). Section 49 provides for the arrest of a person without warrant
where there are reasonable grounds to believe that a person has escaped from custody
authorised by the Act. The expression 'eligible Judge' will be defined in the Act (see item
336). This is a consequential amendment that reflects the continuation of Judges of the
Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the functions
which are conferred under section 49.
Item 368 - Section 49B
159
902. Item 368 replaces the reference to 'eligible Federal Circuit Court Judge' with 'eligible
Judge' in section 49B. Section 49B provides for the arrest of a person without warrant where
there are reasonable grounds to believe that a person has contravened or is about to
contravene a term or condition of a recognisance on which bail was granted under the Act.
The expression 'eligible Judge' will be defined in the Act (see item 336). This is a
consequential amendment that reflects the continuation of Judges of the Federal Circuit Court
as Judges of the FCFC (Division 2) and does not alter the functions which are conferred
under section 49A.
Item 369 - Paragraph 55(c)
903. Item 369 replaces the references to 'eligible Federal Circuit Court Judge' with
'eligible Judge' wherever they occur in paragraph 55(c). Section 55 provides for the making
of regulations under the Act including prescribing the practice and procedure in relation to
the performance of magistrates and eligible Federal Circuit Court Judges' functions under the
Act. The expression 'eligible Judge' will be defined in the Act (see item 336). This is a
consequential amendment that reflects the continuation of Judges of the Federal Circuit Court
as Judges of the FCFC (Division 2) and does not alter the operation of section 55.
Fair Work Act 2009
Item 370 - Section 12 (definition of Federal Circuit Court)
904. Item 370 repeals the definition for 'Federal Circuit Court', contained within section
12 of the Fair Work Act 2009. Section 12 provides the definitions for terms contained within
the Act. This definition is no longer required as the Federal Circuit Court will be continued as
'Federal Circuit and Family Court of Australia (Division 2)'. Where references in the Act are
made to the 'Federal Circuit and Family Court of Australia (Division 2)' the title of that
Court is provided in full.
Item 371 - Subsections 417(3), 421(3) and 422(1)
905. Item 371 amends subsections 417(3), 421(3) and 422(1) of the Act. These provisions
relate to the powers of the Federal Court and the Federal Circuit Court to grant injunctions in
the circumstances specified. Item 344 amends these subsections by removing references to
the 'Federal Circuit Court of Australia' and replacing them with 'Federal Circuit and Family
Court of Australia (Division 2)'. This amendment appropriately reflects the continuation of
the Federal Circuit Court as the FCFC (Division 2) and does not substantively impact on the
operation of these subsections.
Item 372 - Section 537
906. Item 372 amends section 537, which provides a guide to the interpretation of Part 4-1
of the Act. Part 4-1 relates to civil remedies. Item 345 omits the paragraph of the guide,
which refers to the Federal Circuit Court, and replaces it with a new paragraph. The new
paragraph substitutes the reference to the 'Federal Circuit Court' with the 'Federal Circuit
and Family Court of Australia (Division 2)'. This reflects the continuation of the Federal
Circuit Court as the FCFC (Division 2).
Item 373 - Subsection 539(2) (table)
160
907. Item 373 amends subsection 539(2), which provides a table outlining standing,
jurisdiction and maximum penalties in the context of orders made under the specified
sections of the Act. This item removes all references to the 'Federal Circuit Court' in the
table, and replaces them with 'Federal Circuit and Family Court of Australia (Division 2)'.
This amendment appropriately reflects the continuation of the Federal Circuit Court as the
FCFC (Division 2) and does not substantively impact on the operation of this subsection.
Item 374 - Section 543
908. Item 375 amends section 543, which provides that a national system employer or a
national system employee may apply to the Federal Court or the Federal Circuit Court to
enforce an entitlement of the employer or employee arising under subsection 542(1). This
item removes the reference to the 'Federal Circuit Court of Australia' and replaces it with
'Federal Circuit and Family Court of Australia (Division 2)'. This amendment appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
substantively impact on the operation of this section.
Item 375 - Subsection 545(1) (heading)
909. Item 375 amends the heading to subsection 545(1) by replacing the reference to
'Federal Circuit Court' with 'Federal Circuit and Family Court of Australia (Division 2)'.
The complete heading to the subsection now reads 'Federal Court and Federal Circuit and
Family Court of Australia (Division 2)' appropriately reflecting the continuation of the
Federal Circuit Court under the new name.
Item 376 - Subsections 545(1) and (2) and 546(1)
910. Item 376 amends subsections 545(1) and (2) and 546(1), which relate to orders the
Court can make in the circumstances specified. This item amends subsections by removing
the references to the 'Federal Circuit Court' and replacing them with 'Federal Circuit and
Family Court of Australia (Division 2)'. The item allows these subsections to appropriately
reflect the continuation of the Federal Circuit Court as the FCFC (Division 2), and does not
substantively impact on the operation of these subsections.
Item 377 - Paragraph 548(1)(a)
911. Item 377 amends paragraph 548(1)(a), which deals with small claims procedure. This
item removes the reference to the 'Federal Circuit Court of Australia' and replaces it with
'Federal Circuit and Family Court of Australia (Division 2)'. This amendment appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
substantively impact on the operation of this section.
Item 378 - Paragraph 558C(3)(b)
912. Item 378 amends paragraph 558C(3)(b) by repealing it and replacing it with 'the
Federal Circuit and Family Court of Australia (Division 2)'. The paragraph currently enables
proceedings to be instituted in the Federal Circuit Court and the amendment appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
substantively impact on the operation of this section.
Item 379 - Section 560
161
913. Item 379 repeals section 560 and replaces it with a new section. Section 560 currently
provides a guide to the interpretation of Part 4-2 of the Act, which relates to jurisdiction and
powers of courts. Item 352 repeals the section and substitutes a new guide which replaces all
references to the 'Federal Circuit Court' with 'Federal Circuit and Family Court of Australia
(Division 2)'. The new section does not substantively depart from the existing section, and
simply makes changes to reflect the continuation of the Federal Circuit Court as the FCFC
(Division 2).
Item 380 - Paragraphs 563(f), (g) and (h)
914. Item 380 amends paragraphs 563(f), (g) and (h). These paragraphs provide that the
jurisdiction conferred on the Federal Court under section 562 is to be exercised in the Fair
Work Division of the Federal Court if:
an appeal is instituted in the Federal Court from a judgment of the Federal Circuit
Court or a court of a State or Territory in a matter arising under this Act; or
proceedings in relation to a matter arising under this Act are transferred to the Federal
Court from the Federal Circuit Court; or
the Federal Circuit Court or a court of a State or Territory states a case or reserves a
question for the consideration of the Federal Court in a matter arising under this Act.
This item removes all references to the 'Federal Circuit Court' and replaces them with
'Federal Circuit and Family Court of Australia (Division 2)'. The amendments appropriately
reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not
substantively alter the operation of the paragraphs.
Item 381 - Division 3 of Part 4-2 of Chapter 4 (heading)
915. Item 381 amends the heading to Division 3 of Part 4-2 of Chapter 4. Item 354
replaces the reference to 'Federal Circuit Court' with 'Federal Circuit and Family Court of
Australia (Division 2)'. The heading will now read 'Division 3 -- Jurisdiction and powers of
the Federal Circuit and Family Court of Australia (Division 2)'.
Item 382 - Section 566 (heading)
916. Item 382 amends the heading to section 566. Item 355 replaces the reference to
'Federal Circuit Court' with 'Federal Circuit and Family Court of Australia (Division 2)'.
The heading will now read 'Conferring jurisdiction on the Federal Circuit and Family Court
of Australia (Division 2)'.
Item 383 - Section 566
917. Item 383 amends section 566. Section 566 provides that jurisdiction is conferred on
the Federal Circuit Court in relation to any civil matter arising under this Act. This item
removes the reference to the 'Federal Circuit Court' and replaces it with 'Federal Circuit and
Family Court of Australia (Division 2)'. This amendment reflects the continuation of the
Federal Circuit Court as the FCFC (Division 2), and does not substantively alter the operation
of this section.
Item 384 - Section 567 (heading)
162
918. Item 384 amends the heading to section 567 by removing the reference to the 'Federal
Circuit Court' and replacing it with 'Federal Circuit and Family Court of Australia
(Division 2)'. The heading will now read 'Exercising jurisdiction in the Fair Work Division
of the Federal Circuit and Family Court of Australia (Division 2)'.
Item 385 - Section 567
919. Item 385 amends section 567. Section 567 provides the circumstances for when
jurisdiction conferred on the Federal Circuit Court under section 566 is to be exercised in the
Fair Work Division of the Federal Circuit Court. This item omits the words 'Federal Circuit
Court under section 566 is to be exercised in the Fair Work Division of the Federal Circuit
Court' from the section and replaces them with 'Federal Circuit and Family Court of
Australia (Division 2) under section 566 is to be exercised in the Fair Work Division of the
Court'. Reference to 'the Court' means the FCFC (Division 2). This amendment reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2), and does not
substantively alter the operation of this section.
Item 386 - Paragraph 567(a)
920. Item 386 amends paragraph 567(a), which provides that jurisdiction conferred on the
Federal Circuit Court under section 566 is to be exercised in the Fair Work Division of the
Federal Circuit Court if an application is made to the Federal Circuit Court under the Act.
This item amends this section by removing the words 'Federal Circuit'. This amendment
flows from the amendments made in the item above, and reference to 'the Court' in
paragraph (a) means the FCFC (Division 2). This amendment reflects the continuation of the
Federal Circuit Court as the FCFC (Division 2), and does not substantively alter the operation
of the paragraph.
Item 387 - Paragraph 567(b)
921. Item 387 amends paragraph 567(b), which provides that jurisdiction conferred on the
Federal Circuit Court under section 566 is to be exercised in the Fair Work Division of the
Federal Circuit Court if an injunction is sought under section 15 of the Federal Circuit Court
Act in relation to a matter arising under this Act. This item omits the words 'section 15 of the
Federal Circuit Court of Australia Act 1999' and replaces them with 'section 108 of the
Federal Circuit and Family Court of Australia Act 2018'. The amendment appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and updates
the legislative reference to the correct section of the Federal Circuit and Family Court of
Australia Act 2018. The amendment does not substantively alter the operation of the
paragraph.
Item 388 - Paragraph 567(c)
922. Item 388 amends paragraph 567(c), which provides that jurisdiction conferred on the
Federal Circuit Court under section 566 is to be exercised in the Fair Work Division of the
Federal Circuit Court if a declaration is sought under section 16 of the Federal Circuit Court
Act in relation to a matter arising under the Act. Item 361 omits the words 'section 16 of the
Federal Circuit Court of Australia Act 1999' and replaces them with 'section 109 of the
Federal Circuit and Family Court of Australia Act 2018'. The amendment appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and updates
the legislative reference to the correct section of the Federal Circuit and Family Court of
163
Australia Act 2018. The amendment does not substantively alter the operation of the
paragraph.
Item 389 - Paragraph 567(d)
923. Item 389 amends paragraph 567(d), which provides that jurisdiction conferred on the
Federal Circuit Court under section 566 is to be exercised in the Fair Work Division of the
Federal Circuit Court if proceedings in relation to a matter arising under the Act are
transferred to the Federal Circuit Court from the Federal Court. This item omits the words
'Federal Circuit Court' and replaces them with 'Federal Circuit and Family Court of
Australia (Division 2)'. This amendment reflects the ongoing operation of the Federal Circuit
Court as the FCFC (Division 2), and does not substantively alter the operation of this section.
Item 390 - Paragraph 567(e)
924. Item 390 amends paragraph 567(e), which provides that jurisdiction conferred on the
Federal Circuit Court under section 566 is to be exercised in the Fair Work Division of the
Federal Circuit Court if the High Court remits a matter arising under this Act to the Federal
Circuit Court. This item omits the words 'Federal Circuit Court' and replaces them with
'Federal Circuit and Family Court of Australia (Division 2)'. This amendment reflects the
ongoing operation of the Federal Circuit Court as the FCFC (Division 2), and does not
substantively alter the operation of this section.
Item 391 - Section 568
925. Item 391 repeals section 568 and replaces it with a new section. The heading of
section 568 provides there is no limitation on Federal Circuit Court's powers. The body of the
section provides that 'to avoid doubt, nothing in this Act limits the Federal Circuit Court's
powers under section 14, 15 or 16 of the Federal Circuit Court of Australia Act 1999'. This
item repeals this section and substitutes it with a new section. The new heading to the new
section provides there is 'No limitation on powers of the Federal Circuit and Family Court of
Australia (Division 2)'. The body of the section provides 'to avoid doubt, nothing in this Act
limits the powers of the Federal Circuit and Family Court of Australia (Division 2) under
section 107, 108 or 109 of the Federal Circuit and Family Court of Australia Act 2018'. This
amendment reflects the updated nomenclature and provides the legislative reference to the
correct sections of the Federal Circuit and Family Court of Australia Act 2018. The
amendment does not substantively depart from the operation of the existing section.
Item 392 - Paragraph 576(2)(ca)
926. Item 392 repeals paragraph 576(2)(ca) and substitutes it with a new paragraph. The
new paragraph 576(2)(ca) provides that the Fair Work Commission (FWC) has the following
functions: mediating any proceedings, part of proceedings or matter arising out of any
proceedings that, under section 53A of the Federal Court Act or section 136 of the Federal
Circuit and Family Court of Australia Act 2018, have been referred by the Fair Work
Division of the Federal Court or FCFC (Division 2) to the FWC for mediation. This
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2) and provides the legislative reference to the correct section of the Federal
Circuit and Family Court of Australia Act 2018. The new paragraph does not substantively
depart from the operation of the existing paragraph.
164
Item 393 - Subsections 627(1A) and (2A)
927. Item 393 amends subsections 627(1A) and (2A). Section 627 relates to the
qualifications for appointment of FWC members. Subsection 627(1A) currently provides that
paragraph 627(1)(a) does not apply to a person who is a Judge of the Federal Circuit Court.
Subsection 627(2A) provides that subparagraph 627(2)(a)(i) does not apply to a person who
is a Judge of the Federal Circuit Court. This item omits the references to the 'Federal Circuit
Court' in both subsections and replaces them with 'Federal Circuit and Family Court of
Australia (Division 2)'. Item 366 does not substantively impact on the current operation of
these subsections -- it reflects the continuation of Judges of the Federal Circuit Court as
Judges of the FCFC (Division 2).
Item 394 - Section 653A (heading)
928. Item 394 amends the heading to section 653A. This item removes the reference to the
'Federal Circuit Court' and replaces it with 'Federal Circuit and Family Court of Australia
(Division 2)'. The heading will now read 'Arrangements with the Federal Court and the
Federal Circuit and Family Law Court of Australia (Division 2)'.
Item 395 - Section 653A
929. Item 395 amends section 653A, which provides that the General Manager may make a
written arrangement with the Federal Court or the Federal Circuit Court for the FWC to
provide administrative support to the Fair Work Division of the Court. This item removes the
reference to the 'Federal Circuit Court' and replaces it with 'Federal Circuit and Family court
of Australia (Division 2)'. This amendment appropriately reflects the continuation of the
Federal Circuit Court as the FCFC (Division 2) and does not substantively impact the
operation of the section.
Item 396 - Subsection 715(6)
930. Item 396 amends subsection 715(6), which provides that if the Fair Work
Ombudsman considers that the person who gave the undertaking (as provided for in
subsection 715(2)) has contravened any of its terms, the Fair Work Ombudsman may apply to
the Federal Court, the Federal Circuit Court or an eligible State or Territory Court for an
order under subsection (7). Item 369 removes the reference to the 'Federal Circuit Court'
from the body of the section and replaces it with 'Federal Circuit and Family Court of
Australia (Division 2)'. This amendment appropriately reflects the continuation of the Federal
Circuit Court as the FCFC (Division 2) and does not substantively impact on the operation of
this section.
Item 397 - Paragraph 716(3)(e)
931. Item 397 amends paragraph 716(3)(e), which provides that the notice (as provided for
in subsection 716(2)) must explain that the person may apply to the Federal Court, the
Federal Circuit Court or an eligible State or Territory Court for a review of the notice on
either or both of the following grounds: (i) the person has not committed a contravention set
out in the notice; (ii) the notice does not comply with subsection (2) or this subsection. This
item amends this subsection by removing the reference to the 'Federal Circuit Court' and
replacing it with 'Federal Circuit and Family Court of Australia (Division 2)'. This
165
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2) and does not substantively impact on the operation of this section.
Item 398 - Subsection 717(1)
932. Item 398 amends subsection 717(1), which provides that a person who has been given
a notice under section 716 may apply to the Federal Court, the Federal Circuit Court or an
eligible State or Territory Court for a review of the notice on either or both of the following
grounds: (a) the person has not committed a contravention set out in the notice; (b) the notice
does not comply with subsection 716(2) or (3). This item removes the reference to the
'Federal Circuit Court' and replaces it with 'Federal Circuit and Family Court of Australia
(Division 2)'. This amendment appropriately reflects the continuation of the Federal Circuit
Court as the FCFC (Division 2) and does not substantively impact on the operation of this
section.
Item 399 -Paragraphs 789CD(3)(b) and 789CE(4)(b)
933. Item 399 amends paragraphs 789CD(3)(b) and 789CE(4)(b). Paragraph 789CD(3)(b)
provides that the proceedings under subsection 789CD(1) may be commenced in the Federal
Circuit Court. Paragraph 789CE(4)(b) provides that the entity may, in accordance with
section 789CE, commence proceedings in the Federal Circuit Court against the responsible
person for payment to the entity of the recoverable amount. This item removes the references
to the 'Federal Circuit Court' and replaces them with 'Federal Circuit and Family Court of
Australia (Division 2)'. This amendment appropriately reflects the continuation of the Federal
Circuit Court as the FCFC (Division 2) and does not substantively impact the operation of
this section.
Fair Work (Registered Organisations) Act 2009
Item 400 - Section 6 (definition of Federal Circuit Court)
934. Item 400 repeals the definition of 'Federal Circuit Court' in section (6) of the Fair
Work (Registered Organisations) Act 2009. Section 6 provides definitions to assist in
interpreting the Act. The definition is no longer required as the Federal Circuit Court will be
continued as 'Federal Circuit and Family Court of Australia (Division 2)'. Where references
in the Act are made to the 'Federal Circuit and Family Court of Australia (Division 2)', the
title of that Court is provided in full.
Item 401 - Subsections 337BB(1) and (6)
935. Item 401 amends subsections 337BB(1) and (6). Both subsections provide the Federal
Court or Federal Circuit Court with the power to make orders in specified circumstances.
This item amends these subsections to remove the references to the 'Federal Circuit Court'
and replace them with 'Federal Circuit and Family Court of Australia (Division 2)'. This
amendment reflects the continuation of the Federal Circuit Court as the FCFC (Division 2)
and does not substantively impact on the operation of this section.
Item 402 - Section 353A (heading)
166
936. Item 402 amends the heading to section 353A by replacing the reference to the
'Federal Circuit Court' with 'Federal Circuit and Family Court of Australia (Division 2)'.
The heading will now read 'Representation in proceedings in the Fair Work Division of the
Federal Court and Federal Circuit and Family Court of Australia (Division 2)'.
Item 403 -Subsection 353A(1)
937. Item 403 amends subsection 353A(1). Subsection 353A(1) currently provides that
section 353A applies in relation to a proceeding in the Fair Work Division of the Federal
Court, or of the Federal Circuit Court, other than a proceeding in relation to an appeal under
section 565 of the Fair Work Act or a proceeding in relation to an offence against a law of the
Commonwealth. This item replaces the reference to the 'Federal Circuit Court' with 'Federal
Circuit and Family Court of Australia (Division 2)'. This amendment reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively
impact on the operation of the subsection.
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 404 - Subitem 16(1) of Schedule 16 (table)
938. Item 404 amends subitem 16(1) of Schedule 16 of the Fair Work (Transitional
Provisions and Consequential Amendments) Act 2009, which provides a table outlining
standing, jurisdiction and maximum penalties for the purposes of item 16 of Schedule 16.
Item 404 removes references to the 'Federal Circuit Court' wherever they occur within the
table, and substitutes them with 'Federal Circuit and Family Court of Australia (Division 2)'.
The amendments reflects the continuation of the Federal Circuit Court as the FCFC (Division
2) and do not substantively impact on the operation of the subitem.
Item 405 - Item 17 of Schedule 16
939. Item 405 amends item 17 of Schedule 16, which provides that the Federal Court and
the Federal Circuit Court may not make an order under Division 2 of Part 4-1 granting an
injunction, or an interim injunction, to prevent, stop or remedy the effects of a contravention
of certain instruments or legislation. Item 405 removes the reference to the 'Federal Circuit
Court' and replaces it with 'Federal Circuit and Family Court of Australia Division 2)'. This
amendment reflects the continuation of the Federal Circuit Court as the FCFC (Division 2)
and does not substantively impact on the operation of this item.
Item 406 - Paragraphs 22(f), (g) and (h) of Schedule 17
940. Item 406 amends paragraphs 22(f), (g) and (h) of Schedule 17. Item 22 provides the
circumstances under which the jurisdiction conferred on the Federal Court under item 21 is to
be exercised in the Fair Work Division of the Federal Court. Item 406 removes the references
to the 'Federal Circuit Court' in paragraphs 22(f), (g) and (h) and replaces those references
with 'Federal Circuit and Family Court of Australia (Division 2)'. This amendment reflects
the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
substantively impact on the operation of the paragraphs.
Item 407 - Item 25 of Schedule 17 (heading)
167
941. Item 407 amends the heading to item 25 of Schedule 17. Item 407 removes the
reference to the 'Federal Circuit Court' and replaces it with 'Federal Circuit and Family
Court of Australia (Division 2)'. The heading will now read 'Conferring jurisdiction on the
Federal Circuit and Family Court of Australia (Division 2)'.
Item 408 - Item 25 of Schedule 17
942. Item 408 amends item 25 of Schedule 17. Item 25 of Schedule 17 provides that
jurisdiction is conferred on the Federal Circuit Court in relation to any civil matter arising
under the Act or the Workplace Relations Act 1996 as it continues to apply because of the
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. Item 408
removes the reference to the 'Federal Circuit Court' and replaces it with 'Federal Circuit and
Family Court of Australia (Division 2)'. This amendment reflects the continuation of the
Federal Circuit Court as the FCFC (Division 2) and does not substantively impact on the
operation of this item.
Item 409 - Heading to item 26 of Schedule 17
943. Item 409 amends the heading to item 26 of Schedule 17. Item 409 removes the
reference to the 'Federal Circuit Court' and replaces it with 'Federal Circuit and Family
Court of Australia (Division 2)'. The heading will now read 'Exercising jurisdiction in the
Fair Work Division of the Federal Circuit and Family Court of Australia (Division 2)'.
Item 410 - Item 26 of Schedule 17
944. Item 410 amends item 26 of Schedule 17. Item 26 of Schedule 17 outlines the
circumstances for when jurisdiction conferred on the Federal Circuit Court under item 25 is
to be exercised in the Fair Work Division of the Federal Circuit Court. Item 410 omits the
words 'Federal Circuit Court under item 25 is to be exercised in the Fair Work Division of
the Federal Circuit Court' and replaces them with 'Federal Circuit and Family Court of
Australia (Division 2) under item 25 is to be exercised in the Fair Work Division of the
Court'. Reference to 'the Court' means the FCFC (Division 2). This amendment reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively
impact on the operation of this section.
Item 411 - Paragraph 26(a) of Schedule 17
945. Item 411 amends paragraph 26(a) of Schedule 17, which provides that jurisdiction
conferred on the Federal Circuit Court under item 25 is to be exercised in the Fair Work
Division of the Federal Circuit Court if an application is made to the Federal Circuit Court
under the Act or the Workplace Relations Act 1996 as it continues to apply because of the
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. Following
the change made by item 410 above, item 411 now amends paragraph 26(a) of Schedule 17 to
remove the words 'Federal Circuit'. The new paragraph 26(a) reads 'an application is made
to the Court under this Act or the WR Act as it continues to apply because of this Act'. This
amendment ensures that the correct court is referenced wherever appropriate, to reflect the
change to the name of the Federal Circuit Court and its ongoing operation as the FCFC
(Division 2).
Item 412 - Paragraph 26(b) of Schedule 17
168
946. Item 412 amends paragraph 26(b) of Schedule 17, which provides that jurisdiction
conferred on the Federal Circuit Court under item 25 is to be exercised in the Fair Work
Division of the Federal Circuit Court if an injunction is sought under section 15 of the
Federal Circuit Court Act in relation to a matter arising under Fair Work (Transitional
Provisions and Consequential Amendments) Act 2009 or the Workplace Relations Act 1996
as it continues to apply because of the Fair Work (Transitional Provisions and Consequential
Amendments) Act 2009. Item 412 amends paragraph 26(b) to omit the words 'section 15 of
the Federal Circuit Court of Australia Act 1999' and substitute them with 'section 108 of the
Federal Circuit and Family Court of Australia Act 2018'. This amendment appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and provides
the legislative reference to the correct section of the Federal Circuit and Family Court of
Australia Act 2018. The new paragraph does not substantively impact on the operation of the
paragraph.
Item 413 - Paragraph 26(c) of Schedule 17
947. Item 413 amends paragraph 26(c) of Schedule 17, which provides that jurisdiction
conferred on the Federal Circuit Court under item 25 is to be exercised in the Fair Work
Division of the Federal Circuit Court if a declaration is sought under section 16 of the Federal
Circuit Court Act in relation to a matter arising under Fair Work (Transitional Provisions
and Consequential Amendments) Act 2009 or the Workplace Relations Act 1996 as it
continues to apply because of the Fair Work (Transitional Provisions and Consequential
Amendments) Act 2009. Item 413 amends paragraph 26(c) of Schedule 17 to omit the words
'section 16 of the Federal Circuit Court of Australia Act 1999' and substitute them with
'section 109 of the Federal Circuit and Family Court of Australia Act 2018'. This
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2) and provides the legislative reference to the correct section of the Federal
Circuit and Family Court of Australia Act 2018. The new paragraph does not substantively
impact on the operation of the paragraph.
Item 414 - Paragraph 26(d) of Schedule 17
948. Item 414 amends paragraph 26(d) of Schedule 17, which provides that jurisdiction
conferred on the Federal Circuit Court under item 25 is to be exercised in the Fair Work
Division of the Federal Circuit Court if proceedings in relation to a matter arising under the
Act, or the Workplace Relations Act 1996 as it continues to apply because of the Fair Work
(Transitional Provisions and Consequential Amendments) Act 2009, are transferred to the
Federal Circuit Court from the Federal Court. Item 414 removes the reference to the 'Federal
Circuit Court' and replaces it with 'Federal Circuit and Family Court of Australia
(Division 2)'. This amendment ensures that the correct court is referenced wherever
appropriate, to reflect the change to the name of the Federal Circuit Court and its ongoing
operation as the FCFC (Division 2).
Item 415 - Paragraph 26(e) of Schedule 17
949. Item 415 amends paragraph 26(e) of Schedule 17, which provides that jurisdiction
conferred on the Federal Circuit Court under item 25 is to be exercised in the Fair Work
Division of the Federal Circuit Court if the High Court remits a matter arising under the Act
or the Workplace Relations Act 1996 as it continues to apply because of the Fair Work
(Transitional Provisions and Consequential Amendments) Act 2009 to the Federal Circuit
Court. Item 415 removes the reference to the 'Federal Circuit Court' and replaces it with
169
'Federal Circuit and Family Court of Australia (Division 2)'. This amendment ensures that
the correct court is referenced wherever appropriate, to reflect the change to the name of the
Federal Circuit Court and its ongoing operation as the FCFC (Division 2).
Item 416 - Item 27 of Schedule 17
950. Item 416 repeals item 27 of Schedule 17 and replaces it with a new item. The heading
of item 27 of Schedule 27 currently provides 'No limitation on Federal Circuit Court's
powers'. The body of item 27 currently provides 'to avoid doubt, nothing in this Act limits
the Federal Circuit Court's powers under section 14, 15 or 16 of the Federal Circuit Court of
Australia Act 1999.' The heading of new item 27 reads 'No limitation on powers of the
Federal Circuit and Family Court of Australia (Division 2)'. The body of new item 27
provides 'to avoid doubt, nothing in this Act limits the powers of the Federal Circuit and
Family Court of Australia (Division 2) under section 107, 108 or 109 of the Federal Circuit
and Family Court of Australia Act 2018.' The new item appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2) and provides the
legislative reference to the correct sections of the Federal Circuit and Family Court of
Australia Act 2018. The new item does not substantively depart from the operation of the
existing item.
Family Court of Western Australia (Orders of Registrars) Act 1997
Item 417 - Section 11
951. Item 417 amends section 11 of the Family Court of Western Australia (Orders of
Registrars) Act 1997. Section 11 currently provides that 'Nothing in this Act applies to an
order declared to be invalid by the Full Court of the Family Court before the commencement
of the corresponding Western Australian Act'. Item 417 clarifies that section 11 relates to the
Family Court of Australia by replacing 'Family Court' with 'Family Court of Australia'. The
provision does not need to be amended to replace the reference to the Family Court with the
FCFC (Division 1) as the section relates to orders declared to be invalid by the Full Court of
the Family Court before the commencement of the relevant Western Australian legislation.
Item 418 - Subsection 12(1)
952. Item 418 amends section 12(1), which currently confers jurisdiction on the Family
Court and the Supreme Court of the Northern Territory. Item 418 omits the first occurrence
of 'Family Court' and substitutes it with 'Family Law Appeal Division of the Federal Court
of Australia, the Federal Circuit and Family Court of Australia (Division 1)'. This would
have the effect of conferring jurisdiction on the Family Law Appeal Division and the FCFC
(Division 1) for matters arising under the Family Court of Western Australia (Orders of
Registrars) Act 1997.
Federal Proceedings (Costs) Act 1981
Item 419 - Subsection 3(1) (definition of Family Court)
170
953. Item 419 repeals the definition of 'Family Court' from section 3(1) of the Federal
Proceedings (Costs) Act 1981.
Item 420- Subsection 3(1) (paragraph (d) of the definition of Federal appeal)
954. Item 420 omits 'Family Court' from paragraph (d) of the definition of 'Federal
appeal' in subsection 3(1). It instead substitutes 'Family Law Appeal Division of the Federal
Court'. This amendment appropriately reflects the creation of the new Family Law Appeal
Division in the Federal Court.
Item 421 - Subsection 3(1) (paragraph (fa) of the definition of Federal appeal)
955. Item 421 repeals paragraph (fa) of the definition of 'Federal appeal' in subsection
3(1). Paragraph (fa) currently provides that 'federal appeal' means 'an appeal to the Federal
Court from a judgment of the Federal Circuit Court'. Item 421 instead substitutes the
following two meanings: new paragraph (fa) provides that a 'federal appeal' will mean an
appeal to the Federal Court from a judgment of the Federal Circuit and Family Court of
Australia (Division 2)' while new paragraph (fb) provides that a 'federal appeal' will mean an
appeal to the Family Law Appeal Division of the Federal Court from a judgment of: '(i) the
Federal Circuit and Family Court of Australia; or (ii) a Family Court of a State; or (iii) a
Supreme Court of a State or Territory (including the Northern Territory) constituted by a
single Judge'.
Item 422 - Subsection 3(1) (subparagraph (ga)(ii) of the definition of Federal appeal)
956. Item 422 omits 'Federal Circuit Court' from subparagraph (ga)(ii) of the definition of
'Federal appeal' in subsection 3(1). It instead substitutes 'Federal Circuit and Family Court of
Australia (Division 2). This amendment appropriately reflects the creation of the FCFC.
Item 423 - Subsection 3(1) (paragraphs (j) to (k) of the definition of Federal appeal)
957. Item 423 repeals paragraphs (j) to (k) of the definition of 'Federal appeal' in
subsection 3(1). Currently, those paragraphs provide that a federal appeal is: an appeal to the
Full Court of the Family Court from a judgment of the Family Court constituted otherwise
than as a Full Court (paragraph (j)); an appeal to the Family Court from a judgment of the
Federal Circuit Court (paragraph (ja)); and an appeal to the Family Court from a judgment of
a court of a State, a court of an internal Territory (including the Northern Territory) or a court
of Norfolk Island (paragraph (k)).
958. Item 423 instead substitutes the following definition of 'Federal appeal' into new
paragraph '(j): an appeal to the Federal Circuit and Family Court of Australia from a
judgment of: (i) a court of summary jurisdiction of a State; or (ii) a court of summary
jurisdiction of an internal Territory (including the Northern Territory); or (iii) a court of
summary jurisdiction of Norfolk Island'. This amendment reflects the fact that, as a result of
the creation of the Family Law Appeal Division in the Federal Court, the FCFC will only
hear appeals from decisions of courts of summary jurisdiction.
Item 424 - Subsection 3(1)
959. Item 424 inserts a definition of 'Federal Circuit and Family Court of Australia' into
subsection 3(1) to ensure that a reference to the FCFC is a reference to either the FCFC
(Division 1) or FCFC (Division 2).
171
Item 425 - Subsection 3(1) (definition of Federal Circuit Court)
960. Item 425 repeals the definition of 'Federal Circuit Court' from subsection 3(1).
Item 426 - Paragraph 9(1)(a)
961. Item 426 omits the reference to '(j), (ja) or (k)' in paragraph 9(1)(a) of the Federal
Proceedings (Costs) Act 1981 given they will be repealed by item 423. Paragraph 9(1)(a)
relates to costs certificates for federal appeals in family law proceedings. Item 426 instead
substitutes '(fb) or (j)' which are references to new paragraphs inserted by items 421 and 423.
Item 427 - Subsection 10(1)
962. Item 427 omits the reference to the 'Family Court, the Federal Circuit Court' from
subsection 10(1) and instead substitutes 'the Federal Circuit and Family Court of Australia'.
The amendment appropriately reflects the continuation of the Family Court and the Federal
Circuit Court as the FCFC (Division 1) and FCFC (Division 2), respectively.
Item 428 - Schedule (table item dealing with the Family Court)
963. Item 428 repeals the table item dealing with the Family Court in the schedule. The
schedule sets out the prescribed maximum amount for a payment under the Act. Item 428
retains the amount listed for the Family Court (being $2000) when substituting in a reference
to the 'Federal Circuit and Family Court of Australia' into the table. The amendment
appropriately reflects the continuation of the Family Court and the Federal Circuit Court as
the FCFC (Division 1) and FCFC (Division 2), respectively.
Foreign Acquisitions and Takeovers Act 1975
Item 429 - Paragraph 99(3)(b)
964. Item 429 amends paragraph 99(3)(b) of the Foreign Acquisitions and Takeovers Act
1975. For the purposes of Part 4 of the Regulatory Powers (Standard Provisions) Act 2014,
subsection 99(3) of the Foreign Acquisitions and Takeovers Act 1975 prescribes the relevant
courts in relation to the civil penalty provisions contained in the Foreign Acquisitions and
Takeovers Act 1975. Existing paragraph 99(3)(b) prescribes the Federal Circuit Court of
Australia. This item repeals this paragraph and replaces it with new paragraph (b) which
prescribes the Federal Circuit and Family Court (Division 2). This amendment reflects the
continuation of the Federal Circuit Court of Australia as the FCFC (Division 2).
Item 430 - Subsection 132(1)
965. Item 430 amends section 132, which relates to the powers of the courts to enforce the
Treasurer's orders. Currently, subsection 132(1) provides that, subject to the criteria in the
subsection, the Federal Court, the Federal Circuit Court or the Supreme Court of a State or
Territory may make orders. Item 402 amends section 132 to replace the reference to the
Federal Circuit Court with the FCFC (Division 2). This amendment reflects the continuation
of the Federal Circuit Court as the FCFC (Division 2).
172
Foreign Evidence Act 1994
Item 431 - Subsection 3(1) (paragraph (b) of the definition of superior court)
966. Item 431 omits 'Family Court of Australia' from paragraph (b) of the definition of
'superior court' in subsection (3)(1) of the Foreign Evidence Act 1994. It instead substitutes
'Federal Circuit and Family Court of Australia (Division 1)'. Under the new court structure,
the FCFC (Division 1) will continue to be a superior court of record. The amendments
appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and the
continuation of the Court as a superior court.
Item 432 - Division 2 of Part 2 (heading)
967. Item 432 omits 'Federal Circuit Court of Australia' from the heading of Division 2 of
Part 2, which relates to the examination of witnesses abroad. It instead substitutes 'Federal
Circuit and Family Court of Australia (Division 2)'. This amendment reflects the
continuation of the Federal Circuit Court of Australia as the FCFC (Division 2).
Item 433 - Section 9A (heading)
968. Item 433 omits 'Federal Circuit Court' from the heading of section 9A, which relates
to orders for taking evidence abroad. It instead substitutes 'Federal Circuit and Family Court
of Australia (Division 2)'. This amendment reflects the continuation of the Federal Circuit
Court of Australia as the FCFC (Division 2).
Item 434 - Subsection 9A(1)
969. Item 434 repeals subsection 9A(1) which relates to orders for taking evidence abroad
in child support or family law matters. It instead substitutes a new subsection that has
replaced references to the 'Family Court of Australia' with the 'Federal Circuit and Family
Court of Australia (Division 1)', and references to the 'Federal Circuit Court of Australia'
with the 'Federal Circuit and Family Court of Australia (Division 2)'. This new subsection
appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and the
continuation of the Federal Circuit Court as the FCFC (Division 2).
Item 435 - Subsection 9A(2)
970. Item 435 omits 'Federal Circuit Court of Australia' from subsection 9A(2) which
relates to orders for taking evidence abroad in matters other than child support or family law
matters. It instead substitutes 'Federal Circuit and Family Court of Australia (Division 2)'.
This amendment appropriately reflects the continuation of the Federal Circuit Court as the
FCFC (Division 2).
Item 436 - Paragraph 11(1)(a)
971. Item 436 omits 'Family Court of Australia' from paragraph 11(1)(a) which relates to
orders for taking evidence abroad in family law matters. It instead substitutes 'Federal Circuit
and Family Court of Australia (Division 1)'. This amendment appropriately reflects the
continuation of the Family Court as the FCFC (Division 1).
Item 437 - Subsection 11(2) (paragraph (a) of the definition of appropriate court)
173
972. Item 437 omits 'Family Court of Australia' from the definition of 'appropriate court'
in subsection 11(2) which relates to orders for taking evidence abroad in family law matters.
It instead substitutes 'Federal Circuit and Family Court of Australia (Division 1)'. This
amendment appropriately reflects the continuation of the Family Court as the FCFC
(Division 1).
Item 438 - Subsection 12(1)
973. Item 438 omits 'Federal Circuit Court of Australia' from subsection 12(1) which
relates to the use of evidence taken in an examination. It instead substitutes 'Federal Circuit
and Family Court of Australia (Division 2)'. This amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2).
Item 439 - Paragraph 12(2)(a)
974. Item 439 omits 'Federal Circuit Court of Australia's satisfaction or the inferior court's
satisfaction' from paragraph 12(2)(a) which relates to the use of evidence taken in an
examination. It instead substitutes 'satisfaction of the Federal Circuit and Family Court of
Australia (Division 2) or the inferior court'. This amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2).
Item 440 - Subsection 15(1)
975. Item 440 omits 'Federal Circuit Court of Australia' from subsection 15(1).
Subsection 15(1) relates to a court's power to exclude evidence obtained under Part 2 from
the proceeding, even if it is otherwise permissible. Part 2 relates to the examination of
witnesses abroad. Item 440 instead substitutes 'Federal Circuit and Family Court of Australia
(Division 2)'. This amendment appropriately reflects the continuation of the Federal Circuit
Court as the FCFC (Division 2).
Freedom of Information Act 1982
Item 441 - Subsection 5(1B) (heading)
976. Item 441 omits 'Family Court Judges' from the heading to subsection 5(1B) of the
Freedom of Information Act 1982. Subsection 5(1B) provides that the Freedom of
Information Act 1982 does not apply to any request for access to a document of a court (other
than a court of Norfolk Island) exercising powers or performing functions under
paragraph 21B(1A)(c) and subclause 21B(1B) of the Family Law Act, or assisting in
exercising those powers or performing those functions. Item 441 instead substitutes 'Judges
of the Federal Circuit and Family Court of Australia (Division 1)'. This amendment
appropriately reflects the continuation of the Family Court as the FCFC (Division 1).
Item 442 - Paragraph 5(1B)(a)
977. Item 442 repeals paragraph 5(1B)(a). Subsection 5(1B)(a) provides that the Freedom
of Information Act 1982 does not apply to any request for access to a document of a court
(other than a court of Norfolk Island) exercising powers or performing functions under
paragraph 21B(1A)(c) and subclause 21B(1B) of the Family Law Act. Item 442 instead
substitutes new paragraphs under the Federal Circuit and Family Court of Australia Act 2018
174
so that the Freedom of Information Act 1982 does not apply to any request for access to a
document of a court (other than a court of Norfolk Island) exercising powers or performing
functions under paragraph 31(2)(d) and subclause 32(1) of the Federal Circuit and Family
Court of Australia Act 2018. This amendment appropriately reflects the continuation of the
Family Court as the FCFC (Division 1).
Item 443 - Subsection 5(1C) (heading)
978. Item 443 omits 'Federal Circuit Court of Australia' from the heading to
subsection 5(1C) of the Freedom of Information Act 1982. Subsection 5(1C) provides that the
Act does not apply to any request for access to a document of a court (other than a court of
Norfolk Island) that relates to complaint handler (or a body consisting of complaint handlers)
exercising powers or performing functions under paragraph 12(3)(c) and subclause 12(3AA)
of the Federal Magistrates Act 1999 or assisting in exercising those powers or performing
those functions. Item 443 instead substitutes 'Federal Circuit and Family Court of Australia
(Division 2)'. This amendment appropriately reflects the continuation of the Federal Circuit
Court as the FCFC (Division 2).
Item 444 - Paragraph 5(1C)(a)
979. Item 444 repeals paragraph 5(1C)(a). Subsection 5(1C)(a) provides that the Act does
not apply to any request for access to a document of a court (other than a court of Norfolk
Island) that relates to complaint handler (or a body consisting of complaint handlers)
exercising powers or performing functions under paragraph 12(3)(c) and subclause 12(3AA)
of the Federal Magistrates Act 1999. Item 443 instead substitutes new paragraphs under the
Federal Circuit and Family Court of Australia Act 2018 so that the Freedom of Information
Act 1982 does not apply to any request for access to a document of a court (other than a court
of Norfolk Island) that relates to complaint handler (or a body consisting of complaint
handlers) exercising powers or performing functions under paragraph 112(2)(d) and
subsection 113(1) of the Federal Circuit and Family Court of Australia Act 2018. This
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2).
Item 445 - Subsections 64(7) and (8) and 67(4) and (5)
980. Item 445 omits 'Federal Circuit Court of Australia' (wherever occurring) from
subsections 64(7) and (8) (which relates to the production of documents) and 67(4) and (5)
(which currently provides for the automatic stay of an AAT decision to give access to a
document where an agency or Minister institutes an appeal in the Federal Court against that
decision.) Item 445 instead substitutes 'Federal Circuit and Family Court of Australia
(Division 2)'. This amendment appropriately reflects the continuation of the Federal Circuit
Court as the FCFC (Division 2).
Great Barrier Reef Marine Park Amendment (Authority Governance and Other Matters) Act
2018
Item 446 - Paragraph 10(2)(b) of Schedule 2
981. Item 446 replaces a reference to the 'Federal Circuit Court of Australia' with 'the
Federal Circuit and Family Court of Australia (Division 2)' in paragraph 10(2)(b) of
Schedule 2 of the Great Barrier Reef Marine Park Amendment (Authority Governance and
175
Other Matters) Act 2018. Section 10 provides that if the Commonwealth and a person do not
agree to the amount of compensation payable by the Commonwealth, the person may institute
proceedings for recovery in the Federal Circuit Court of Australia. This amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2)
and does not substantively affect the operation of the paragraph.
Greenhouse and Energy Minimum Standards Act 2012
Item 447 - Section 5 (paragraph (b) of the definition of issuing officer)
982. Item 447 repeals paragraph (b) of the definition of 'issuing officer' in section 5 of the
Greenhouse and Energy Minimum Standards Act 2012. Paragraph (b) provides that an
issuing officer means 'a Judge of the Federal Circuit Court of Australia'. Item 447 instead
substitutes 'a Judge of the Federal Circuit and Family Court of Australia (Division 2)'. This
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2).
Item 448 - Section 5 (paragraph (aa) of the definition of relevant court)
983. Item 448 repeals paragraph (aa) of the definition of 'relevant court' in section 5.
Paragraph (aa) will be inserted by Schedule 7 of the Regulatory Powers (Standardisation
Reform) Act 2017, which will commence before 1 January 2019. Item 448 instead substitutes
'the Federal Circuit and Family Court of Australia (Division 2)'. This amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).
Healthcare Identifiers Act 2010
Item 449 - Paragraphs 31C(3)(b), 31D(3)(b) and 31E(3)(b)
984. Item 449 repeals paragraphs 31C(3)(b), 31D(3)(b) and 31E(3)(b) of the Healthcare
Identifiers Act 2010. For the purposes of civil penalty provisions (section 31C), enforceable
undertakings (section 31D) and injunctions (section 31E), those paragraphs provide that a
relevant court is the Federal Circuit Court of Australia. Item 449 instead substitutes 'the
Federal Circuit and Family Court of Australia (Division 2)'. This amendment appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).
Higher Education Support Act 2003
Item 450 - Subclause 1(1) of Schedule 1 (paragraph (b) of the definition of applicable
court)
985. Item 450 repeals paragraph (b) of the definition of 'applicable court' in subclause 1(1)
of Schedule 1 of the Higher Education Support Act 2003 and replaces it with new paragraph
(b), which refers to 'the Federal Circuit and Family Court of Australia (Division 2)'.
Subclause 1(1) of Schedule 1 provides definitions to assist in interpreting the Act. Paragraph
(b) of the definition of 'applicable court' currently provides that the Federal Circuit Court is
176
an applicable court. The amendment appropriately reflects the continuation of the Federal
Circuit Court as the FCFC (Division 2) and does not affect the meaning of 'applicable court'
in subclause 1(1).
Item 451 - Subclause 1(1) of Schedule 1 (paragraph (c) of the definition of judicial
officer)
986. Item 451 repeals paragraph (c) of the definition of 'judicial officer' of subclause 1(1)
of Schedule 1 and replaces it with new paragraph (c), which refers to 'a Judge of the Federal
Circuit and Family Court of Australia (Division 2)'. Subclause 1(1) of Schedule 1 provides
definitions to assist in interpreting the Act. Paragraph (c) of the definition of 'judicial officer'
currently provides that judicial officer means a Judge of the Federal Circuit Court of
Australia. The amendment appropriately reflects the continuation of Judges of the Federal
Circuit Court as Judges of the FCFC (Division 2).
Horse Disease Response Levy Collection Act 2011
Item 452 - Paragraph 13(11)(b)
987. Item 452 repeals paragraph 13(11)(b) of the Horse Disease Response Levy Collection
Act 2011 and replaces it with new paragraph (b), which refers to 'the Federal Circuit and
Family Court of Australia (Division 2)'. Paragraph 13(11)(b) is to be inserted by Schedule 8
to the Regulatory Powers (Standardisation Reform) Act 2017, and provides that the Federal
Circuit Court is a relevant court in relation to the levy law and to the information mentioned
in subsection 13(2) for the purposes of Part 2 of the Regulatory Powers (Standardisation
Provisions) Act 2014. The amendment appropriately reflects the continuation of the Federal
Circuit Court as the FCFC (Division 2) and does not substantively affect the operation of
paragraph 13(11)(b).
Item 453 - Subsection 19(2)
988. Item 453 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in subsection 19(2). Section 19 is to be inserted
by Schedule 8 to the Regulatory Powers (Standardisation Reform) Act 2017, and provides for
Commonwealth compensation for acquisition of property from a person otherwise than on
just terms. Subsection 19(2) currently provides that if the Commonwealth and the person do
not agree on the amount of compensation, the person may institute proceedings in the Federal
Court or the Federal Circuit Court . The amendment appropriately reflects the continuation of
the Federal Circuit Court as the FCFC (Division 2) and does not substantively affect the
operation of subsection 19(2).
Human Rights Legislation Amendment Act 2017
Item 454 - Subitem 58(9) of Schedule 2
989. Item 454 updates the reference to 'or the Federal Circuit Court' to be ', the Federal
Circuit Court of Australia or the Federal Circuit and Family Court of Australia (Division 2)'
in subitem 58(9) of Schedule 2 of the Human Rights Legislation Amendment Act 2017.
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Schedule 2 provides for amendment of the Australian Human Rights Commission Act 1986.
Subitem 58(9) of Schedule 2 currently provides that certain amendments in relation to an
application made to the Federal Court or the Federal Circuit Court under section 46PO of the
Australian Human Rights Commission Act 1986 will apply if the relevant complaint was
lodged after the commencement of item 58. The amendment includes both the Federal Circuit
Court and the FCFC (Division 2) to ensure all applications are captured. The amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).
Illegal Logging Prohibition Act 2012
Item 455 - Paragraph 21(5)(c)
990. Item 455 updates the reference to the 'Federal Circuit Court of Australia' to be
'Federal Circuit and Family Court of Australia (Division 2)' in paragraph 21(5)(c) of the
Illegal Logging Prohibition Act 2012. Paragraph 21(5)(c) currently provides that a Judge of
the Federal Circuit Court or a Judge of the Federal Court who has consented to act as an
issuing officer for the purposes of the Act is an issuing officer in relation to the provisions
mentioned in subsection 21(1) and the information mentioned in subsection 21(2) for the
purposes of Part 2 of the Regulatory Powers (Standard Provisions) Act 2014. The
amendment appropriately reflects the continuation of Judges of the Federal Circuit Court as
Judges of the FCFC (Division 2) and does not affect the operation of paragraph 21(5)(c).
Item 456 - Paragraph 21(9)(b)
991. Item 456 repeals paragraph 21(9)(b) and replaces it with new paragraph (b), which
refers to 'the Federal Circuit and Family Court of Australia (Division 2)'. Paragraph 21(9)(b)
currently provides that the Federal Circuit Court is a relevant court in relation to the
provisions mentioned in subsection 21(1) and the information mentioned in subsection 21(2)
for the purposes of Part 2 of the Regulatory Powers (Standard Provisions) Act 2014. The
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2) and does not affect the operation of paragraph 21(9)(b).
Item 457 - Paragraph 22(4)(c)
992. Item 457 updates the reference to the 'Federal Circuit Court of Australia' to be
'Federal Circuit and Family Court of Australia (Division 2)' in paragraph 22(4)(c).
Paragraph 22(4)(c) currently provides that Judge of the Federal Circuit Court or a Judge of
the Federal Court who has consented to act as an issuing officer for the purposes of the Act is
an issuing officer in relation to evidential material that relates to a provision mentioned in
subsection 22(1) for the purposes of Part 3 of the Regulatory Powers (Standard Provisions)
Act 2014. The amendment appropriately reflects the continuation of Judges of the Federal
Circuit Court as Judges of the FCFC (Division 2) and does not affect the operation of
paragraph 22(4)(c).
Item 458 - Paragraphs 22(8)(b) and 23(3)(b)
993. Item 458 repeals paragraphs 22(8)(b) and 23(3)(b) and replaces them with new
paragraphs (b), which refer to 'the Federal Circuit and Family Court of Australia
(Division 2)'. Paragraphs 22(8)(b) and 23(3)(b) currently provide that the Federal Circuit
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Court is a relevant court in relation to the matters specified for the purposes of Parts 3 and 4,
respectively of the Regulatory Powers (Standard Provisions) Act 2014. The amendments
appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2)
and do not substantively alter the operation of paragraphs 22(8)(b) and 23(3)(b).
Income Tax Assessment Act 1997
Item 459 - Subsection 126-15(2) (example)
994. Item 459 updates the reference to 'The Family Court' to be 'A court' in the example
to subsection 126-15(2) of the Income Tax Assessment Act 1997. Section 126-15 deals with a
capital gains tax (CGT) event involving a company or a trustee. The amendment
appropriately reflects the fact that the reference to the Family Court is no longer relevant, as
the Family Court will continue in existence as the FCFC (Division 1), and that other courts
can make such orders. The amendment does not alter the intent of the example to subsection
126-15(2).
Independent Contractors Act 2006
Item 460 - Section 4 (definition of Court)
995. Item 460 updates the reference to the 'Federal Circuit Court of Australia' to be
'Federal Circuit and Family Court of Australia (Division 2)' in section 4 of the Independent
Contractors Act 2006. Section 4 provides definitions to assist in interpreting the Act.
Currently, the definition of 'Court' means 'the Federal Court of Australia or the Federal
Circuit Court of Australia'. The amendment appropriately reflects the continuation of the
Federal Circuit Court as the FCFC (Division 2) and does not substantively affect the meaning
of the definition of 'Court' in section 4.
Item 461 - Subsection 12(1) (note)
996. Item 461 repeals the note to subsection 12(1) and replaces it with a new note to
subsection 12(1). Subsection 12(1) provides that an application may be made to a Court to
review a services contract. The note currently provides legislative references for transferring
proceedings from the Federal Circuit Court to the Federal Court. The new note appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and refers to
the correct provisions for the transferring of matters from the FCFC (Division 2) to the
Federal Court (including new section 32AC of the Federal Court Act, which allows the
Federal Court to transfer a matter pending in the FCFC (Division 2) to the Federal Court on
its own motion or on the application of a party to the proceedings).
Item 462 - Section 15 (note)
997. Item 462 updates the reference to 'Part 4 of the Federal Circuit Court of Australia Act
1999' to be 'Part 5 of Chapter 4 of the Federal Circuit and Family Court of Australia Act
2018' in the note to section 15. Section 15 provides for the powers of the Court in reviewing
a services contract. The note to section 15 currently provides legislative references to
alternative dispute resolution methods. The amendment appropriately reflects the
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continuation of the Federal Circuit Court as the FCFC (Division 2) and updates the legislative
reference to the correct part of the Federal Circuit and Family Court of Australia Act 2018.
Item 463 - Section 16 (note 2)
998. Item 463 updates the reference to the 'Federal Circuit Court of Australia' to be
'Federal Circuit and Family Court of Australia (Division 2)' in note 2 to section 16.
Section 16 provides for the orders that a Court may make in relation to a services contract.
Note 2 to section 16 currently provides the legislative reference for appeals to the Federal
Court from judgments of the Federal Circuit Court. The amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2).
Industrial Chemicals (Notification and Assessment) Act 1989
Item 464- Paragraphs 83(3)(b), 85(9)(b) and 86(8)(b)
999. Item 464 repeals paragraphs 83(3)(b), 85(9)(b) and 86(8)(b) of the Industrial
Chemicals (Notification and Assessment) Act 1989 and replaces them with new paragraphs
(b), which refer to 'the Federal Circuit and Family Court of Australia (Division 2)'.
Paragraphs 83(3)(b), 85(9)(b) and 86(8)(b) are to be inserted by Schedule 10 to the
Regulatory Powers (Standardisation Reform) Act 2017, and currently provide that the Federal
Circuit Court is a relevant court in relation to the matters specified for the purposes of Parts 7,
2 and 3, respectively of the Regulatory Powers (Standard Provisions) Act 2014. The
amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC
(Division 2) and do not substantively alter the operation of paragraphs 83(3)(b), 85(9)(b) and
86(8)(b).
Interactive Gambling Act 2001
Item 465 - Section 4 (definition of Federal Circuit Court)
1000. Item 465 repeals the definition of 'Federal Circuit Court' in section 4 of the
Interactive Gambling Act 2001. Section 4 provides definitions to assist in interpreting the
Act. Currently, the 'Federal Circuit Court' is defined as being the 'Federal Circuit Court of
Australia'. The definition is no longer required as the Federal Circuit Court will be continued
as the FCFC (Division 2). Where references in the Act are made to the FCFC (Division 2),
the reference is provided in full.
Item 466 - Paragraphs 64B(3)(b) and 64D(3)(b)
1001. Item 466 repeals paragraphs 64B(3)(b) and 64D(3)(b) and replaces them with new
paragraphs (b), which refer to 'the Federal Circuit and Family Court of Australia
(Division 2)'. Paragraphs 64B(3)(b) and 64D(3)(b) currently provide that the Federal Circuit
Court is a relevant court in relation to the matters specified for the purposes of Part 4 and Part
7, respectively of the Regulatory Powers (Standard Provisions) Act 2014. The amendments
appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2)
and do not substantively alter the operation of paragraphs 64B(3)(b) and 64D(3)(b).
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Judges (Long Leave Payments) Act 1979
Item 467 - Title
1002. Item 467 updates the reference to the 'Federal Circuit Court of Australia' to be
'Federal Circuit and Family Court of Australia (Division 2)' in the title of the Judges (Long
Leave Payments) Act 1979. The title now reads 'An Act to make provision for payments, in
lieu of long leave, on the retirement or death of certain Judges (other than Justice of the High
Court and Judges of the Federal Circuit Court of Australia) and persons having the status of
Judges'. The amendment appropriately reflects the continuation of the Federal Circuit Court
as the FCFC (Division 2).
Item 468 - Section 3 (paragraph (a) of the definition of Judge)
1003. Item 468 updates the reference to the 'Federal Circuit Court of Australia' to be
'Federal Circuit and Family Court of Australia (Division 2)' of paragraph (a) of the definition
of 'Judge' in section 3. Section 3 provides definitions to assist in interpreting the Act.
Paragraph (a) of the definition of 'Judge' currently provides that Judge means 'a Judge of a
federal court (other than the High Court or the Federal Circuit Court of Australia)'. The
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2) and does not substantively alter the operation of the definition of 'Judge' in
section 3.
Item 469 - After section 3A
1004. Item 469 inserts new section 3B into the Act. The new section is an avoidance of
doubt provision, which seeks to clarify that a person may satisfy the definition of 'Judge'
even in circumstances where the person also holds office as a Judge of the FCFC (Division
2). The provision confirms that a Judge with a dual commission to a federal court (other than
the High Court) and the FCFC (Division 2) will be a 'Judge' for the purposes of the Judges
(Long Leave Payments) Act 1979.
Judges' Pensions Act 1968
Item 470 - Subsection 4(1) (paragraph (a) of the definition of appropriate current
judicial salary)
1005. Item 470 updates paragraph references in paragraph (a) of the definition of
'appropriate current judicial salary' in subsection 4(1) of the Judges Pensions Act 1968.
Subsection 4(1) provides definitions to assist in interpreting the Act. Paragraph (a) provides
that an appropriate current judicial salary in relation to a Judge who has retired or died,
except for Judges referred to in paragraph (b), (c), (d) or (e), means a salary at the rate that
would be payable to the Judge if he or she had not retired or died. The new paragraph
references are to paragraphs (b), (ba), (bb), (c), (da), (db) or (e). The amendment
appropriately reflects the introduction of paragraphs (ba), (bb), (da) and (dd) by items 471
and 472.
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Item 471 - Subsection 4(1) (after paragraph (b) of the definition of appropriate current
judicial salary)
1006. Item 471 inserts paragraphs (ba) and (bb) following paragraph (b) of the definition of
'appropriate current judicial salary' in subsection 4(1). Subsection 4(1) provides definitions
to assist in interpreting the Act. New paragraph (ba) ties the appropriate current judicial
salary in relation to a former Chief Justice of the Family Court who has retired or died to the
salary payable to the Chief Justice of the FCFC (Division 1). New paragraph (bb) ties the
appropriate current judicial salary in relation to a former Deputy Chief Justice of the Family
Court who has retired or died to the salary payable to the Chief Justice of the FCFC
(Division 1). These additions appropriately reflect the continuation of the Family Court as the
FCFC (Division 1).
Item 472 - Subsection 4(1) (after paragraph (d) of the definition of appropriate current
judicial salary)
1007. Item 472 inserts paragraphs (da) and (db) following paragraph (d) of the definition of
'appropriate current judicial salary' in subsection 4(1). Subsection 4(1) provides definitions
to assist in interpreting the Act. New paragraph (da) ties the appropriate current judicial
salary in relation to a former Senior Judge of the Family Court, other than a Chief Justice or
Deputy Chief Justice, who has retired or died to the salary payable to a Senior Judge of the
FCFC (Division 1). New paragraph (db) ties the appropriate current judicial salary in relation
to a former Judge of the Family Court, other than a Chief Justice, Deputy Chief Justice or
Senior Judge, who has retired or died to the salary payable to a Judge of the FCFC
(Division 1). These additions appropriately reflect the continuation of the Family Court as the
FCFC (Division 1).
Item 473 - Subsection 4(1)
1008. Item 473 inserts a new definition of the 'Family Court of Australia' into
subsection 4(1). Subsection 4(1) provides definitions to assist in interpreting the Act. The
new definition provides that 'Family Court of Australia means the federal court known,
immediately before 1 January 2019, as the Family Court of Australia'.
Item 474 - Subsection 4(1) (paragraph (a) of the definition of Judge)
1009. Item 474 updates the reference to the 'Federal Circuit Court of Australia' to be
'Federal Circuit and Family Court of Australia (Division 2)' in paragraph (a) of the definition
of 'Judge' in subsection 4(1). Subsection 4(1) provides definitions to assist in interpreting the
Act. Paragraph (a) of the definition of Judge currently provides that 'a Justice or Judge of a
federal court (other than the Federal Circuit Court of Australia)' is a Judge. The amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2)
and does not substantively alter the operation of the definition of 'Judge' in subsection 4(1).
Item 475 - Subsection 4(1) (at the end of the definition of Judge)
1010. Item 475 inserts a note at the end of the definition of 'Judge' in subsection 4(1). The
note refers to section 5 to assist in determining whether a person is captured by the definition
of 'Judge' in circumstances where a person holds more than one judicial office.
Item 476 - At the end of section 5
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1011. Item 476 inserts new subsection (3) in section 5. Section 5 provides for Judges
serving in more than one judicial office. The new subsection is an avoidance of doubt
provision, which seeks to clarify that a person may satisfy the definition of 'Judge' even in
circumstances where the person also holds office as a Judge of the FCFC (Division 2). The
provision confirms that a Judge with a dual commission to a federal court and the FCFC
(Division 2) will be a 'Judge' for the purposes of the Judges' Pensions Act 1968.
Judicial and Statutory Officers (Remuneration and Allowances) Act 1984
Item 477 - Part 2 of the Schedule (cell at table item dealing with Chief Justice of the
Family Court of Australia, column 1)
1012. Item 477 amends Part 2 of the Schedule of the Judicial and Statutory Officers
(Remuneration and Allowances) Act 1984 by repealing the cell dealing with the 'Chief
Justice of the Family Court of Australia' and substituting with a reference to the 'Chief
Justice of the Federal Circuit and Family Court of Australia (Division 1)'. This amendment
appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does
not alter the substantive operation of the provision.
Item 478 - Part 2 of the Schedule (cell at table item dealing with Deputy Chief Justice of
the Family Court of Australia, column 1)
1013. Item 478 amends Part 2 of the Schedule by repealing the cell dealing with the 'Deputy
Chief Justice of the Family Court of Australia' and substituting with a reference to the
'Deputy Chief Justice of the Federal Circuit and Family Court of Australia (Division 1)'. This
amendment appropriately reflects the continuation of the Family Court as the FCFC
(Division 1) and does not alter the substantive operation of the provision.
Item 479 - Part 2 of the Schedule (cell at table item dealing with Judge assigned to the
Appeal Division of the Family Court of Australia (other than the Chief Justice or the
Deputy Chief Justice))
1014. Item 479 amends Part 2 of the Schedule by repealing the item dealing with 'Judge
assigned to the Appeal Division of the Family Court of Australia (other than the Chief Justice
or the Deputy Chief Justice)'. This amendment appropriately reflects transfer, by Schedule 1
of this Act, of the majority of the appellate family law jurisdiction of the Family Court to the
Family Law Appeal Division of the Federal Court.
Item 480 - Part 2 of the Schedule (cell at table item dealing with Senior Judge of the
Family Court of Australia)
1015. Item 480 amends Part 2 of the Schedule by repealing the cell dealing with 'Senior
Judge of the Family Court of Australia' and substituting with a reference to 'Senior Judge of
the Federal Circuit and Family Court of Australia (Division 1)'. This amendment
appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does
not alter the substantive operation of the provision.
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Item 481 - Part 2 of the Schedule (cell at table item dealing with Any other Judge of the
Family Court of Australia, column 1)
1016. Item 481 amends Part 2 of the Schedule by repealing the cell dealing with 'Any other
Judge of the Family Court of Australia' and substituting with a reference to 'Any other Judge
of the Federal Circuit and Family Court of Australia (Division 1)'. This amendment
appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does
not alter the substantive operation of the provision.
Item 482 - Part 2 of the Schedule (cell at table item dealing with Judicial Registrar of
the Family Court of Australia, column 1)
1017. Item 482 amends Part 2 of the Schedule by repealing the table item dealing with
'Judicial Registrar of the Family Court of Australia'. This amendment appropriately reflects
the discontinuation of the role of Judicial Registrar of the Family Court as the FCFC
(Division 1).
Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012
Item 483 - Section 4
1018. Item 483 amends section 4 of the Judicial Misbehaviour and Incapacity
(Parliamentary Commissions) Act 2012 by omitting the current opening paragraph to the
section and substituting a new paragraph. Section 4 provides an overarching guide to the Act,
the first paragraph of which provides that under the Act, the Houses of Parliament may each
pass a resolution, in the same session, establishing a Commission to investigate an allegation
of misbehaviour of a Commonwealth judicial officer (being a High Court judge, or a judge of
the Federal Court, the Family Court or the Federal Circuit Court.
1019. Item 483 inserts a new paragraph which replaces the references to the Family Court of
Australia and the Federal Circuit Court of Australia with references to the FCFC (Division 1)
and the FCFC (Division 2), respectively. This amendment appropriately reflects the
continuation of the Family Court as the FCFC (Division 1) and the Federal Circuit Court as
the FCFC (Division 2), and does not change the substantive operation of the provision.
Items 484 and 485 - Paragraphs 19(6)(b) and (c)
1020. Items 484 and 485 amend paragraphs 19(6)(b) and (c) of the Act, by repealing
paragraph 16(6)(b), and by omitting the reference to the 'Federal Circuit Court of Australia
Act 1999' and substituting 'Federal Circuit and Family Court of Australia Act 2018'.
Paragraph 19(6)(b) provides that an official investigation under the Act includes an
investigation into a complaint about a Judge within the meaning of the Family Law Act, and
paragraph 19(6)(c) provides the equivalent within the meaning of the Federal Circuit Court
Act . This amendment appropriately reflects the continuation of the Family Court as the
FCFC (Division 1), the Federal Circuit Court as the FCFC (Division 2) and does not alter the
substantive operation of the provisions.
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Judiciary Act 1903
Item 486 - Paragraph 23(2)(a)
1021. Item 486 removes the words 'or a decision of the Family Court of Australia or a Judge
of that Court' from paragraph 23(2)(a) of the Judiciary Act 1903. Paragraph 23(2)(a) provides
for the situation where Justices of the High Court are sitting as a Full Court and are divided in
opinion, the decision of superior courts or a Judge of such a court will be affirmed. Though
the FCFC (Division 1) will remain as a superior court, appeals from a judgment of the FCFC
(Division 1) may not be brought directly to the High Court by virtue of section 37 of the
Federal Circuit and Family Court of Australia Act 2018. They will instead be heard in the
Family Law Appeal Division of the Federal Court of the Federal Court. The amendment
appropriately reflects the change in the appeal pathways of the federal courts.
Item 487 - Paragraph 39B(1EA)(a)
1022. Item 487 updates the reference to the 'Family Court of Australia, the Federal Circuit
Court of Australia' to be 'Federal Circuit and Family Court of Australia' in
paragraph 39B(1EA)(a). See item 491 for further guidance on the definition of the FCFC.
Subsection 39B(1EA) currently provides for the jurisdiction of the courts mentioned in
paragraphs 39B(1EA)(c) and (d) in relation to an appeal specified in paragraphs 39B(1EA)(a)
and (b). The amendment appropriately reflects the continuation of the Family Court and the
Federal Circuit Court as the FCFC (Division 1) and FCFC (Division 2).
Item 488 - Paragraph 39B(1EA)(b)
1023. Item 488 substitutes the reference to the 'Family Court of Australia' with 'Federal
Circuit and Family Court of Australia' in paragraph 39B(1EA)(b). See item 491 for further
guidance on the definition of the FCFC. Subsection 39B(1EA) provides for the jurisdiction of
the courts mentioned in paragraphs 39B(1EA)(c) and (d) in relation to an appeal specified in
paragraphs 39B(1EA)(a) and (b). The amendment reflects the new federal court appeal
structure which allows both the FCFC (Division 1) and the FCFC (Division 2) to hear appeals
arising from family law proceedings in a court of summary jurisdiction under sections 25 and
102 of the FCFC.
Item 489 - Subparagraphs 39B(1EA)(d)(i) and (ii)
1024. Item 489 repeals subparagraphs 39B(1EA)(d)(i) and (ii) and substitutes them with
new subparagraphs. New subparagraph 39B(1EA)(d)(i) updates the reference to the 'Family
Court of Australia' to be 'Federal Circuit and Family Court of Australia (Division 1)' and
new subparagraph 39B(1EA)(d)(ii) updates the reference to the 'Federal Circuit Court of
Australia' to be 'Federal Circuit and Family Court of Australia (Division 2)'. The
amendments appropriately reflect the continuation of the Family Court as the FCFC
(Division 1) and the Federal Circuit Court as the FCFC (Division 2) and do not substantively
alter the operation of subparagraphs 39B(1EA)(d)(i) and (ii).
Item 490 - Subsection 39B(2)
1025. Item 490 updates the reference to the 'Family Court of Australia' to be 'Federal
Circuit and Family Court of Australia (Division 1)' in subsection 39B(2). Subsection 39B(2)
currently provides that references to an officer or officers of the Commonwealth under
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subsections 39B(1), (1B), (1C) and (1D) do not include references to a Judge or Judges of the
Family Court of Australia. The amendment appropriately reflects the continuation of the
Family Court as the FCFC (Division 1) and does not substantively alter the operation of
subsection 39B(2).
Item 491 - Subsection 39B(3)
1026. Item 491 inserts a definition of the 'Federal Circuit and Family Court of Australia'
into subsection 39B(3). Subsection 39B(3) provides definitions to assist in interpreting
section 39B. The new definition provides that the FCFC means the FCFC (Division 1) or the
FCFC (Division 2). A reference to the 'Federal Circuit and Family Court of Australia'
throughout the Act is to be taken to refer to either the FCFC (Division 1) or the FCFC
(Division 2) or both. The definition assists in interpreting the reference to the FCFC
throughout section 39B.
Jurisdiction of Courts (Cross-vesting) Act
Item 492 - Paragraph (b) of the Preamble
1027. Item 492 updates the reference to the 'Family Court' to be 'Federal Circuit and
Family Court of Australia (Division 1)' in paragraph (b) of the Preamble of the Jurisdiction
of Courts (Cross-vesting) Act 1987. The preamble describes the purpose of the Act and
paragraph (b) lists the courts to which the Act applies. The amendment appropriately reflects
the continuation of the Family Court as the FCFC (Division 1) and does not alter the intent of
the preamble.
Item 493 - Subsection 3(1) (definition of Family Court)
1028. Item 493 repeals the definition of the 'Family Court' in subsection 3(1). Subsection
3(1) provides definitions to assist in interpreting the Act. The definition currently provides
that 'Family Court means the Family Court of Australia'. The definition is no longer required
as the Family Court will be continued as the FCFC (Division 1). Where references in the Act
are made to the FCFC (Division 1), the reference is provided in full.
Items 494 and 495 - Paragraphs 4(1)(a) and (2)(b) and subsection 4(3)
1029. Items 494 and 495 update references to the 'Family Court' to be 'Federal Circuit and
Family Court of Australia (Division 1)' in section 4. Section 4 invests or confers additional
jurisdiction on certain courts. The amendments appropriately reflect the continuation of the
Family Court as the FCFC (Division 1) and do not substantively alter the operation of
paragraphs 4(1)(a) and (2)(b), and subsection 4(3).
Items 496 to 499 - Subparagraph 5(1)(b)(i), subparagraphs 5(1)(b)(ii) and (iii),
subsection 5(1) and paragraphs 5(4)(a) and (5)(a)
1030. Items 496 to 499 update references to the 'Family Court' to be 'Federal Circuit and
Family Court of Australia (Division 1)' in section 5. Section 5 provides for transfers of
proceedings. Subsection 5(1) currently provides for transfers of proceedings from a Supreme
Court of a State or Territory to the Federal Court or the Family Court. Subsection 5(4)
provides for transfers of proceedings from the Federal Court or the Family Court to the
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Supreme Court of a State or Territory. Subsection 5(5) provides for transfers of proceedings
between the Federal Court and the Family Court. The amendments appropriately reflect the
continuation of the Family Court as the FCFC (Division 1) and do not substantively alter the
operation of subparagraphs 5(1)(b)(i), (ii) and (iii), subsection 5(1) and paragraphs 5(4)(a)
and (5)(a).
Item 500 - Paragraph 6(2)(b)
1031. Item 500 updates the first occurring reference to the 'Family Court' to be 'Federal
Circuit and Family Court of Australia (Division 1)' in paragraph 6(2)(b). Section 6 provides
that proceedings or part of proceedings which involve a special federal matter must be
transferred in whole or in part to an appropriate federal or State family court. Paragraph
6(2)(b) currently provides that if a matter for determination in the proceeding is a matter
under section 60G of the Family Law Act being heard in a court other than the Family Court
of Western Australia or the Supreme Court of the Northern Territory, and the Court orders
that a proceeding or part of proceedings be transferred, the proceeding or part thereof must
be transferred to the Family Court, the Family Court of Western Australia or the Supreme
Court of the Northern Territory as appropriate. The amendment appropriately reflects the
continuation of the Family Court as the FCFC (Division 1) and does not substantively alter
the operation of paragraph 6(2)(b).
Items 501 and 502 - Subsection 6A(2), and subsection 6A(3)
1032. Items 501 and 502 update references to the 'Family Court' to be 'Federal Circuit and
Family Court of Australia (Division 1)' in section 6A. Section 6A provides that in limited,
specified circumstances, State and Territory Supreme Courts are not obliged to transfer a
special federal matter to the Federal Court, as would ordinarily be the case under section 6. In
appropriate cases, the Federal Court is able to transfer such matters to State and Territory
Supreme Courts. Subsection 6A(2) currently provides that the Federal Court or the Family
Court may transfer matters to the Supreme Court of a State if there is a related proceedings
currently before the Supreme Court. Subsection 6A(3) provides that if a federal matter
proceeding is pending in the Supreme Court of a State and the State matter proceeding is
pending in any court of that State, the Supreme Court is not required to transfer the federal
matter to the Federal Court or the Family Court, but it may do so if it is appropriate. The
amendments appropriately reflect the continuation of the Family Court as the FCFC (Division
1) and do not substantively alter the operation of subsections 6A(2) and (3).
Item 503 - Subsection 7(1)
1033. Item 503 updates the reference to the 'Family Court' to be 'Federal Circuit and
Family Court of Australia (Division 1)' in subsection 7(1). Subsection 7(1) currently provides
that a decision of a single judge of the Federal Court or Family Court cannot be appealed to
the Full Court of the Supreme Court of a State or Territory. The amendment appropriately
reflects the continuation of the Family Court as the FCFC (Division 1) and does not
substantively alter the operation of subsection 7(1).
Item 504 - Subsection 7(2)
1034. Item 504 repeals subsection 7(2) and replaces it with new subsection (2), which
provides that 'an appeal may not be instituted from the Federal Court to the FCFC (Division
1)'. Subsection 7(2) currently provides that appeals from decisions of the Federal Court or the
187
Family Court shall not be heard by the other of those courts. This is no longer appropriate, as
appeals from the FCFC (Division 1) will be heard by the Family Law Appeal Division of the
Federal Court under new subsections 24(1AA) to (1E) of the Federal Court Act. New
subsection 7(2) will appropriately ensure that appeals from a decision of the Federal Court
cannot be appealed to the FCFC (Division 1).
Items 505 and 506 - Paragraph 7(5)(a) and subsection 7(7)
1035. Items 505 and 506 update references to 'of the Family Court' to be 'the Family Law
Appeal Division of the Federal Court' in subsections 7(5) and (7). Paragraph 7(5)(a) currently
provides for an appeal from a decision of a single judge of a Supreme Court of a State or
Territory in relation to a matter arising under an Act listed in the Schedule to be heard by the
Full Court of the Federal Court or the Family Court. Subsection 7(7) provides for the
situation when the Full Court of a Supreme Court of a State or Territory starts hearing an
appeal and then transfers it to the Full Court of the Federal Court or the Family Court. The
amendments appropriately reflect the creation of the new Family Law Appeal Division in the
Federal Court.
Item 507 - Subparagraph 8(1)(b)(i)
1036. Item 507 updates the reference to the 'Family Court' to be 'Federal Circuit and
Family Court of Australia (Division 1)' in subparagraph 8(1)(b)(i). Section 8 currently allows
the Supreme Court of a Territory to transfer a matter from another court or tribunal of that
Territory to the Supreme Court if that matter arises out of or is related to another proceeding
pending in the Federal Court, the Family Court, or the Supreme Court of a State or another
Territory. The amendment appropriately reflects the continuation of the Family Court as the
FCFC (Division 1) and does not substantively alter the operation of subparagraph 8(1)(b)(i).
Item 508 - Subsection 9(3)
1037. Item 508 updates the reference to the 'Family Court' to be 'Federal Circuit and
Family Court of Australia (Division 1)' in subsection 9(3). Section 9 provides that the Act
does not override or limit the operation of a State law relating to cross-vesting of jurisdiction.
Subsection 9(3) currently provides that the Federal Court or the Family Court may exercise
jurisdiction conferred on the Court by the Act or by a law of the Australian Capital Territory
or the Northern Territory relating to cross-vesting of jurisdiction, and hear and determine a
proceeding transferred to the Court. The amendment appropriately reflects the continuation of
the Family Court as the FCFC (Division 1) and does not substantively alter the operation of
subsection 9(3).
Item 509 - Paragraph 10(a)
1038. Item 509 updates the reference to the 'Family Court' to be 'Federal Circuit and
Family Court of Australia (Division 1)' in paragraph 10(a). Section 10 currently deals with
the transfer of certain matters arising under the Australian Consumer Law from the Federal
Court, the Family Court or the Supreme Court of a State or Territory to a court of a State or
Territory other than the Supreme Court. The amendment appropriately reflects the
continuation of the Family Court as the FCFC (Division 1) and does not substantively alter
the operation of paragraph 10(a).
Item 510 - Subsection 11(2)
188
1039. Item 510 updates the reference to the 'Family Court' to be 'Federal Circuit and
Family Court of Australia (Division 1)' in subsection 11(2). Section 11 provides for the
conduct of proceedings in matters transferred under the Act or by a State law relating to
cross-vesting of jurisdiction. Subsection 11(2) currently provides that, in relation to the
Federal Court or Family Court, a reference to the State or Territory in which any matter for
determination in the proceeding was first commenced in or transferred to that court. The
amendment appropriately reflects the continuation of the Family Court as the FCFC (Division
1) and does not substantively alter the operation of subsection 11(2).
Items 511 and 512 - Subsection 14(1) and subsection 14(3)
1040. Items 511 and 512 update references to the 'Family Court' to be 'Federal Circuit and
Family Court of Australia (Division 1)' in section 14. Section 14 currently provides for the
enforcement and effect of a judgment of the Federal Court, the Family Court or the Supreme
Court of a Territory when exercising jurisdiction conferred by a law or laws relating to cross-
vesting of jurisdiction in a Territory. The amendments appropriately reflect the continuation
of the Family Court as the FCFC (Division 1) and do not substantively alter the operation of
subsections 14(1) and (3).
Item 513 - Subsection 16(4)
1041. Item 513 updates the reference to the 'Family Court' to be 'Federal Circuit and
Family Court of Australia (Division 1)' in subsection 16(4). Section 16 provides for the
suspension or cessation of the operation of the Act by the Governor-General. Subsection
16(4) currently provides that the Governor-General may declare that the Act ceases to be in
force when satisfied that State Acts relating to cross-vesting of jurisdiction are not effective
to confer jurisdiction of the Supreme Courts of the States on the Federal Court or the Family
Court. The amendment appropriately reflects the continuation of the Family Court as the
FCFC (Division 1) and does not substantively alter the operation of subsection 16(4).
Law Enforcement Integrity Commissioner Act 2006
Item 514 - Subsection 5(1) (definition of Federal Circuit Court)
1042. Item 514 repeals the definition of 'Federal Circuit Court' in subsection 5(1) of the
Law Enforcement Integrity Commissioner Act 2006. The definition provides that the 'Federal
Circuit Court' means the Federal Circuit Court of Australia. The definition is no longer
required as the Federal Circuit Court will be continued as 'Federal Circuit and Family Court
of Australia (Division 2)'. Where references in the Act are made to the 'Federal Circuit and
Family Court of Australia (Division 2)' the title of that Court is provided in full.
Item 515 - Subparagraph 5(1) (subparagraph (a)(ia) of the definition of issuing officer)
1043. Item 515 amends subparagraph (a)(ia) of the definition of 'issuing officer' in
section 5(1) of the Act. Paragraph (a)(ia) currently provides that an issuing officer (in relation
to an investigation warrant) means a Judge of the Federal Circuit Court of Australia sitting in
Chambers. The Item removes the reference to the 'Federal Circuit Court of Australia' and
replaces it with a reference to the 'Federal Circuit and Family Court of Australia
(Division 2)'. This amendment reflects the nomenclature changes associated with the new
189
court structure and the continuation of Judges of the Federal Circuit Court as Judges of the
FCFC (Division 2).
Item 516 - Paragraph 96AD(2)(b)
1044. Item 516 amends paragraph 96AD(2)(b) of the Act, which deals with the Court's
powers to order disclosure and to ensure a fair trial. Paragraph 96AD(2)(b) provides that
subsection 96AD(1) applies to a federal court (other than the Family Court of Australia) or a
court of a State or Territory in circumstances other than where the witness has been charged
with a related offence before a federal court or a court of a State or Territory (in which case
96AD(1) applies to that court). The Item omits the reference to the Family Court of Australia
and replaces it with a reference to the Federal Circuit and Family Court of Australia (Division
1). The amendment appropriately reflects the continuation of the Family Court as the FCFC
(Division 1) and does not substantively alter the operation of the paragraph.
Item 517 - Subsection 103(1) (note 2)
1045. Item 517 amends note 2 of subsection 103(1), which outlines that a person may apply
for assistance in respect of an application to the Federal Court or the Federal Circuit Court
under the Administrative Decisions (Judicial Review) Act 1977 for an order of review in
respect of a matter arising under the Law Enforcement Integrity Commissioner Act 2006. The
Item removes the reference to the Federal Circuit Court in note 2 and replaces it with a
reference to the FCFC (Division 2). This amendment reflects the nomenclature changes
associated with the new court structure and does not change the intent of the note.
Item 518 - Subsection 103(2) (note)
1046. Item 518 amends the note at subsection 103(2), which provides that a person may
apply for assistance in respect of an application to the Federal Court or the Federal Circuit
Court under the Administrative Decisions (Judicial Review) Act 1977 for an order of review
in respect of a matter arising under this Act. Similar to the amendment made by item 517
above, this item removes the reference to the Federal Circuit Court in note 2 and replaces it
with a reference to the FCFC (Division 2). This amendment reflects the nomenclature
changes associated with the new court structure and does not change the intent of the note.
Item 519 - Paragraph 109(7)(b)
1047. Item 519 repeals paragraph 109(7)(b) and replaces it with a new paragraph. Section
109 deals with the circumstances in which a search warrant may be issued. Subsection
109(7)(b) provides that subsections 109(5) and (6) do not apply if the issuing officer is a
Judge of the Federal Circuit Court of Australia. New paragraph (b) provides that subsections
109(5) and (6) do not apply if the issuing officer is a Judge of the FCFC (Division 2). This
amendment reflects the nomenclature changes associated with the new court structure and the
continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2).
Item 520 - Subparagraph 201(g)(i)
1048. Item 520 amends subparagraph 201(g)(i). Section 201 provides that the annual report
prepared by the Integrity Commissioner and given to the Minister under section 46 of
the Public Governance, Performance and Accountability Act 2013 for a period must include
the specified matters. Subparagraph 201(g)(i) provides that the annual report must include
190
details of the number and results of applications made to the Federal Court or the Federal
Circuit Court under the Administrative Decisions (Judicial Review) Act 1977 for orders of
review in respect of matters arising under this Act.' This item amends this subparagraph by
removing the reference to the 'Federal Circuit Court' and replacing it with a reference to the
'Federal Circuit and Family Court of Australia (Division 2)'. The amendment appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
substantively alter the operation of subparagraph.
Item 521 - Subsections 221(1) and (2)
1049. Item 521 amends subsections 221(1) and (2), which deal with legal and financial
assistance in relation to applications for administrative review. The item removes the
references to the Federal Circuit Court from both subsections and replaces them with
references to the FCFC (Division 2). The amendments appropriately reflect the continuation
of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the
operation of subsections.
Major Sporting Events (Indicia and Images) Protection Act 2014
Item 522 - Section 9, paragraph (b) (definition of relevant court)
1050. Item 522 repeals paragraph (b) of the definition of 'relevant court' in section 9 of the
Major Sporting Events (Indicia and Images) Protection Act 2014. The definition currently
provides that the Federal Circuit of Australia is a relevant court. The item substitutes a new
paragraph (b), which replaces the reference to 'the Federal Circuit Court of Australia' with
'the Federal Circuit and Family Court of Australia (Division 2)' to reflect the nomenclature
changes associated with the new court structure. The amendment does not substantively alter
the operation of definition.
Marriage Act 1961
Item 523 - Subsection 5(1) (paragraph (a) of the definition of Judge)
1051. Item 523 repeals paragraph (a) of the definition of 'Judge' in subsection 5(1) of the
Marriage Act 1961 and replaces it with a new paragraph. Paragraph (a) currently provides
that a Judge, in relation to the performance of a function under this Act in a State or Territory,
means a person who is a Judge of the Family Court of Australia, or a Judge of the Federal
Circuit Court of Australia, who is appointed by the Minister to be a person authorised to
perform that function. New paragraph (a) provides that a 'Judge, in relation to the
performance of a function under this Act in a State or Territory, means a Judge of the Federal
Circuit and Family Court of Australia (Division 1), or a Judge of the Federal Circuit and
Family Court of Australia (Division 2), who is appointed by the Minister to be a person
authorised to perform that function'. This amendment removes the references to the Family
Court and the Federal Circuit Court, and replaces them with the updated nomenclature of the
FCFC (Division 1) and the FCFC (Division 2), respectively. The new paragraph does not
substantively depart from the operation of the existing paragraph.
Item 524 - Subsection 9A(1)
191
1052. Item 524 amends subsection 9A(1), which provides that persons who may exercise
certain powers may be restricted by a Proclamation issued by the Governor-General. In
particular, the amendment updates references to the Family Court to the FCFC (Division 1)
and the Federal Circuit Court to be the FCFC (Division 2). The amended subsection will
provide that the Governor-General may, by Proclamation, declare that, on and after a date
fixed by the Proclamation, a power or function under the Act that is specified in the
Proclamation, being a power or function expressed by the Act to be exercisable by a Judge, or
by a Judge or magistrate, is not to be exercised, or is not to be exercised in a specified part of
Australia, otherwise than by a Judge who is a Judge of the FCFC (Division 1), the FCFC
(Division 2) or the Family Court of a State. This amendment reflects the nomenclature
changes associated with the new court structure and does not substantively alter the operation
of the subsection.
Item 525 - Subsection 92(1)
1053. Item 525 updates the reference to the Family Court to be the FCFC (Division 1) and
the Federal Circuit Court to be the FCFC Division 2 in subsection 92(1). Subsection 92(1)
provides that a person may apply to the Family Court of Australia, the Federal Circuit Court
of Australia, a Family Court of a State or the Supreme Court of a State or Territory for an
order declaring that the person is the legitimate child of his or her parents or that the person
or his or her parent or child or a remoter ancestor is or was a legitimated person. The Court
may, in its discretion, make the order. The amendment appropriately reflects the continuation
of the Family Court as the FCFC (Division 1) and the Federal Circuit Court as the FCFC
(Division 2) and does not substantively alter the operation of subsection 92(1).
Marriage Amendment (Definition and Religious Freedoms) Act 2017
Item 526 - After subitem 6(6) of Schedule 4
1054. Item 526 inserts a new subitem 6A after subitem 6(6) of Schedule 4 of the Marriage
Amendment (Definition and Religious Freedoms) Act 2017. Subitem 6 deals with proceedings
pending under the Family Court Act 1997 (WA) before 9 December 2017. Subitem 6(6)
provides that if the proceedings were an appeal instituted in, or made to, the Court of Appeal
under Part 7 of the Family Court Act 1997 (WA), that Court may, on the application of a
party or of its own motion, refer the appeal to a Full Court of the Family Court of Australia.
1055. New subitem 6A is an avoidance of doubt provision which provides that on and after
1 January 2019, an appeal mentioned in subitem (6) may not be referred to the Family Law
Appeal Division of the Federal Court.
Maternity Leave (Commonwealth Employees) Act 1973
Item 527 - Paragraph 5(3)(ba)
1056. Item 527 repeals paragraph 5(3)(ba) of the Maternity Leave (Commonwealth
Employees) Act 1973 and replaces it with a new paragraph. Paragraph 5(3)(ba) currently
provides that the Act does not apply to or in relation to a person who is a Judge of the Federal
Circuit Court of Australia. New paragraph 5(3)(ba) provides the Act does not apply to or in
192
relation to a person who is a person who is a Judge of the FCFC (Division 2). The
amendments appropriately reflect the continuation of Judges of the Federal Circuit Court as
Judges of the FCFC (Division 2) and do not substantively alter the operation of paragraph.
Migration Act 1958
Item 528 - Subsection 5(1) (paragraph (b) of the definition of eligible court)
1057. Item 528 repeals paragraph (b) of the definition of 'eligible court' and replaces it with
new paragraph (b), which refers to 'the Federal Circuit and Family Court of Australia
(Division 2)' in subsection 5(1) of the Migration Act 1958 (the Migration Act).
Subsection 5(1) provides definitions to assist in interpreting the Act. Paragraph (b) of the
definition of 'eligible court' currently provides for the Federal Circuit Court to be an eligible
court. The amendment appropriately reflects the continuation of the Federal Circuit Court as
the FCFC (Division 2) and does not alter the intent of the definition of 'eligible court' in
subsection 5(1).
Item 529 - Subsection 5(1) (definition of Federal Circuit Court)
1058. Item 529 repeals the definition of the 'Federal Circuit Court' in subsection 5(1).
Subsection 5(1) provides definitions to assist in interpreting the Migration Act. 'Federal
Circuit Court' is currently defined as being the 'Federal Circuit Court of Australia'. The
definition is no longer required as the Federal Circuit Court will be continued as the FCFC
(Division 2). Where references in the Act are made to the 'Federal Circuit and Family Court
of Australia (Division 2)', the reference is provided in full.
Item 530 - Subparagraph 42(2A)(e)(ii)
1059. Item 530 updates references to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in subparagraph 42(2A)(e)(ii). Subsection 42(1)
provides that a non-citizen must not travel to Australia without a visa that is in effect.
Subsection 42(2A) provides that subsection 42(1) does not apply to a non-citizen in relation
to travel to Australia in certain circumstances. Subparagraph 42(2A)(e)(ii) currently provides
for the situation when a non-citizen has been removed under section 198 and before the
removal, the High Court, the Federal Court or the Federal Circuit Court had made an order in
relation to the non-citizen, or the Minister had given an undertaking to one of those courts in
relation to the non-citizen. The amendments appropriately reflect the continuation of the
Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of
subparagraph 42(2A)(e)(ii).
Item 531 - Section 91X (heading)
1060. Item 531 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in the heading to section 91X. The heading now
reads 'Names of applicants for protection visas not to be published by the High Court,
Federal Court or Federal Circuit and Family Court of Australia (Division 2)'. The amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).
Item 532 - Subsections 91X(1), 114(1) and 153(2)
193
1061. Item 532 updates references to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in subsections 91X(1), 114(1) and 153(2). Subsection
91X(1) currently provides that the High Court, the Federal Court or the Federal Circuit Court
must not publish the names of applicants for protection visas or protection-related bridging
visas, or persons whose protection visa or protection-related bridging visa has been cancelled.
Subsection 114(1) currently provides that if the Federal Court, the Federal Circuit Court or
the Administrative Appeals Tribunal sets aside a decision to cancel a person's visa under
section 109, the visa is taken never to have been cancelled. Subsection 153(2) currently
provides that the removal or deportation of a non-citizen is not permitted if it would be in
breach of an order of the High Court, the Federal Court or the Federal Circuit Court. The
amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC
(Division 2) and do not substantively alter the operation of subsections 91X(1), 114(1) and
153(2).
Item 533 - Section 476 (heading)
1062. Item 533 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in the heading to section 476. The heading now
reads 'Jurisdiction of the Federal Circuit and Family Court of Australia (Division 2)'. The
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2).
Item 534 - Subsections 476(1), (2) and (3)
1063. Item 534 updates references to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in subsections 476(1), (2) and (3). Section 476
provides for the jurisdiction of the Federal Circuit Court. Subsection 476(1) currently
provides that the Federal Circuit Court has the same original jurisdiction under paragraph
75(v) as the High Court in relation to migration decisions. Subsection 476(2) currently
provides that the Federal Circuit Court has no jurisdiction in relation to the decisions listed.
Subsection 476(3) currently provides that any jurisdiction the Federal Circuit Court may have
to hear matters in relation to non-privative clause decisions under the Administrative
Decisions (Judicial Review) Act 1977 or the Administrative Appeals Tribunal Act 1977 is not
affected by section 476. The amendments appropriately reflect the continuation of the Federal
Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of
subsections 476(1), (2) and (3).
Item 535 - Paragraph 476A(1)(a)
1064. Item 535 repeals paragraph 476A(1)(a) and replaces it with new paragraph (a)
incorporating subparagraphs (i) and (ii). Section 476A provides for the limited jurisdiction of
the Federal Court. Subsection 476A(1) currently provides for matters in which the Federal
Court has original jurisdiction in relation to a migration decision, including where the Federal
Circuit Court has transferred a matter to it under section 39 of the Federal Circuit Court Act.
1065. New subparagraph 476A(1)(a)(i) provides for transfers made under section 120 of the
Federal Circuit and Family Court of Australia Act 2018 and new
subparagraph 476A(1)(a)(ii) provides for the Federal Court to confirm the transfer under
section 32AD of the Federal Court Act. Section 120 of the Federal Circuit and Family Court
of Australia Act 2018 provides the FCFC (Division 2) with the power to transfer matters to
the Federal Court as currently provided for in section 39 of the Federal Circuit Court Act.
194
The Federal Court must confirm such a transfer under new section 32AD of the Federal Court
Act as required for all matters transferred under section 120. See item 248 of Schedule 1 of
this Explanatory Memorandum for further guidance. The amendment appropriately reflects
the continuation of the Federal Circuit Court as the FCFC (Division 2) and updates the
legislative reference.
Item 536 - After subsection 476A(1)
1066. Item 536 inserts new subsection 476A(1A) following subsection 476A(1).
Subsection 476A(1) provides for matters in which the Federal Court has original jurisdiction
in relation to migration decisions. New subsection 476A(1A) provides that the Federal Court
does not have original jurisdiction in relation to a migration decision if the proceedings have
been transferred to the Federal Court under section 32AC of the Federal Court Act. This is
consistent with the current original jurisdiction of the Federal Court in relation to a migration
decision. Section 32AC of the Federal Court Act provides the Federal Court a new power to
transfer matters to itself, other than proceedings relating to family law matters, on its own
initiative or on the application of a party from the FCFC (Division 2). See the explanation for
item 248 in Schedule 1 of this Explanatory Memorandum for further guidance.
Item 537 - Paragraph 476A(3)(a)
1067. Item 537 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in paragraph 476A(3)(a). Section 476A provides
for the limited jurisdiction of the Federal Court. Paragraph 476A(3)(a) currently provides that
an appeal may not be brought to the Federal Court from a judgment of the Federal Circuit
Court that makes an order or refuses to make an order under subsection 477(2). See item 540
for further guidance on subsection 477(2). The amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively
alter the operation of paragraph 476A(3)(a).
Item 538 - Subsections 476B(1) and (2)
1068. Item 538 updates references to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in section 476B. Section 476B provides for the
remittal of matters by the High Court. Subsections 476B(1) and (2) currently provide that the
High Court must only remit matters, or any part of a matter, relating to migration decisions to
the Federal Circuit Court if the Federal Circuit Court has jurisdiction in relation to the matter
or part of a matter under section 476. See item 534 for further guidance on section 476. The
amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC
(Division 2) and do not substantively alter the operation of subsections 476B(1) and (2).
Item 539 - Section 477 (heading)
1069. Item 539 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in the heading to section 477. The heading now
reads 'Time limits on applications to the Federal Circuit and Family Court of Australia
(Division 2)'. The amendment appropriately reflects the continuation of the Federal Circuit
Court as the FCFC (Division 2).
Item 540 - Subsections 477(1) and (2) and 480(2)
195
1070. Item 540 updates references to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in subsections 477(1) and (2) and 480(2).
Subsection 477(1) currently provides that an application to the Federal Circuit Court for a
remedy to be granted in exercise of the court's original jurisdiction under section 476 in
relation to a migration decision must be made to the court within 35 days of the date of that
decision. See item 534 for further guidance on section 476. Subsection 477(2) currently
provides that the Federal Circuit Court may, by order, extend that 35 day period in
appropriate circumstances. Subsection 480(2) currently provides that if the Attorney-General
intervenes in a proceeding referred to in section 477 or 477A, the Federal Circuit Court or
Federal Court may make such orders as to costs against the Commonwealth as the court
thinks fit. The amendments appropriately reflect the continuation of the Federal Circuit Court
as the FCFC (Division 2) and do not substantively alter the operation of subsections 477(1)
and (2) and 480(2).
Item 541 - Section 484 (heading)
1071. Item 541 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in the heading to section 484. The heading now
reads 'Exclusive jurisdiction of High Court, Federal Court and Federal Circuit and Family
Court of Australia (Division 2)'. The amendment appropriately reflects the continuation of
the Federal Circuit Court as the FCFC (Division 2).
Item 542 - Subsections 484(1) and (2) and 486B(1)
1072. Item 542 updates references to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in subsections 484(1) and (2) and 486B(1).
Subsections 484(1) and (2) currently provide that the High Court, Federal Court and Federal
Circuit Court have exclusive jurisdiction in relation to migration decisions. Subsection
486B(1) currently applies section 486B to all migration proceedings in the High Court,
Federal Court or Federal Circuit Court that raise an issue in connection with visas,
deportation, taking, or removal of unlawful non-citizens. The amendments appropriately
reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not
substantively alter the operation of subsections 484(1) and (2) and 486B(1).
Item 543 - Section 486C (heading)
1073. Item 543 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in the heading to section 486C. The heading now
reads 'Persons who may commence or continue proceedings in the Federal Circuit and
Family Court of Australia (Division 2) or the Federal Court'. The amendment appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).
Item 544 - Subsection 486C(1)
1074. Item 544 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in subsection 486C(1). Section 486C provides for
which persons may commence or continue proceedings in relation to certain issues.
Subsection 486C(1) currently provides that only persons mentioned in section 486C may
commence proceedings in the Federal Court or the Federal Circuit Court which raises an
issue in connection with visas, deportation, taking, or removal of non-citizens and relates to
the validity, interpretation or effect of a provision of the Act or the regulations. The
196
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2) and does not affect the operation of subsection 486C(1).
Item 545 - Subsection 486C(3)
1075. Item 545 updates the reference to the 'Federal Circuit Court's jurisdiction' to be
'jurisdiction of the Federal Circuit and Family Court of Australia (Division 2)' in subsection
486C(3). Section 486C provides for which persons may commence or continue proceedings
in relation to certain issues. Subsection 486C(1) currently provides that only persons
mentioned in section 486C who may commence proceedings in the Federal Court or the
Federal Circuit Court which raises an issue in connection with visas, deportation, taking, or
removal of non-citizens and relates to the validity, interpretation or effect of a provision of
the Act or the regulations. Subsection 486C(3) provides that section 486C applies to
proceedings within the Federal Circuit Court's jurisdiction. The amendment appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
substantively affect the operation of subsection 486C(3).
Item 546 - Subsection 486C(3A)
1076. Item 546 repeals subsection 486C(3A) and replaces it with new subsections 486C(3A)
and (3B). Section 486C provides for which persons may commence or continue proceedings
in relation to certain issues. Current subsection 486C(3A) provides for application of section
486C to proceedings transferred to the Federal Court from the Federal Circuit Court under
section 39 of the Federal Circuit Court Act or where the Federal Court has original
jurisdiction under subsections 476A(1)(b) or (c) of the Migration Act 1958.
1077. New paragraph 486C(3A)(a) applies section 486C to proceedings that are transferred
to the Federal Court under section 120 of the Federal Circuit and Family Court of Australia
Act 2018 and are confirmed by the Federal Court under section 32AD of the Federal Court
Act. See item 248 of Schedule 1 and item 535 above of this Explanatory Memorandum for
further guidance. New paragraph 486C(3A)(b) applies section 486C to proceedings in which
the Federal Court has jurisdiction under paragraphs 476A(1)(b) or (c). New subsection
486C(3B) provides that section 486C does not apply to proceedings that are transferred to the
Federal Court if the Federal Court transfers the proceeding from the FCFC (Division 2) under
section 32AC of the Federal Court Act.
1078. Section 32AC of the Federal Court Act provides the Federal Court with the power to
transfer matters to itself, other than proceedings relating to family law matters, on its own
initiative or on the application of a party from the FCFC (Division 2). See item 248 of
Schedule 1 and item 536 above of this Explanatory Memorandum for further guidance. The
amendments ensure that the new appeal provisions relating to the Federal Court are taken into
account, while also ensuring that the current operation of section 486C is not substantively
changed.
Item 547 - Subsection 486D(1)
1079. Item 547 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in subsection 486D(1). Subsection 486D(1)
currently provides that a person commencing a proceeding in the Federal Circuit Court in
relation to a tribunal decision must disclose to the court any judicial review proceeding
already brought by the person in relation to that decision. The amendment appropriately
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reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
substantively affect the operation of subsection 486D(1).
Item 548 - Subsection 486D(5) (paragraph (a) of the definition of judicial review
proceeding)
1080. Item 548 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in subsection 486D(5). Subsection 486D(5)
provides definitions to assist in interpreting section 486D. Paragraph (a) of the definition of
'judicial review proceeding' currently provides that a judicial review proceeding, in relation
to a tribunal decision, means a proceeding in the Federal Circuit Court in relation to the
tribunal decision. The amendment appropriately reflects the continuation of the Federal
Circuit Court as the FCFC (Division 2) and does not alter the intent of the definition of
'judicial review proceeding' in subsection 486D(5).
Item 549 - Section 487A (paragraph (b) of the definition of issuing officer)
1081. Item 549 repeals paragraph (b) of the definition of 'issuing officer' in section 487A
and replaces it with new paragraph (b), which refers to 'a Judge of the Federal Circuit and
Family Court of Australia (Division 2)'. Section 487A provides definitions to assist in
interpreting Part 8E of the Act. Paragraph (b) of the definition of 'issuing officer' currently
provides that a Judge of the Federal Circuit Court is an issuing officer. The amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2)
and does not alter the intent of the definition of 'issuing officer' in section 487A.
Item 550 - Paragraph 500(6)(d)
1082. Item 550 updates the reference to the 'Federal Circuit Court of Australia' to be
'Federal Circuit and Family Court of Australia (Division 2)' in paragraph 500(6)(d).
Paragraph 500(6)(d) currently provides that where an application has been made to the AAT
for the review of an order for the deportation of a person under section 200, the order shall
not be taken for the purposes of section 253 to have ceased or to cease to be in force by
reason only of any order that has been made by the Federal Circuit Court of Australia or a
Judge of the Federal Circuit Court under section 44A of the Administrative Appeals Tribunal
Act 1975. The amendment appropriately reflects the continuation of the Federal Circuit Court
as the FCFC (Division 2) and does not substantively alter the operation of paragraph
500(6)(d).
Item 551 - Subsections 503A(4A) and (5A)
1083. Item 551 updates references to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in section 503A. Section 503A protects the disclosure
of confidential information communicated to an authorised migration officer by a gazetted
agency that is relevant to the exercise of a power under section 501, 501A, 501B, 501BA,
501C or 501CA (other than in certain limited circumstances). Subsection 503A(4A) currently
provides that if information is divulged to a Commonwealth officer in accordance with a
declaration under subsection 503A(3), the officer must not be required to communicate the
information to the Federal Court or the Federal Circuit Court, or give the information in
evidence before either Court. The information may be considered by either Court if a fresh
disclosure of the information is made by a ministerial declaration under subsection 503A(3)
or subsection 503B(6). See items 555 and 556 for further guidance on subsection 503B(6).
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Subsection 503A(5A) currently provides for the situation when the information is disclosed
to a tribunal. A tribunal member must not be required to communicate the information to the
Federal Court or the Federal Circuit Court, or give the information in evidence before either
Court. The information may be considered by either Court if a fresh disclosure of the
information is made by a ministerial declaration under subsection 503A(3) or subsection
503B(6). The amendments appropriately reflect the continuation of the Federal Circuit Court
as the FCFC (Division 2) and do not substantively alter the operation of subsections
503A(4A) and (5A).
Item 552 - Section 503B (heading)
1084. Item 552 updates the references to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in the heading to section 503B. The heading now
reads 'Protection of confidential information disclosed to Federal Court or Federal Circuit
and Family Court of Australia (Division 2)-permanent non-disclosure orders'. The
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2).
Item 553 - Subsection 503B(1)
1085. Item 553 updates references to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in subsection 503B(1). Section 503B currently deals
with the protection of confidential information disclosed to Federal Court or Federal Circuit
Court through the making of non-disclosure orders. Subsection 503B(1) currently provides
that the Federal Court or Federal Circuit Court may make orders to ensure the non-disclosure
of confidential information to an applicant in relation to the substantive proceedings, a legal
representative of the applicant or to any other person. The amendments appropriately reflect
the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not
substantively alter the operation of subsection 503B(1).
Item 554 - Subsection 503B(2)
1086. Item 554 updates the reference to 'the Federal Court's or Federal Circuit Court's
orders' to be 'the orders of the Federal Court or the Federal Circuit and Family Court of
Australia (Division 2)' in subsection 503B(2). Section 503B currently deals with the
protection of confidential information disclosed to Federal Court or Federal Circuit Court
through the making of non-disclosure orders. Subsection 503B(2) currently provides for the
orders the Federal Court or Federal Circuit Court may make in relation to non-disclosure of
confidential information disclosed to the Court. The amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively
alter the operation of subsection 503B(2).
Items 555 and 556 - Paragraph 503B(2)(c), and subsections 503B(4), (5), (6), (7), (8),
(10) and (11)
1087. Items 555 and 556 update references to the 'Federal Circuit Court' to be 'Federal
Circuit and Family Court of Australia (Division 2)' in section 503B. Section 503B currently
deals with the protection of confidential information disclosed to Federal Court or Federal
Circuit Court through the making of non-disclosure orders. Paragraph 503B(2)(c) currently
provides for the Federal Court or Federal Circuit Court to make an order ensuring that no
person has access to a file or record of the Court that contains the information, without the
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consent of the Court. Subsection 503B(4) currently provides that the powers of the Federal
Court and Federal Circuit Court under section 503B are to be exercised by a single Judge of
each respective Court. Subsection 503B(5) currently lists criteria to which the Federal Court
or the Federal Circuit Court must have regard for making a non-disclosure order. Subsections
503B(6) and (7) currently provide for the disclosure of information to the Federal Court or
the Federal Circuit Court for the purposes of deciding whether or not to make a non-
disclosure order in relation to that information. Subsection 503B(8) currently provides that
the Federal Court or the Federal Circuit Court may, by order, vary or revoke a non-disclosure
order made under subsection 503B(1) if both the Minister and the applicant in the substantive
proceedings consent. Subsections 503B(10) and (11) relate to declarations made by the
Minister under subsection 503A(3). The amendments appropriately reflect the continuation of
the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the
operation of paragraph 503B(2)(c), and subsections 503B(4), (5), (6), (7), (8), (10) and (11).
Item 557 - Subsection 503B(14) (table item 1, column headed 'In the case of these
proceedings ... ')
1088. Item 557 updates the reference to the 'Federal Circuit Court's jurisdiction' to be
'jurisdiction of the Federal Circuit and Family Court of Australia (Division 2)' in the table in
subsection 503B(14). Section 503B currently deals with the protection of confidential
information disclosed to Federal Court or Federal Circuit Court through the making of
non-disclosure orders. Subsection 503B(14) provides a table identifying the applicant for
different types of proceedings that may be brought under the Act for the purposes of section
503B. Table item 1 currently provides for proceedings within the Federal Circuit Court's
jurisdiction under section 476. The amendment appropriately reflects the continuation of the
Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation
of table item 1 in subsection 503B(14).
Item 558 - Section 503C (heading)
1089. Item 558 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in the heading to section 503C. The heading now
reads 'Protection of confidential information disclosed to Federal Court or Federal Circuit
and Family Court of Australia (Division 2)-interim non-disclosure orders'. The amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).
Item 559 - Subsection 503C(1)
1090. Item 559 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in subsection 503C(1). Subsection 503C(1)
currently provides that the Minister must give the Federal Court or the Federal Circuit Court
written notice at least 7 days in advance of making an application for a permanent
non-disclosure order under subsection 503B(1). The amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively
alter the operation of subsection 503C(1).
Item 560 - Subsection 503C(3)
1091. Item 560 updates references to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in subsection 503C(3). Subsection 503C(3) currently
provides that the Federal Court or the Federal Circuit Court may make interim non-disclosure
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orders to protect confidential information before considering an application for a permanent
non-disclosure order, or to not interfere with the Minister's consideration of whether to
authorise disclosure of the information to the courts. The amendments appropriately reflect
the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not
substantively alter the operation of subsection 503C(3).
Item 561 - Paragraph 503C(3)(c)
1092. Item 561 repeals paragraph 503C(3)(c) and replaces it with new paragraph (c), which
refers to 'the consideration of the subsection 503B(1) application by the Federal Court or the
Federal Circuit and Family Court of Australia (Division 2)'. Subsection 503C(3) provides for
an interim non-disclosure order. Paragraph 503C(3)(c) currently provides that the Federal
Court or the Federal Circuit Court may make orders to ensure the non-disclosure of certain
information in circumstances that might undermine, prejudice or pre-empt consideration of
the matter by the Federal Court or the Federal Circuit Court. The amendment appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
substantively alter the operation of paragraph 503C(3)(c).
Item 562 - Paragraph 503C(3)(d)
1093. Item 562 updates the reference to the 'Federal Circuit Court' to be 'Federal Circuit
and Family Court of Australia (Division 2)' in paragraph 503C(3)(d). Subsection 503C(3)
provides for an interim non-disclosure order. Paragraph 503C(3)(d) currently provides that
the Federal Court or the Federal Circuit Court may make orders to ensure the non-disclosure
of certain information in circumstances that might undermine, prejudice or pre-empt
consideration by the Minister as to whether to make a declaration under subsection 503A(3)
authorising the disclosure of the information to the Federal Court or the Federal Circuit
Court. The amendment appropriately reflects the continuation of the Federal Circuit Court as
the FCFC (Division 2) and does not substantively alter the operation of paragraph
503C(3)(d).
Item 563 - Subsection 503C(4)
1094. Item 563 updates the reference to 'the Federal Court's or the Federal Circuit Court's
orders' to be 'the orders of the Federal Court or the Federal Circuit and Family Court of
Australia (Division 2)' in subsection 503C(4). Subsection 503C(4) currently provides orders
that the Federal Court or the Federal Circuit Court may make to ensure the non-disclosure of
certain information in circumstances that might undermine, prejudice or pre-empt
consideration of the relevant matter by the Federal Court, the Federal Circuit Court or the
Minister. The amendment appropriately reflects the continuation of the Federal Circuit Court
as the FCFC (Division 2) and does not substantively alter the operation of subsection
503C(4).
Item 564 - Paragraph 503C(4)(c)
1095. Item 564 updates references to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in paragraph 503C(4)(c). Subsection 503C(4)
currently provides for orders that the Federal Court or the Federal Circuit Court may make to
ensure the non-disclosure of certain information in circumstances that might undermine,
prejudice or pre-empt consideration of the relevant matter by the Federal Court, the Federal
Circuit Court or the Minister. Paragraph 503C(4)(c) currently provides for the Federal Court
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or the Federal Circuit Court to make an order ensuring that no person has access to a file or
record of the Court that contains the information, without consent from the Court. The
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2) and does not substantively alter the operation of paragraph 503C(4)(c).
Item 565 - Subsections 503C(6) and (7)
1096. Item 565 updates references to the 'Federal Circuit Court' to be 'Federal Circuit and
Family Court of Australia (Division 2)' in subsections 503C(6) and (7). Subsection 503C(6)
currently provides that the powers of the Federal Court are to be exercised by a single Judge
of the Federal Court and the powers of the Federal Circuit Court are to be exercised by a
single Judge of the Federal Circuit Court. Subsection 503C(7) provides that the Federal Court
or the Federal Circuit Court may, by order, vary or revoke an interim non-disclosure order
made under subsection 503C(3) if both the Minister and the applicant in the substantive
proceedings consent. The amendments appropriately reflect the continuation of the Federal
Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of
subsections 503C(6) and (7).
Mutual Assistance in Criminal Matters Act 1987
Item 566 - Subsection 3(1) (definition of eligible Federal Circuit Court Judge)
1097. Item 566 repeals the definition of 'eligible Federal Circuit Court Judge' in
subsection 3(1) of the Mutual Assistance in Criminal Matters Act 1987. Subsection 3(1)
provides definitions of expressions used in the Act. This definition will be replaced by use of
the term 'eligible Judge' throughout provisions in the Act under which Judges of the Federal
Circuit Court of Australia can perform functions (see item 567). This amendment
appropriately reflects the continuation of Federal Circuit Court Judges as Judges of the FCFC
(Division 2).
Item 567 - Subsection 3(1)
1098. Item 567 inserts a definition of 'eligible Judge' in subsection 3(1). Subsection 3(1)
provides definitions of expressions used in the Act. An 'eligible Judge' will mean a 'Judge
of the Federal Circuit and Family Court of Australia (Division 2)'. The expression 'eligible
Judge' will be used throughout provisions in the Act under which FCFC (Division 2) Judges
can perform functions. This item operates with item 566, which removes the definition of
'eligible Federal Circuit Court Judge'.
1099. The new expression 'eligible Judge' will not alter the nature of the functions which
are conferred under the legislation on Federal Circuit Court Judges under their new title.
Item 568 - Subsection 3(1) (definition of executing officer)
1100. Item 568 replaces the reference to 'eligible Federal Circuit Court Judge' with 'eligible
Judge' in the definition of 'executing officer' in subsection 3(1). Section 3 provides
definitions of expressions used in the Act. The expression 'eligible Judge' will be defined in
the Act (see item 567). This amendment appropriately reflects the continuation of Federal
Circuit Court Judges as Judges of the FCFC (Division 2).
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Item 569 - Paragraphs 13(2)(a) and (b)
1101. Item 569 replaces the references to 'eligible Federal Circuit Court Judge' with
'eligible Judge' in paragraphs 13(2)(a) and (b). Section 13 provides for the taking of evidence
or production of documents by an eligible Federal Circuit Court Judge. The expression
'eligible Judge' will be defined in the Act (see item 567). This amendment appropriately
reflects the continuation of Federal Circuit Court Judges as Judges of the FCFC (Division 2)
and does not alter the powers or functions conferred under section 13.
Item 570 - Subsections 13(2A), (2B), (2C), (2D), and (4) to (5)
1102. Item 570 replaces the references to 'eligible Federal Circuit Court Judge' with
'eligible Judge' in subsections 13(2A), (2B), (2C), (2D) and (4) to (5). Section 13 provides
for the taking of evidence or production of documents by an eligible Federal Circuit Court
Judge. The expression 'eligible Judge' will be defined in the Act (see item 567). This
amendment appropriately reflects the continuation of Federal Circuit Court Judges as Judges
of the FCFC (Division 2) and does not alter the powers or functions conferred under section
13.
Item 571 - Subsection 13AA(1)
1103. Item 571 replaces the references to 'eligible Federal Circuit Court Judge' with
'eligible Judge' in subsection 13AA(1). Section 13AA provides for the enforcement of orders
relating to the conduct of proceedings under subsection 13(2). The expression 'eligible
Judge' will be defined in the Act (see item 567). This amendment appropriately reflects the
continuation of Federal Circuit Court Judges as Judges of the FCFC (Division 2) and does not
alter the powers or functions conferred under section 13AA.
Item 572 - Subsection 13AA(2)
1104. Item 572 replaces the reference to 'eligible Federal Circuit Court Judge' with 'eligible
Judge' in subsection 13AA(1). It also replaces the reference to 'Rules of Court made under
the Federal Circuit Court of Australia Act 1999' with 'Rules of Court made under Chapter 4
of the Federal Circuit and Family Court of Australia Act 2018'. It further replaces the
reference to the 'Federal Circuit Court of Australia' with 'Federal Circuit Court and Family
Court of Australia'. The expression 'eligible Judge' will be defined in the Act (see item 567).
These amendments appropriately reflects the continuation of the Federal Circuit Court as the
FCFC (Division 2) and Federal Circuit Court Judges as Judges of the FCFC (Division 2)and
do not alter the powers or functions conferred under section 13AA.
Item 573 - Paragraphs 13AB(1)(a) and (b)
1105. Item 573 replaces the reference to 'eligible Federal Circuit Court Judge' with 'eligible
Judge' in paragraphs 13AB(1)(a) and (b). Section 13AB makes provision for laws applying
for the purposes of proceeding under section 13. The expression 'eligible Judge' will be
defined in the Act (see item 567). This amendment appropriately reflects the continuation of
Federal Circuit Court Judges as Judges of the FCFC (Division 2)and does not alter the
powers or functions conferred under section 13AB.
Item 574 - Section 15
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1106. Item 574 replaces the reference to 'eligible Federal Circuit Court Judge' with 'eligible
Judge' in section 15. Section 15 provides for the Attorney-General to authorise a police
officer to apply to an eligible Federal Circuit Court Judge for search warrants. The
expression 'eligible Judge' will be defined in the Act (see item 567). This amendment
appropriately reflects the continuation of Federal Circuit Court Judges as Judges of the FCFC
(Division 2)and does not alter the powers or functions conferred under section 15.
Item 575 - Subsections 25(2), 31(2), 38C(1) and (2), 38D(1), (3) and (4), 38I(1), 38K(5)
and 38N(7)
1107. Item 575 amends subsections 25(2), 31(2), 38C(1) and (2) and 38D(1), (3) and (4),
38H(1) and (4), 38I(1), 38K(5) and 38N(7) of the Act. Item 542 removes the words 'eligible
Federal Circuit Judge' from these subsections and replaces them with 'eligible Judge'. The
expression 'eligible Judge' will be defined in the Act (see item 567). This amendment
appropriately reflects the continuation of Federal Circuit Court Judges as Judges of the FCFC
(Division 2) and does not alter the powers or functions conferred under the subsections.
Item 576 - Section 38Z
1108. Item 576 amends section 38Z, which provides for offences relating to telephone
warrants. Item 526 removes all references to 'Federal Circuit Judge', and replaces them with
'eligible Judge'. The expression 'eligible Judge' will be defined in the Act (see item 567).
This amendment appropriately reflects the continuation of Federal Circuit Court Judges as
Judges of the FCFC (Division 2)and does not alter the powers or functions conferred under
the section.
Item 577 - Paragraph 38ZB(1)(a)
1109. Item 577 amends paragraph 38ZB(1)(a), which provides (subject also to paragraph
(b)) the grounds on which a police officer may, without warrant, arrest a person. Item 527
amends this paragraph by removing the reference to the 'eligible Federal Circuit Court Judge'
and replacing it with 'eligible Judge'. The expression 'eligible Judge' will be defined in the
Act (see item 567). This amendment appropriately reflects the continuation of Federal
Circuit Court Judges as Judges of the FCFC (Division 2)and does not alter the powers or
functions conferred under the provision.
Item 578 - Subsection 38ZB(2)
1110. Item 578 amends subsection 38ZB(2). Subsection 38ZB(2) provides that a person
arrested under subsection 38ZB(1) must, as soon as practicable, be brought before a
Magistrate or eligible Federal Circuit Court Judge. Item 528 removes the words 'eligible
Federal Circuit Court Judge' and replaces them with 'eligible Judge'. The expression
'eligible Judge' will be defined in the Act (see item 567). This amendment appropriately
reflects the continuation of Federal Circuit Court Judges as Judges of the FCFC (Division
2)and does not alter the requirements of the subsection.
Item 579 - Section 38ZC (heading)
1111. Item 579 amends the heading to section 38ZC by replacing the reference to 'Federal
Circuit Court Judges' with 'Judges of the Federal Circuit and Family Court of Australia
(Division 2)'. The heading will now read 'Judges of the Federal Circuit and Family Court of
204
Australia (Division 2)--consent to nomination'. This amendment appropriately reflects the
continuation of Federal Circuit Court Judges as Judges of the FCFC (Division 2).
Item 580 - Subsections 38ZC(1) and (2)
1112. Item 580 amends subsections 38ZC(1) and (2). Subsection 38ZC(1) provides that a
Judge of the Federal Circuit Court of Australia may, by writing, consent to be nominated by
the Attorney-General under subsection (2). Subsection 38ZC(2) provides that the
Attorney-General may, by writing, nominate a Judge of the Federal Circuit Court of Australia
in relation to whom a consent is in force under subsection (1) to be an eligible Federal Circuit
Court Judge for the purposes of the Act. Item 530 removes the references to the 'Federal
Circuit Court of Australia' in both subsections and replaces them with 'Federal Circuit and
Family Court of Australia (Division 2)'. This amendment appropriately reflects the
continuation of Federal Circuit Court Judges as Judges of the FCFC (Division 2) and does not
substantively alter the operation of the subsections.
1113. The validity of existing consents and nominations would not be affected by these
amendments by virtue of item 17 of Schedule 10.
Item 581 - Subsection 38ZC(2)
1114. Item 581 amends subsection 38ZC(2) to omit the words 'eligible Federal Circuit
Court Judge' and substitutes them with 'eligible Judge'. This amendment makes the
necessary nomenclature revisions to this subsection. The expression 'eligible Judge' will be
defined in the Act (see item 567). This amendment appropriately reflects the continuation of
Federal Circuit Court Judges as Judges of the FCFC (Division 2) and does not alter the
requirements of the subsection.
Item 582 - Section 38ZD (heading)
1115. Item 582 amends the heading to section 38ZD, which currently reads 'Magistrates and
Federal Circuit Court Judges--personal capacity'. Item 532 omits the reference to 'Federal
Circuit Court Judges' and replaces it with 'Judges of the Federal Circuit and Family Court of
Australia (Division 2)'. The new heading will read 'Magistrates and Judges of the Federal
Circuit and Family Court of Australia (Division 2)--personal capacity'. This amendment
makes the necessary nomenclature revisions to this heading.
Item 583 - Subsections 38ZD(1) and (3)
1116. Item 583 amends subsections 38ZD(1) and (3). Subsection 38ZD(1) provides that a
function or power conferred on a Magistrate or eligible Federal Circuit Court Judge by this
Act is conferred on the Magistrate or Judge in a personal capacity and not as a court or a
member of a court. Subsection 38ZD(3) provides that a Magistrate or eligible Federal Circuit
Court Judge has, in relation to the performance or exercise of a function or power conferred
on the Magistrate or Judge by this Act, the same protection and immunity as if he or she were
exercising that function or power as, or as a member of, the Court of which the Magistrate or
Judge is a member. This item omits the references to 'eligible Federal Circuit Court Judge'
and replaces them with 'eligible Judge'. The expression 'eligible Judge' will be defined in the
Act (see item 567). This amendment appropriately reflects the continuation of Federal
Circuit Court Judges as Judges of the FCFC (Division 2)and does not alter the powers or
functions conferred under the subsections.
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Item 584 - Paragraph 44(c)
1117. Item 584 amends paragraph 44(c) of the Act. Paragraph 44(c) provides that the
Governor-General may make regulations prescribing the practice and procedure in relation to
the performance by Magistrates or eligible Federal Circuit Court Judges of functions under
this Act. The Item omits all references to 'eligible Federal Circuit Court Judges' in the
paragraph and replaces these references with 'eligible Judges'. The expression 'eligible
Judge' will be defined in the Act (see item 567). This amendment appropriately reflects the
continuation of Federal Circuit Court Judges as Judges of the FCFC (Division 2) and does not
alter the power to make regulations.
My Health Records Act 2012
Item 585 - Paragraphs 45C(1)(b), 50C(1)(b), 79(3)(b), 80(3)(b) and 81(3)(b)
1118. Item 585 repeals paragraphs 45C(1)(b), 50C(1)(b), 79(3)(b), 80(3)(b) and 81(3)(b) of
the My Health Records Act 2012 and replaces them with new paragraphs.
1119. Paragraph 45C(1)(b) provides that if any person suffers loss or damage as a result of
anything done by an entity that contravenes section 45A or 45B, the person may bring an
action for the amount of the loss or damage against the entity in the Federal Circuit Court of
Australia. Paragraph 50C(1)(b) provides that if any person suffers loss or damage as a result
of anything done by an entity that contravenes section 50A or 50B, the person may bring an
action for the amount of the loss or damage against the entity in the Federal Circuit Court of
Australia. Paragraph 79(3)(b) provides that the Federal Circuit Court of Australia is a relevant
court in relation to the civil penalty provisions of the Act, for the purposes of Part 4 of the
Regulatory Powers (Standard Provisions) Act 2014. Paragraph 80(3)(b) provides that the
Federal Circuit Court of Australia is a relevant court in relation to the provisions of the Act,
for the purposes of Part 6 of the Regulatory Powers (Standard Provisions) Act 2014.
Paragraph 81(3)(b) provides that the Federal Circuit Court of Australia is a relevant court in
relation to the provisions of the Act, for the purposes of Part 7 of the Regulatory Powers
(Standard Provisions) Act 2014.
1120. This item repeals each of these paragraphs and replaces them with new paragraphs,
which replace the references to the 'Federal Circuit Court of Australia' with references to the
'Federal Circuit and Family Court of Australia (Division 2)'. The amendments appropriately
reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not
substantively alter the operation of subsections.
Narcotic Drugs Act 1967
Item 586 - Subsection 4(1) (paragraph (b) of the definition of relevant court)
1121. Item 586 repeals paragraph (b) of the definition of 'relevant court' in subsection 4(1)
of the Narcotic Drugs Act 1967. The definition currently provides that the Federal Circuit of
Australia is a relevant court for the purpose of the Act. Item 536 substitutes a new paragraph,
which replaces the reference to 'the Federal Circuit Court of Australia' with 'the Federal
Circuit and Family Court of Australia (Division 2)'. The amendment appropriately reflects
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the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
substantively alter the operation of the definition.
National Cancer Screening Register Act 2016
Item 587 - Paragraph 24(3)(b)
1122. Item 587 amends paragraph 24(3)(b) of the National Cancer Screening Register Act
2016, which provides that the Federal Circuit Court of Australia is, for the purposes of Part 4
of the Regulatory Powers (Standard Provisions) Act 2014, a relevant court in relation to the
civil penalty provisions of the National Cancer Screening Register Act 2016. Item 537
removes the reference to the 'Federal Circuit Court' and replaces it with 'Federal Circuit and
Family Court of Australia (Division 2)' to reflect the nomenclature changes associated with
the new court structure.
National Consumer Credit Protection Act 2009
Item 588 - Subsection 5(1) (definition of Federal Circuit Court)
1123. Item 588 repeals the definition of 'Federal Circuit Court' in subsection 5(1) of the
National Consumer Credit Protection Act 2009. The definition provides that the 'Federal
Circuit Court' means the Federal Circuit Court of Australia. The definition is no longer
required as the Federal Circuit Court will be continued as 'Federal Circuit and Family Court
of Australia (Division 2)'. Where references in the Act are made to the 'Federal Circuit and
Family Court of Australia (Division 2)' the title of that Court is provided in full.
Item 589 - Subsection 5(1) (paragraph (a) of the definition of lower court)
1124. Item 589 repeals paragraph (a) of the definition of 'lower court' in subsection 5(1),
which currently refers to the Federal Circuit Court, and replaces it with new paragraph (a)
which refers to the FCFC (Division 2). This appropriately reflects the continuation of the
Federal Circuit Court as the FCFC (Division 2).
Item 590 - Subsection 5(1) (paragraph (a) of the definition of relevant superior court)
1125. Item 590 amends the definition of paragraph (a) of 'relevant superior court' in
subsection 5(1). Currently paragraph (a) provides that in relation to the Federal Circuit Court,
relevant superior court means the Federal Court. This item amends paragraph (a) to replace
the reference to 'Federal Circuit Court' with 'Federal Circuit and Family Court of Australia
(Division 2)'. This appropriately reflects the continuation of the Federal Circuit Court as the
FCFC (Division 2).
Item 591 - Section 185
1126. Item 591 amends section 185, which provides a guide to Part 4-3 of the Act relating to
the jurisdiction and procedure of the Courts. This item replaces the paragraph of the guide
which refers to the 'Federal Circuit Court' and with a revised paragraph referring to the
'Federal Circuit and Family Court of Australia (Division 2)'.
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Item 592 - Subsection 187(1) (cell at table item 2, column headed 'Court on which civil
jurisdiction is conferred')
1127. Item 592 amends the table in subsection 187(1), which confers jurisdiction on certain
courts in relation to civil matters arising under the Act and places specified limits of the
exercise of that jurisdiction. In particular, this item amends the table by replacing the
references to the 'Federal Circuit Court' in item 2 of the table with 'Federal Circuit and
Family Court of Australia (Division 2)'. This appropriately reflects the continuation of the
Federal Circuit Court as the FCFC (Division 2) and does not change the operation of the
subsection.
Item 593 - Section 189 (table)
1128. Item 593 amends the table in section 189, which provides for the appeal avenues from
each of the specified courts. In particular, this item replaces references to the 'Federal Circuit
Court' with 'Federal Circuit and Family Court of Australia (Division 2)'. This appropriately
reflects the continuation of the Federal Circuit Court as FCFC (Division 2) and does not
change the operation of the subsection.
Item 594 - Subsection 191(2)
1129. Item 594 amends subsection 191(2), which currently provides that Subdivision C of
Part 4-3 of the Act does not apply to a transfer between the Federal Court and the Federal
Circuit Court, except as provided by paragraph 192(2)(b). This item replaces the reference to
the 'Federal Circuit Court' with 'Federal Circuit and Family Court of Australia (Division 2)'
to make the necessary nomenclature change to reflect the new court structure.
Item 595 - Subsection 191(2) (note 1)
1130. Item 595 amends note 1 to subsection 191(2) by replacing the reference to the
'Federal Circuit Court' with 'Federal Circuit and Family Court of Australia (Division 2)'.
This amendment appropriately reflects the continuation of the Federal Circuit Court as the
FCFC (Division 2) and does not change the intention of note 1.
Item 596 - Subsection 191(2) (note 2)
1131. Item 596 amends note 2 to subsection 191(2), which currently provides that transfers
from the Federal Court are covered by section 32AB of the Federal Court Act and that
transfers from the Federal Circuit Court are covered by section 39 of the Federal Circuit
Court Act. As a result of the court reforms, the Federal Circuit Court Act will be repealed,
with most of the substantive provisions in that Act being moved into the proposed Federal
Circuit and Family Court of Australia Act 2018. This item amends note 2 to subsection
191(2) of the National Consumer Credit Protection Act 2009 to replace 'Federal Circuit
Court are covered by section 39 of the Federal Circuit Court Act' with 'section 120 of the
Federal Circuit and Family Court of Australia Act 2018'. Section 120 of the Federal Circuit
and Family Court of Australia Act 2018 contains the relevant transfer provisions from the
FCFC (Division 2), and will result in no change to the current intention of note 2.
Item 597 - Paragraph 199(1)(a)
1132. Item 597 amends paragraph 199(1)(a), which relates to applications for small claims
procedures. In particular, item 14 replaces the reference to the 'Federal Circuit Court' with
208
'Federal Circuit and Family Court of Australia (Division 2)'. This appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2) and does not change the
operation of the paragraph.
National Disability Insurance Scheme Act 2013
Item 598 - Subparagraphs 73ZE(3)(e)(ii) and 73ZF(2)(e)(ii)
1133. Item 598 repeals subparagraphs 73ZE(3)(e)(ii) and 73ZF(2)(e)(ii) of the National
Disability Insurance Scheme Act 2013 and replaces them with new paragraphs. Subparagraph
73ZE(3)(e)(ii) provides that the Federal Circuit Court is a relevant court in relation to Part 3A
of the Act for the purposes of Part 2 of the Regulatory Powers (Standard Provisions) Act
2014. Subparagraph 73ZF(3)(e)(ii) provides that the Federal Circuit Court is a relevant court
in relation to evidential material that relates to a provision mentioned in subsection 73ZF(1)
for the purposes of Part 3 of the Regulatory Powers (Standard Provisions) Act 2014. The new
subparagraphs provide that the FCFC (Division 2) is a relevant court for the purposes of the
relevant sections. The new subparagraphs appropriately reflect the continuation of the Federal
Circuit Court as the FCFC (Division 2) and do not substantively change the operation of the
subparagraphs.
Item 599 - Paragraph 73ZJ(3)(b)
1134. Item 599 updates the reference to the 'Federal Circuit Court of Australia' to be
'Federal Circuit and Family Court of Australia (Division 2)' in paragraph 73ZJ(3)(b) by
repealing the paragraph and replacing it with a new one. Section 73ZJ provides for the
Commonwealth to pay compensation in specified circumstances for damage to electronic
equipment operated as mentioned in section 73ZG or 73ZH of the Act. Paragraph 73ZJ(3)(b)
provides that if the Commonwealth and the owner or user fail to agree, the owner or user may
institute proceedings in the Federal Circuit Court. The amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively
alter the operation of section 73ZJ.
Item 600 - Paragraphs 73ZK(3)(b), 73ZP(3)(b) and 73ZQ(3)(b)
1135. Item 600 repeals and replaces paragraphs 73ZK(3)(b), 73ZP(3)(b) and 73ZQ(3)(b).
The new paragraphs update the reference to the 'Federal Circuit Court of Australia' to be the
'the Federal Circuit and Family Court of Australia (Division 2)'. Paragraph 73ZK(3)(b)
provides that the Federal Circuit Court is a relevant court in relation to the civil penalty
provisions of Part 3A of the Act for the purposes of Part 4 of the Regulatory Powers
(Standard Provisions) Act 2014. Paragraph 73ZP(3)(b) provides that the Federal Circuit
Court is a relevant court in relation to the provisions of the National Disability Insurance
Scheme Act 2013 for the purposes of Part 6 of the Regulatory Powers (Standard Provisions)
Act 2014. Paragraph 73ZQ(3)(b) provides that the Federal Circuit Court is a relevant court in
relation to the provisions of the National Disability Insurance Scheme Act 2013 for the
purposes of Part 7 of the Regulatory Powers (Standard Provisions) Act 2014. The new
paragraphs appropriately reflect the continuation of the Federal Circuit Court as the FCFC
(Division 2) and do not substantively change the operation of the paragraphs.
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National Greenhouse and Energy Reporting Act 2007
Item 601 - Section 7 (paragraph (b) of the definition of court)
1136. Item 601 repeals paragraph (b) of the definition of 'court' in section 7 of the National
Greenhouse and Energy Reporting Act 2017. Paragraph (b) provides that 'court' means the
Federal Circuit of Australia. Item 555 substitutes a new paragraph, which replaces the
reference to 'the Federal Circuit Court of Australia' with 'the Federal Circuit and Family
Court of Australia (Division 2)'. This item makes the necessary nomenclature change to
reflect the new court structure and does not substantively alter the operation of the definition.
National Health Act 1953
Item 602 - Subparagraph 134D(2)(b)(ii)
1137. Item 603 amends subparagraph 134D(2)(b)(ii) of the National Health Act 1953 by
repealing the subparagraph containing a reference to the 'Federal Circuit Court of Australia'
and substituting a new paragraph which refers to the 'Federal Circuit and Family Court of
Australia (Division 2)'. Section 134D of the National Health Act 1953 was inserted by the
Health Legislation Amendment (Improved Medicare Compliance and Other Measures) Act
2018 and which took effect on 1 July 2018. It provides the relevant courts for the purposes of
Part 4 of the Regulatory Powers Act 2014. This item appropriately reflects the continuation
of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the
operation of the provision.
National Health Security Act 2007
Item 603 - Subsections 62(1) and 79A(3)
1138. Item 603 amends subsections 62(1) and 79A(3) of the National Health Security Act
2007. Subsection 62(1) provides that if a person has engaged, is engaging, or is about to
engage in any conduct that is or would be an offence against the Part 3 of the Act, the Federal
Court or the Federal Circuit Court may, on the application of the Secretary, grant an
injunction restraining the person from engaging in the conduct. Subsection 79A provides for
the Commonwealth to pay compensation in specified circumstances for damage to electronic
equipment operated as mentioned in section 67 or 70A of the Act. Subsection 79A(3)
provides that if the Commonwealth and the owner or user fail to agree, the owner or user may
institute proceedings in the Federal Court or the Federal Circuit Court. This item removes the
references in both subsections to the 'Federal Circuit Court of Australia' and replaces them
with 'Federal Circuit and Federal Court of Australia (Division 2)'. The item makes the
necessary nomenclature change to reflect the new court structure and does not substantively
alter the operation of the subsections.
National Measurement Act 1960
Item 604 - Section 18LL
210
1139. Item 604 amends section 18LL of the National Measurement Act 1960, which
provides an overview of Division 4 of Part VIII of the Act. The Item omits paragraph (3) of
the section which provides that the Secretary may apply to the Federal Court or the Federal
Circuit Court for an injunction to restrain a person from conduct that would be an offence
under Part IV, V, VI or VII of the Act. Item 557 replaces this paragraph with a new
paragraph that provides the Secretary may apply to the Federal Court or the FCFC
(Division 2) for an injunction to restrain a person from conduct that would be an offence
under Part IV, V, VI or VII. This amendment reflects the updated nomenclature associated
with the new court structure and does not substantively alter the operation of the section.
Item 605 - Subsections 18LN(1), 18LO(1) and 18QE(1)
1140. Item 605 amends subsections 18LN(1), 18LO(1) and 18QE(1). Subsection 18LN(1)
deals with enforcing undertakings and provides that if the Secretary considers that a person
who gave an undertaking under section 18LM has breached a term of the undertaking, the
Secretary may apply to the Federal Court or the Federal Circuit Court for an order under
subsection 18LM(2).
1141. Subsection 18LO(1) deals with injunctions and provides that if a person has engaged,
is engaging or is proposing to engage in conduct that constituted, constitutes or would
constitute an offence against Part IV, V, VI or VII, the Federal Court or the Federal Circuit
Court may, on the application of the Secretary, grant a specified injunction.
1142. Subsection 18QE(1) provides that if the Secretary considers that a licensee who gave
an undertaking under section 18QD has breached a term of the undertaking, the Secretary
may apply to the Federal Court or the Federal Circuit Court for an order under
subsection 18QE(2).
1143. This item 558 removes all references to the 'Federal Circuit Court of Australia' in the
subsections and replaces them with references to the 'Federal Circuit and Family Court of
Australia (Division 2)'. These amendments reflect the updated nomenclature associated with
the new court structure and does not substantively alter the operation of the subsections.
Item 606 - Section 19K (heading)
1144. Item 606 amends the heading to section 19K. The heading currently reads
'Jurisdiction of the Federal Court of Australia and the Federal Circuit Court of Australia'.
The item removes the reference to the 'Federal Circuit Court of Australia' and replaces it
with 'Federal Circuit and Family Court of Australia (Division 2)'. The new heading reads
'Jurisdiction of the Federal Court of Australia and the Federal Circuit and Family Court of
Australia (Division 2)'.
Item 607 - Section 19K
1145. Item 607 amends section 19K. Section 19K provides that jurisdiction is conferred on
the Federal Court and the Federal Circuit Court in respect of matters arising under
section 18LN, section 18LO, section 18MR (only in relation to the Federal Court of
Australia), and section 18QE.
211
1146. This item removes the reference to the 'Federal Circuit Court of Australia' and
replaces it with 'Federal Circuit and Federal Court of Australia (Division 2)'. This
amendment reflects the updated nomenclature associated with the new court structure and
does not substantively alter the operation of the section.
National Redress Scheme for Institutional Child Sexual Abuse Act 2018
Item 608 - Paragraph 190(3)(b)
1147. Item 608 amends paragraph 190(3)(b) of the National Redress Scheme for
Institutional Child Sexual Abuse Act 2018, which provides that for the purposes of Part 4 of
the Regulatory Powers (Standard Provisions) Act 2014, the Federal Circuit Court is a
relevant court in relation to the civil penalty provisions of the National Redress Scheme for
Institutional Child Sexual Abuse Act 2018. This item removes the reference to the 'Federal
Circuit Court of Australia' and replaces it with 'Federal Circuit and Federal Court of
Australia (Division 2)'. This amendment reflects the updated nomenclature associated with
the new court structure and does not substantively alter the operation of the paragraph.
National Vocational Education and Training Regulator Act 2011
Item 609 - Section 3 (definition of Federal Circuit Court)
1148. Item 609 repeals the definition of 'Federal Circuit Court' in section 3 of the National
Vocational Education and Training Regulator Act 2011, which provides definitions for terms
contained within the Act. The definition is no longer required as the Federal Circuit Court
will be continued as 'Federal Circuit and Family Court of Australia (Division 2)'. Where
references in the Act are made to the 'Federal Circuit and Family Court of Australia
(Division 2)' the title of that Court is provided in full.
Item 610 - Section 3, paragraph (b) (definition of issuing officer)
1149. Item 610 amends paragraph (b) of the definition of 'issuing officer' in section 3.
Paragraph (b) currently provides that an issuing officer means a Judge of the Federal Circuit
Court in relation to whom a consent under subsection 91(1) and a nomination under
subsection 91(2) are in force. This item removes the reference to the 'Federal Circuit Court'
and replaces it with 'Federal Circuit and Family Court of Australia (Division 2)'. This
amendment does not have an effect on the operation of this definition, and reflects the
continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2).
Item 611 - Heading to section 91
1150. Item 611 amends the heading to section 91 by replacing the reference to 'Federal
Circuit Court' with 'Federal Circuit and Family Court of Australia (Division 2)'. The heading
will now read 'Judges of the Federal Circuit and Family Court of Australia (Division 2)--
consent to nomination'.
Item 612 - Subsections 91(1) and (2) and 92(2)
212
1151. Item 612 amends subsections 91(1) and (2) and 92(2) by removing the references to
the 'Federal Circuit Court' and replacing them with 'Federal Circuit and Family Court of
Australia (Division 2)'. These sections relate to the powers of issuing officers. This item
allows these subsections to appropriately reflect the continuation of Judges of the Federal
Circuit Court as Judges of the FCFC (Division 2), and does not impact on the operation of
these subsections.
Item 613 - Section 137 (heading)
1152. Item 613 amends the heading to section 137 by replacing the reference to 'Federal
Circuit Court' with 'Federal Circuit and Family Court of Australia (Division 2)'. The heading
will now read 'Federal Court or Federal Circuit and Family Court of Australia (Division 2)
may impose pecuniary penalty'.
Item 614 - Subsections 137(1), (2), (3) and (4)
1153. Item 614 amends subsections 137(1), (2), (3) and (4) by removing references to the
'Federal Circuit Court' and replacing them with 'Federal Circuit and Family Court of
Australia (Division 2)'. These subsections deal with the ability of the Federal Court or the
Federal Circuit Court to impose pecuniary penalty where a person has breached a civil
penalty provision. This item amends these subsections to appropriately reflect the
continuation of the Federal Circuit Court as the FCFC (Division 2), and does not impact on
the operation of the subsections.
Item 615 - Section 139
1154. Item 615 amends section 139 by removing the reference to the 'Federal Circuit Court'
and replacing it with 'Federal Circuit and Family Court of Australia (Division 2)'. Section
139 deals with the recovery of a pecuniary penalty by the Commonwealth. This amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2)
and does not impact on the operation of the section.
Item 616 - Subsections 140(4), 141(2) and (4)
1155. Item 616 amends subsections 140(4), 141(2) and (4) by removing the references to the
'Federal Circuit Court' and replacing them with 'Federal Circuit and Family Court of
Australia (Division 2)'. These subsections deal with the gathering of information by the
National VET Regulator in relation to an application for a pecuniary penalty, and continuing
and multiple contraventions of civil penalty provisions. This item makes the necessary
nomenclature changes to these subsections and does not impact on the operation of the
subsections.
Item 617 - Section 142
1156. Item 617 amends section 142 by removing the reference to the 'Federal Circuit Court'
and replacing it with 'Federal Circuit and Family Court of Australia (Division 2)'. Section
142 provides that the Federal Court or the Federal Circuit Court must not order a person to
pay a pecuniary penalty for contravening a civil penalty provision if the person has been
convicted of an offence against the Act constituted by conduct substantially the same as the
conduct constituting the contravention. This amendment appropriately reflects the
213
continuation of the Federal Circuit Court as the FCFC (Division 2) and does not impact on
the operation of this section.
Item 618 - Paragraph 147(1)(b)
1157. Item 618 amends paragraph 147(1)(b) which provides that if the National VET
Regulator considers that a person who gave an undertaking under section 146 has breached
any of its terms, the Regulator may apply to the Federal Circuit Court. This item repeals
paragraph (b) which refers to 'the Federal Circuit Court' and replaces it with new paragraph
(b) which reads 'the Federal Circuit and Family Court of Australia (Division 2)'. This
amendment makes the necessary nomenclature changes to this paragraph.
Item 619 - Sections 150, 151, 152 and 153
1158. Item 619 amends sections 150, 151, 152 and 153 by removing all references to
'Federal Circuit Court' and replacing these with 'Federal Circuit and Family Court of
Australia (Division 2)'. These sections deal with injunctions, which the National VET
Regulator may apply for if a person has engaged, is engaging or proposing to engage, in any
conduct that would be in contravention of the Act. This item allows these subsections to
appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2),
and does not impact on the operation of these sections.
Item 620 - Section 154 (heading)
1159. Item 620 amends the heading to section 154 by replacing the reference to 'Federal
Circuit Court' with 'Federal Circuit and Family Court of Australia (Division 2)'. The heading
will now read 'Other powers of the Federal Court or Federal Circuit and Family Court of
Australia (Division 2) unaffected'.
Item 621 - Section 154
1160. Item 621 amends section 154 by removing the reference to the 'Federal Circuit Court'
and replacing it with 'Federal Circuit and Family Court of Australia (Division 2)'.
Section 154 provides that the powers conferred on the Federal Court or the Federal Circuit
Court under this Division are in addition to, and not instead of, any other powers of the Court,
whether conferred by the Act or otherwise. This amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2) and does not impact on
the operation of this section.
Item 622 - Paragraph 232B(b)
1161. Item 622 amends paragraph 232B(b), which provides that a charge imposed by the
National Vocational Education and Training Regulator (Charges) Act 2012 is recoverable as
a debt due to the Commonwealth in the Federal Circuit Court. This item removes the
reference to the 'Federal Circuit Court' and replaces it with 'Federal Circuit and Family
Court of Australia (Division 2)'. This amendment makes the necessary nomenclature changes
to the paragraph.
Offshore Petroleum and Greenhouse Gas Storage Act 2006
214
Item 623 - Section 7 (definition of Federal Circuit Court)
1162. Item 623 repeals the definition of 'Federal Circuit Court' in section 7 of the Offshore
Petroleum and Greenhouse Gas Storage Act 2006, which provides definitions for terms
contained within the Act. The definition of Federal Circuit Court is no longer required as the
Federal Circuit Court will be continued as the FCFC (Division 2). Where reference is made to
the FCFC (Division 2) in the Act, the reference is provided in full.
Item 624 - Subsection 602C(6)
1163. Item 624 amends subsection 602C(6), which provides that for the purposes of Part 2
of the Regulatory Powers (Standard Provisions) Act 2014, a magistrate, or a Judge of the
Federal Circuit Court, is an issuing officer in relation to the listed National Offshore
Petroleum Safety and Environmental Management Authority (NOPSEMA) laws and the
information mentioned in subsection 602C(2). This item removes the reference to the
'Federal Circuit Court' and replaces it with 'Federal Circuit and Family Court of Australia
(Division 2)'. The amendment appropriately reflects the continuation of Judges of the Federal
Circuit Court as Judges of the FCFC (Division 2) and does not substantively alter the
operation of the subsection.
Item 625 - Paragraph 602C(8)(b)
1164. Item 625 repeals paragraph 602C(8)(b) and replaces it with a new one. Paragraph
602C(8)(b) currently provides that for the purposes of Part 2 of the Regulatory Powers
(Standard Provisions) Act 2014, the Federal Circuit Court is a relevant court in relation to the
listed NOPSEMA laws and the information mentioned in subsection 602C(2). New paragraph
602C(8)(b) replaces the reference to the 'Federal Circuit Court' with 'Federal Circuit and
Family Court of Australia (Division 2)'. The amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively
alter the operation of the paragraph.
Item 626 - Subsection 602D(5)
1165. Item 626 amends subsection 602D(5), which provides that for the purposes of Part 3
of the Regulatory Powers (Standard Provisions) Act 2014, a magistrate, or a Judge of the
Federal Circuit Court, is an issuing officer in relation to evidential material that relates to an
offence or civil penalty provision mentioned in subsection 602D(1). This item removes the
reference to the 'Federal Circuit Court' and replaces it with 'Federal Circuit and Family
Court of Australia (Division 2)'. The amendment appropriately reflects the continuation of
Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not
substantively alter the operation of the subsection.
Item 627 - Paragraphs 602D(7)(b), 611B(3)(b) and 611J(3)(b)
1166. Item 627 repeals paragraphs 602D(7)(b), 611B(3)(b) and 611J(3)(b), which reference
the 'Federal Circuit Court', and replaces them with new paragraphs. Paragraphs 602D(7)(b),
611B(3)(b) and 611J(3)(b) provide that the Federal Circuit Court is a relevant court for the
purposes of Parts 3, 4 and 7, respectively of the Regulatory Powers (Standard Provisions) Act
2014. The new paragraphs refer to the 'Federal Circuit and Family Court of Australia
(Division 2)'. The amendment appropriately reflects the continuation of the Federal Circuit
215
Court as the FCFC (Division 2) and does not substantively alter the operation of the
paragraphs.
Ombudsman Act 1976
Item 628 - Subsection 3(1) (definition of chief executive officer)
1167. Item 628 inserts a new definition of 'chief executive officer' into subsection 3(1) to
the Ombudsman Act 1976. The definition largely replicates the effect of the current definition
of 'chief executive officer of a court or tribunal' in the Act, with one key difference. Under
the new court structure, the positions of Chief Executive Officer of the Federal Circuit Court
and Chief Executive Officer of the Family Court will be abolished. These positions were
established to provide support to the Chief Justice and the Chief Judge of these courts,
respectively. The Chief Justice of the FCFC (Division 1) and the Chief Judge of the FCFC
(Division 2) will now be supported by the Chief Executive Officer and Principal Registrar of
the Federal Court. This change is reflected in the new definition. The item also includes some
minor stylistic changes compared with the current wording of the definition, which clarify
that the 'chief executive officer' means a specific person in relation to a specified court or
tribunal.
Item 629 - Subsection 3(1) (definition of chief executive officer)
1168. Item 629 repeals the definition of 'chief executive officer of a court or tribunal' in
subsection 3(1). Due to the amendments made by item 628 above, inserting a new definition
of 'chief executive officer', this definition is no longer necessary.
Item 630 - Subsection 3(1) (paragraph (bb) of the definition of prescribed authority)
1169. Item 630 repeals paragraph (bb) of the definition of 'prescribed authority' in
subsection 3(1) of the Act. Currently, paragraph (bb) of the definition of prescribed authority
means a chief executive officer of a court or tribunal. Following the amendments made by
item 581 above, item 582 substitutes a new paragraph (bb) of the definition, which provides
'a chief executive officer, in relation to a court or tribunal'. The amendment is consequential
and does not change the meaning of the definition.
Item 631 - Subsection 3(1) (subparagraph (c)(i) of the definition of prescribed authority)
1170. Item 631 repeals subparagraph (c)(i) of the definition of 'prescribed authority' in
subsection 3(1), and substitutes it with a new subparagraph (c)(i). The new subparagraph
provides that the definition of prescribed authority means the person holding or performing
the duties of an office established by an enactment other than the chief executive officer, in
relation to a court or tribunal, or a person who, for the purposes of the Act, is to be taken to be
a member of the staff of a court or tribunal. This follows the amendment made by item 629
above. The amendment is consequential and does not change the meaning of the definition.
Item 632 - Paragraph 3(14)(a)
1171. Item 632 repeals paragraph 3(14)(a) and replaces it with a new paragraph. Paragraph
3(14)(a) provides that for the purposes of the Act the officers (other than the chief executive
officer) of a court or tribunal are taken to be members of the staff of the chief executive
216
officer of the court or tribunal. The item inserts a new paragraph 3(14)(a) which, when read
with item 633, provides that for the purposes of the Act the officers of a court or tribunal
(other than the chief executive officer) are to be taken to be members of the staff of the court
or tribunal. This amendment in this particular item is a stylistic change and does not change
the operation of paragraph (a).
Item 633 - Subsection 3(14)
1172. Item 633 amends subsection 3(14). Subsection (14) currently provides that for the
purposes of the Act the persons specified are taken to be members of the staff of the chief
executive officer of the court or tribunal. The item amends this section to provide that, for the
purposes of the Act, the persons specified are taken to be members of the staff of the court or
tribunal. This amendment is made to more accurately reflect the functions of the persons
specified.
Item 634 - Paragraph 3(16)(a)
1173. Item 634 repeals paragraph 3(16)(a), which provides that in relation to anything that
concerns a chief executive officer of a court or tribunal a reference to which this subsection
applies has effect in accordance with subsection 3(18). The item inserts a new paragraph (a),
which provides that in relation to anything that concerns a chief executive officer of a court
or tribunal a reference to which this subsection applies has effect in accordance with
subsection 3(18). The amendment is consequential and does not change the operation of the
paragraph.
Item 635 - Paragraph 3(18)(c)
1174. Item 635 repeals paragraph 3(18)(a), which provides that a reference to which
subsection 3(16) applies is to be read in the case of the chief executive officer of a court as a
reference to the chief justice or chief judge (however described) of the court. The item
substitutes a new paragraph 3(18)(a), which provides that 'in the case of the chief executive
officer, in relation to a court, the reference is to be read as a reference to the chief justice or
chief judge (however described) of the court'. The amendment is consequential and does not
change the operation of the paragraph.
Item 636 - Paragraph 3(18)(c)
1175. Item 636 amends paragraph 3(18)(c). Paragraph (c) provides that a reference to which
subsection 3(16) applies is to be read, in the case of the chief executive officer of a tribunal
other than the Administrative Appeals Tribunal, as a reference to the president or principal
member (however described) of the tribunal or, if the tribunal consists of a single member, as
a reference to that member. The item omits the words 'chief executive officer of a tribunal
other than the Administrative Appeals Tribunal' and substitutes them with 'chief executive
officer, in relation to a tribunal (other than the Administrative Appeals Tribunal)'. This
amendment is a stylistic change and does not change the operation of the paragraph.
Item 637 - Paragraph 5(2)(ba)
1176. Item 637 amends paragraph 5(2)(ba), which provides that the Ombudsman is not
authorised to investigate action by the chief executive officer of a court or by a person who,
for the purposes of the Act, is to be taken to be a member of the staff of the chief executive
217
officer of a court when exercising a power of the court when performing a function, or
exercising a power, of a judicial nature. The item removes the words 'chief executive officer
of a court or by a person who, for the purposes of this Act, is to be taken to be a member of
the staff of the chief executive officer of a court'. The item substitutes the words 'chief
executive officer, in relation to a court, or by a person who, for the purposes of this Act, is to
be taken to be a member of the staff of a court'. This amendment is a stylistic change and
does not change the operation of the paragraph.
Item 638 - Subsection 16(5)
1177. Item 638 amends subsection 16(5), which relates to the operation of subsections 16(1)
to (3) in the case of an Ombudsman's report relating to a prescribed authority constituted by
the chief executive officer of a court or tribunal. The item omits the words 'chief executive
officer of a court' in the opening of the section and replaces them with 'chief executive
officer, in relation to a court'. This amendment is a stylistic change and does not change the
operation of the paragraph.
Item 639 - Paragraph 16(5)(a)
1178. Item 639 amends paragraph 16(5)(a), which provides that, for the purposes of
subsection (5), if an Ombudsman's report relates to the chief executive officer of a court, a
reference to the Prime Minister is to be read as a reference to the chief justice or chief judge
(however described) of the court, as the case requires. The item omits the words 'chief
executive officer of a court' and substitutes them with 'chief executive officer, in relation to a
court'. This amendment is a stylistic change and does not change the operation of the
paragraph.
Item 640 - Paragraph 16(5)(c)
1179. Item 640 amends paragraph 16(5)(c) of the Act, which provides that, for the purposes
of subsection (5), if the report relates to the chief executive officer of a tribunal other than the
Administrative Appeals Tribunal a reference to the Prime Minister is to be read as a reference
to the president or principal member (however described) of the tribunal or, if the tribunal
consists of a single member, as a reference to that member. The item omits the words 'chief
executive officer of a tribunal other than the Administrative Appeals Tribunal' and substitutes
them with 'chief executive officer, in relation to a tribunal (other than the Administrative
Appeals Tribunal)'. This amendment is a stylistic change and does not change the operation
of the paragraph.
Ozone Protection and Synthetic Greenhouse Gas Management Act 1989
Item 641 - Section 7 (paragraph (b) of the definition of designated court)
1180. Item 641 repeals paragraph (b) of the definition of 'designated court' within section 7
of the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989. Paragraph (b)
currently provides a reference to the 'Federal Circuit Court'. The item substitutes a new
paragraph (b) which replaces this reference with 'the Federal Circuit and Family Court of
Australia (Division 2)'. The amendment appropriately reflects the continuation of the Family
218
Court as the FCFC (Division 1) and does not substantially change the operation of the
definition.
Item 642 - Section 7 (paragraph (b) of the definition of designated court)
1181. Item 642 repeals the definition of 'Federal Circuit Court' from section 7. The
definition is no longer required as the Federal Circuit Court will be continued as FCFC
(Division 2). Where reference is made to the FCFC (Division 2) in the Act, the reference is
provided in full.
Paid Parental Leave Act 2010
Item 643 - Section 6 (definition of Federal Circuit Court)
1182. Item 643 repeals the definition of 'Federal Circuit Court' from section 6 of the Paid
Parental Leave Act 2010. The definition is no longer required as the Federal Circuit Court
will be continued as FCFC (Division 2). Where reference is made to the 'Federal Circuit and
Family Court of Australia (Division 2)' in the Act, the reference is provided in full.
Item 644 - Paragraph 147(3)(b)
1183. Item 644 repeals paragraph 147(3)(b), which provides that the Federal Circuit Court is
a relevant court in relation to the civil penalty provisions of the Act for the purposes of Part 4
of the Regulatory Powers (Standard Provisions) Act 2014. Paragraph 147(3)(b) will be
inserted by the Regulatory Powers (Standardisation Reform) Act 2017. The item substitutes a
new paragraph 147(3)(b), which removes the reference to the Federal Circuit Court and
replaces it with a reference to the FCFC (Division 2). The amendment appropriately reflects
the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
substantively alter the operation of paragraph 147(3)(b).
Item 645 - Subsection 156(5)
1184. Item 645 amends subsection 156(5), which provides that the Federal Court or the
Federal Circuit Court may order a person to comply with a request under subsection 156(1) in
a specified way. Only the Secretary may apply to the court for an order under subsection
156(5). This item removes the reference to the 'Federal Circuit Court' and replaces it with a
reference to 'Federal Circuit and Family Court of Australia (Division 2)'. The amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2)
and does not substantively alter the operation of the subsection.
Item 646 - Subsection 200D(1) (note)
1185. Item 646 amends the note at subsection 200D(1), which provides that Subdivision E,
Division 7A, of Part 4-3 of the Act deals with appeals to the Federal Court or the Federal
Circuit Court against the making of departure prohibition orders. This item removes the
reference to the 'Federal Circuit Court' and replaces it with 'Federal Circuit and Family
Court of Australia (Division 2)'. The amendment appropriately reflects the continuation of
the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the
intentions of the note.
219
Item 647 - Subsection 200N(1)
1186. Item 647 amends subsection 200N(1), which provides that a person aggrieved by the
making of a departure prohibition order may appeal to the Federal Court or the Federal
Circuit Court against the making of the order. Item 591 removes the reference to the 'Federal
Circuit Court' and replaces it with 'Federal Circuit and Family Court of Australia (Division
2)'. The amendment appropriately reflects the continuation of the Federal Circuit Court as the
FCFC (Division 2) and does not substantively alter the operation of the subsection.
Item 648 - Section 297
1187. Item 648 amends section 297, which provides a guide to the interpretation of Part 6-3
of the Act. The item omits the words 'Division 3 confers jurisdiction on the Federal Court
and the Federal Circuit Court' and replaces them with 'Division 3 confers jurisdiction on the
Federal Court and the Federal Circuit and Family Court of Australia (Division 2)'. The
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2) and does not substantively alter the operation of the section.
Item 649 - Section 301 (heading)
1188. Item 649 amends the heading to section 301, which reads 'Jurisdiction of Federal
Circuit Court'. The item removes the reference to the 'Federal Circuit Court' and replaces it
with 'Federal Circuit and Family Court of Australia (Division 2)'. The new heading reads
'Jurisdiction of Federal Circuit and Family Court of Australia (Division 2)'.
Item 650 - Section 301
1189. Item 650 amends section 301, which provides that jurisdiction is conferred on the
Federal Circuit Court in relation to civil matters arising under the Act. The item removes the
reference to the 'Federal Circuit Court' and replaces it with 'Federal Circuit and Family
Court of Australia (Division 2)'. The amendment appropriately reflects the continuation of
the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the
operation of the section.
Parliamentary Business Resources Act 2017
Item 651 - Section 5 (paragraph (b) of the definition of relevant court)
1190. Item 651 repeals paragraph (b) of the definition of 'relevant court' in section 5 of the
Parliamentary Business Resources Act 2017. Section 5 provides definitions for terms in the
Act. The item substitutes a new paragraph (b), which replaces the reference to the Federal
Circuit Court with the FCFC (Division 2). The amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively
alter the operation of the definition.
Personal Property Securities Act 2009
Item 652 - Section 10
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1191. Item 596 repeals the definitions of 'Family Court' and 'Federal Circuit Court' in
section 10 of the Personal Property Securities Act 2009. Section 10 provides definitions for
terms contained within the Act. The definition of Family Court is no longer required as the
Family Court will be continued as FCFC (Division 1). Similarly, the definition of Federal
Circuit Court is no longer required as the Federal Circuit Court will be continued as the
FCFC (Division 2). Where reference is made to the FCFC (Division 1) or the FCFC
(Division 2) in the Act, the references are provided in full.
Item 653 - Section 205
1192. Item 653 amends section 205, which provides a guide to Part 6.2 of the Act relating to
judicial proceedings generally. The item omits the paragraph of the guide which refers to the
Family Court and the Federal Circuit Court. It substitutes a revised paragraph which replaces
the references to those courts with references to the FCFC (Division 1) and FCFC (Division
2). This reflects the continuation of the Family Court and the Federal Circuit Court as the
FCFC (Division 1) and FCFC (Division 2), respectively.
Item 654 - Section 206(1)(b)
1193. Item 654 amends section 206(1)(b), which deals with the scope of Part 6.2 in relation
to judicial proceedings. This item replaces the reference to the Federal Circuit Court with the
FCFC (Division 2). This amendment appropriately reflects the continuation of the Federal
Circuit Court as the FCFC (Division 2) and does not substantively change the operation of
the section.
Item 655 - Section 207 (after table item 1)
1194. Item 655 amends the table in section 207, which confers jurisdiction on certain courts
in relation to civil matters arising under the Act and places specified limits on the exercise of
that jurisdiction. This item inserts a new item 1A after item 1 of the table, including the
FCFC (Division 1) in the column titled 'Court on which jurisdiction is conferred' and
provides that this court has 'No specified limits' in the column titled 'Limits of jurisdiction'.
This amendment replaces item 4 of the table, which provides that the Family Court has no
specified limits in its jurisdiction. This amendment appropriately reflects the continuation of
the Family Court as the FCFC (Division 1) and does not substantively change the operation
of the table.
Item 656 - Section 207 (cell at table item 2, column headed 'Court on which jurisdiction
is conferred')
1195. Item 656 amends the table in section 207, which confers jurisdiction on certain courts
in relation to civil matters arising under the Act and places specified limits of the exercise of
that jurisdiction. This item removes the reference to the 'Federal Circuit Court' at item 2 in
the column titled 'Court on which jurisdiction is conferred' and replaces it with a reference to
the 'Federal Circuit and Family Court of Australia (Division 2)'. This appropriately reflects
the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
substantively change the operation of the table.
Item 657 - Section 207 (table item 4)
221
1196. Item 657 amends the table in section 207, which confers jurisdiction on certain courts
in relation to civil matters arising under the Act and places specified limits of the exercise of
that jurisdiction. This item removes item 4 of the table. This is because item 655 inserts a
new table item 1A, which outlines the jurisdiction for the FCFC (Division 1). As the Family
Court continues to operate as the FCFC (Division 1), item 4 of the table is no longer
necessary.
Item 658 - Section 208 (table)
1197. Item 658 amends the table in section 208, which prevents cross-jurisdiction in certain
courts on appeals relating to civil matters arising under the Act. This item repeals the table
and inserts a new table which contains no references to the Family Court or the Federal
Circuit Court. The table contains new references to the 'Federal Circuit and Family Court of
Australia (Division 1)' and 'Federal Circuit and Family Court of Australia (Division 2)'. This
item reflects the new appeal structure of the federal courts, with most of the appellate
jurisdiction of the Family Court being transferred to a new Division of the Federal Court -
the Family Law Appeal Division. The main changes made by this item are to allow appeals
from the FCFC (Division 1) and the FCFC (Division 2) to the Federal Court, to allow appeals
from State Family Courts to the Federal Court, and to prevent appeals from decisions of the
FCFC (Division 2) to the FCFC (Division 1).
1198. This item inserts new item 1 of the table which provides that an appeal may not be
instituted from a decision of the Federal Court to the FCFC (Division 1) to the FCFC
(Division 2), or to a State or Territory Court.
1199. This item inserts new item 2 of the table which provides that an appeal may not be
instituted from a decision of the FCFC (Division 1) to the FCFC (Division 2), or to a State or
Territory Court.
1200. This item inserts new item 3 of the table which provides that an appeal may not be
instituted from a decision of the FCFC (Division 2) to the FCFC (Division 1), or to a State or
Territory Court.
1201. This item inserts new item 4 of the table which provides that an appeal may not be
instituted from a decision of a court of a State (other than a State Family Court) to the Federal
Court, the FCFC (Division 1), the FCFC (Division 2), to a State or Territory Court, or to a
State Family Court of the same State.
1202. This item inserts new item 5 of the table which provides that an appeal may not be
instituted from a decision of a court of the Australian Capital Territory to the Federal Court,
the FCFC (Division 1), the FCFC (Division 2), to a State Court, or to the Court of another
Territory.
1203. This item inserts new item 6 of the table which provides that an appeal may not be
instituted from a decision of a court of the Northern Territory to the Federal Court, the FCFC
(Division 1), the FCFC (Division 2), to a State Court, or to the Court of another Territory.
1204. This item inserts new item 7 of the table which provides that an appeal may not be
instituted from a decision of a court of an external Territory to the FCFC (Division 1), the
FCFC (Division 2), or to a Court of a State or another Territory (whether internal or external).
222
1205. This item inserts new item 8 of the table which provides that an appeal may not be
instituted from a decision of a State Family Court to the FCFC (Division 1), the FCFC
(Division 2), to the Supreme Court of the same State, or to a Court of another State or
Territory. New item 8 specifically addresses State Family Courts established under section 41
of the Family Law Act. The effect of this amendment is that appeals from State Family
Courts will generally be heard in the new Family Law Appeal Division of the Federal Court,
which reflects the new appeal structure of the courts.
Item 659 - Subsection 210(2) (table)
1206. Item 659 amends the table in subsection 210(2), which deals with the application of
Division 3 of Part 6.2 of the Act. Item 604 repeals the table and inserts a new table which
contains no references to the Family Court and the Federal Circuit Court. The table replaces
these references with references to the FCFC (Division 1) and FCFC (Division 2). This
appropriately reflects the continuation of the Family Court and the Federal Circuit Court, as
the FCFC (Division 1) and the FCFC (Division 2), respectively.
1207. This item also introduces a new line in the table, providing that other legislation
applies when the Federal Court is both the transferring court and the receiving court.
Amendments will be made to the Federal Court Act to introduce a new provision
(section 32AC) allowing the Federal Court to transfer a matter, either on the application of a
party or on the Court's own initiative, from the FCFC (Division 2) to the Federal Court. This
will allow the Federal Court to uplift matters from the FCFC (Division 2) where it considers
it is appropriate to do so.
Item 660 - Subsection 210(2) (note 1)
1208. Item 660 amends note 1 of subsection 210(2) by replacing the reference to the
'Federal Circuit Court' with 'Federal Circuit and Family Court of Australia (Division 2)'.
Note 1 provides that the Federal Circuit Court can transfer a matter to the Federal Court with
a recommendation that the Federal Court transfer the matter to a superior court other than the
Federal Court. The amendment appropriately reflects the continuation of the Federal Circuit
Court as the FCFC (Division 2) and does not substantively change the intention of the note.
Item 661 - Subsection 210(2) (note 2)
1209. Item 661 repeals note 2 of subsection 210(2) and replaces it with a new note 2. Note 2
gives further detail as to which legislation is in scope for the operation of the subsection. New
note 2 refers to the correct provisions relating to transfers between the courts specified in
subsection 210(2).
Item 662 - Subsection 211(3) (paragraph (a) of the definition of lower court)
1210. Item 662 amends subsection 211(3), which deals with the exercise of transfer powers
between courts. It repeals paragraph (a) of the definition of 'lower court' under subsection
211(3), defined as the 'Federal Circuit Court', and replaces it with a new definition which
refers to the 'Federal Circuit and Family Court of Australia (Division 2)'. This appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
substantively change the operation of the definition.
Item 663 - Subsection 211(3) (paragraph (a) of the definition of relevant superior court)
223
1211. Item 663 amends subsection 211(3), which deals with the exercise of transfer powers
between courts. It amends the definition of 'relevant superior court' under subsection 211(3),
which is defined as the Federal Court in relation to the 'Federal Circuit Court', and provides
that it is the Federal Court in relation to the 'Federal Circuit and Family Court of Australia
(Division 2)'. This appropriately reflects the continuation of the Federal Circuit Court as the
FCFC (Division 2) and does not substantively change the operation of the definition.
Item 664 - Subsection 211(3) (after paragraph (a) of the definition of superior court)
1212. Item 664 amends subsection 211(3), which deals with the exercise of transfer powers
between courts. It inserts new paragraph (aa) in the definition of 'superior court', providing
that 'superior court' means the 'Federal Circuit and Family Court of Australia (Division 1)'.
In combination with item 665, this amendment appropriately reflects the continuation of the
Federal Circuit Court as the FCFC (Division 2) and does not substantively change the
operation of the definition.
Item 665 - Subsection 211(3) (paragraph (c) of the definition of superior court)
1213. Item 665 amends subsection 211(3), which deals with the exercise of transfer powers
between courts. It repeals paragraph (c) under the definition of 'superior court', which refers
to the Family Court. This change appropriately reflects the continuation of the Family Court
as the FCFC (Division 1), which is inserted as new paragraph (aa) in the definition of
'superior court' by item 664 above.
Item 666 - Subsections 221(3) and 222(3)
1214. Item 666 amends both subsections 221(3) and 222(3) which deal with civil penalty
provisions and enforceable undertakings, respectively. This item repeals paragraphs (b) under
both subsections which currently refer to the 'Federal Circuit Court of Australia', and
substitutes them with new paragraphs (b) which refer to the 'Federal Circuit and Family
Court of Australia (Division 2)'. This appropriately reflects the continuation of the Federal
Circuit Court as the FCFC (Division 2) and does not substantively change the operation of
these subsections.
Petroleum and Other Fuels Reporting Act 2017
Item 667 - Subparagraphs 33(2)(f)(ii) and 35(2)(b)(ii)
1215. Item 667 amends subparagraphs 33(2)(f)(ii) and 35(2)(b)(ii) of the Petroleum and
Other Fuels Reporting Act 2017. Subparagraph 33(2)(f)(ii) provides that the Federal Circuit
Court of Australia is a relevant court for the purposes of Part 2 of the Regulatory Powers
(Standard Provisions) Act 2014, as that Part applies in relation to the information mentioned
in subsection (1). Subparagraph 35(2)(b)(ii) deals with civil penalty provisions and provides
the Federal Circuit Court of Australia is a relevant court in relation to the civil penalty
provisions of the Act for the purposes of Part 4 of the Regulatory Powers (Standard
Provisions) Act 2014. This item removes the references to the 'Federal Circuit Court' from
both subparagraphs and replaces them with 'Federal Circuit and Family Court of Australia
(Division 2)'. This appropriately reflects the continuation of the Federal Circuit Court as the
224
Federal Circuit and Family Court of Australia (Division 2) and does not substantively change
the operation of these paragraphs.
Plant Breeder's Rights Act 1994
Item 668 - Subsection 3(1) (definition of Federal Circuit Court)
1216. This item repeals the definition of 'Federal Circuit Court' in section 3. Section 3
provides definitions of expressions used in the Plant Breeder's Rights Act 1994. The
definition is no longer required as the Federal Circuit Court will be continued as the FCFC
(Division 2). Where references in the Act are made to the FCFC (Division 2), the reference is
provided in full.
Item 669 - Paragraphs 39(5)(b) and 50(7)(b)
1217. This item replaces the reference to 'Federal Circuit Court' with 'Federal Circuit and
Family Court of Australia (Division 2)'. Section 39 provides provisional protection to
applicants for a plant breeder's right, whose rights may cease to apply due to a variety of
circumstances outlined in subsection 39(2). Section 50 provides circumstances in which the
Secretary must or may revoke a plant breeder's right. Paragraphs 39(5)(b) and 50(7)(b)
clarify that nothing in section 39 or 50 affects the powers of the Federal Court, the Federal
Circuit Court, or a Judge of those courts, under subsections 44A(2) or 44A(2A) of the
Administrative Appeals Tribunal Act 1975, respectively. This is a consequential amendment
to reflect the new name of the Court and does not alter the powers or functions conferred
under section 39 or 50.
Item 670 - Subsections 54(1) and 55(1)
1218. This item replaces the reference to 'Federal Circuit Court' with 'Federal Circuit and
Family Court of Australia (Division 2)'. Section 54 provides actions that can be taken in the
event of an infringement of a plant breeder's right. Section 55 provides for the circumstances
and procedure for a declaration as to non-infringement of a plant's breeder's right that may
be applied for. Both an action for infringement and an application for a declaration as to non-
infringement were able to be made to the Federal Circuit Court, which can now be made to
the Federal Circuit and Family Court of Australia (Division 2). This is a consequential
amendment to reflect the new name of the Court and does not alter the powers or functions
conferred under section 54 or 55.
Item 671 - Subsections 56(1)
1219. This item repeals the note in subsection 56(1) and inserts two notes to clarify that a
matter may be transferred to the Federal Court by the FCFC (Division 2) under section 120 of
the Federal Circuit and Family Court of Australia Act 2018, and that a matter may be
transferred from the FCFC (Division 2) by the Federal Court under section 32AC of the
Federal Court Act.
Item 672 - Paragraph 56(2)(a)
1220. This item replaces the reference to 'Federal Circuit Court' with 'Federal Circuit and
Family Court of Australia (Division 2)'. This is a consequential amendment to reflect the new
225
name of the Court and does not alter the jurisdiction of the Federal Court conferred under
section 56(2).
Item 673 - Section 56A (heading)
1221. This item replaces the reference to 'Federal Circuit Court' with 'Federal Circuit and
Family Court of Australia (Division 2)'. This is a consequential amendment to reflect the new
name of the Court. This amendment reflects further amendments that are made in this bill to
subsections of section 56A.
Item 674 - Subsections 56A(1), (3) and (4)
1222. Item 674 amends subsections 56A(1), (3) and (4) of the Act, which deal with the
jurisdiction of the Federal Circuit Court. Subsection 56A(1) provides that the Federal Circuit
Court has jurisdiction with respect to matters in which actions may, under Part 5 of the Act,
be begun in the Federal Circuit Court. Subsection 56A(3) provides that the relief that the
Federal Circuit Court may grant in an action or proceeding for infringement of a plant
breeders' right includes an injunction (subject to such terms, if any, as the Federal Circuit
Court thinks fit) and, at the option of the plaintiff, either damages or an account of profits.
1223. Subsection 56A(4) provides that the regulations may make provision in relation to the
practice and procedure of the Federal Circuit Court in actions under this Act, including
provision prescribing the time within which any action may be begun, or any other act or
thing may be done, and providing for the extension of any such time. This item removes the
references to the 'Federal Circuit Court' in these subsections and replaces them with 'Federal
Circuit and Family Court of Australia (Division 2)'. The amendment appropriately reflects
the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
substantively alter the operation of the subsections.
Item 675 - Subsection 56A(5)
1224. Item 675 repeals and replaces subsection 56A(5), which provides that
subsection 56A(4) does not limit the power of the Judges of the Federal Circuit Court, or a
majority of them, to make Rules of Court under section 81 of the Federal Circuit Court Act
that are consistent with the regulations referred to in that subsection.
1225. New subsection 56A(5) provides that subsection (4) does not limit the power of the
Chief Judge of the FCFC (Division 2) to make Rules of Court under Chapter 4 of the Federal
Circuit and Family Court of Australia Act 2018 that are consistent with the regulations
referred to in that subsection. The amendment reflects the proposed new power of the Chief
Judge of the FCFC (Division 2) to make Rules of Court for the FCFC (Division 2), rather
than the Judges or a majority of Judges. The amendment also refers to the correct provision
for the rule-making power for the FCFC (Division 2).
Item 676 - Section 72
1226. Item 676 amends section 72, which provides that, subject to any other law of the
Commonwealth, including Rules of Court of the High Court, the Federal Court or the Federal
Circuit Court, an application, a written submission or any other document may be prepared or
lodged, and any business may be transacted, for the purposes of this Act, by one person on
behalf of another person.
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1227. This item removes the reference to the 'Federal Circuit Court' and replaces it with
'Federal Circuit and Family Court of Australia (Division 2)'. The amendment appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
substantively alter the operation of the subsections.
Privacy Act 1988
Item 677 - Subsection 6(1) (definition of Federal Circuit Court)
1228. Item 677 repeals the definition of the Federal Circuit Court in subsection 6(1) of the
Privacy Act 1988. The definition is no longer required as the Federal Circuit Court will be
continued as Federal Circuit and Family Court of Australia (Division 2). Where reference is
made to the Federal Circuit and Family Court of Australia (Division 2) in the Act, the
reference is provided in full.
Item 678 - Section 19
1229. Item 678 amends section 19, which provides a guide to the interpretation of Part IIIA
of the Act. This item omits the words 'Division 7 provides for compensation orders, and
other orders, to be made by the Federal Court or Federal Circuit Court' and replaces them
with 'Division 7 provides for compensation orders, and other orders, to be made by the
Federal Court or Federal Circuit and Family Court of Australia (Division 2)'. The amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2)
and does not substantively alter the operation of the section.
Item 679 - Subsections 25(1) and 25A(2)
1230. Item 679 amends subsections 25(1) and 25A(2). Subsection 25(1) provides the
circumstances in which the Federal Court or the Federal Circuit Court may order an entity to
compensate a person for loss or damage (including injury to the person's feelings or
humiliation) suffered by the person. Subsection 25A(2) provides that the Federal Court or the
Federal Circuit Court may make such orders as the Court considers appropriate against the
entity to compensate the person or prevent or reduce the loss or damage suffered by the
person. This item removes the references to the 'Federal Circuit Court' in both subsections
and replaces them with 'Federal Circuit and Family Court of Australia (Division 2)'. The
amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC
(Division 2) and do not substantively alter the operation of the section.
Item 680 - Section 55A (heading)
1231. Item 680 amends the heading to section 55A, which reads 'Proceedings in the Federal
Court or Federal Circuit Court to enforce a determination'. The Item removes the reference to
the 'Federal Circuit Court' and replaces it with 'Federal Circuit and Family Court of
Australia (Division 2)'. The heading will now read 'Proceedings in the Federal Court or
Federal Circuit and Family Court of Australia (Division 2) to enforce a determination'.
Item 681 - Subsections 55A(1) and 62(1) and (2)
1232. Item 681 amends subsections 55A(1), 62(1) and (2). Subsection 55A(1) specifies who
may commence proceedings in the Federal Court or the Federal Circuit Court for an order to
227
enforce a determination. Subsections 62(1) and (2) deal with the enforcement of
determinations against an agency. Subsection 62(1) provides that if an agency fails to comply
with section 58, an application may be made to the Federal Court or the Federal Circuit Court
for an order directing the agency to comply. Subsection 62(2) provides that if the principal
executive of an agency fails to comply with section 59, an application may be made to the
Federal Court or the Federal Circuit Court for an order directing the principal executive to
comply. This item removes the references to the Federal Circuit Court from these subsections
and replaces them with 'Federal Circuit and Family Court of Australia (Division 2)'. The
amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC
(Division 2) and do not substantively alter the operation of the section.
Item 682 - Paragraphs 63(2)(a) and (b)
1233. Item 682 amends paragraphs 63(2)(a) and (b), which deal with legal assistance.
Paragraph 63(2)(a) provides that a person who has commenced or proposes to commence
proceedings in the Federal Court or the Federal Circuit Court under section 55 may apply to
the Attorney-General for the provision of assistance under section 63 in respect of the
proceedings. Paragraph 63(2)(b) provides that a person who has engaged in conduct or is
alleged to have engaged in conduct in respect of which proceedings have been commenced in
the Federal Court or the Federal Circuit Court under section 55 may apply to the
Attorney-General for the provision of assistance under section 63 in respect of the
proceedings. This item removes the references to the 'Federal Circuit Court' from both
paragraphs and replaces them with 'Federal Circuit and Family Court of Australia (Division
2)'. The amendments appropriately reflect the continuation of the Federal Circuit Court as the
FCFC (Division 2) and do not substantively alter the operation of the section.
Item 683 - Paragraphs 80U(3)(b), 80V(3)(b) and 80W(3)(b)
1234. Item 683 repeals paragraphs 80U(3)(b), 80V(3)(b) and 80W(3)(b). These paragraphs
will be inserted by the Regulatory Powers (Standardisation Reform) Act 2017. Paragraph
80U(3)(b) provides that the Federal Circuit Court is a relevant court in relation to the civil
penalty provisions of the Act for the purposes of Part 4 of the Regulatory Powers (Standard
Provisions) Act 2014. Paragraph 80V(3)(b) provides that the Federal Circuit Court is a
relevant court in relation to the provisions mentioned in subsection 80V(1) of the Act for the
purposes of Part 6 of the Regulatory Powers (Standard Provisions) Act 2014. Paragraph
80W(3)(b) provides that the Federal Circuit Court is a relevant court in relation to the
provisions mentioned in subsection 80W(1) of the Act for the purposes of Part 7 of the
Regulatory Powers (Standard Provisions) Act 2014.
1235. This item inserts new paragraphs which replace the references to the Federal Circuit
Court with references to the Federal Circuit and Family Court of Australia (Division 2). The
amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC
(Division 2) and do not substantively alter the operation of the section.
Proceeds of Crime Act 2002
Item 684 - Subparagraphs 315B(2)(a)(v) and (b)(v)
228
1236. Item 684 amends subparagraphs 315B(2)(a)(v) and (b)(v) of the Proceeds of Crime
Act 2002. Section 315B deals with the transfer of responsibility for principal orders and
applications. Subparagraph 315B(2)(a)(v) provides the transferee authority must give a
written notice of transfer of responsibility for an application for a principal order or for a
principal order to, in the case of a transfer of responsibility for an application for a principal
order, the Family Court of Australia, if an application has been made to that court by
a proceeds of crime authority for a stay of proceedings because of the application for the
principal order, or that court has given notice to a proceeds of crime authority of a stay
having been granted.
1237. Subparagraph 315B(2)(b)(v) provides that the transferee authority must give a written
notice of transfer of responsibility for an application for a principal order or for a principal
order to, in the case of a transfer of responsibility for a principal order the Family Court of
Australia, if an application has been made to that court by a proceeds of crime authority for a
stay of proceedings because of the order or the application for the order, or that court has
given notice to a proceeds of crime authority of a stay having been granted.
1238. The item removes the references to the 'Family Court of Australia' and replaces them
with 'Federal Circuit and Family Court of Australia (Division 1)'. The amendments
appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and do
not substantively alter the operation of the section.
Product Emissions Standards Act 2017
Item 685 - Subparagraphs 24(3)(f)(ii), 25(2)(f)(ii), 26(2)(b)(ii), 28(2)(b)(ii) and
29(2)(b)(ii)
1239. Item 685 repeals subparagraphs 24(3)(f)(ii), 25(2)(f)(ii), 26(2)(b)(ii), 28(2)(b)(ii) and
29(2)(b)(ii), which are contained in Part 5 of the Product Emissions Standards Act 2017, and
replaces them with new subparagraphs. Part 5 of the Act applies the Regulatory Powers
(Standard Provisions) Act 2014 to the product emissions standards framework. Item 630
removes the references to the 'Federal Circuit Court' and replaces them with 'Federal Circuit
and Family Court of Australia (Division 2)'. The amendments appropriately reflect the
continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively
alter the operation of the section.
Item 686 - Paragraphs 35(2)(b) and 37(1)(b)
1240. Item 686 repeals paragraphs 35(2)(b) and 37(1)(b) and replaces them with new
paragraphs. These paragraphs are contained in Division 3 of Part 6, which relates to the
forfeiture of seized products. Item 632 removes the references to the 'Federal Circuit Court of
Australia' from both paragraphs and replaces them with 'Federal Circuit and Family Court of
Australia (Division 2)'. The amendments appropriately reflect the continuation of the Federal
Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of the
section.
Product Stewardship Act 2011
229
Item 687 - Section 6 (paragraph (b) of the definition of issuing officer)
1241. Item 687 amends paragraph (b) of the definition of 'issuing officer' contained within
section 6 of the Product Stewardship Act 2011. Section 6 provides definitions for terms
contained within the Act. The item removes the reference to the 'Federal Circuit Court of
Australia' and replaces it with 'Federal Circuit and Family Court of Australia (Division 2)'.
The amendment appropriately reflects the continuation of Judges of the Federal Circuit Court
as Judges of the FCFC (Division 2) and does not substantively alter the operation of the
section.
Item 688 - Section 87 (heading)
1242. Item 688 amends the heading to section 87, which currently reads 'Federal Circuit
Court Judges--consent to nomination'. The item removes the reference to 'Federal Circuit
Court Judges' and replaces it with 'Judges of the Federal Circuit and Family Court of
Australia (Division 2)'. The heading now reads 'Judges of the Federal Circuit and Family
Court of Australia (Division 2)--consent to nomination'. The amendment appropriately
reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC
(Division 2) and does not substantively alter the operation of the section.
Item 689 - Subsections 87(1), (2) and 88(2)
1243. Item 689 amends subsections 87(1), (2) and 88(2), which relates to the powers of
issuing officers. Item 689 removes the references to the 'Federal Circuit Court of Australia'
and replaces them with 'Federal Circuit and Family Court of Australia (Division 2)'. The
amendments appropriately reflect the continuation of Judges of the Federal Circuit Court as
Judges of the FCFC (Division 2) and do not substantively alter the operation of the section.
Public Interest Disclosure Act 2013
Item 690 - Section 8 (definition of Federal Circuit Court)
1244. Item 690 repeals the definition of the 'Federal Circuit Court', contained in section 8
of the Public Interest Disclosure Act 2013. The definition of Federal Circuit Court is no
longer required as the Federal Circuit Court will be continued as Federal Circuit and Family
Court of Australia (Division 2). Where reference is made to the Federal Circuit and Family
Court of Australia (Division 2) in the Act, the reference is provided in full.
Item 691 - Section 9
1245. Item 691 amends section 9, which provides a simplified outline of Division 1 of Part 2
of the Act. This item omits the words 'The Federal Court or Federal Circuit Court may make
orders for civil remedies (including compensation, injunctions and reinstatement of
employment) if a reprisal is taken against a person because of a public interest disclosure
(including a proposed or a suspected public interest disclosure).' This wording is replaced
with 'The Federal Court or Federal Circuit and Family Court of Australia (Division 2) may
make orders for civil remedies (including compensation, injunctions and reinstatement of
employment) if a reprisal is taken against a person because of a public interest disclosure
(including a proposed or a suspected public interest disclosure).' The amendment
230
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2)
and does not substantively alter the operation of the section.
Item 692 - Sections 14, 15, 16 and 17
1246. Item 692 amends sections 14, 15, 16 and 17, which deal with protection from
reprisals. Item 638 amends these sections by removing references to the 'Federal Circuit
Court' and replacing them with references to the 'Federal Court or Federal Circuit and
Family Court of Australia (Division 2)'. The amendments appropriately reflect the
continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively
alter the operation of the section.
Item 693 - Subsection 22A(1)
1247. Item 693 amends subsection 22A(1). Subsection 22A(1) provides that a person is not
entitled to make an application to the Federal Court or Federal Circuit Court for an order
under section 14, 15 or 16 of the Act in relation to particular conduct if another application
has been made under section 539 of the Fair Work Act 2009 in relation to a contravention of
section 340 or 772 of that Act constituted by the same conduct or under section 394 of
the Fair Work Act 2009 in relation to the same conduct. This item removes the reference to
the 'Federal Circuit Court' and replaces it with 'Federal Circuit and Family Court of
Australia (Division 2)'. This amendment reflects the nomenclature changes associated with
the new court structure.
Item 694 - Paragraphs 73(2)(b) to (ca)
1248. Item 694 repeals paragraphs 73(2)(b) to (ca). Section 73 deals with the meaning of
'principal officer'. Item 640 inserts new paragraphs 73(2)(b), which provides that the Chief
Executive Officer and Principal Registrar of the Federal Court is the chief executive officer
of the Federal Court, the FCFC (Division 1) and the FCFC (Division 2). Under the new court
structure, the positions of Chief Executive Officer of the Federal Circuit Court and Chief
Executive Officer of the Family Court will be abolished. Those positions were established to
provide support to the Chief Justice and the Chief Judge of those courts, respectively. The
Chief Executive Officer and Principal Registrar of the Federal Court will now provide
support to the Chief Justice of the FCFC (Division 1) and the Chief Judge of the FCFC
(Division 2).
Regulatory Powers (Standard Provisions) Act 2014
Item 695 - Section 4, paragraph (c) (definition of judicial officer)
1249. Item 695 repeals paragraph (c) of the definition of 'judicial officer' in section 4 of the
Regulatory Powers (Standard Provisions) Act 2014. Paragraph (c) of the definition currently
provides that judicial officer means a Judge of the Federal Circuit Court. This item repeals
the paragraph and substitutes it with a new paragraph (c), which provides that a judicial
officer means a Judge of the Federal Circuit and Family Court of Australia (Division 2)'. The
amendment appropriately reflects the continuation of Judges of the Federal Circuit Court as
Judges of the FCFC (Division 2) and does not substantively alter the operation of the section.
231
Remuneration and Allowances Act 1990
Item 696 - Part 2 of Schedule 1 (cell at table item dealing with Chief Justice of the
Family Court, column headed 'Office')
1250. Item 696 amends the table in Part 2 of Schedule 1 of the Remuneration and
Allowances Act 1990, which deals with salaries of holders of judicial and other offices. This
item repeals the cell of the table which provides 'Chief Justice of the Family Court' and
replaces it with a new cell which provides 'Chief Justice of the Federal Circuit and Family
Court of Australia (Division 1)'. This amendment reflects the nomenclature changes
associated with the new court structure and the ongoing role of the Chief Justice of the
Family Court as Chief Justice of the FCFC (Division 1).
Item 697 - Part 2 of Schedule 1 (cell at table item dealing with Deputy Chief Justice of
the Family Court, column headed 'Office')
1251. Item 697 amends the table in Part 2 of Schedule 1 of the Act, which deals with
salaries of holders of judicial and other offices. The Item repeals the cell of the table which
provides 'Deputy Chief Justice of the Family Court' and replaces it with a new cell which
provides 'Deputy Chief Justice of the Federal Circuit and Family Court of Australia
(Division 1)'. This amendment reflects the nomenclature changes associated with the new
court structure and the ongoing role of the Deputy Chief Justice of the Family Court as
Deputy Chief Justice of the FCFC (Division 1).
Item 698 - Part 2 of Schedule 1 (table item dealing with Judge assigned to the Appeal
Division of the Family Court)
1252. Item 698 amends the table in Part 2 of Schedule 1 of the Act, which deals with
salaries of holders of judicial and other offices. This item repeals the item of the table which
provides 'Judge assigned to the Appeal Division of the Family Court' and the rate per annum
of salary. Under the reforms the Appeal Division of the Family Court will be abolished, with
most of the appellate jurisdiction being transferred to the new Family Law Appeal Division
of the Federal Court. As such, the table item is no longer required.
Item 699 - Part 2 of Schedule 1 (cell at table item dealing with Senior Judge of the
Family Court, column headed 'Office')
1253. Item 699 amends the table in Part 2 of Schedule 1 of the Act, which deals with
salaries of holders of judicial and other offices. This item repeals the item of the table which
provides 'Senior Judge of the Family Court' and replaces it with a new cell which provides
'Senior Judge of the Federal Circuit and Family Court of Australia (Division 2)'. This
amendment reflects the nomenclature changes associated with the new court structure.
Item 700 - Part 2 of Schedule 1 (cell at table item dealing with Any other Judge of the
Family Court, column headed 'Office')
1254. Item 700 amends the table in Part 2 of Schedule 1 of the Act, which deals with
salaries of holders of judicial and other offices. This item repeals the cell of the table which
provides 'Any other Judge of the Family Court' and replaces it with a new cell which
provides 'Judge of the Federal Circuit and Family Court of Australia (Division 1)'. This
232
amendment reflects the nomenclature changes associated with the new court structure and the
ongoing role of Judges of the Family Court as Judges of the FCFC (Division 1).
Item 701 - Part 4 of Schedule 1 (table item dealing with Judicial Registrar of the Family
Court of Australia)
1255. Item 701 amends the table in Part 4 of Schedule 1 of the Act, which deals with
salaries of holders of judicial and other offices. This item repeals the item of the table which
provides the office of the Judicial Registrar of the Family Court of Australia and the rate per
annum of salary. This item is no longer required as the office of the Judicial Registrar will be
abolished under the new court structure, with the duties of the position absorbed into the role
of the Chief Executive Officer and Principal Registrar of the Federal Court.
Renewable Energy (Electricity) Act 2000
Item 702 - Subsection 5(1) (definition of Federal Circuit Court)
1256. Item 702 repeals the definition of 'Federal Circuit Court' in subsection 5(1) of the
Renewable Energy (Electricity) Act 2000. Subsection 5(1) provides definitions for terms
contained within the Act. The definition of Federal Circuit Court is no longer required as the
Federal Circuit Court will be continued as FCFC (Division 2). Where reference is made to the
'Federal Circuit and Family Court of Australia (Division 2)' in the Act, the reference is
provided in full.
Item 703 - Subsection 154A(1) (paragraph (b) of the definition of Court)
1257. Item 703 repeals paragraph (b) of the definition of 'court' within subsection 154A(1),
which provides that court means the Federal Circuit Court. This item substitutes a new
paragraph (b) which provides that court means the FCFC (Division 2). This amendment
reflects the nomenclature changes associated with the new court structure.
Resale Royalty Right for Visual Artists Act 2009
Item 704 - Section 3 (definition of Federal Circuit Court)
1258. Item 704 repeals the definition of 'Federal Circuit Court' in section 3 of the Resale
Royalty Right for Visual Artists Act 2009. Section 3 provides definitions for terms contained
within the Act. The definition of Federal Circuit Court is no longer required as the Federal
Circuit Court will be continued as the FCFC (Division 2). Where reference is made to the
'Federal Circuit and Family Court of Australia (Division 2)' in the Act, the reference is
provided in full.
Item 705 - Subsection 39(1)
1259. Item 705 amends subsection 39(1), which provides that within six years of a person
(the wrongdoer) contravening a civil penalty provision, the collecting society may apply on
behalf of the Commonwealth to the Federal Court or the Federal Circuit Court for an order
that the wrongdoer pay the Commonwealth a pecuniary penalty. This item removes the
233
reference to the 'Federal Circuit Court' and replaces it with 'Federal Circuit and Family
Court of Australia (Division 2)'. The amendment appropriately reflects the continuation of
the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the
operation of the section.
Item 706 - Sections 43 and 44
1260. Item 706 amends sections 43 and 44. Section 43 provides that if the Federal Court or
Federal Circuit Court orders a person to pay a pecuniary penalty the penalty is payable to the
Commonwealth and the Commonwealth may enforce the order as if it were a judgment of the
Court. Section 44 provides that the Federal Court or Federal Circuit Court must not make a
pecuniary penalty order against a person for a contravention of a civil penalty provision if the
person has been convicted of an offence constituted by conduct that is substantially the same
as the conduct constituting the contravention. Item 653 removes the references in both
sections to the 'Federal Circuit Court' and replaces them with 'Federal Circuit and Family
Court of Australia (Division 2)'. This amendment reflects the nomenclature changes
associated with the new court structure.
Item 707 - Section 51 (heading)
1261. Item 707 amends the heading to section 51, which reads 'Jurisdiction of the Federal
Circuit Court'. The Item removes the reference to the 'Federal Circuit Court' and replaces it
with 'Federal Circuit and Family Court of Australia (Division 2)'. The new heading reads
'Jurisdiction of the Federal Circuit and Family Court of Australia (Division 2)'.
Item 708 - Section 51
1262. Item 708 amends section 51, which provides for the jurisdiction of the Federal Circuit
Court. The Item removes the reference to the 'Federal Circuit Court' and replaces it with
'Federal Circuit and Family Court of Australia (Division 2)'. The amendment appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
substantively alter the operation of the section.
Security of Critical Infrastructure Act 2018
Item 709 - Paragraph 49(4)(b)
1263. Item 709 amends paragraph 49(4)(b) of the Security of Critical Infrastructure Act
2018 , which provides for the jurisdiction of the Federal Circuit Court. The item removes the
reference to the 'Federal Circuit Court' and replaces it with 'Federal Circuit and Family
Court of Australia (Division 2)'. The amendment appropriately reflects the continuation of
the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the
operation of the section.
Service and Execution of Process Act 1992
Item 710 - At the end of subsection 8(2)(d)
234
1264. Item 710 amends subsection 8(2) of the Service and Execution of Process Act 1992 to
insert new subparagraphs (e) and (f). Subparagraph (e) provides that the Act does not affect
the operation of the Federal Court of Australia Act 1976, or the regulations or Rules of Court
made under that Act, to the extent that any provisions relate to the exercise of powers by the
Family Law Appeal Division of the Federal Court.
1265. New paragraph (f) provides that the Act does not affect the Federal Circuit and
Family Court of Australia Act 2018, regulations made under that Act or Rules of Court made
under Chapter 3 of that Act. The new paragraphs recognise that, in relation to family law
matters, Rules of Court may be made in relation to the Family Law Appeal Division of the
Federal Court and the FCFC (Division 1).
Shipping Registration Act 1981
Item 711 - Subsection 3(1) (paragraph (b) of the definition of relevant court)
1266. Item 711 repeals paragraph (b) of the definition of 'relevant court' in subsection 3(1)
of the Shipping Registration Act 1981, which provides that the Federal Circuit Court is a
relevant court in relation to a matter. The Item repeals the reference to the 'Federal Circuit
Court of Australia' and replaces it with 'Federal Circuit and Family Court of Australia
(Division 2)'. The amendment appropriately reflects the continuation of the Federal Circuit
Court as the FCFC (Division 2) and does not substantively alter the operation of the
definition.
Item 712 - Subsection 61BZD(1) (cell at table item 2, column headed 'Court on which
civil jurisdiction is conferred')
1267. Item 712 amends the table in subsection 61BZD(1), which confers jurisdiction on
certain courts in relation to civil matters arising under the Act and places specified limits of
the exercise of that jurisdiction. The Item removes the reference to the 'Federal Circuit Court
of Australia' at item 2 of the table and replaces it with a reference to the 'Federal Circuit and
Family Court of Australia (Division 2)'. The amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively
alter the operation of the subsection.
Social Security Act 1991
Item 713 - Paragraphs 553A(4)(d), 596(4)(d), 660XBE(4)(d), 729AA(4)(d), 759(4)(d) and
771HB(4)(d)
1268. Item 713 repeals paragraphs 553A(4)(d), 596(4)(d), 660XBE(4)(d), 729AA(4)(d),
759(4)(d) and 771HB(4)(d) of the Social Security Act 1991, which each refer to the Federal
Circuit Court. This item substitutes the repealed paragraphs with new paragraphs that replace
references to the 'Federal Circuit Court of Australia' with references to the 'Federal Circuit
and Family Court of Australia (Division 2)'. The amendments appropriately reflect the
continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively
alter the operation of the paragraphs.
235
Item 714 - Subsection 1243(1) (note)
1269. Item 714 amends the note at subsection 1243(1), which provides that Division 5 of
Part 5.5 of the Act deals with appeals to the Federal Court or the Federal Circuit Court
against the making of departure prohibition orders. Item 660 removes the reference to the
'Federal Circuit Court of Australia' and replaces it with a reference to the 'Federal Circuit
and Family Court of Australia (Division 2)'. This amendment reflects the nomenclature
changes associated with the new court structure.
Item 715 - Subsection 1252(1)
1270. Item 715 amends subsection 1252(1), which provides that a person aggrieved by the
making of a departure prohibition order may appeal to the Federal Court or the Federal
Circuit Court against the making of the order. The item removes the reference to the 'Federal
Circuit Court of Australia' and replaces it with a reference to the 'Federal Circuit and Family
Court of Australia (Division 2)'. This amendment reflects the nomenclature changes
associated with the new court structure.
Stronger Futures in the Northern Territory Act 2012
Item 716 - Section 5 (paragraph (b) of the definition of relevant court)
1271. Item 716 repeals paragraph (b) of the definition of 'relevant court' in section 5 of the
Stronger Futures in the Northern Territory Act 2012, which provides that the Federal Circuit
Court of Australia is a relevant court in relation to a matter. The item repeals the paragraph
which refers to the 'Federal Circuit Court of Australia' and replaces it with a paragraph
which refers 'Federal Circuit and Family Court of Australia (Division 2)'. This amendment
reflects the nomenclature changes associated with the new court structure.
Item 717 - Subsection 103(1) (cell at table item 2, column headed 'Court on which civil
jurisdiction is conferred')
1272. Item 717 amends the table in subsection 103(1). The item amends the table which
confers jurisdiction on certain courts in relation to civil matters arising under the Act and
places specified limits of the exercise of that jurisdiction. The item removes the reference in
the table to the 'Federal Circuit Court of Australia' and replaces it with a reference to the
'Federal Circuit and Family Court of Australia (Division 2)'. This amendment reflects the
nomenclature changes associated with the new court structure.
Student Assistance Act 1973
Item 718 - Subsection 43K(1) (note)
1273. Item 718 amends the note in subsection 43K(1) of the Student Assistance Act 1973.
The note provides that Subdivision E of Part 6 of the Act deals with appeals to the Federal
Court or the Federal Circuit Court against the making of departure prohibition orders'. This
item removes the reference to the 'Federal Circuit Court of Australia' and replaces it with a
236
reference to the 'Federal Circuit and Family Court of Australia (Division 2)'. This
amendment reflects the nomenclature changes associated with the new court structure.
Item 719 - Subsection 43U(1)
1274. Item 719 amends subsection 43U(1) which provides that a person aggrieved by the
making of a departure prohibition order may appeal to the Federal Court or the Federal
Circuit Court against the making of the order. This item removes the reference to the 'Federal
Circuit Court of Australia' and replaces it with a reference to the 'Federal Circuit and Family
Court of Australia (Division 2)'. This amendment reflects the nomenclature changes
associated with the new court structure.
Taxation Administration Act 1953
Item 720 - Section 14ZQ
1275. Item 720 repeals the definitions of 'Family Court' and 'Family Court Judge' from
section 14ZQ from Taxation Administration Act 1953. Section 14ZQ provides general
interpretative provisions for the purposes of the Act. These definitions are no longer required
as the Family Court will continue as the FCFC (Division 1). Judges of the FCFC (Division 1)
will continue as Judges of the Federal Circuit and Family Court of Australia (Division 1).
Where reference is made to the 'Federal Circuit and Family Court of Australia (Division 1)'
or 'Judges of the Federal Circuit and Family Court of Australia (Division 1)', those
references are provided in full.
Item 721 - Section 14ZZS (heading)
1276. Item 721 amends the heading to section 14ZZS, which currently reads 'Transfer of
certain proceedings to Family Court'. The Item omits the reference to the 'Family Court'
from the heading and replaces it with a reference to the 'Federal Circuit and Family Court of
Australia (Division 1)'. The new heading will now read 'Transfer of certain proceedings to
Federal Circuit and Family Court of Australia (Division 1)'. This amendment reflects the
nomenclature changes associated with the new court structure.
Item 722 - Subsection 14ZZS(1)
1277. Item 772 removes the reference to the 'Family Court' from subsection 14ZZS(1) of
the Act, and replaces it with a reference to the 'Federal Circuit and Family Court of Australia
(Division 1)'. Section 14ZZS relates to the transfer of proceedings to the Family Court. The
amendment appropriately reflects the continuation of the Family Court as the FCFC
(Division 1) and does not substantively alter the operation of the section.
Item 723 - Subsection 14ZZS(2)
1278. Item 723 removes the first occurring reference to the 'Family Court' from subsection
14ZZS(2) and replaces it with a reference to the 'Federal Circuit and Family Court of
Australia (Division 1)'. Section 14ZZS relates to the transfer of proceedings to the Family
Court. The amendment appropriately reflects the continuation of the Family Court as the
FCFC (Division 1) and does not substantively alter the operation of the section.
237
Item 724 - Paragraphs 14ZZS(2)(a), (b), (c), (d) and (e)
1279. Item 724 amends paragraphs 14ZZS(2)(a), (b), (c), (d) and (e) by removing the
references to the 'Family Court' wherever they occur and replacing these with references to
the 'Federal Circuit and Family Court of Australia (Division 1)'. Section 14ZZS relates to the
transfer of proceedings to the Family Court. The amendments appropriately reflect the
continuation of the Family Court as the FCFC (Division 1) and do not substantively alter the
operation of the section.
Item 725 - Subparagraph 14ZZS(2)(f)(i)
1280. Item 725 amends subparagraph 14ZZS(2)(f)(i) by removing the reference to the
'Family Court' and replacing it with a reference to the 'Federal Circuit and Family Court of
Australia (Division 1)'. Section 14ZZS relates to the transfer of proceedings to the Family
Court. The amendments appropriately reflect the continuation of the Family Court as the
FCFC (Division 1) and do not substantively alter the operation of the section.
Item 726 - Subparagraphs 14ZZS(2)(f)(ii) and (iii)
1281. Item 726 amends subparagraphs 14ZZS(2)(f)(ii) and (iii) by removing the references
to the 'Family Court' and replacing it with references to the 'Federal Circuit and Family
Court of Australia (Division 1)'. Section 14ZZS relates to the transfer of proceedings to the
Family Court. The amendments appropriately reflect the continuation of the Family Court as
the FCFC (Division 1) and do not substantively alter the operation of the section.
Item 727 - Subparagraph 14ZZS(2)(f)(iv)
1282. Item 727 amends subparagraph 14ZZS(2)(f)(iv) by removing the reference to the
'Family Court' and replacing it with a reference to the 'Federal Circuit and Family Court of
Australia (Division 1)'. Section 14ZZS relates to the transfer of proceedings to the Family
Court. The amendment appropriately reflects the continuation of the Family Court as the
FCFC (Division 1) and does not substantively alter the operation of the section.
Item 728 - Subsections 14ZZS(3) and (4)
1283. Item 728 amends subsections 14ZZS(3) and (4) by removing the references to the
Family Court and replacing it with references to the 'Federal Circuit and Family Court of
Australia (Division 1)'. Section 14ZZS relates to the transfer of proceedings to the Family
Court. The amendments appropriately reflect the continuation of the Family Court as the
FCFC (Division 1) and do not substantively alter the operation of the section.
Item 729 - Section 17A (heading)
1284. Item 729 amends the heading to section 17A, which currently reads 'Powers of
Federal Court and Federal Circuit Court in respect of taxation matters'. The Item removes the
reference to the Federal Circuit Court and replaces it with a reference to the Federal Circuit
and Family Court of Australia (Division 2). The new heading now reads 'Powers of Federal
Court and Federal Circuit and Family Court of Australia (Division 2) in respect of taxation
matters'.
Item 730 - Subsection 17A(2)
238
1285. Item 730 removes the reference to the 'Federal Circuit Court of Australia' from
subsection 17A(2) and replaces it with a reference to the 'Federal Circuit and Family Court of
Australia (Division 2)'. Subsection 17A(2) provides limits of the powers of the Federal
Circuit Court. The amendment appropriately reflects the continuation of the Federal Circuit
Court as the FCFC (Division 2) and does not substantively alter the operation of the section.
Tertiary Education Quality and Standards Agency Act 2011
Item 731 - Section 5 (definition of Federal Circuit Court)
1286. Item 731 repeals the definition of the 'Federal Circuit Court' from section 5 of the
Tertiary Education Quality and Standards Agency Act 2011. The definition of Federal Circuit
Court is no longer required as the Federal Circuit Court will be continued as FCFC
(Division 2). Where reference is made to the 'Federal Circuit and Family Court of Australia
(Division 2)' in the Act, the reference is provided in full.
Item 732 - Section 5 (paragraph (b) of the definition of issuing officer)
1287. Item 732 amends paragraph (b) of the definition of 'issuing officer' in section 5 of the
Act. The definition currently provides that an issuing officer means a Judge of the Federal
Circuit Court in relation to whom a consent under subsection 96(1) and a nomination under
subsection 96(2) are in force. The item replaces the reference to the Federal Circuit Court
with a reference to the Federal Circuit and Family Court of Australia (Division 2). The
amendment appropriately reflects the continuation of Judges of the Federal Circuit Court as
Judges of the FCFC (Division 2) and does not substantively alter the operation of the section.
Item 733 - Section 96 (heading)
1288. Item 733 amends the heading to section 96, which currently reads 'Federal Circuit
Court Judges--consent to nomination'. The item removes the words 'Federal Circuit Court
Judges' and inserts the words 'Judges of the Federal Circuit and Family Court of Australia
(Division 2)'. The new heading now reads 'Judges of the Federal Circuit and Family Court of
Australia (Division 2)--consent to nomination'.
Item 734 - Subsections 96(1), (2) and 97(2)
1289. Item 734 amends subsections 96(1), (2) and 97(2). Subsection 96 provides for
consents and nominations in relation to issuing officers, and section 97 provides that the
powers are conferred on issuing officers in their personal capacity. The item removes the
references to the Federal Circuit Court and replacing them with references to the Federal
Circuit and Family Court of Australia (Division 2). The amendments appropriately reflect the
continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and
do not substantively alter the operation of the section.
Item 735 - Paragraph 115(1)(b)
1290. Item 735 repeals paragraph 115(1)(b), which provides that within six years of a
person (the wrongdoer) contravening a civil penalty provision, Tertiary Education Quality
and Standards Agency may apply, on behalf of the Commonwealth, to the Federal Circuit
Court for an order that the wrongdoer pay the Commonwealth a pecuniary penalty. The item
239
substitutes paragraph (b) with a new paragraph (b), which replaces the reference to the
Federal Circuit Court with a reference to the Federal Circuit and Family Court of Australia
(Division 2). The amendment appropriately reflects the continuation of the Federal Circuit
Court as the FCFC (Division 2) and does not substantively alter the operation of the section.
Item 736 - Section 118
1291. Item 675 amends section 118, which provides that the Federal Court or the Federal
Circuit Court may direct that two or more proceedings for civil penalty orders are to be heard
together. The item replaces the reference to the Federal Circuit Court with a reference to the
Federal Circuit and Family Court of Australia (Division 2). The amendment appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
substantively alter the operation of the section.
Item 737 - Subsection 119(3)
1292. Item 737 amends subsection 119(3), which provides that the Federal Court or the
Federal Circuit Court may make a single order to pay a pecuniary penalty for all the
contraventions described in subsection 119(2), but the penalty must not exceed the sum of the
maximum penalties that could be ordered if a separate penalty were ordered for each of the
contraventions. The Item replaces the reference to the Federal Circuit Court with a reference
to the Federal Circuit and Family Court of Australia (Division 2). The amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2)
and does not substantively alter the operation of the section.
Item 738 - Section 121
1293. Item 738 amends section 121, which provides that the Federal Court or the Federal
Circuit Court must not make a civil penalty order against a person for a contravention of a
civil penalty provision if the person has been convicted of an offence constituted by conduct
that is substantially the same as the conduct constituting the contravention. The item replaces
the reference to the Federal Circuit Court with a reference to the Federal Circuit and Family
Court of Australia (Division 2). The amendment appropriately reflects the continuation of the
Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation
of the section.
Item 739 - Subsections 126(1), 127(1) and (2)
1294. Item 739 amends subsections 126(1), 127(1) and (2). Sections 126 and 127 relate to
the enforcement of undertakings and injunctions. The item replaces references to the Federal
Circuit Court with references to the Federal Circuit and Family Court of Australia (Division
2) in those subsections. The amendments appropriately reflect the continuation of the Federal
Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of the
section.
Item 740 - Sections 128, 129, 130 and 131
1295. Item 740 amends sections 128, 129, 130 and 131, which relate to injunctions. The
item replaces the references to the Federal Circuit Court wherever they occur in those
sections with references to the Federal Circuit and Family Court of Australia (Division 2).
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The amendment appropriately reflects the continuation of the Federal Circuit Court as the
FCFC (Division 2) and does not substantively alter the operation of the section.
Therapeutic Goods Act 1989
Item 741 - Subsection 3(1) (definition of Federal Circuit Court)
1296. Item 741 repeals the definition of 'Federal Circuit Court' from subsection 3(1) of the
Therapeutic Goods Act 1989. Subsection 3(1) provides definitions for the interpretation of
terms contained in the Act. The definition of Federal Circuit Court is no longer required as
the Federal Circuit Court will be continued as Federal Circuit and Family Court of Australia
(Division 2). Where reference is made to the Federal Circuit and Family Court of Australia
(Division 2) in the Act, the reference is provided in full.
Item 742 - Section 42YM
1297. Item 742 amends section 42YM, which provides a simplified outline of Part 5A-4 of
the Act. The Item repeals the paragraph of the outline which reads 'The Secretary can seek
injunctions from the Federal Court or Federal Circuit Court to restrain a person from
contravening this Act or the regulations, or to compel compliance with this Act or the
regulations' and replaces it with a new paragraph which reads 'The Secretary can seek
injunctions from the Federal Court or Federal Circuit and Family Court of Australia (Division
2) to restrain a person from contravening this Act or the regulations, or to compel compliance
with this Act or the regulations'. The amendment appropriately reflects the continuation of
the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the
operation of the section.
Item 743 - Sections 42YN, 42YO, 42YP, 42YQ and 42YR
1298. Item 743 amends sections 42YN, 42YO, 42YP, 42YQ and 42YR, contained in Part
5A-4--Injunctions. The Item replaces the references to the Federal Circuit Court wherever
they occur with references to the Federal Circuit and Family Court of Australia (Division 2).
This amendment reflects the ongoing operation of the Federal Circuit Court as the Federal
Circuit and Family Court of Australia (Division 2).
Tobacco Plain Packaging Act 2011
Item 744 - Paragraphs 52(9)(b) and 85(3)(b)
1299. Item 744 repeals paragraphs 52(9)(b) and 85(3)(b) of the Tobacco Plain Packaging
Act 2011. Section 59 relates to investigation powers and section 85 relates to civil penalty
provisions. The item repeals the existing paragraphs and inserts new paragraphs 52(9)(b) and
85(3)(b) which refer to the Federal Circuit and Family Court of Australia (Division 2) rather
than the Federal Circuit Court. The amendments appropriately reflect the continuation of the
Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of
the section.
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Trade Marks Act 1995
Item 745 - Subsection 6(1) (definition of Federal Circuit Court)
1300. Item 745 repeals the definition of 'Federal Circuit Court' in subsection 6(1) of the
Trade Marks Act 1995. Subsection 6(1) provides definitions for the interpretation of terms
contained in the Act. The definition of Federal Circuit Court is no longer required as the
Federal Circuit Court will be continued as Federal Circuit and Family Court of Australia
(Division 2). Where reference is made to the Federal Circuit and Family Court of Australia
(Division 2) in the Act, the reference is provided in full.
Item 746 - Sections 35, 56 and 67
1301. Item 746 amends sections 35, 56 and 67, which all deal with appeals. The item
removes the references to the Federal Circuit Court from these sections and replaces them
with references to the Federal Circuit and Family Court of Australia (Division 2). The
amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC
(Division 2) and do not substantively alter the operation of the sections.
Item 747 - Subsections 83(2) and 83A(8)
1302. Item 747 amends subsections 83(2) and 83A(8). Section 83 relates to the amendment
of particulars of a trade mark entered in the Register. Section 83A relates to the amendment
of a registered trademark in circumstances where use of the trade mark is inconsistent with
any relevant obligation of Australia under an international agreement. The item removes the
references to the Federal Circuit Court from the subsections 83(2) and 83A(8) and replaces
them with references to the Federal Circuit and Family Court of Australia (Division 2). The
amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC
(Division 2) and do not substantively alter the operation of the subsections.
Item 748 - Sections 84D and 104
1303. Item 748 amends sections 84D and 104. Section 84D provides that an appeal lies to
the Federal Court or the Federal Circuit Court from a decision of the Registrar to revoke the
registration of a trade mark under section 84A. Section 104 provides that an appeal lies to the
Federal Court or the Federal Circuit Court from a decision of the Registrar under section 101
or 102. The item removes the references to the Federal Circuit Court from the sections and
replaces them with references to the Federal Circuit and Family Court of Australia (Division
2). The amendments appropriately reflect the continuation of the Federal Circuit Court as the
FCFC (Division 2) and do not substantively alter the operation of the sections.
Item 749 - Paragraph 190(aa)
1304. Item 749 repeals paragraph 190(aa), which provides that the Federal Circuit Court is a
prescribed court for the purposes of the Act. The Item substitutes a new paragraph (aa) which
replaces the reference to the Federal Circuit Court with a reference to the Federal Circuit and
Family Court of Australia (Division 2). The effect of this amendment is that the Federal
Circuit and Family Court of Australia (Division 2) is a prescribed court for the purpose of the
Act. The amendment appropriately reflects the continuation of the Federal Circuit Court as
the FCFC (Division 2) and does not substantively alter the operation of the paragraph.
Item 750 - Paragraph 191(2)(a)
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1305. Item 750 repeals paragraph 191(2)(a), which provides that the jurisdiction of the
Federal Court to hear and determine appeals against decisions, directions or orders of the
Registrar is exclusive of the jurisdiction of any other court except the jurisdiction of the
Federal Circuit Court under subsection 191A(2) of the Act. The Item substitutes a new
paragraph (a) which replaces the reference to the Federal Circuit Court with a reference to the
Federal Circuit and Family Court of Australia (Division 2). The amendment appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
substantively alter the operation of the paragraph.
Item 751 - Section 191A (heading)
1306. Item 751 amends the heading to section 191A, which reads 'Jurisdiction of the
Federal Circuit Court'. The Item replaces the reference to the Federal Circuit Court with a
reference to the Federal Circuit and Family Court of Australia (Division 2). The new heading
will now read 'Jurisdiction of the Federal Circuit and Family Court of Australia (Division 2)'.
Item 752 - Section 191A
1307. Item 752 amends section 191A, which relates to the jurisdiction of the Federal Circuit
Court in relation to matters arising under the Act. The Item replaces references to the Federal
Circuit Court wherever they occur with references to the Federal Circuit and Family Court of
Australia (Division 2). The amendments appropriately reflect the continuation of the Federal
Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of the
section.
Item 753 - Subsection 192(1)
1308. Item 753 amends subsection 192(1), which provides that each prescribed court (other
than the Federal Court and the Federal Circuit Court) has jurisdiction with respect to matters
in respect of which an action or proceeding may, under this Act, be started in a prescribed
court. The Item omits the reference to the Federal Circuit court and replaces it with a
reference to the Federal Circuit and Family Court of Australia (Division 2). The amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2)
and does not substantively alter the operation of the subsection.
Item 754 - Subsection 194(3)
1309. Item 754 repeals subsection 194(3), which provides that section 194 does not apply in
relation to a transfer of proceedings between the Federal Court and the Federal Circuit Court.
The item also repeals the note, which provides the relevant legislative references for transfers
between the Federal Circuit Court and the Federal Court.
1310. This item inserts a new subsection 194(3) and two new notes. New subsection 194(3)
provides that the section 194 does not apply in relation to a transfer of proceedings between
the Federal Court and the Federal Circuit and Family Court of Australia (Division 2). New
note 1 provides that for transfers of proceedings from the Federal Circuit and Family Court of
Australia (Division 2) to the Federal Court: see section 120 of the Federal Circuit and Family
Court of Australia Act 2018 and section 32AC of the Federal Court of Australia Act 1976.
New note 2 provides that for transfers of proceedings from the Federal Court to the Federal
Circuit and Family Court of Australia (Division 2): see section 32AC of the Federal Court of
Australia Act 1976. The amendments appropriately reflect the continuation of the Federal
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Circuit Court as the FCFC (Division 2) and provide for the correct legislative references for
transfers between the Federal Court and the Federal Circuit and Family Court of Australia
(Division 2).
Item 755 - Subsection 195(2)
1311. Item 755 amends subsection 195(2), which provides that except with the leave of the
Federal Court, an appeal does not lie to the Full Court of the Federal Court against a
judgment or order of a single judge of the Federal Court or the Federal Circuit Court in the
exercise of its jurisdiction to hear and determine appeals from decisions or directions of the
Registrar. The item omits the reference to the Federal Circuit Court and replaces it with a
reference to the Federal Circuit and Family Court of Australia (Division 2). The amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2)
and does not substantively alter the operation of the subsection.
Item 756 - Section 196
1312. Item 756 amends section 196, which provides that the Registrar may appear and be
heard at the hearing of an appeal to the Federal Court or the Federal Circuit Court against a
decision or direction of the Registrar. The item omits the reference to the Federal Circuit
Court and replaces it with a reference to the Federal Circuit and Family Court of Australia
(Division 2). The amendment appropriately reflects the continuation of the Federal Circuit
Court as the FCFC (Division 2) and does not substantively alter the operation of the
subsection.
Item 757 - Section 197 (heading)
1313. Item 757 amends the heading to section 197, which reads 'Powers of Federal Court
and Federal Circuit Court on hearing an appeal'. The item removes the reference to the
Federal Circuit Court and replaces it with a reference to the Federal Circuit and Family Court
of Australia (Division 2) so that the new heading reads 'Powers of Federal Court and Federal
Circuit and Family Court of Australia (Division 2) on hearing an appeal'. This amendment
reflects the ongoing operation of the Federal Circuit Court as the Federal Circuit and Family
Court of Australia (Division 2).
Item 758 - Section 197
1314. Item 758 amends section 197, which provides for the powers of the Federal Court and
Federal Circuit Court on hearing an appeal. The Item replaces the reference to the Federal
Circuit Court with a reference to the Federal Circuit and Family Court of Australia (Division
2). The amendment appropriately reflects the continuation of the Federal Circuit Court as the
FCFC (Division 2) and does not substantively alter the operation of the subsection.
Trans-Tasman Proceedings Act 2010
Item 759 - Section 4 (paragraph (b) of the definition of superior Australian court)
1315. Item 759 repeals paragraph (b) of the definition of 'superior Australian court' in
section 4 of the Trans-Tasman Proceedings Act 2010. Paragraph (b) provides that superior
Australian court means the Family Court of Australia. The item repeals paragraph (b) and
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replaces it with a new paragraph which provides that superior Australian court means the
Federal Circuit and Family Court of Australia (Division 1). This amendment reflects the
ongoing operation of the Family Court of Australia as the Federal Circuit and Family Court of
Australia (Division 1) and the associated change to its nomenclature.
Item 760 - Paragraphs 25(b) and 63(2)(b)
1316. Item 760 repeals and replaces paragraphs 25(b) and 63(2)(b). Paragraph 25(b)
provides that a party or intended party to a civil proceeding commenced or to be commenced
in a New Zealand court may apply to the Family Court for interim relief (other than a warrant
for the arrest of property) in support of the New Zealand proceeding. Paragraph 63(2)(b)
provides that subsection 63(2) applies to the Family Court. New paragraphs 25(b) and
63(2)(b) replaces references to the Family Court with references to the Federal Circuit and
Family Court of Australia (Division 1). The amendments appropriately reflect the
continuation of the Family Court as the FCFC (Division 1) and do not substantively alter the
operation of the sections.
Item 761 - Subsection 109(3)
1317. Item 761 amends subsection 109(3), which provides that the Federal Court Rules
apply in relation to the specified proceedings in the Family Court or Federal Circuit Court
(with such modifications as are necessary). The Item omits the words 'Family Court of
Australia or the Federal Circuit Court of Australia' and replaces them with 'Federal Circuit
and Family Court of Australia'. A definition of 'Federal Circuit and Family Court of
Australia' in inserted by item 762. The amendments appropriately reflect the continuation of
the Family Court as the FCFC (Division 1) and the Federal Circuit Court as the FCFC
(Division 2) and do not substantively alter the operation of the subsection.
Item 762 - At the end of section 109
1318. Item 762 adds new subsection (5) at the end of section 109. New subsection 5
provides a definition of the 'Federal Circuit and Family Court of Australia' for the purposes
of section 109 (refer to Item 697D). The definition provides that the 'Federal Circuit and
Family Court of Australia' means the Federal Circuit and Family Court of Australia (Division
1) or the Federal Circuit and Family Court of Australia (Division 2).
VET Student Loans Act 2016
Item 763 - Section 6(c) (definition of judicial officer)
1319. Item 763 repeals paragraph (c) of the definition of 'judicial officer' in section 6 of the
VET Student Loans Act 2016. Paragraph (c) of the definition currently provides that judicial
officer means a Judge of the Federal Circuit Court. The item repeals this paragraph and
substitutes a new paragraph (c), which provides that judicial officer means a Judge of the
Federal Circuit and Family Court of Australia (Division 2). The amendment appropriately
reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC
(Division 2) and does not substantively alter the operation of the definition.
Item 764 - Subparagraphs 82(3)(f)(ii), 83(2)(f)(ii), 84(2)(b)(ii), 86(2)(b)(ii) and
87(2)(b)(ii)
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1320. Item 764 repeals subparagraphs 82(3)(f)(ii), 83(2)(f)(ii), 84(2)(b)(ii), 86(2)(b)(ii) and
87(2)(b)(ii), which provide that the Federal Circuit Court is a relevant court for the purposes
of each respective section. This item replaces these subparagraphs with new subparagraphs,
which provide that the Federal Circuit and Family Court of Australia (Division 2) is a
relevant court for the purposes of each respective section. The amendments appropriately
reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not
substantively alter the operation of the sections.
Water Act 2007
Item 765 - Section 138 (paragraph (b) of the definition of Court)
1321. Item 765 amends paragraph (b) of section 138 of the Water Act 2007, which provides
the definition of 'Court'. Paragraph (b) provides that in Part 8 of the Act 'Court' means the
Federal Circuit Court. The item repeals the paragraph replaces it with a new paragraph (b)
which provides that 'Court' means the Federal Circuit and Family Court of Australia
(Division 2). The amendment appropriately reflects the continuation of the Federal Circuit
Court as the FCFC (Division 2) and does not substantively alter the operation of the
definition.
Item 766 - Section 139 (heading)
1322. Item 766 amends the heading to section 139 of the Act, which currently reads
'Jurisdiction of Federal Circuit Court'. The Item removes the reference to the Federal Circuit
Court and replaces it with a reference to the Federal Circuit and Family Court of Australia
(Division 2). The new heading reads 'Jurisdiction of Federal Circuit and Family Court of
Australia (Division 2)'.
Item 767 - Section 139
1323. Item 767 amends section 139 of the Act, which provides that the Federal Circuit
Court does not have jurisdiction in relation to proceedings under Part 8 of the Act against a
State. The item omits the reference to the Federal Circuit Court and replaces it with a
reference to the Federal Circuit and Family Court of Australia (Division 2). The amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2)
and does not substantively alter the operation of the section.
Water Efficiency Labelling and Standards Act 2005
Item 768 - Section 7 (definition of Federal Circuit Court)
1324. Item 768 repeals the definition of 'Federal Circuit Court' in section 7 of the Water
Efficiency Labelling and Standards Act 2005. Section 7 provides definitions for terms
contained within the Act. The definition of Federal Circuit Court is no longer required as the
Federal Circuit Court will be continued as Federal Circuit and Family Court of Australia
(Division 2). Where reference is made to the Federal Circuit and Family Court of Australia
(Division 2) in the Act, the reference is provided in full.
246
Item 769 - Section 7 (paragraph (b) of the definition of relevant court)
1325. Item 769 repeals paragraph (b) of the definition of 'relevant court' in section 7.
Paragraph (b) currently provides that relevant court means the Federal Circuit of Australia.
Item 704 substitutes a new paragraph, which provides that relevant court means the Federal
Circuit and Family Court of Australia (Division 2). The amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively
alter the operation of the definition.
Work Health and Safety Act 2011
Item 770 - Section 4 (paragraph (b) of the definition of court)
1326. Item 770 repeals paragraph (b) of the definition of 'court' in section 4 in the Work
Health and Safety Act 2011. Section 4 provides definitions to the interpretation of terms
contained in the Act. Paragraph (b) of the definition of court currently means the Federal
Circuit Court. Item 705 substitutes a new paragraph, which provides that court means the
Federal Circuit and Family Court of Australia (Division 2). The amendment appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
substantively alter the operation of the definition.
Item 771 - Paragraph 273A(1)(b)
1327. Item 771 repeals paragraph 273A(1)(b), which provides that jurisdiction is conferred
on the Federal Circuit Court in relation to any civil matter arising under the Act. This item
inserts a new paragraph which provides that jurisdiction is conferred on the Federal Circuit
and Family Court of Australia (Division 2) in relation to any civil matter arising under the
Act. The amendment appropriately reflects the continuation of the Federal Circuit Court as
the FCFC (Division 2) and does not substantively alter the operation of section 273A.
Item 772 - Paragraphs 273A(2)(e), (f) and (g)
1328. Item 772 amends paragraphs 273A(2)(e), (f) and (g). These paragraphs specify
circumstances in which jurisdiction conferred on the Federal Court in subsection 273A(1) is
to be exercised in the Fair Work Division of the Federal Court. The item removes the
references to the Federal Circuit Court and replaces them with references to Federal Circuit
and Family Court of Australia (Division 2). The amendments appropriately reflect the
continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively
alter the operation of the paragraphs.
Item 773 - Subsection 273A(3)
1329. Item 773 amends subsection 273A(3). The subsection provides the circumstances in
which the jurisdiction conferred on the Federal Circuit Court of Australia in subsection (1) is
to be exercised in the Fair Work Division of the Federal Circuit Court. This item repeals the
words 'Federal Circuit Court of Australia in subsection (1) is to be exercised in the Fair Work
Division of the Federal Circuit Court of Australia' and replaces them with 'Federal Circuit
and Family Court of Australia (Division 2) in subsection (1) is to be exercised in the Fair
Work Division of the Court'. The reference to 'the Court' means the FCFC (Division 2). The
247
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2) and does not substantively alter the operation of the subsection.
Item 774 - Paragraph 273A(a)
1330. Item 774 amends paragraph 273A(a), which provides the jurisdiction conferred on the
Federal Circuit Court of Australia in subsection (1) is to be exercised in the Fair Work
Division of the Federal Circuit Court if an application is made to the Federal Circuit Court
under the Act. This item removes the reference to the 'Federal Court of Australia' and
replaces it with 'Court'. The reference to the 'Court' means the FCFC (Division 2). This
amendment reflects the change made by Item 708 and the nomenclature changes associated
with the new court structure.
Item 775 - Paragraph 273A(3)(b)
1331. Item 775 amends paragraph 273A(3)(b), which provides the jurisdiction conferred on
the Federal Circuit Court of Australia in subsection (1) is to be exercised in the Fair Work
Division of the Federal Circuit Court if an injunction is sought under section 15 of the
Federal Circuit Court Act in relation to a matter arising under the Act. The item removes the
reference to section 15 of the Federal Circuit Court Act and replaces it with a reference to
section 108 of the Federal Circuit and Family Court of Australia Act 2018. The amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2)
and provides for the correct legislative references for injunctions under the new court
structure.
Item 776 - Paragraph 273A(3)(c)
1332. Item 776 amends paragraph 273A(3)(c) of the Act, which provides the jurisdiction
conferred on the Federal Circuit Court of Australia in subsection (1) is to be exercised in the
Fair Work Division of the Federal Circuit Court if a declaration is sought under section 16 of
the Federal Circuit Court Act in relation to a matter arising under the Act. The item removes
the reference to section 16 of the Federal Circuit Court Act and replaces it with a reference to
section 109 of the Federal Circuit and Family Court of Australia Act 2018. The amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2)
and provides for the correct legislative references for declarations under the new court
structure.
Item 777 - Paragraph 273A(3)(d)
1333. Item 777 amends paragraph 273A(3)(d), which provides the jurisdiction conferred on
the Federal Circuit Court of Australia in subsection (1) is to be exercised in the Fair Work
Division of the Federal Circuit Court if proceedings in relation to a matter arising under this
Act are transferred to the Federal Circuit Court of Australia from the Federal Court. The item
removes the reference to the 'Federal Court of Australia' and replaces it with 'Federal Circuit
and Family Court of Australia (Division 2)'. The amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively
alter the operation of the paragraph.
Item 778 - Paragraph 273A(3)(e)
248
1334. Item 778 amends paragraph 273A(3)(e), which provides the jurisdiction conferred on
the Federal Circuit Court of Australia in subsection (1) is to be exercised in the Fair Work
Division of the Federal Circuit Court if the High Court remits a matter arising under this Act
to the Federal Circuit Court of Australia. The item removes the reference to the 'Federal
Court of Australia' and replaces it with 'Federal Circuit and Family Court of Australia
(Division 2)'. The amendment appropriately reflects the continuation of the Federal Circuit
Court as the FCFC (Division 2) and does not substantively alter the operation of the
paragraph.
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Schedule 3 - Consequential amendments to delegated legislation
Part 1 - Fees
Family Law (Fees) Regulation 2012
Item 1 - Section 1.03 (after the heading)
1335. Item 1 amends section 1.03 of the Family Law (Fees) Regulation 2012 by inserting a
new note that clarifies that the expressions 'family dispute resolution practitioner', 'Federal
Circuit and Family Court of Australia', 'financial or Part VII proceedings', 'party to a de
facto relationship' and 'recovery order' in the Regulation are defined in the Family Law Act
(rather than explicitly in section 1.03, which sets out other definitions for the purposes of the
Regulation).
Item 2 - Section 1.03 (paragraph (a) of the definition of authorised officer)
1336. Item 2 amends section 1.03 by repealing paragraph (a) of the definition of 'authorised
officer', and substitutes a definition for an authorised officer in the Federal Court (in
paragraph (a)), in the FCFC (Division 1) (in paragraph (aa)), and in the FCFC (Division 2) (in
paragraph (ab)). The new definition appropriately reflects the conferral of family law
(appellate) jurisdiction on the Federal Court of Australia, and the creation of the FCFC.
Item 3 - Section 1.03 (paragraph (b) of the definition of authorised officer)
1337. Item 3 amends section 1.03 by inserting 'of a State' after 'Family Court' in paragraph
(b) of the definition of authorised officer. This amendment appropriately reflects that the
Family Court has been merged with the Federal Circuit Court creating the FCFC. As a result
of this change, the only 'Family Court' that continues to exist in name is a Family Court of
State or Territory; that is, a State or Territory court exercising family law jurisdiction.
Item 4 - Section 1.03
1338. Item 4 amends section 1.03 by repealing the definitions of 'Family Court', 'Federal
Circuit Court' and 'Federal Circuit Court Act'. This item appropriately reflects that the
Family Court and the Federal Circuit Court have been merged, creating the FCFC. This item
also appropriately reflects that the Federal Circuit Court Act has been repealed.
Item 5 - Section 1.03
1339. Item 5 amends section 1.03 by inserting a definition of 'Federal Court', to mean the
Federal Court of Australia. This item appropriately reflects that the term Federal Court is
used in the Family Law (Fees) Regulation 2012, following the conferral of family law
(appellate) jurisdiction on the Family Law Appeal Division of the Federal Court.
Item 6 - Section 1.03 (definition of magistrate)
1340. Item 6 amends section 1.03 by repealing the definition of 'magistrate', which
previously meant 'a Judge of the Federal Circuit Court'. This item appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2).
250
Item 7 - Section 1.03
1341. Item 7 amends section 1.03 by inserting a new definition of 'proceeding'. The new
definition provides that a proceeding, in relation to a relevant court, means a proceeding in
the relevant court, whether between parties or not, and includes an incidental proceeding and
an appeal. This amendment is required in the context of the amendment to the definition of
relevant court, at item 9 below.
Item 8 - Section 1.03 (definition of Registrar)
1342. Item 8 amends section 1.03 by repealing the definition of 'Registrar' and inserting a
definition that includes the Registrar of the Federal Court, the Registrar of the FCFC
(Division 1), and the Registrar of the FCFC (Division 2). This new definition reflects the
conferral of family law (appellate) jurisdiction on the Family Law Appeal Division of the
Federal Court of Australia, and the creation of the FCFC; all Registrars of which may need to
exercise power under the Family Law (Fees) Regulation 2012, as part of their exercise of
family law jurisdiction.
Item 9 - Section 1.03 (paragraph (a) and (b) of the definition of relevant court)
1343. Item 9 amends section 10.3 by repealing paragraphs (a) and (b) of the definition of
'relevant court', and inserting four new paragraphs which refer to the Federal Court, the
FCFC (Division 1), the FCFC (Division 2), and the Family Court of a State. This new
definition appropriately reflects that family law jurisdiction may be exercised by any of the
courts in the new definition, and thus the applicability of the Family Law (Fees) Regulation
2012.
Item 10 - Section 1.03 (note)
1344. Item 10 amends section 1.03 by repealing the Note to section 1.03, as item 1 of Part 1
of Schedule 1 of this Act inserts an amended version of this note after the heading of the
section. As noted under the explanatory statement for item 1 above, the new note reflects that
some of the terms in the Regulation are defined in the Family Law Act.
Item 11 - Subsection 1.04(2) (note 2)
1345. Item 11 amends subsection 1.04(2) by repealing the note and substituting a new note
that refers readers to Part 5 of the Federal Court and Federal Circuit and Family Court of
Australia (Division 2) Regulation 2012 in relation to fees for services provided by the then
Federal Circuit Court that were requested before 1 January 2019 (instead of the Federal
Court and Federal Circuit Court Regulation 2012). Section 1.04 sets out the application of
the Family Law (Fees) Regulation 2012, with subsection (2) specifically setting out the
circumstances in which a payment of the fee for service can be deferred by reference to other
sections. This item appropriately updates the note to reflect the change in the name of the
Regulation, as provided in item 28.
Item 12 - Section 2.01
1346. Item 12 amends section 2.01, to omit a reference to section 120 of the Federal Circuit
Court Act and substitute the appropriate references to section 60 of the Federal Court Act and
section 249 of the Federal Circuit and Family Court of Australia Act 2018. Section 120 of
the Federal Circuit Court Act provides for the Governor-General to make Regulations about
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matters in that section, including in relation to fees. The equivalent regulation-making
provisions in the FCFC (Division 2) and the Federal Court are section 249 of the Federal
Circuit and Family Court of Australia Act 2018, and section 60 of the Federal Court Act,
respectively.
1347. This amendment appropriately updates the section to reflect that the Federal Circuit
Court Act has been repealed, the continuation of the Family Court and the Federal Circuit
Court as the FCFC (Division 1) and FCFC (Division 2), respectively, and the conferral of
family law appellate jurisdiction upon the Family Law Appeal Division of the Federal Court.
Items 13 and 14 - Subsection 2.04(1) and paragraph 2.05(1)(a)
1348. Items 13 and 14 amend subsection 2.04(1) and paragraph 2.05(1)(a) by inserting ', 3'
after 'item 1, 2'. Section 2.04 sets out circumstances in which a person is exempt from a fee
set out in Schedule 1. However, subsection 2.04(1), as amended, stipulates that this
exemption does not apply in relation to table item 3 of Schedule 1 of the Family Law (Fees)
Regulation 2012. Similarly, subsection 2.05(1) sets out the circumstances under which the
Registrar or authorised officer can exempt a person from paying a fee set out in Schedule 1;
however, paragraph 2.05(1)(a), as amended, stipulates that this exemption does not apply in
relation to item 3 of Schedule 1 of the Family Law (Fees) Regulation 2012. Existing table
item 3 of Schedule 1 of the Regulation provides the fee for filing an application in
proceedings for a declaration about the validity of a marriage, a divorce or the annulment of a
marriage. The amendments in these items are consequential amendments to reflect the
amendment to table item 3 of Schedule 1 in item 20 below.
Item 15 - Paragraphs 2.06(1)(a) and (2)(a)
1349. Item 15 updates paragraphs 2.06(1)(a) and (2)(a) to omit 'or 2' and substitute with ', 2
or 3'. Section 2.06 deals with circumstances in which a person may pay the reduced fee
mentioned in Schedule 1 for certain items. The amendments in item 15 are also consequential
amendments reflecting the amendment made in item 20 below.
Item 16 - In the appropriate position in Part 3
1350. Item 16 inserts section 3.02 into the Regulation, which sets out that liability for
various fees amended by this Bill are to apply from 1 January 2019. This date coincides with
the commencement date of the FCFC, and is thus the appropriate date for fee changes to
apply.
Item 17 - Schedule 1 (table item 1, column headed 'Document or service')
1351. Item 17 inserts 'or 3' after 'item 2' in table item 1 of Schedule 1 of the Regulation, in
the column headed 'Document or service'. This amendment reflects the amendment made in
item 20 below.
252
Item 18 - Schedule 1 (table item 2, column headed 'Document or service',
paragraph (b))
1352. Item 18 omits '; or' in paragraph (b) of table item 2 of Schedule 1, in the column
headed 'Document or service'. This amendment reflects the amendment made in item 19
below, which repeals paragraph (c) of table item 2 of Schedule 1.
Item 19 - Schedule 1 (table item 2, column headed 'Document or service', paragraph
(c))
1353. Item 19 repeals paragraph (c) of table item 2 of Schedule 1. Paragraph (c) currently
provides for divorce orders 'commenced in the Federal Circuit Court'. The repeal of this
paragraph in Item 48C appropriately reflects the continuation of the Federal Circuit Court as
the FCFC (Division 2). Accordingly, the fees for the FCFC are provided for by amendments
made in item 20, below.
Item 20 - Schedule 1 (table item 3)
1354. Item 20 repeals table item 3 and inserts new table items 3, 3A and 3B into Schedule 1
of the Regulation. Existing table item 3 of Schedule 1 of the Regulation provides the fee for
filing an application in proceedings for a declaration about the validity of a marriage, a
divorce or the annulment of a marriage. New table items 3 and 3A apply to filing an
application in proceedings commenced in the FCFC for a divorce order or a declaration about
the validity of a marriage, divorce or annulment of marriage. New table item 3B provides the
fee payable for filing an application in proceedings commenced in a court, other than the
FCFC, for a declaration about the validity of a marriage, divorce, or annulment. This
amendment provides for the harmonisation of family law fees applying in the FCFC
(Division 1) and FCFC (Division 2), respectively.
Item 21 - Schedule 1 (table items 7 and 8)
1355. Item 21 repeals table items 7 and 8 of Schedule 1 of the Regulation and substitutes
new table items 7 and 8 that refer to filing an application for leave to appeal, or for an appeal
in the Family Law Appeal Division of the Federal Court, instead of referring to an application
for leave to appeal, or for an appeal under section 94 or 94AAA of the Family Law Act. This
item appropriately reflects the transfer of family law appellate jurisdiction from the Family
Court to the Family Law Appeal Division of the Federal Court.
Item 22 - Schedule 1 (cells at table items 11 to 13, column headed 'Fee')
1356. Item 22 repeals the cells at table items 11 to 13, under the column headed 'Fee' and
substitutes a cell that provides the fees for a hearing before a judge of the Federal Circuit and
Family Court of Australia, as well as a hearing before any other judge, and a hearing before a
magistrate. This item provides for the harmonisation of family law fees applying in the FCFC
(Division 1) and FCFC (Division 2) respectively, while maintaining the current fee levels for
other courts exercising relevant federal family law jurisdiction.
Item 23 - Schedule 1 (table item 14)
1357. Item 24 repeals table item 14 of Schedule 1 of the Family Law (Fees) Regulation
2012, and substitutes the item with one that refers to 'section 47A of the Family Law Act'
instead of 'section 96 of the Family Law Act'. This amendment appropriately updates the
253
schedule, as section 96 of the Family Law Act is repealed and replaced by section 47A in the
Family Law Act. The amendment also provides for the conferral of that jurisdiction on the
FCFC (Division 2).
Item 24 - Schedule 1 (table items 15 to 17, column headed 'Fee')
1358. Item 24 repeals the cells at table items 15 to 17, under the column headed 'Fee' and
substitutes a cell that provides the fees for a hearing before a judge of the FCFC, as well as a
hearing before any other judge, and a hearing before a magistrate. This item provides for the
harmonisation of family law fees applying in the FCFC (Division 1) and FCFC (Division 2)
respectively, while maintaining the current fee levels for other courts exercising relevant
federal family law jurisdiction.
Item 25 - Schedule 1 (table item 18)
1359. Item 25 repeals table item 18 of Schedule 1 of the Regulation, substituting the table
item with one that refers to 'section 47A of the Family Law Act' instead of 'section 96 of the
Family Law Act'. This amendment appropriately updates the Schedule given section 96 of
the Family Law Act is repealed and replaced by section 47A in the Family Law Act in
item 72 of Schedule 1 to this Act. The amendment also provides for the conferral of that
jurisdiction on the FCFC (Division 2).
Item 26 - Schedule 1 (note 1)
1360. Item 26 amends Schedule 1 of the Regulation to omit 'Note 1' and substitute with
'Note'. This is a minor, consequential amendment reflecting the repeal of 'Note 2' in item 27
below. Accordingly, enumerating the notes is no longer necessary.
Item 27 - Schedule 1 (note 2)
1361. Item 27 repeals note 2 of Schedule 1. Note 2 provides that the definition of magistrate
in section 1.03 includes a Judge of the Federal Circuit Court. The repeal of Note 2 in this
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2).
Federal Court and Federal Circuit Court Regulation 2012
Item 28 - Section 1.01
1362. Item 28 amends section 1.01 of the Federal Court and Federal Circuit Court
Regulation 2012 by replacing the reference to the 'Federal Circuit Court' with 'Federal
Circuit and Family Court of Australia (Division 2)'. Section 1.01 of the Regulation sets out
the name of the Regulation and does not change the operation of the paragraph.
Item 29 - Section 1.03 (paragraph (b) of the definition of authorised officer).
1363. Item 29 amends section 1.03 of the Regulation to repeal the existing paragraph (b) of
the definition of authorised officer as it related to the 'Federal Circuit Court' and to the
'Federal Circuit Court Act 1999' and replacing it with a new definition that appropriately
reflects the 'Federal Circuit and Family Court of Australia' and the 'Federal Circuit and
254
Family Court of Australia Act 2018'. The amendment appropriately reflects the continuation
of the Federal Circuit Court as the Federal Circuit and Family Court of Australia (Division 2)
and does not change the operation of the paragraph.
Item 30 - Section 1.03
1364. Item 30 amends section 1.03 of the Regulation by adding a definition of the 'Federal
Circuit and Family Court of Australia Rules', which will mean rules made under Chapter 4 of
the Federal Circuit and Family Court of Australia Act 2018.
Item 31 - Section 1.03
1365. Item 31 amends section 1.03 of the Regulation by repealing the definitions of 'Federal
Circuit Court', 'Federal Circuit Court Act' and 'Federal Circuit Court Rules'. The
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2).
Item 32 - Section 1.03 (definition of general federal law proceeding)
1366. Item 32 amends section 1.03 of the Regulation by repealing the existing definition of
'general federal law proceeding' and replacing it with a new definition. The new definition of
'general federal law proceeding' appropriately reflects a proceeding in the Federal Court
(other than under the Family Law Act) and the continuation of the Federal Circuit Court as
the FCFC (Division 2), noting that a general federal law proceedings is one under that court
other than a proceeding under the Family Law Act.
Item 33 - Section 1.03 (paragraph (b) of the definition of Registrar)
1367. Item 33 amends section 1.03 of the Regulation by repealing paragraph (b) in the
existing definition of 'Registrar', which relates to a Registrar of the Federal Circuit Court,
and replacing paragraph (b) with a new definition which refers to a Registrar of the FCFC
(Division 2). The amendment appropriately reflects the continuation of the Federal Circuit
Court as the FCFC (Division 2) and does not change the operation of the paragraph.
Item 34 - Section 1.03 (paragraph (b) of the definition of relevant court)
1368. Item 34 amends section 1.03 of the Regulation by replacing the reference to the
Federal Circuit Court in the definition of a 'relevant court' with a reference to Federal Circuit
and Family Court of Australia (Division 1). The amendment appropriately reflects the
continuation of the Federal Circuit Court as the Federal Circuit and Family Court of Australia
(Division 2) and does not change the operation of the paragraph.
Item 35 - Subsection 1.05 (2) (notes 1 and 2)
1369. Item 35 amends subsection 1.05 (2) by repealing both Notes in the subsection, and
then reinstating Note 2 as the only Note for the subsection. Subsection 1.05 provides that
Parts 1 and 2 of the Regulation apply to a fee for a service that is request, or for the filing of a
document that is lodged, on or after 1 January 2013 in relation to a general family law
proceeding. This amendment has the practical effect deleting Note 1, which notes that this
regulation does not apply in relation to a proceeding under the Family Law Act in the Federal
Circuit Court. Note 2 (now the only Note to this subsection) notes that Part 5 should be
referred in relation to services requested before 1 January 2013.
255
Item 36 - Part 2 (after the heading)
1370. Item 36 inserts a Note immediately after the heading for Part 2 of the Regulation -
'Fees'. The new Note provides that the Family Law (Fees) Regulation 2012 should be
referred to for information about fees payable in relation to proceedings under the Family
Law Act before the Family Law Appeal Division of the Federal Court, or the FCFC
(Division 2).
Item 37 - Section 2.01
1371. Item 37 amends section 2.01 of the Regulation by omitting the reference to 'section
120 of the Federal Circuit Court Act' and substituting 'section 249 of the Federal Circuit and
Family Court of Australia Act 2018'. Section 2.01 of the Regulation provides that Part 2 of
the Regulation, which relates to Fees, sets out matters relating to fees in the Federal Court
Act and in the Federal Circuit Court Act. This amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2), and updates the
legislative reference for fees as set out in the Federal Circuit and Family Court of Australia
Act 2018. The amendment does not change the operation of the paragraph.
Item 38 - Section 2.09 (heading)
1372. Item 38 amends the heading of section 2.09 of the Regulation, replacing the current
heading of 'Fee not payable in Federal Circuit Court proceeding' with a new heading 'Fee
not payable in proceeding before the Family Law Appeal Division of the Federal Court or the
Federal Circuit and Family Court of Australia (Division 2)'. This amendment appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and the
conferral of appellate jurisdiction upon the Family Law Appeal Division of the Federal Court.
Item 39 - Subsection 2.09(1)
1373. Item 39 amends subsection 2.09(1) by repealing the existing subsection and replacing
it with a new explanation that the section applies to proceedings before the Family Law
Appeal Division of the Federal Court and the Federal Circuit and Family Court of Australia
(Division 2). This amendment appropriately reflects the continuation of the Federal Circuit
Court as the FCFC (Division 2) and the conferral of appellate jurisdiction upon the Family
Law Appeal Division of the Federal Court.
Item 40 - Subsection 2.10(4)
1374. Item 40 amends subsection 2.10(4) of the Regulation by omitting the reference to
'Federal Circuit Court' and substituting 'Federal Circuit and Family Court of Australia
(Division 2)'. Subsection 2.10(4) provides that fees mentioned in Schedule 1 of the
Regulation are not payable in relation to a small claims proceeding in the Federal Circuit
Court. This amendment appropriately reflects the continuation of the Federal Circuit Court as
the FCFC (Division 2), and does not change the operation of the paragraph.
256
Item 41 - At the end of subsection 2.11(1)
1375. Item 41 adds new paragraphs (g) and (h) to subsection 2.11(1) of the Regulation.
Subsection 2.11(1) provides a list of proceedings in the Federal Court in relation to which a
filing fee is not payable.
1376. New paragraph 2.11(1)(g) provides that a filing fee is not payable in relation to a
proceeding transferred from the FCFC (Division 2) by the Federal Court, under section 32AC
of the Federal Court Act.
1377. New paragraph 2.11(1)(h) provides that a filing fee is not payable in relation to a
proceeding transferred by the FCFC (Division 2) to the Federal Court under section 120 of
the Federal Circuit and Family Court of Australia Act 2018 and where that transfer is
confirmed by the Federal Court under section 32AD of the Federal Court Act.
Item 42 - Subsection 2.11 (2) (heading)
1378. Item 42 amends the heading of subsection 2.11(2) of the Regulation by repealing the
current heading: 'Federal Circuit Court' and replacing with a new heading 'Federal Circuit
and Family Court of Australia (Division 2)'. Subsection 2.11(2) provides that a filing fee is
not payable in the FCFC (Division 2)) in relation to specified proceedings, in specified
circumstances. This amendment appropriately reflects the continuation of the Federal Circuit
Court as the FCFC (Division 2), and does not change the operation of the paragraph.
Item 43 - Subsection 2.11(2).
1379. Item 43 amends subsection 2.11(2) of the Regulation by omitting the reference to
'Federal Circuit Court' and substituting with 'Federal Circuit and Family Court of Australia
(Division 2)'. The function of subsection 2.11(2) is described in item 42, above. This
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2), and does not change the operation of the paragraph.
Item 44 - Subparagraph 2.11(2)(a)(ii)
1380. Item 44 amends subparagraph 2.11(2)(a)(ii) of the Regulation by omitting the
reference to 'Federal Circuit Court' and substituting with 'Federal Circuit and Family Court
of Australia (Division 2)'. The function of subsection 2.11(2) is described in item 42, above.
This amendment appropriately reflects the continuation of the Federal Circuit Court as the
FCFC (Division 2), and does not change the operation of the paragraph.
Item 45 - Paragraph 2.11(2)(b)
1381. Item 45 amends paragraph 2.11(2)(b) of the Regulation by omitting the reference to
'Federal Circuit Court' and substituting with 'Federal Circuit and Family Court of Australia
(Division 2)'. The function of subsection 2.11(2) is described in item 42, above. This
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2), and does not change the operation of the paragraph.
257
Item 46 - At the end of section 2.12(1)
1382. Item 46 adds paragraphs (j) and (k) to subsection 2.12(1) of the Regulation.
Subsection 2.12(1) provides a list of proceedings in the Federal Court in relation to which a
setting down fee is not payable.
1383. New paragraph 2.12(1)(j) provides that a setting down fee is not payable in relation to
a proceeding transferred from the FCFC (Division 2) by the Federal Court, under section
32AC of the Federal Court Act, where a setting down fee has already been paid in relation to
the proceeding.
1384. New paragraph 2.12(1)(k) provides that a setting down fee is not payable in relation
to a proceeding transferred by the FCFC (Division 2) to the Federal Court under section 120
of the Federal Circuit and Family Court of Australia Act 2018, where that transfer is
confirmed by the Federal Court under section 32AD of the Federal Court Act, and where a
setting down fee has already been paid in relation to the proceeding.
Item 47 - Subsection 2.12(2) (heading)
1385. Item 47 amends subsection 2.12(2) of the Regulation by repealing the current heading
'Federal Circuit Court' and substituting the new heading of 'Federal Circuit and Family
Court of Australia (Division 2)'. Subsection 2.12(2) provides that a setting down fee is not
payable in the Federal Circuit Court (which will continue as the FCFC (Division 2)) in
relation to specified proceedings, in specified circumstances. This amendment appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2), and does not
change the operation of the paragraph.
Item 48 - Subsection 2.12(2)
1386. Item 48 amends subsection 2.12(2) of the Regulation by omitting the reference to
'Federal Circuit Court' and substituting with 'Federal Circuit and Family Court of Australia
(Division 2)'. The function of subsection 2.12(2) is described in item 47, above. This
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2), and does not change the operation of the paragraph.
Item 49 - Subparagraph 2.12(2)(a)(ii)
1387. Item 49 amends subparagraph 2.12(2)(a)(ii) of the Regulation by omitting the
reference to 'Federal Circuit Court' and substituting with 'Federal Circuit and Family Court
of Australia (Division 2)'. The function of subsection 2.12(2) is described in item 47, above.
This amendment appropriately reflects the continuation of the Federal Circuit Court as the
FCFC (Division 2), and does not change the operation of the paragraph.
Item 50 - Paragraph 2.12(2)(b)
1388. Item 50 amends paragraph 2.12(2)(b) of the Regulation by omitting the reference to
'Federal Circuit Court' and substituting with 'Federal Circuit and Family Court of Australia
(Division 2)'. The function of subsection 2.12(2) is described in item 47, above. This
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2), and does not change the operation of the paragraph.
258
Item 51 - At the end of subsection 2.13(1)
1389. Item 51 adds paragraphs (k) and (l) to subsection 2.13(1) of the Regulation.
Subsection 2.13(1) provides a list of proceedings in the Federal Court in relation to which a
hearing fee is not payable.
1390. New paragraph 2.13(1)(k) provides that a hearing fee is not payable in relation to a
proceeding transferred from the FCFC (Division 2) by the Federal Court, under section 32AC
of the Federal Court Act, where a hearing fee has already been paid in relation to the
proceeding.
1391. New paragraph 2.13(1)(l) provides that a hearing fee is not payable in relation to a
proceeding transferred by the FCFC (Division 2) to the Federal Court under section 120 of
the Federal Circuit and Family Court of Australia Act 2018, where that transfer is confirmed
by the Federal Court under section 32AD of the Federal Court Act, and where a hearing fee
has already been paid in relation to the proceeding.
Item 52 - Subsection 2.13(2) (heading)
1392. Item 52 amends subsection 2.13(2) of the Regulation by repealing the current heading
'Federal Circuit Court', and substituting the new heading of 'Federal Circuit and Family
Court of Australia (Division 2)'. Subsection 2.13(2) provides that a hearing fee is not payable
in the Federal Circuit Court (which will continue as the FCFC (Division 2)) in relation to
proceedings, in specified circumstances. This amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2), and does not change the
operation of the paragraph.
Item 53 - Subsection 2.13(2)
1393. Item 53 amends subsection 2.13(2) of the Regulation by omitting the reference to
'Federal Circuit Court' and substituting with 'Federal Circuit and Family Court of Australia
(Division 2)'. The function of subsection 2.13(2) is described in item 52, above. This
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2), and does not change the operation of the paragraph.
Item 54 - Subparagraph 2.13(2)(a)(ii)
1394. Item 54 amends subparagraph 2.13(2)(a)(ii) of the Regulation by omitting the
reference to 'Federal Circuit Court' and substituting with 'Federal Circuit and Family Court
of Australia (Division 2)'. The function of subsection 2.13(2) is described in item 52, above.
This amendment appropriately reflects the continuation of the Federal Circuit Court as the
FCFC (Division 2), and does not change the operation of the paragraph.
Item 55 - Paragraph 2.13(2)(b)
1395. Item 55 amends paragraph 2.12(2)(b) of the Regulation by omitting the reference to
'Federal Circuit Court' and substituting with 'Federal Circuit and Family Court of Australia
(Division 2)'. The function of subsection 2.13(2) is described in item 52, above. This
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2), and does not change the operation of the paragraph.
259
Item 56 - Subsection 2.17(1)
1396. Item 56 amends subsection 2.17(1) of the Regulation by omitting the reference to
'Federal Circuit Court' and substituting with 'Federal Circuit and Family Court of Australia
(Division 2)'. Subsection 2.17(1) provides the circumstances under which a person may pay
an amount to the Federal Court or the Federal Circuit Court (the Federal Circuit and Family
Court of Australia (Division 2)) on account. This amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2), and does not change the
operation of the subsection.
Item 57 - After section 4.01
1397. Item 57 inserts new section 4.01A - 'Leave to appeal - prescribed judgments'
immediately after section 4.01 of the Regulation. The new section 4.01 provides that for
paragraph 24A(1)(b) of the Federal Court Act, a prescribed judgment is:
an interlocutory decree (other than a child welfare matter, as defined in subsection
4.01A(2)); or
an order under sections 102PE, 102QF or 102QG of the Family Law Act.
1398. Subsection 4.01A(2) defines a 'child welfare matter' as a matter relating to the person
or persons with whom a child is to live, spend time or communicate with, or any other aspect
of parental responsibility within the meaning of Part VII of the Family Law Act.
1399. This item largely replicates regulation 15A of the Family Law Regulations 1984,
which outlines what constitutes a 'prescribed decree' for the purposes of seeking leave to
appeal to the Family Law Appeal Division of the Family Court. As a result of the creation of
the Family Law Appeal Division of the Federal Court, regulation 15A will be repealed by
item 128 of Schedule 3 of this Bill.
1400. Section 24A of the Federal Court Act provides that leave to appeal is needed in some
family law matters, including prescribed matters in the Federal Court.
1401. Section 102PE of the Family Law Act provides the Court with the power to make a
suppression or non-publication order. Sections 102QF and 102QG relate to the Family
Court's power to dismiss or to grant an application for leave by an applicant.
Item 58 - In the appropriate position in Part 5
1402. Item 58 inserts new section 5.05, titled 'Application provision relating to the Federal
Circuit and Family Court of Australia (Consequential Amendments and Transitional
Provisions) Act 2018 into the Regulation. The new section provides that amendments made to
the Regulation by this Bill apply in relation to the liability of a person to pay certain fees in
respect of filing on or after, or hearings fixed on or after 1 January 2019.
Item 59 - Part 1 of Schedule 1 (at the end of the clause)
1403. Item 59 amends Part 1 of Schedule 1 of the Regulation by adding the words ', other
than before the Family Law Appeal Division of the Federal Court'. Part 1 of Schedule 1
provides a table setting out fees payable in relation to proceedings in the Federal Court. The
effect of this amendment is to separate family law proceedings in the Federal Court, which
260
will be heard in the Family Law Appeal Division of the Federal Court. Fees for that Division
will be listed in the Family Law (Fees) Regulation 2012, along with fees for other family law
proceedings.
Item 60 - Part 2 of Schedule 1 (heading)
1404. Item 60 amends the heading of Part 2 of Schedule 1 of the Regulation by omitting
'Federal Circuit Court' and substituting 'Federal Circuit and Family Court of Australia
(Division 2)'. The heading of Part 2 of Schedule 1 currently reads 'Fee for proceedings in the
Federal Circuit Court'. This amendment appropriately reflects the continuation of the Federal
Circuit Court as the FCFC (Division 2), and does not change the operation of the paragraph.
Item 61 - Part 2 of Schedule 1
1405. Item 61 amends Part 2 of Schedule 1 of the Regulation by omitting 'Federal Circuit
Court' and substituting 'Federal Circuit and Family Court of Australia (Division 2)'. Part 2 of
Schedule 1 provides for 'Fee for proceedings in the Federal Circuit and Family Court of
Australia (Division 2)'. This amendment appropriately reflects the continuation of the Federal
Circuit Court as the FCFC (Division 2), and does not change the operation of the paragraph.
Item 62 - Part 2 of Schedule 1 (table heading)
1406. Item 62 amends the table heading in Part 2 of Schedule 1 of the Regulation by
omitting 'Federal Circuit Court' and substituting 'Federal Circuit and Family Court of
Australia (Division 2)'. Part 2 of Schedule 1 provides the fees for proceedings in the FCFC
(Division 2). This amendment appropriately reflects the continuation of the Federal Circuit
Court as the FCFC (Division 2), and does not change the operation of the paragraph.
Item 63 - Part 2 of Schedule 1 (table item 201)
1407. Item 63 amends the table item 201 in Part 2 of Schedule 1 of the Regulation by
omitting 'Federal Circuit Court of Australia' and substituting 'Federal Circuit and Family
Court of Australia (Division 2)'. Table item 201 provides the fee for filing a document by
which a proceeding in the Federal Circuit Court of Australia seeking final orders is
commenced. This amendment appropriately reflects the continuation of the Federal Circuit
Court as the FCFC (Division 2), and does not change the operation of the paragraph.
Item 64 - Part 2 of Schedule 1 (table item 205)
1408. Item 64 amends the table item 205 in Part 2 of Schedule 1 of the Regulation by
omitting 'Federal Circuit Court under subsection 104(2) of the Federal Circuit Court Act' and
substituting 'Federal Circuit and Family Court of Australia (Division 2) under subsection
223(1) of the Federal Circuit and Family Court of Australia Act 2018'. Table item 205
provides the fee for the filing of an application to review and exercise of power by the
Registrar of the Federal Circuit and Family Court of Australia (Division 2) under
subsection 104(2) of the Act. This amendment appropriately reflects the continuation of the
Federal Circuit Court, under the Federal Circuit Court Act, as the FCFC (Division 2), under
the Federal Circuit and Family Court of Australia Act 2018, and does not change the
operation of the paragraph.
Item 65 - Part 2 of Schedule 1 (table items 206 and 217)
261
1409. Item 65 amends the table items 206 and 217 in Part 2 of Schedule 1 of the Regulation
by omitting 'Federal Circuit Court of Australia' and substituting 'Federal Circuit and Family
Court of Australia (Division 2)'. Table items 206 and 217 provides for filing of a document
by which a proceeding under the Bankruptcy Act 1966 is commenced, and for the hearing for
an examination by a Registrar of the Court under section 50 or 81 of the Bankruptcy Act
1966. This amendment appropriately reflects the continuation of the Federal Circuit Court as
the FCFC (Division 2), and does not change the operation of the paragraph.
Item 66 - Part 2 of Schedule 1 (table item 218)
1410. Item 66 amends the table item 218 in Part 2 of Schedule 1 of the Regulation by
omitting 'Federal Circuit Court under subsection 104(3) of the Federal Circuit Court Act'
and substituting 'Federal Circuit and Family Court of Australia (Division 2)' under
subsection 223(2) of the Federal Circuit and Family Court of Australia Act 201'. Table
item 218 provides for the filing of an application (including a cross-claim) under
subsection 104(3) of the Federal Circuit Court Act. This amendment appropriately reflects
the continuation of the Federal Circuit Court, under the Federal Circuit Court Act, as the
FCFC (Division 2), under the Federal Circuit and Family Court of Australia Act 2018, and
does not change the operation of the paragraph.
Item 67 - Part 2 of Schedule 1 (table items 219, 220, 221 and 224)
1411. Item 67 amend stable items 219, 220, 221 and 224 in Part 2 of Schedule 1 of the
Regulation by omitting 'Federal Circuit Court of Australia' and substituting 'Federal Circuit
and Family Court of Australia (Division 2)'. Table item 219 provides the fee for the
production of a file of the Court and making a copy of document(s) in the file. Table item 220
provides the fees for each service or execution (or attempt thereof) of the process of the Court
by an officer of the Court. Table item 221 provides the fee for seizure and sale of goods by an
officer of the Court in the execution of the process of the Court. Table item 224 provides the
fee for mediation by an officer of the Court. This amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2), and does not change the
operation of the paragraph.
Part 2 - Other Amendments
Administrative Decisions (Judicial Review) Regulations 2017
Item 68 - Subsection 6(1)
1412. Item 68 amends subsection 6(1) of the Administrative Decisions (Judicial Review)
Regulations 2017 by omitting 'Federal Circuit Court of Australia' and substituting 'Federal
Circuit and Family Court of Australia (Division 2)'. Subsection 6(1) of the Administrative
Decisions (Judicial Review) Regulations 2017 provides that where a person is engaging (or
has or will do so) in conduct for the purpose of making a decision to which the
Administrative Decisions (Judicial Review) Act 1977 applies, a person aggrieved by the
conduct may apply to the Court (or the Federal Court) for an order of review in respect of the
conduct, on one or more of the grounds listed in subsection 6(1). This amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2),
and does not change the operation of the paragraph.
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Australian Crime Commission Regulations 2002
Item 69 - Subregulation 8A(3)
1413. Item 69 amends subregulation 8A(3) of the Australian Crime Commission
Regulations 2002 by omitting 'Federal Circuit Court of Australia' and substituting 'Federal
Circuit and Family Court of Australia (Division 2)'. Subregulation 8A(3) provides for each
kind of duty, function, or power under a provision of a State law mentioned in Schedule 5 of
the Regulation may be conferred on a Judge of the Court or of the Federal Court, as
mentioned in Schedule 5. This amendment appropriately reflects the continuation of the
Federal Circuit Court as the FCFC (Division 2), and does not change the operation of the
paragraph.
Item 70 - Schedule 5 (heading)
1414. Item 70 amends the heading of Schedule 5 by omitting 'Federal Court Judge or
Federal Circuit Court Judge' and substituting 'Judge of the Federal Court or Federal Circuit
and Family Court of Australia (Division 2)'. Schedule 5 relates to duties, functions and
powers conferred on FCFC (Division 2) Judges by State Laws. This amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2),
and does not change the operation of the paragraph.
Item 71 - Part 2 of Schedule 5 (table, heading to column headed Federal Court Judge or
Federal Circuit Court Judge'
1415. Item 71 repeals the heading of Part 2 of Schedule 5 and substitutes a new heading
which reads 'Judge of the Federal Court or Federal Circuit and Family Court of Australia
(Division 2)'. Part 2 of Schedule 5 relates to Laws of Victoria which confer duties, functions
and powers conferred on Judges. This amendment appropriately reflects the continuation of
the Federal Circuit Court as the FCFC (Division 2), and does not change the operation of the
paragraph.
Item 72 - Part 2 of Schedule 5 (table item 203)
1416. Item 72 amends the heading of item 203 of Part 2 of Schedule 5 by omitting 'Federal
Court Judge' and substituting 'Federal Court or Federal Circuit and Family Court of Australia
(Division 2)'. Item 203 relates to duties, powers and functions under the Australian Crime
Commission (State Provisions) Regulations 2004 (Vic). This amendment appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2), and does not
change the operation of the paragraph.
Item 73 - Part 4 of Schedule 5 (table, heading to column headed Federal Court Judge or
Federal Circuit Court Judge'
1417. Item 73 repeals the heading of Part 4 of Schedule 5 and substitutes a new heading
which reads 'Judge of the Federal Court or Federal Circuit and Family Court of Australia
(Division 2)'. Part 2 of Schedule 5 relates to Laws of Western Australia which confer duties,
functions and powers conferred on Judges. This amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2), and does not change the
operation of the paragraph.
263
Automotive Transformation Scheme Regulations 2010
Item 74 - Subparagraph 5.4(1)(a)(i)
1418. Item 74 amends subparagraph 5.4(2)(a)(i) of Automotive Transformation Scheme
Regulations 2010 by omitting 'Federal Circuit Court of Australia' and substituting 'Federal
Circuit and Family Court of Australia (Division 2)'. Section 5.4 stipulates limitations on the
implementation of a court's decision concerning payment of assistance following review by
the Court provided in subregulation 5.4(1). The amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2) and does not change the
operation of the subparagraph.
Bankruptcy Regulations 1996
Item 75 - Subregulation 1.03 (definition of Federal Circuit Court (Bankruptcy) Rules)
1419. Item 75 amends subregulation 1.03(1) of the Bankruptcy Regulations 1996 (the
Regulation) by repealing the definition of 'Federal Circuit Court (Bankruptcy) Rules'. The
current definition of Federal Circuit Court (Bankruptcy) Rules provides that the Federal
Circuit Court (Bankruptcy) Rules means the Federal Circuit Court (Bankruptcy) Rules 2016.
This amendment appropriately reflects the replacement of the Federal Circuit Court
(Bankruptcy) Rules with the Federal Circuit and Family Court of Australia (Division 2)
(Bankruptcy) Rules 2018.
Items 76 to 81 - Schedule 8 (table item 15, columns headed 'Person who must give the
document to the Official Receiver' and 'Period within which the document must be
provided to the Official Receiver'; table item 22C, columns headed 'Person who must
give the document to the Official Receiver' and 'Period within which the document
must be provided to the Official Receiver'; table item 23, columns headed 'Person who
must give the document to the Official Receiver' and 'Period within which the
document must be provided to the Official Receiver')
1420. Items 76 to 81 update Schedule 8, table items 15, 22C, and 23, in the columns headed
'Person who must give the document to the Official Receiver' and 'Period within which the
document must be provided to the Official Receiver' by omitting 'Federal Circuit Court
(Bankruptcy) Rules' and substituting 'Federal Circuit and Family Court of Australia
(Division 2) (Bankruptcy) Rules 2018'. Schedule 8 provides the information that is to be
entered on the National Personal Insolvency Index, as well as sources of that information and
stipulates periods within which that information is to be provided to the Official Receiver.
This amendment appropriately amends the content of the Schedule to reflect modifications
made by item 7 of Schedule 8 of this Bill, which renames the Federal Circuit Court
(Bankruptcy) Rules 2016 to Federal Circuit and Family Court of Australia (Division 2)
(Bankruptcy) Rules 2018.
264
Designs Regulations 2004
Item 82 - Subparagraph 5.04(c)(iii)
1421. Item 82 amends subparagraph 5.04 (c)(iii) of the Designs Regulations 2004 omitting
', the Federal Magistrates Court or the Federal Circuit Court of Australia' and substituting 'or
the Federal Circuit and Family Court of Australia (Division 2)'. Subparagraph 5.04(c)(iii)
provides that if an appeal is made to the Federal Court, the Federal Magistrates Court or the
Federal Circuit Court against a decision of a Registrar under section 67 or 68 of the Design
Act 2003, the prescribed period for the purpose of paragraph 65(3(b) of the Designs Act 2003
is the period determined by the Registrar to allow the examination to be completed. This
amendment appropriately reflects the continuation of the Federal Circuit Court (and formerly
the Federal Magistrates Court) as the FCFC (Division 2), and the fact that an application may
have been made to the Federal Circuit Court prior to it becoming the FCFC (Division 2) on 1
January 2019.
1422. Section 67 of the Design Act 2003 relates to the issue by a Registrar of certificate of
examination in respect of validly registered designs, and section 68 to the revocation of
registration by the Registrar after an examination, in appropriate circumstances.
Paragraph 65(3)(b) provides that Regulations are to prescribe the period in which a Registrar
must conduct an examination of a registered design under the Act.
Extradition Regulations 1988
Item 83 - Regulation 4 (heading)
1423. Item 83 alters the reference to 'eligible Federal Circuit Court Judge' to 'eligible
Judge' in the heading of regulation 4 of the Extradition Regulations 1988. The expression
'eligible Judge' will be defined in the Act (see item 336 of Schedule 2). This is a
consequential amendment to reflect the new name of the Court and does not alter the
operation of regulation 4.
Item 84 - Subregulation 4(1)
1424. Item 84 alters the reference to 'eligible Federal Circuit Court Judge' to 'eligible
Judge' in subregulation 4(1). Regulation 4 provides for the power of an eligible Federal
Circuit Court Judge to issue summons for witnesses to attend, give evidence, answer
questions and produce documents and other articles. The expression 'eligible Judge' will be
defined in the Act (see item 336 of Schedule 2). This is a consequential amendment to reflect
the new name of the Court and does not alter the functions which are conferred under
regulation 4.
Item 85 - Regulation 5
1425. Item 85 alters the reference to 'eligible Federal Circuit Court Judge' to 'eligible
Judge' in regulation 5. Regulation 5 provides for the duty of a person summonsed under
regulation 4. The expression 'eligible Judge' will be defined in the Act (see item 336 of
Schedule 2). This is a consequential amendment to reflect the new name of the Court and
does not alter the operation of regulation 45
265
Item 86 - Subregulations 6(1), (2) and (4), 7(1), 8(1), and 9(1)
1426. Item 86 alters the references to 'eligible Federal Circuit Court Judge' to 'eligible
Judge' in subregulations 6(1), (2), and (4), 7(1), 8(1) and 9(1). Regulation 6 provides for the
arrest of a person summonsed under regulation 4 who fails to attend as required.
Regulation 7 provides for the payment of witness fees and allowances. Regulation 8 provides
that an eligible Federal Circuit Court Judge performing functions under the Act may
administer an oath or affirmation to a person appearing as a witness and examine that witness
on oath or affirmation. Regulation 9 provides for offences for witnesses summoned to attend
before an eligible Federal Circuit Court Judge.
1427. The expression 'eligible Judge' will be defined in the Act (see item 336 of
Schedule 2). This is a consequential amendment to reflect the new name of the Court and
does not alter the operation of regulations 6, 7, 8 or 9.
Item 87 - Regulation 10 (heading)
1428. Item 87 alters the references to 'eligible Federal Circuit Court Judge' to 'eligible
Judge' in the heading of regulation 10. Regulation 10 provides for the offences that may be
committed against an eligible Federal Circuit Court Judge. This is a consequential
amendment to reflect the continuation of the Federal Circuit Court as the FCFC (Division 2)
and does not alter the operation of regulation 10.
Item 88 and 89 - Regulation 10, subregulations 11(2), (3) and (4)
1429. Items 88 and 89 alter the references to 'eligible Federal Circuit Court Judge' to
'eligible Judge' in regulation 10 and subregulations 11(2), (3) and (4). Regulation 10
provides for the offences that may be committed against an eligible Federal Circuit Court
Judge. Regulation 11 provides the protections to certain persons under the Extradition Act
1988, and subregulations (2), (3) and (4) set out the protections for a barrister or solicitor, a
person represented by a barrister of solicitor, or a witness summonsed to attend or appear,
before a magistrate or eligible judge. These are consequential amendments to reflect the
continuation of the Federal Circuit Court as the FCFC (Division 2) and do not alter the
operation of regulation 10 or subregulations 11(2), (3) and (4).
Item 90 - Subregulation 12(1)
1430. Item 90 alters the references to 'eligible Federal Circuit Court Judge' to 'eligible
Judge' (wherever occurring) in the subregulation 12(1). Subregulation 12(1) provides for the
power for a Magistrate, an eligible Judge or a Judge of the Supreme Court in the State or
Territory to order that a recognisance has failed. This is a consequential amendment to reflect
the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not alter the
operation of subregulation 12(1).
Items 91 and 92 - Subregulation 13(1) and regulations 14 and 15
1431. Items 91 and 92 alter the references to 'eligible Federal Circuit Court Judge' to
'eligible Judge' in subregulation 13(1) and regulations 14 and 15. Regulation 13 sets out the
procedure that is required after the arrest of a person who was on bail. Regulations 14 and 15
provide the form of a warrant issued by a magistrate or eligible Judge under subparagraphs
48(1)(b)(iii) or 48(1)(b)(iv), respectively. These are consequential amendments to reflect the
266
continuation of the Federal Circuit Court as the FCFC (Division 2) and do not alter the
operation of subregulation 13(1) or regulations 14 or 15.
Item 93 - Schedule (Forms 1, 2, 4 to 12A, 16 to 22 and 26 to 29)
1432. Item 93 amends forms 1, 2, 4 to 12A, 16 to 22 and 26 to 29 to omit references to
'eligible Federal Circuit Court Judge' and to substitute to 'eligible Judge'. The forms affected
are:
Form 1 - Summons
Form 2 - Warrant of arrest
Form 4 - Application for extradition arrest warrant
Form 5 - Warrant for arrest under subsection 12(1)
Form 6 - Notice directing magistrate or eligible Federal Circuit Court Judge to cancel
warrant
Form 7 - Warrant under subsection14(1) in relation to search/and/seizure
Form 8 - Warrant under subsection 15(4) in relation to transfer of person on remand
Form 8A - Warrant under subsection 15A(4) in relation to waiver of extradition
Form 8B - Notice to order release from custody under subsection 15B(4)
Form 9 - Notice of receipt of extradition
Form 9A - Amended notice of receipt of extradition request
Form 10 - Notice to order release from remand
Form 11 - Warrant under subsection 18(2) in relation to consent to being surrendered
Form 12 - Warrant under subsection 19(9) ordering committal to prison to await
surrender
Form 12A - Warrant under paragraph 21(2A)(b) ordering committal to prison to await
Form 16 - Application under section 28 for indorsement of New Zealand warrant
Form 17 - Indorsement of New Zealand warrant under section 28 authorising
execution of warrant in Australia
Form 18 - Application under section 29 for provisional arrest warrant
Form 19 - Provisional arrest warrant under section 29
Form 20 - Warrant under subsection 31(1) in relation to search/and/seizure
267
Form 20A - Surrender warrant under subsection 33A(2)
Form 20B - Warrant of committal under
Form 21 - Surrender warrant under subsection 34(1)
Form 22 - Warrant of committal under subsection 34(1)
Form 26 - Certificate under subsection 43(2) in relation to taking of evidence in
Australia
Form 27 - Application for transport in custody through Australia
Form 28 - Warrant under subsection 48(1) to hold in custody person being transported
through Australia
Form 29 - Warrant under subsection 48(1) to hold person in custody for further period
1433. These are consequential amendments to appropriately reflect the new name of the
Court and do not alter the substantive effect of these forms.
Fair Work (Registered Organisations) Regulations 2009
Item 94 - Subregulation 176F(2)
1434. Item 94 amends subregulation 176F(2) of the Fair Work (Registered Organisations)
Regulations 2009 by omitting 'Federal Circuit Court Rules 2001' and substituting 'Federal
Circuit and Family Court of Australia (Division 2) Rules 2018'. Regulation 176F provides
that a witness is entitled to a payment to help meet the legal costs and disbursements for a
lawyer to represent the witness. Subregulation 176F(2) provides that the amount of that
payment is calculated using the costs set out in the 'Federal Circuit Court Rules 2001'. This
amendment reflects the amendment made by item 1 of Part 1 of Schedule 8, which provides
that on and after 1 January 2019, the 'Federal Circuit Court Rules 2001' are to be known as
the 'Federal Circuit and Family Court of Australia (Division 2) Rules 2018'. This is a
consequential amendment to reflect the continuation of the Federal Circuit Court as the FCFC
(Division 2) and does not alter the operation of subregulation 176F(2).
Fair Work Regulations 2009
Item 95 - Subregulation 4.01A(2) (table)
1435. Item 95 amends the table in subregulation 4.01A(2) of the Fair Work Regulations
2009 by omitting 'Federal Circuit Court' and substituting 'Federal Circuit and Family Court
of Australia (Division 2)' (wherever occurring). The table in subregulation 4.01A sets out the
civil remedy provisions, the persons and courts that would be referred to in applying for that
remedy and the maximum penalty payable in relation to the civil penalty provision. These are
consequential amendments to reflect the continuation of the Federal Circuit Court as the
268
FCFC (Division 2) and do not alter the operation of the items in the table in subregulation
4.01A(2).
Item 96 - Subparagraph 4.01(1)(a)(ii)
1436. Item 96 updates subparagraph 4.01(1)(a)(ii) by omitting 'Federal Circuit Court' and
substituting 'Federal Circuit and Family Court of Australia (Division 2)'. Subregulation
4.01(1)(a) sets out the procedure for a person to indicate they want a small claims procedure
to apply to their action. This is a consequential amendment to reflect the continuation of the
Federal Circuit Court as the FCFC (Division 2) and does not alter the operation of
subparagraph 4.01(1)(a)(ii).
Items 97 and 98 - Subregulations 4.01(2) and (3)
1437. Items 97 and 98 update subregulations 4.01(2) and (3) by omitting 'Federal Circuit
Court' and substituting 'Federal Circuit and Family Court of Australia (Division 2)'.
Subregulation 4.01(2) and (3) provides when the procedure in subregulation 4.01(1) does not
apply, and allows a party to a small claims proceeding to be represented by an official of an
industrial association with leave, respectively. These are consequential amendments to reflect
the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not alter the
operation of subregulations 4.01(2) and (3).
Item 99 - In the appropriate position in Chapter 7
1438. Item 98 inserts new 'Part 7-3 - Amendments made by the Federal Circuit and Family
Court of Australia (Consequential Amendments and Transitional Provisions Act 2018'. New
Part 7-3 contains a saving provision in relation to the Federal Circuit Court Rules 2001,
which despite their repeal, will continue in force, as in force on 21 December 2017, for the
purpose of subregulation 5.13(2) of the Fair Work Regulations 2009 (legal allowance). A
savings provisions is required as subregulation 5.13(2) states that the legal allowance
applicable is the amount calculated using the Federal Circuit Court Rules as in force when
the Fair Work Regulations commenced.
Fair Work (Transitional Provisions and Consequential Amendments) Regulations 2009
Item 100 - Subregulation 5.06(1)
1439. Item 100 amends subregulation 5.06(1) of the Fair Work (Transitional Provisions and
Consequential Amendments) Regulations 2009 by omitting subregulation (3) and substituting
subregulation (2). This amendment corrects a minor error in the Fair Work (Transitional
Provisions and Consequential Amendments) Regulations 2009.
Item 101 - Subregulation 5.06(2) (table)
1440. Item 101 updates the table in subregulation 5.06(2) by omitting 'Federal Circuit
Court' and substituting 'Federal Circuit and Family Court of Australia (Division 2)'
(wherever occurring). The table in subregulation 5.06(2) sets out the civil remedy provisions,
the persons and courts that would be referred to in applying for that remedy and the
maximum penalty payable in relation to the civil penalty provision. This is a consequential
269
amendment to reflect the continuation of the Federal Circuit Court as the FCFC (Division 2)
and does not alter the function of the items in the table in subregulation 5.06(2).
Items 102 and 103 - Regulation 5.13 (paragraph 724(1)(a) of the WR Act) and (section
724 of the WR Act (note))
1441. Items 102 and 103 update paragraph 724(1)(a) of the WR Act and the note to section
724 of the WR Act by omitting 'Federal Circuit Court' and substituting 'Federal Circuit and
Family Court of Australia (Division 2)'. Paragraph 724(1) sets out the circumstances required
for an action under section 720 or 721 of the WR Act to be dealt with as small claims
proceedings. The note to section 724 of the WR Act clarifies on which court item WR Act
jurisdiction is conferred. These are consequential amendments to reflect the continuation of
the Federal Circuit Court as the FCFC (Division 2) and do not alter the s not alter the function
of the paragraphs or note in Regulation 5.13.
Family Law (Child Abduction Convention) Regulations 1986
Item 104 - Subregulation 2(1) (definition of court)
1442. Item 104 amends the definition of 'court' in subregulation 2(1) to omit the reference
to paragraph 39(5A)(a) of the Family Law Act.
1443. Subsection 39(5A) is being repealed (see item 44 of Schedule 1 of this Bill) as it
confers jurisdiction with respect to certain proceedings on the Federal Circuit Court, which is
being continued as the FCFC (Division 2). Subsection 39(5) is instead being amended to
confer this jurisdiction on the FCFC, which includes the Federal Circuit Court continuing as
the FCFC (Division 2) (see item 41 of Schedule 1 of this Bill).
Item 105 - Subregulation 2(1) - (definition of Registrar)
1444. Item 105 amends the definition of 'Registrar' in subregulation 2(1) by replacing the
reference to 'Family Court' with FCFC (Division 1). The amendment appropriately reflects
the continuation of the Family Court as the FCFC (Division 1).
1445. Appropriate officers of the FCFC (Division 1), and other courts exercising
jurisdiction, remain unchanged in the definition.
Family Law (Child Protection Convention) Regulations 2003
Items 106 and 107 - Subregulations 3(1) and 3(2)
1446. Item 106 inserts a new definition of 'Registrar' into the regulations. Currently, the
Regulations refer to the definition of 'Registrar' in subsection 4(1) of the Family Law Act.
The definition of 'Registrar' in that Act has been simplified and some of the court officers to
which the definition of 'Registrar' applied are no longer included in the definition (see item
12 of Schedule 1 of this Bill). For the purposes of the Child Protection Regulations, a new
definition of 'Registrar' is required that continues to reflect all of the officers which are
intended to undertake the duties, functions and powers of a Registrar under the Regulations,
270
within the context of the new court structure as provided in the Federal Circuit and Family
Court of Australia Act 2018 and associated legislation. This includes the Chief Executive
Officer, a Registrar or Deputy Registrar, as appropriate.
1447. Item 107 repeals the reference to 'registrar (in relation to a court)' in Note 2 of
subregulation 3(2) as the Regulations will no longer use the definition of 'Registrar' in
subsection 4(1) of the Family Law Act, as provided in item 106 of schedule 1 of this Bill.
Item 108 - Paragraph 11(b)
1448. Item 108 amends paragraph 11(b) of the regulations by replacing the reference to
'Family Court' with 'Federal Circuit and Family Court of Australia'. The amendment
appropriately reflects the Family Court continuing as the FCFC (Division 1) and expands the
provision so that the Federal Circuit Court continuing as the FCFC (Division 2) can also
exercise jurisdiction, consistent with the objects of the Federal Circuit and Family Court of
Australia Act 2018. Regulation 11 deals with the receipt of documents that are foreign
measures. Regulation 12 deals with the registration and court recognition of foreign measures
to provide that the Family Court continuing in existence as the FCFC (Division 1) can grant
leave under this subsection,
Item 109 - Subregulation 13(2)
1449. Regulation 13 currently prohibits a Registrar of a court from registering a foreign
measure relating to special medical treatment unless the Family Court, or another authorised
court or tribunal, has authorised the medical treatment.
1450. Item 109 amends subregulation 13(2) by replacing the reference to 'Family Court'
with 'Federal Circuit and Family Court of Australia'. The amendment recognises the Family
Court continuing as the FCFC (Division 1) and also includes the Federal Circuit Court
continuing as the FCFC (Division 2), consistent with the objects of the Federal Circuit and
Family Court of Australia Act 2018.
Family Law (Family Dispute Resolution Practitioners) Regulations 2008
Item 110 - Subparagraph 26(4)(b)(ii)
1451. Item 110 amends subparagraph 26(4)(b)(ii) by inserting separate references to the
FCFC (Division 1), the FCFC (Division 2) and any other court.
1452. It is compulsory for parties to attempt family dispute resolution before applying for a
parenting order. The Family Law Act requires parties to obtain a certificate under subsection
60I(8) from a registered family dispute resolution practitioner before an application for an
order in relation to a child is filed in court under Part VII of the Act. There are five types of
certificates a family dispute resolution practitioner can issue, including that the person did not
attend family dispute resolution due to the refusal or failure of the other person or people to
attend under paragraph 60I(8)(a). In this instance, subparagraph 26(4)(b)(ii) of the
Regulations specify that, before a practitioner gives a certificate under paragraph 60I(8)(a),
the practitioner must have informed each party that the certificate may be taken into account
by a court when determining whether to make an order under section 13C (which sets out that
271
a court may refer parties to family counselling, family dispute resolution or other family
services) or an order awarding costs under section 117 of the Act.
1453. Item 110 replaces subparagraph 26(4)(b)(ii) with new subparagraphs 26(4)(b)(ii), (iii)
and (iv), to recognise that the power to award costs for the FCFC (Division 1) derives from
the new case management provisions in sections 48 - 51, and for the FCFC (Division 2)
derives from the new case management provisions in sections 157 - 160, of the Federal
Circuit and Family Court of Australia Act 2018, in addition to section 117 of the Family Law
Act. For other courts exercising family law jurisdiction, the power is derived from section
117 of the Family Law Act.
Item 111 - Paragraph 28(1)(h)
1454. Item 111 amends paragraph 28(1)(h) by inserting separate references to the FCFC
(Division 1), the FCFC (Division 2) and any other court.
1455. Regulation 28 stipulates that certain information must be given to parties before
family dispute resolution commences, including, under paragraph 28(1)(h), that if a
certificate under subsection 60I(8)(a) of the Family Law Act is filed because of one party's
refusal or failure to attend family dispute resolution, the effect of this is that the court may
take it into account in considering whether to make an order under section 13C of the Family
Law Act or to award costs against a party under section 117 of that Act.
1456. Similarly to item 110 of Schedule 3 of this Bill, item 111 updates paragraph 28(1)(h),
replacing it with new subparagraphs 28(1)(h)(i), (ii) and (iii), to recognise that the power to
award costs for the new FCFC (Division 1) and FCFC (Division 2) derives from the new case
management provisions in sections 48 - 51 (for Division 1) and sections 157 - 160 (for
Division 2) of the Federal Circuit and Family Court of Australia Act 2018, in addition to
section 117 of the Family Law Act. For other courts exercising family law jurisdiction, the
power is derived from section 117 of the Family Law Act.
Family Law (Hague Convention on Intercountry Adoption) Regulations 1998
Item 112 - Subregulation 3(1)
1457. Item 112 inserts a definition of 'Federal Circuit and Family Court of Australia' into
subregulation 3(1). This new definition reflects the creation of the new court by the Federal
Circuit and Family Court of Australia Act 2018, and reflects the definition in Item 8 Schedule
1 of this Bill.
Item 113 and Item 114 - Regulation 24A (heading) and subregulation 24A(1)
1458. Items 113 and 114 amend regulation 24A by replacing the reference to 'Family Court
of Australia' with 'Federal Circuit and Family Court of Australia'. Regulation 24A confers
jurisdiction in a matter to which a provision of Part 4 of the regulations (relating to court
orders and recognition of intercountry adoption) applies. The amendment appropriately
reflects the Family Court continuing as the FCFC (Division 1) and expands the provision so
that the Federal Circuit Court continuing as the FCFC (Division 2) can also exercise
jurisdiction, consistent with the objects of the Federal Circuit and Family Court of Australia
Act 2018.
272
Item 115 - At the end of subregulation 24A(1)
1459. Item 115 adds a note to the end of subregulation 24A(1) alerting readers to the new
arrangements for appeals from a decision of the FCFC as set out in revised section 24 of the
Federal Court Act (see item 227 of Schedule 1 of this Bill).
Item 116 - Subregulation 24A(2)
1460. Item 116 amends subregulation 24A(2) by replacing the reference to 'Family Court'
with 'Federal Circuit and Family Court of Australia'. The amendment appropriately reflects
the Family Court continuing as the FCFC (Division 1) and expands the provision so that the
Federal Circuit Court continuing as the FCFC (Division 2) can also exercises jurisdiction,
consistent with the objects of the Federal Circuit and Family Court of Australia Act 2018.
Item 117 - Paragraph 24A(3)(a)
1461. Item 117 amends paragraph 24(3)(a) by replacing the reference to 'Family Court of
Australia' with 'Federal Circuit and Family Court of Australia'. Paragraph 24A(3)(a) deals
with transitional matters relating to proceedings effected by the investing of jurisdiction in a
court of a State (which divests the FCFC of jurisdiction). The amendment appropriately
reflects the Family Court continuing as the FCFC (Division 1) and expands the provision so
that the Federal Circuit Court continuing as the FCFC (Division 2) can also exercise
jurisdiction, consistent with the objects of the Federal Circuit and Family Court of Australia
Act 2018.
Item 118 - Regulations 24B to 24E
1462. Item 118 repeals the regulations 24B to 24E as they deal with arrangements for
appeals to the Full Court of the Family Court. The appellate function of the Family Court is
being removed and replaced in the new Family Law Appeal Division of the Federal Court.
New regulations 24B to 24E set out arrangements relating to appeals to the Family Law
Appeal Division which will be established by the Federal Circuit and Family Court of
Australia Act 2018 (see Schedule 1 of this Bill). For appeals from decisions of the FCFC
(Division 1) (continuation of the Family Court), the requirement that a Full Court hear the
appeal has been retained, consistent with the policy intent of the regulations and consistent
with item 229 of Schedule 1 of this Bill. The amendments replicate the powers and
arrangements for the Family Law Appeal Division that existed for the Full Court of the
Family Court relating to:
evidence which may be given in an appeal
time for instituting an appeal, and
orders that may be made on appeal.
273
Family Law Regulations 1984
Item 119 - Regulation 3 (after paragraph (a) of the note)
1463. Item 119 inserts a reference to the definition of the 'Federal Circuit and Family Court
of Australia'. The regulations use the same definition as the Family Law Act (inserted by
item 8 of Schedule 1 of this Bill).
Item 120 - Subregulation 3(1)
1464. Item 120 renumbers the subregulation by omitting (1) as a consequence of the
amendment made by item 122 of Schedule 3 of this Bill, below (which repeals subregulation
3(2)).
Item 121 - Subregulation 3(1) (definition of registrar)
1465. Item 121 repeals the existing definition of registrar and inserts a new definition.
1466. Currently, the Family Law Regulations provides that the definition of 'registrar'
includes the definition of 'Registrar' in subsection 4(1) of the Family Law Act. The definition
of 'Registrar' in that Act has been revised and some of the court officers to which the
definition of 'Registrar' applied are no longer included in the definition (see item 12 of
Schedule 1 of this Bill).
1467. For the purposes of the Family Law Regulations, a new definition of registrar is
required that continues to reflect all of the officers which are intended to undertake the duties,
functions and powers of a registrar under the Regulations, within the context of the new court
structure as provided in the Federal Circuit and Family Court of Australia Act 2018 and
associated legislation. This includes the Chief Executive Officer, a Registrar or Deputy
Registrar, as appropriate.
1468. The definition of registrar in relation to a court of summary jurisdiction has not
changed and is retained in paragraph (d).
Item 122 - Subregulation 3(2)
1469. Item 122 repeals subregulation 3(2) as the reference to 'the Family Court' being
interpreted as including a reference to a State Family Court is no longer required. The Family
Court will continue in existence as the FCFC (Division 1) (see section 8 of the Federal
Circuit and Family Court of Australia Act 2018). Appropriate amendments have been made
where there is still a need to cover a State Family Court (for example, item 127 of Schedule 3
of this Bill).
Item 123 - Regulation 3A
1470. Item 123 repeals regulation 3A. Regulation 3A prescribes a higher contract limit
amount of $1,000,000 for the purposes of existing subsection 38A(4) of the Family Law Act.
Subsection 38A(4) is in Part IVA (governing the management of the Family Court). As the
Family Court will be continued in existence as the FCFC (Division 1) (see section 8 of the
Federal Circuit and Family Court of Australia Act 2018), the provisions specific to the
establishment, function and governance of the Family Court are removed from the Family
Law Act and inserted into the Federal Circuit and Family Court of Australia Act 2018. Item
274
38 of Schedule 1 repeals Part IVA of the Family Law Act. The provisions in this Part are
substantially replicated in the Federal Circuit and Family Court of Australia Act 2018 with
amendments as are necessary for the operation of the new structure. Specifically, subsection
39(6) sets out contract limits for the Chief Justice of the FCFC (Division 1).
Item 124 - Subregulation 4(2)
1471. Item 124 repeals subregulation 4(2) as this allows the court or a registrar to give
directions in matters of practice and procedure in proceedings to which section 9 of the
Family Law Act applies. Item 21 of Schedule 1 of this Bill repeals section 9 as it contains
transitional provisions. There are no longer any proceedings to which this section would
apply.
Item 125 - Regulation 7
1472. Item 125 amends regulation 7, relating to the appointment of family consultants under
paragraph 11B(c) of the Family Law Act, to reflect the structure of the new FCFC. The
amendment replaces the separate references to the 'Chief Executive Officer of the Family
Court' and 'Chief Executive Officer of the Federal Circuit Court' with a simple reference to
the 'Chief Executive Officer'. 'Chief Executive Officer' is defined in item 4 of Schedule 1 of
this Bill, which amends subsection 4(1) of the Family Law Act, to mean 'the Chief Executive
Officer and Principal Registrar of the Federal Court of Australia.' This reflects that the Chief
Executive Officer of the Federal Court is responsible for providing the corporate services of
the FCFC in accordance with section 18Z of the Federal Court Act (as amended by item 209
of Schedule 1 of this Bill). This is consistent with the current arrangement for the federal
courts (excluding the High Court) for sharing corporate services.
Item 126 - Regulations 10 and 12AB
1473. Item 126 repeals both regulation 10 and regulation 12AB. Regulation 10 relates to
recording and transcription of proceedings in the Family Court. As the Family Court will be
continued in existence as the FCFC (Division 1), (see section 8 of the Federal Circuit and
Family Court of Australia Act 2018), which will have its own rules in relation to recording
and transcription, regulation 10 is no longer required.
1474. Regulation 12AB relates to assigning a certain number of judges to the
Appeal Division of the Family Court under subsection 22(2AC) of the Family Law Act.
Section 22 is repealed by item 38 of Schedule 1 of this Bill as part of the repeal of Part IV of
the Family Law Act which governs the creation, structure and constitution of the Family
Court of Australia. As the Family Court will be continued in existence as the FCFC (Division
1), the provisions specific to the establishment, function and governance of the Family Court
are removed from the Family Law Act and inserted into the Federal Circuit and Family
Court of Australia Act 2018. In addition, the functions of the Appeal Division will now be
performed by the Family Law Appeal Division of the Federal Court which will be established
by the Federal Circuit and Family Court of Australia Act 2018 (see item 227 of Schedule 1
of this Bill).
Item 127 - Sub regulation 12CC(1)
1475. Item 127 amends subregulation 12CC(1) by replacing the reference to the 'Family
Court' with a 'Federal Circuit and Family Court of Australia (Division 1) or a State Family
275
Court'. Regulation 12CC deals with the registration of a court's decision under subsection
68R(6) of the Family Law Act. Section 68R allows a court of a state or territory making a
family violence order to revive, vary, discharge or suspend an existing order, injunction or
arrangement under that Act. The amendment appropriately reflects the continuation of the
Family Court as the FCFC (Division 1) (see section 8 of the Federal Circuit and Family
Court of Australia Act 2018). The amendment also recognises the role of State family courts,
reflecting the repeal of subregulation 3(2) by item 122 if schedule 3 of this Bill).
Item 128 - Regulation 15A
1476. Item 128 repeals regulation 15A. Regulation 15A sets out a 'prescribed decree' for the
purposes of section 94AA of the Family Law Act which requires leave to appeal in certain
matters. Section 94AA is being repealed as part of the repeal of Part X (see item 114 of
Schedule 1 of this Bill). Part X relates to appeals to the Appeal Division of the Family Court
which will now largely be heard by the Family Law Appeal Division of the Federal Court
which will be established by the Federal Circuit and Family Court of Australia Act 2018 (see
item 227 of Schedule 1 of this Bill). Therefore, regulation 15A is no longer necessary. Item
227 of Schedule 1 of this Bill sets out the Federal Court's appellate jurisdiction in family law
matters, including in relation to leave to appeal.
Item 129 - Paragraphs 21N(2)(b) to (d)
1477. Item 129 repeals references to the 'Chief Executive Officer of the Family Court of
Australia' and the 'Chief Executive Officer of the Federal Circuit Court' and replaces them
with a reference to 'the Chief Executive Officer' (which will be defined in subsection 4(1) of
the Family Law Act as 'the Chief Executive Officer and Principal Registrar of the Federal
Court of Australia' (see item 4 of Schedule 1 of this Bill). Regulation 21N deals with
notification of accredited laboratories and nominated reporters (in relation to parentage
testing). The roles currently performed by the separate Chief Executive Officers will be
performed by the Chief Executive Office of the Federal Court. This is consistent with the
current arrangement for the federal courts (excluding the High Court) of sharing corporate
services.
Item 130 - Paragraph 23(1A)(a)
1478. Item 130 replaces a reference to the 'registrar of the Family Court' in
paragraph 23(1A)(a) with references to the 'Chief Executive Officer, or a Registrar or Deputy
Registrar of the Federal Circuit and Family Court of Australia (Division 1)' and the 'Chief
Executive Officer, or a Registrar of the Federal Circuit and Family Court of Australia
(Division 2)'.
1479. The role of the registrar of the Family Court under regulation 23 is to receive certified
copies of overseas child orders from the Secretary of the Attorney-General's Department and
register them by filing in the court a certified copy of the order. Under subregulation 23(5) a
registered overseas child order is enforceable throughout Australia.
1480. The amendments to paragraph 23(1A)(a) reflect that it is appropriate that this function
may be performed by the registrars of either the FCFC (Division 1) or the FCFC (Division 2)
once the new court is established. The amendment also includes a reference to the Chief
Executive Officer or Deputy Registrar (for Division 1) and the Chief Executive Officer (for
276
Division 2) to ensure that the function of receipt of copies of overseas orders may be
performed by these office holders.
Item 131 - Regulation 39BB (heading)
1481. Item 131 amends the heading of regulation 39BB to replace a reference to 'Family
Court' with a reference to the 'Federal Circuit and Family Court of Australia'. The
amendment appropriately reflects the continuation of the Family Court as part of the FCFC
(see section 8 of the Federal Circuit and Family Court of Australia Act 2018).
Item 132 - Subregulation 39BB(1)
1482. Item 132 amends subregulation 39BB(1) which currently provides that certain
jurisdiction of the Family Court must not be exercised in certain States and Territories.
1483. Subsection 40(1) of the Family Law Act, as amended by item 53 of Schedule 1 of this
Bill, provides that the regulations may provide that the jurisdiction of the FCFC under the
Family Law Act in relation to all proceedings, or a specified class of proceedings, must not
be exercised in a specified State or Territory, or in 2 or more specified States and Territories.
Currently, subregulation 39BB(1) provides that the Family Court must not exercise
jurisdiction under paragraph 31(1)(c) of the Family Law Act in the States or Territories listed
in paragraphs 39BB(1)(a) - (k).
1484. Paragraph 31(1)(c) of the Family Law Act confers original jurisdiction on the Family
Court in respect of certain matters arising under a law of a Territory (other than the Northern
Territory), including the adoption of children. However, the exercise of this jurisdiction of the
Family Court of Australia was never subject to a Proclamation under repealed subsection
40(2) of the Family Law Act, such the Family Court was never empowered to exercise this
jurisdiction. Current subregulation 39BB(1) maintains this restriction following the repeal of
subsection 40(2).
1485. Amended subregulation 39BB(1) continues to maintain this restriction for the FCFC.
Paragraph 31(1)(c) will be repealed as part of the repeal of Part IV (see item 38 of Schedule 1
of this Bill). Sections 24 and 99 of the Federal Circuit and Family Court of Australia Act
2018 provide for the original jurisdiction of the FCFC (Division 1) and the FCFC (Division
2), respectively, and substantially mirror existing paragraph 31(1)(c) of the Family Law Act.
The amendment to subregulation 39BB(1) updates the references to the new clauses
conferring original jurisdiction such that the existing arrangements in respect of this
jurisdiction are maintained.
Item 133 - Subregulation 39BB(2)
1486. Item 133 amends subregulation 39BB(2). Existing subregulation 39BB(2) restricts the
Family Court of Australia from exercising the listed jurisdiction under the Family Law Act in
Western Australia, the Territory of Christmas Island or the Territory of Cocos (Keeling)
Islands. The reason for this existing limitation on the Family Court's jurisdiction is that the
Family Court of Western Australia operates as a State Family Court in that jurisdiction.
1487. The amendments to subregulation 39BB(2) are intended to largely continue the
existing limitations on the exercise of the Family Court's jurisdiction (and by operation of
current section 40A of the Family Law Act, the Federal Circuit Court's jurisdiction).
277
1488. There are some modifications to the description of the listed jurisdiction which are
consequential to the repeal and remaking of certain provisions. Amended
subregulation 39BB(2) individually describes the certain matters currently covered by
references to paragraphs of subsection 31 of the Family Law Act which will be repealed as
part of the repeal of Part IV(see item 38 of Schedule 1 of this Bill). The references to
subsection 39(5) and paragraph 39B(1)(a) remain appropriate. The references in to
'paragraph 93A(1)(aa)' (referring to appeals referred to in subsection 94AAA(1) or (1A) of
the Family Law Act); and paragraph 93A(1)(b) (referring to appeals referred to in section 96
of the Family Law Act), are removed and replaced with a reference to new section 47A
(inserted by item 72 of Schedule 1 of this Bill).
1489. New section 47A replaces current section 96 of the Family Law Act and provides that
an appeal from a decree of a court of summary jurisdiction of a State or Territory exercising
jurisdiction under the Family Law Act lies to the FCFC; or the Supreme Court of that State or
Territory. By virtue of subsection 41(3) (as amended by item 57 of Schedule 1 of this Bill)
and a proclamation made under subsection 41(2) of the Family Law Act, references to 'the
Supreme Court of a State' in new section 47A are to be read as a reference to the Family
Court of a State -which, in Western Australia, is the Family Court of Western Australia.
1490. The operation of new section 47A extends to a decree of the Magistrates Court of
Western Australia constituted by a Family Law Magistrate of Western Australia. This is in
contrast to the current situation whereby an appeal from a decree of the Magistrates Court of
Western Australia constituted by a Family Law Magistrate of Western Australia lies to the
Family Court under subsection 94AAA(1A) of the Family Law Act. Subsection 94AAA(1A)
is repealed by item 38 of Schedule 1of this Bill.
1491. The effect of amended subregulation 39BB(2) and new section 47A is that, in
Western Australia and the other listed territories, all appeals from a decree of a court of
summary jurisdiction exercising jurisdiction under the Family Law Act will lie to the Family
Court of Western Australia, and not the FCFC.
Item 134 - Subregulation 39BB(3)
1492. Item 134 repeals subregulation 39BB(3). Subregulation 39BB(3) qualifies the
restriction on the Family Court's jurisdiction by enabling the Family Court, in Western
Australia and other listed territories, to continue to exercise the jurisdiction to hear appeals
referred to in existing section 94AAA(1A) of the Family Law Act (which related to appeals
from a decree of the Magistrates Court of Western Australia constituted by a Family Law
Magistrate of Western Australia exercising original jurisdiction under the Family Law Act).
Subregulation 39BB(3) is no longer required in light of the repeal of section 94AAA(1A) by
item 38 of Schedule 1 of this Bill.
Item 135 - Regulations 79 and 82
1493. Item 135 repeals regulations 79 and 82. These regulations are transitional regulations
and are no longer required.
Federal Court (Criminal Proceedings) Rules 2016
278
Item 136 - Paragraph 1.20(5)(b)
1494. Item 136 amends paragraph 1.20(5)(b) of the Federal Court (Criminal Proceedings)
Rules 2016 by omitting 'Federal Court and Federal Circuit Court Regulation 2012' and
substituting 'Federal Court and Federal Circuit and Family Court of Australia (Division 2)
Regulation 2012'. Paragraph 1.20(5)(b) provides for fees that may be payable by a person
who has been given a copy of a document in relation to a criminal proceeding. This
amendment reflects the amendment made by item 28. This amendment does not affect the
substantive operation of paragraph 1.20(5)(b).
Federal Proceedings (Costs) Regulations 2018
Item 137 - Section 6 (after table item 2)
1495. Item 137 amends section 6 of the Federal Proceedings (Costs) Regulations 2018 to
insert two items after the current item dealing with the Federal Court. The inserted items
provide the maximum amounts payable in respect of appeals or other proceedings in FCFC
(Division 1) and FCFC (Division 2).
Item 138 - Section 6 (table item 3)
1496. Item 138 amends section 6, to repeal table item 3 dealing with the Family Court. The
Family Court, continued in existence as the FCFC (Division 1) will be dealt with by the
amendments made by item 137 above.
Financial Framework (Supplementary Powers) Regulations 1997
Item 139 - Part 2 of Schedule 1AB (table item 11, column headed 'Purpose')
1497. Item 139 updates table item 11 in Part 2 of Schedule 1AB of the Financial
Framework (Supplementary Powers) Regulations 1997, under the column headed Purpose,
by omitting 'Family Court of Australia and the Federal Circuit Court of Australia' and
substituting 'Family Law Appeal Division of the Federal Court of Australia, the Federal
Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court
of Australia (Division 2)'. Item 11 at paragraph (b) of the table in Part 2 of Schedule 1AB
provides for the funding arrangements with States and Territories for the Family Court and
the Federal Circuit Court to use State court facilities. This amendment reflects the
continuation of the Family Court as the FCFC (Division 1), the continuation of the Federal
Circuit Court as the FCFC (Division 2), and conferral of family law appellate jurisdiction
upon the Family Law Appeal Division in the Federal Court.
Jury Exemption Regulations 1987
Item 140 - Subparagraphs 5(2)(b)(iii) and (iv)
279
1498. Item 140 repeals subparagraphs 5(2)(b)(iii) and (iv) of the Jury Exemption
Regulations 1987 and substitutes 'Federal Circuit and Family Court of Australia (Division
1)' and the 'Federal Circuit and Family Court of Australia (Division 2)', instead of the
Family Court of Australia and the Federal Circuit Court of Australia. Regulation 5 sets out
persons who are exempt from liability to serve as a juror. This amendment reflects the
continuation of the Family Court and the Federal Circuit Court as the FCFC (Division 1) and
FCFC (Division 2), respectively. This is a consequential amendment and does not affect the
substantive effect of these subparagraphs.
Legislation (Exemptions and Other Matters) Regulation 2015
Item 141 - Section 12 (table item 28, column headed 'Legislative instrument', after
paragraph (d))
1499. Item 141 updates table item 28 in section 12 of the Legislation (Exemptions and Other
Matters) Regulation 2015 by inserting a paragraph that refers to subsection 47A(4) of the
Family Law Act. The table in section 12 sets out proclamations that are not subject to
sunsetting. This amendment reflects amendments made to the Family Law Act.
Item 142 - Section 12 (table item 28, column headed 'Legislative instrument',
paragraph (h))
1500. Item 142 updates table item 28 in section 12 of the Legislation (Exemptions and Other
Matters) Regulation 2015 by omitting '69ZF(1);' and inserting '69ZF(1)'. The table in
section 12 sets out proclamations that are not subject to sunsetting. This amendment updates
table item 28 to reflect the amendment made by item 61 of Schedule 3 of this Bill.
Item 143 - Section 12 (table item 28, column headed 'Legislative instrument',
paragraph (i)
1501. Item 143 repeals paragraph (i) of table item 29 in section 12 of the of the Legislation
(Exemptions and Other Matters) Regulation 2015. The table in section 12 sets out
proclamations that are not subject to sunsetting. This amendment reflects amendments made
to the Family Law Act.
Mutual Assistance in Criminal Matters Regulations 1988
Item 144 - Regulation 3 (heading)
1502. Item 144 updates the heading of regulation 3 of the Mutual Assistance in Criminal
Matters Regulations 1988 by omitting 'eligible Federal Circuit Court Judge' and substituting
'eligible Judge'. Regulation 3 sets out the power of a Magistrate or eligible Judge to issue a
summons for a witness or documents. This is a consequential amendment to reflect the
continuation of the Federal Circuit Court as the FCFC (Division 2) and does not affect the
operation of the provision.
Item 145 - Subregulation 3(1), (3) and (4)
280
1503. Item 145 updates the subregulation 3(1), (3) and (4) by omitting 'eligible Federal
Circuit Court Judge' (wherever occurring) and substituting 'eligible Judge'. Regulation 3 sets
out the power of a Magistrate or eligible Judge to issue a summons for a witness or
documents. This is a consequential amendment to reflect the continuation of the Federal
Circuit Court as the FCFC (Division 2) and does not affect the operation of the provision.
Items 146 - Regulation 4
1504. Item 146 updates regulation 4 by omitting 'eligible Federal Circuit Court Judge' and
substituting 'eligible Judge'. Regulation 4 sets out the duties of a person summoned to attend
under regulation 3. These are consequential amendments to reflect the continuation of the
Federal Circuit Court as the FCFC (Division 2) and do not affect the operation of the
provisions.
Item 147 - Subregulations 5(1), (2) and (4)
1505. Item 147 updates subregulations 5(1), (2) and (4) by omitting 'eligible Federal Circuit
Court Judge' (wherever occurring) and substituting 'eligible Judge'. Regulation 5 sets out the
circumstances in which a person summoned to attend under regulation 3 can be apprehended
if that person fails to attend. This is a consequential amendment to reflect the continuation of
the Federal Circuit Court as the FCFC (Division 2) and does not affect the operation of the
provision.
Item 148 - Subregulations 6(1), 7(1) and 8(1)
1506. Item 148 updates subregulations 6(1), 7(1) and 8(1) by omitting 'eligible Federal
Circuit Court Judge' and substituting 'eligible Judge'. Regulation 6(1) provides the
circumstances in which a person who attends in accordance with a summons under
regulation 3 is entitled to be paid witness fees and travel allowances. Regulation 7(1)
provides that a Magistrate or eligible Judge can administer an oath or affirmation to, and
examine, any person appearing as a witness before them. Regulation 8(1) creates offences in
relation to persons who are summoned to attend before a Magistrate or eligible Judge. These
are consequential amendments to reflect the continuation of the Federal Circuit Court as the
FCFC (Division 2) and do not affect the operation of the provisions.
Items 149 and 150 - Regulation 9 (heading) and regulation 9
1507. Items 149 and 150 update the heading of regulation 9 and the substantive provision in
regulation 9 by omitting 'eligible Federal Circuit Court Judge' and substituting 'eligible
Judge'. Regulation 9 creates offences in relation to persons who carry out various actions
when a Magistrate or eligible Judge is performing functions under Mutual Assistance in
Criminal Matters Act 1987. This is a consequential amendment to reflect the continuation of
the Federal Circuit Court as the FCFC (Division 2) and does not affect the operation of the
provision.
Item 151 - Subregulations 10(2), (3) and (4)
1508. Item 151 updates subregulations 10(2), (3) and (4) by omitting 'eligible Federal
Circuit Court Judge' (wherever occurring) and substituting 'eligible Judge'. Subregulations
10(2), (3) and (4) set out protections for barristers, solicitors, persons appearing
unrepresented or persons summoned to attend as a witness before a Magistrate or eligible
281
Judge. These are consequential amendments to reflect the continuation of the Federal Circuit
Court as the FCFC (Division 2) and do not affect the operation of the provisions.
Items 152 and 153 - Paragraph 11(1)(b) and Subregulation 11(1)
1509. Items 152 and 153 updates subregulations 11(1) by omitting 'eligible Federal Circuit
Court Judge' and substituting 'eligible Judge'. Subregulation 11(1) sets out the circumstances
in which a recognisance can be declared to be forfeited. These are consequential amendments
to reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not
affect the operation of the provisions.
Item 154 - Schedule 1 (Form 1, paragraph (b) of the note)
1510. Item 154 updates paragraph (b) of the note in Form 1, by omitting 'eligible Federal
Circuit Court Judge' and substituting 'eligible Judge'. Form 1 is to be used to issue a
summons under regulation 3 of the Mutual Assistance in Criminal Matters Regulations 1988.
This is a consequential amendment to reflect the continuation of the Federal Circuit Court as
the FCFC (Division 2) and does not affect the operation of the form.
Item 155 - Schedule 1 (Form 2)
1511. Item 155 updates Form 2, by omitting 'eligible Federal Circuit Court Judge' and
substituting 'eligible Judge'. Form 2 is to be used to issue a warrant under regulation 5 of the
Mutual Assistance in Criminal Matters Regulations 1988. This is a consequential amendment
to reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
affect the operation of the form.
National Consumer Credit Protection Regulations 2010
Item 156 - Paragraph 36(5)(c)
1512. Item 156 amends paragraph 36(5)(c) National Consumer Credit Protection
Regulations 2010 by replacing the reference to the 'Federal Circuit Court' with 'Federal
Circuit and Family Court of Australia (Division 2)'. Section 36 of the Regulations sets out
where court proceedings may be brought for the purposes of section 330 of the National
Consumer Credit Protection Act 2009. The amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2) and does not change the
operation of the paragraph.
Superannuation (CSS) Eligible Employees Regulations 1976
Item 157 - Paragraph 4(1)(zr)
1513. Item 157 repeals paragraph 4(1)(zr) of the Superannuation (CSS) Eligible Employees
Regulations 1976 and substitutes it with a paragraph that refers to the 'Federal Circuit and
Family Court of Australia (Division 2)' instead of the 'Federal Circuit Court of Australia'.
Subregulation 4(1) prescribes persons who are to be included in the definition of eligible
employee in subsection 3(1) of the Superannuation Act 1976. This amendment reflects the
282
continuation of the Federal Circuit Court of Australia in the newly named Federal Circuit and
Family Court of Australia (Division 2). The amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2) and does not change the
operation of the paragraph.
Trans-Tasman Proceedings Regulation 2012
Item 158 - Paragraph 8(a)
1514. Item 158 repeals paragraph 8(a) of the Trans-Tasman Proceedings Regulation 2012
and substitutes it with a paragraph that refers to the 'Federal Circuit and Family Court of
Australia (Division 2)' instead of the 'Federal Circuit Court of Australia'. Paragraph 8 sets
out the Australian courts to which an application of interim relief may be made under
paragraph 25(d) of the Trans-Tasman Proceedings Act 2010. The amendment appropriately
reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not
change the operation of the paragraph.
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Schedule 4 - Repeal of the Federal Circuit Court of Australia Act 1999
Part 1 - Repeal
Federal Circuit Court of Australia Act 1999
Item 1 - The whole of the Act
1515. Item 1 repeals the whole of the Federal Circuit Court Act.
Part 2 - Saving and transitional provisions
Item 2 - Instrument about Commonwealth tenancy disputes
1516. Item 2 provides that despite the repeal of the Federal Circuit Court Act, an instrument
made under section 10AA of that Act and in force immediately before 1 January 2019
continues in force as if it had been made under section 101 of the Federal Circuit and Family
Court of Australia Act 2018. On and after 1 January 2019, the instrument is to be known as
the Federal Circuit and Family Court of Australia (Division 2) (Commonwealth Tenancy
Disputes) Instrument 2015. Furthermore, the instrument applies as if the reference to section
10AA of the Federal Circuit Court Act were a reference to section 101 of the Federal Circuit
and Family Court of Australia Act 2018, the reference to the Federal Circuit Court Act were a
reference to the Federal Circuit and Family Court of Australia Act 2018, and any reference to
the Federal Circuit Court of Australia were a reference to the FCFC (Division 2).
1517. This amendment reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2) and the courts' respective enabling legislation. The saving of an instrument made
under section 10AA of the Federal Circuit Court Act is appropriate given the instrument will
survive in effect through the operation of section 101 of the Federal Circuit and Family
Court of Australia Act 2018 and it would be administratively cumbersome and unnecessary to
remake every section 10AA instrument.
Item 3 - Authorisation about handling complaints
1518. Item 3 provides that an instrument made under subsection 12(3AB) of the Federal
Circuit Court Act and in force immediately before 1 January 2019 continues as if it had been
made under subsection 113(2) of the Federal Circuit and Family Court of Australia Act
2018.
1519. Under Subsection 113(2), the Chief Judge may authorise, in writing, a person or body
to assist the Chief Judge to handle complaints, to decide whether or not to handle complaints,
to dismiss complaints, or to handle complaints.
1520. This amendment reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2) and the courts' respective enabling legislation. The saving of an authorisation
made under subsection 12(3AB) of the Federal Circuit Court Act is appropriate given the
instrument will survive in effect though subsection 113(2) of the Federal Circuit and Family
Court of Australia Act 2018 and it would be administratively cumbersome and unnecessary to
remake every subsection 12(3AB) authorisation.
284
Item 4 - Oaths and affirmations
1521. Item 4 provides that a written authorisation made under subsection 58(2) of the
Federal Circuit Court Act and in force immediately before 1 January 2019 continues as if it
had been made under subsection 161(2) of the Federal Circuit and Family Court of Australia
Act 2018.
1522. Subsection 159(2) provides that a Judge may cause the administration of oaths and
affirmations and for this purpose the FCFC (Division 2) may either orally or in writing
authorise any person (whether they are in or outside Australia) to administer oaths and
affirmations.
1523. This amendment reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2) and the courts' respective enabling legislation. The saving of an authorisation
made under subsection 58(2) of the Federal Circuit Court Act is appropriate given the
instrument will survive in effect though subsection 161(2) of the Federal Circuit and Family
Court of Australia Act 2018 and it would be administratively cumbersome and unnecessary to
remake every subsection 58(2) authorisation.
Item 5- Arrangements with other courts
1524. Item 5 provides that an arrangement made under subsection 90(1) of the Federal
Circuit Court Act and in force immediately before 1 January 2019 continues as if it had been
made under subsection 212(1) of the Federal Circuit and Family Court of Australia Act
2018.
1525. Subsection 212(1) enables the Chief Judge of the FCFC (Division 2) to arrange with
the chief judicial officer of a another federal, state or territory court, for an officer or officers
of that court to perform a series of functions on the behalf of the FCFC (Division 2).
1526. This amendment reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2) and the courts' respective enabling legislation. The saving of an arrangement
made under subsection 90(1) of the Federal Circuit Court Act is appropriate given the
instrument will survive in effect though subsection 212(1) of the Federal Circuit and Family
Court of Australia Act 2018 and it would be administratively cumbersome and unnecessary to
remake every subsection 90(1) arrangement.
Item 6 - Arrangements with agencies or organisations
1527. Item 6 provides that an arrangement made under subsection 91(1) of the Federal
Circuit Court Act and in force immediately before 1 January 2019 continues as if it had been
made under subsection 213(1) of the Federal Circuit and Family Court of Australia Act
2018.
1528. Subsection 213(1) enables the Chief Judge of the FCFC (Division 2) to arrange with
the chief executive officer of another organisation, including a government agency, for an
employee of that organisation or agency to receive documents or perform non-judicial
functions on behalf of the FCFC (Division 2).
1529. This amendment reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2) and the courts' respective enabling legislation. The saving of an arrangement
made under subsection 91(1) of the Federal Circuit Court Act is appropriate given the
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instrument will survive in effect though subsection 213(1) of the Federal Circuit and Family
Court of Australia Act 2018 and it would be administratively cumbersome and unnecessary to
remake every subsection 91(1) arrangement.
Item 7 - Delegation
1530. Item 7 provides that an instrument made under section 117A of the Federal Circuit
Court Act and in force immediately before 1 January 2019 continues as if it had been made
under section 241 of the Federal Circuit and Family Court of Australia Act 2018.
1531. Section 241 provides that the Chief Judge of the FCFC (Division 2) may, in writing,
delegate any or all of his or her powers under section 211 to the Judges of the FCFC
(Division 2).
1532. This amendment reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2) and the courts' respective enabling legislation. The saving of an instrument made
under section 117A of the Federal Circuit Court Act is appropriate given the instrument will
survive in effect though section 241 of the Federal Circuit and Family Court of Australia Act
2018 and it would be administratively cumbersome and unnecessary to remake every section
117A instrument.
Item 8 - Determination of other terms and conditions
1533. Item 8 saves the operation of a determination made by the Governor-General under
clause 8 of Schedule 1 of the Federal Circuit Court Act that is in force immediately before
1 January 2019. Such a determination continues in force and may be dealt with as if it had
been made under subsection 87(1) of the Federal Circuit and Family Court of Australia Act
2018. This item ensures that terms and conditions applying to Judges of the Federal Circuit
Court will continue to apply to these Judges as Judges of the Federal Circuit and Family
Court (Division 2) despite the repeal of the Federal Circuit Court Act.
Item 9 - Certification of retired disabled Judges
1534. Item 9 clarifies that where Judge of the Federal Circuit Court has been certified by the
Minister as a retired disabled Judge before the commencement of this Act on 1 January 2019,
that certification has effect as if it were a certification under section 90 of the Federal Circuit
and Family Court of Australia Act 2018. This item ensures that benefits, to which the retired
disabled Judge is entitled, continue and are not affected by the title changes.
Item 10 - Right of appeal to the Administrative Appeals Tribunal
1535. Item 10 provides that despite the repeal of the Federal Circuit Court Act, and
application can be made to the Administrative Appeals Tribunal for review of a refusal,
before 1 January 2019, of the Minister to certify that a Judge is a retired disabled Judge under
subclause 9A(2) of Schedule 1 of that Act, or a refusal, before 1 January, of the Minister to
give a direction under paragraph 9D(9)(b) of Schedule 1 of that Act, if the time for making an
application for review has not ended on 1 January 2019. The item also provides that despite
the repeal of that Act, an application can be made under the following provisions of
Schedule 1 of that Act:
Subclause 9D(6)
286
Subclause 9D(7)
Paragraph 9E(4)(c), subparagraph 9E(5)(b)(ii), or subclause 9E(9)
Subparagraph 9F(1)(b)(ii) or (iii).
1536. This item is appropriate to ensure that a person who is otherwise able to make an
application for review under these subclauses, paragraphs and subparagraphs of Schedule 1
of the Federal Circuit Court Act is afforded procedural fairness and not unfairly
disadvantaged by the repeal of that Act.
287
Schedule 5 - Contingent amendments
Part 1 - Civil Law and Justice Legislation Act 2018
Family Law Act 1975
Item 1 - Subsection 4(1)
1537. Item 1 amends the definition of 'Registry Manager' in the Family Law Act, to re-
establish the changes to the definition of Registry Manager as provided in item 13 of
Schedule 1 of this Bill.
1538. The Civil Law and Justice Legislation Amendment Bill 2017 definition of Registry
Manager (item 2 of Schedule 6 of that Bill) is no longer relevant. It does not reflect the
structure and administrative arrangements of the new Federal Circuit and Family Court of
Australia as provided by the Federal Circuit and Family Court of Australia Act 2018. The
Civil Law and Justice Legislation Amendment Bill 2017 also expands the definition to
include 'any other officer or staff member of the court', so that a broad range of officers
could exercise these powers and functions. However, this amendment is no longer required as
Section 71 and section 231 of the Federal Circuit and Family Court of Australia Act 2018
provide that the Registry Manager may delegate any or all of their powers or functions to an
appropriate officer or staff member of the court.
1539. This item, by re-instating the definition of Registry Manager as provided in item 13 of
Schedule 1 of this Bill, therefore provides a definition that applies consistently throughout the
Family Law Act, and is relevant to the new FCFC structure.
Item 2 - Section 122AAA
1540. Item 2 inserts a new section in the Family Law Act that provides immunity to
Registrars of a Family Court of a state conducting conferences with parties to a property
settlement dispute. The section confers on Registrars the same protection and immunity of a
Judge of the FCFC in performing the functions of a Judge.
1541. This amendment reflects the policy intention of item 11 of Schedule 6 of the Civil
Law and Justice Legislation Amendment Bill 2017 which inserts a new section 38Z into
Division 4 of Part IVA of the Family Law Act to confer this immunity on Registrars of the
Family Court, the Federal Circuit Court, or of a State family court conducting conferences
with parties to a property settlement proceeding. As item 38 of Schedule 1 of this Bill repeals
Part IVA of the Family Law Act, proposed section 38Z of the Family Law Act cannot be
enacted. Therefore, this item 2, along with items 7 and 8 of Schedule 5 of this Bill, provides
the intended policy of providing immunity to certain court officers conducting conferences
with parties to a property settlement dispute, however, within the structure of the FCFC as
established by the Federal Circuit and Family Court of Australia Act 2018.
1542. For avoidance of doubt, the section provides that the amendment is not intended to
limit any other immunity or protection enjoyed by Registrars of those courts. Registrars will
generally enjoy the protection of common law judicial immunity where they exercise
delegated judicial power.
288
Item 3 - Subsection 122A(1)
1543. Item 3 omits 'standard Rules of Court or the related Federal Circuit Court Rules,'
from subsection 122A(1) and substitutes with 'applicable Rules of Court', to reflect that
different sets of court rules that may now be relevant to this section as a result of the new
FCFC, Family Law Appeals Division of the Federal Court, and other relevant courts
exercising family law jurisdiction.
1544. Item 35 of Schedule 6 of the Civil Law and Justice Legislation Amendment Bill 2017
repealed and substituted section 122A of the Family Law Act (to which this item 3 makes
further amendments), to provide a more comprehensive framework for making arrests under
the Act and relevant court rules.
Item 4 -Before paragraph 122A(1)(a)
1545. Item 4 inserts new paragraphs in subsection 122A(1) of the Family Law Act, to
include 'the Sheriff of the Federal Court of Australia' and 'a Deputy Sheriff of the Federal
Court of Australia' within the list of relevant officers authorised to exercise arrest powers.
1546. Subsection 122A(1), substituted by item 35 of Schedule 6 of the Civil Law and
Justice Legislation Amendment Bill 2017, sets out the categories of persons authorised by the
Family Law Act, or by a warrant issued under the Act, the standard Rules of Court or the
related Federal Circuit Court Rules (now amended by item 3 of Schedule 5 of this Bill), to
arrest another person. This new subsection therefore limits the persons who may exercise
arrest powers to only appropriate people.
1547. Item 4 adds certain Federal Court officers to the list of people who may exercise
arrest powers under the Family Law Act, to reflect the new court structure provided in the
Federal Circuit and Family Court of Australia Act 2018 and this Bill, which establishes the
Family Law Appeal Division in the Federal Court to hear the majority of family law appeals.
Items 5 - Paragraphs 122A(1)(a) and (b)
1548. Item 5 amends paragraphs 122A(1)(a) and (b) of the Family Law Act to update the
reference to 'Family Court' to refer to the 'Federal Circuit and Family Court of Australia
(Division 1)'. This consequential amendment reflects the new Federal Circuit and Family
Court of Australia structure following the passage of the Federal Circuit and Family Court of
Australia Act 2018.
Items 6 - Paragraphs 122A(1)(c) and (d)
1549. Item 6 amends paragraphs 122A(1)(c) and (d) to update the reference to 'Federal
Circuit Court' to refer to the 'Federal Circuit and Family Court of Australia (Division 2)'.
This consequential amendment reflects the new FCFC structure following the passage of the
Federal Circuit and Family Court of Australia Act 2018.
Federal Circuit and Family Court of Australia Act 2018
Item 7- After section 67
1550. Item 7 inserts a new section in the Federal Circuit and Family Court of Australia Act
2018 providing immunity to the Chief Executive Officer, Registrars and Deputy Registrars of
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the FCFC (Division 1) conducting conferences with parties to a property settlement dispute.
The section confers on these officers the same protection and immunity of a Judge of the
Court in performing the functions of a Judge.
1551. This amendment is consistent with the policy intent of item 11 of Schedule 6 of the
Civil Law and Justice Legislation Amendment Act 2018, however established within the
structure of the FCFC as established by the Federal Circuit and Family Court of Australia
Act 2018 (see also item 2 and item 8 of Schedule 5 of this Act). The immunity established by
this amendment also applies to the Chief Executive Officer and Deputy Registrars to reflect
the change to the definition of 'Registrar' in the Family Law Act (see item 12 of Schedule 1
of this Act) and to retain the policy intent of item 11 of Schedule 6 of the Civil Law and
Justice Legislation Amendment Act 2018.
1552. For avoidance of doubt, the section does not limit any other immunity or protection
enjoyed by Registrars. Registrars will generally enjoy the protection of common law judicial
immunity where they exercise delegated judicial power.
Item 8 - After section 221
1553. Item 8 inserts a new section in the Federal Circuit and Family Court of Australia Act
2018, providing immunity to the Chief Executive Officer and Registrars of the FCFC
(Division 2) conducting conferences with parties to a property settlement dispute. The section
confer on these officers the same protection and immunity of a Judge of the Court in
performing the functions of a Judge.
1554. This amendment is consistent with the policy intent of item 11 of Schedule 6 of the
Civil Law and Justice Legislation Amendment Act 2018 (see item 2 of Schedule 5 of this
Act), however established within the structure of the FCFC as established by the Federal
Circuit and Family Court of Australia Act 2018. The immunity established by this
amendment also applies to the Chief Executive Officer to reflect the change to the definition
of 'Registrar' in the Family Law Act (see item 12 of Schedule 1 of this Act) and to retain the
policy intent of item 11 of Schedule 6 of the Civil Law and Justice Legislation Amendment
Act 2018.
1555. For avoidance of doubt, the section does not limit any other immunity or protection
enjoyed by Registrars. Registrars will generally enjoy the protection of common law judicial
immunity where they exercise delegated judicial power.
290
Part 2 - Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Act
2018
Enhancing Online Safety Act 2015
Item 9 - Subsection 46(3), 47(3) and 48(3)
1556. Item 9 updates subsections 46(3), 47(3) and 48(3) of the Enhancing Online Safety Act
2015 (as amended by the Enhancing Online Safety (Non-consensual Sharing of Intimate
Images) Bill 2018), to insert 'Federal Court of Australia and the' before 'Federal Circuit and
Family Court of Australia (Division 2)'. This item relates to the amendment made by
item 332 of Schedule 2 of this Act to the Enhancing Online Safety Act 2015, which reflects
the continuation of the Federal Circuit Court of Australia in the newly named Federal Circuit
and Family Court of Australia (Division 2). These are consequential amendments and do not
affect the substantive operation of the subsections.
1557. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of the Enhancing Online Safety (Non-consensual Sharing of Intimate
Images) Act 2018. However, item 9 will not commence at all if the Enhancing Online Safety
(Non-consensual Sharing of Intimate Images) Act 2018 does not commence.
Part 3 - Export Control Act 2018
Export Control Act 2018
Item 10 - Section 12 (definition of Federal Circuit Court)
1558. Item 10 repeals the definition of the 'Federal Circuit Court' in section 12 of the
Export Control Act 2018. This amendment is required as the Federal Circuit Court will no
longer exist in name following the passage of the Federal Circuit and Family Court of
Australia Act 2018.
1559. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of the Export Control Act 2018. However, item 9 will not commence at
all if the Export Control Act 2018 does not commence.
Item 11 - Section 12 (paragraph (c) of the definition of issuing officer)
1560. Item 11 amends paragraph (c) of the definition of issuing officer in section 12 of the
Export Control Act 2018, to update the reference to 'Federal Circuit Court' to the 'Federal
Circuit and Family Court of Australia (Division 2)'. This amendment reflects the
continuation of the Federal Circuit Court of Australia in the newly named Federal Circuit and
Family Court of Australia (Division 2). This is a consequential amendment and does not
affect the substantive operation of the paragraph.
1561. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of the Export Control Act 2018. However, item 11 will not commence at
all if the Export Control Act 2018 does not commence.
291
Item 12 - Section 12 (paragraph (b) of the definition of relevant court)
1562. Item 11 repeals paragraph (b) of the definition of relevant court in section 12 of the
Export Control Act 2018 to update the reference to 'Federal Circuit Court; or' to the 'Federal
Circuit and Family Court of Australia (Division 2); or'. This amendment reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2). This is a consequential
amendment and does not affect the substantive operation of the paragraph.
1563. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of the Export Control Act 2018. However, item 12 will not commence at
all if the Export Control Act 2018 does not commence.
Part 4 - Export Legislation Amendment (Live-stock) Act 2018
Australian Meat and Live-stock Industry Act 1997
Item 13 - Section 7 (paragraph (b) of the definition relevant court)
1564. Item 13 repeals paragraph (b) of the definition of relevant court in section 7 of the
Australian Meat and Live-stock Industry Act 1997 (as amended by the Export Legislation
Amendment (Live-stock) Act 2018, to update the reference to 'Federal Circuit Court of
Australia; or' to the 'Federal Circuit and Family Court of Australia (Division 2); or'. This
amendment reflects the continuation of the Federal Circuit Court as the Federal Circuit and
Family Court of Australia (Division 2). This is a consequential amendment and does not
affect the substantive operation of the paragraph.
1565. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of the Export Legislation Amendment (Live-stock) Act 2018. However,
item 13 will not commence at all if the Export Legislation Amendment (Live-stock) Act 2018
does not commence.
Export Control Act 1982
Item 14 - Section 3 (paragraph (b) of the definition of relevant court)
1566. Item 13 repeals paragraph (b) of the definition of relevant court in section 3 of the
Export Control Act 1982 (as amended by the Export Legislation Amendment (Live-stock) Act
2018, to update the reference to 'Federal Circuit Court of Australia; or' to the 'Federal Circuit
and Family Court of Australia (Division 2); or'. This amendment reflects the continuation of
the Federal Circuit Court of Australia in the newly named Federal Circuit and Family Court
of Australia (Division 2). This is a consequential amendment and does not affect the
substantive operation of the paragraph.
1567. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of the Export Legislation Amendment (Live-stock) Act 2018. However,
item 14 will not commence at all if the Export Legislation Amendment (Live-stock) Act 2018
does not commence.
292
Part 5 - Fair Work Amendment (Repeal of 4 Yearly Review and Other Measures) Act
2018
Fair Work Act 2009
Item 15 - Subsection 641B(2) (table item 4, column 2)
1568. Item 15 amends subsection 641B(2), table item 4, column 2, of the Fair Work Act
2009 (as amended by the Fair Work Amendment (Repeal of 4 Yearly Review and Other
Measures) Act 2018), to update the reference to 'Family Court of Australia or the Federal
Circuit Court of Australia' to refer to the 'Federal Circuit and Family Court of Australia
(Division 1) or the Federal Circuit or Family Court of Australia (Division 2)'.
1569. Section 641B is a new provision inserted into the Fair Work Act 2009 by the Fair
Work Amendment (Repeal of 4 Yearly Review and Other Measures) Act 2018, which will
provide for the modified application of the Judicial Misbehaviour and Incapacity
(Parliamentary Commissions) Act 2012 (JMIPC Act) to Fair Work Commission Members.
Specifically, column 2 in table item 4 amends the JMCPC Act to omit the words 'removal of
a Commonwealth judicial officer under paragraph 72(ii) of the Constitution', substitute
'termination of appointment or removal from office of an FWC Member under the relevant
provisions referred to in subsection (1)'.
1570. Item 15 appropriately reflects the continuation of the Family Court of Australia and
the Federal Circuit Court of Australia as the FCFC (Division 1) and FCFC (Division 2),
respectively. This is a consequential amendment and does not affect the substantive operation
of the paragraph.
1571. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of the Fair Work Amendment (Repeal of 4 Yearly Review and Other
Measures) Act 2018. However, item 15 will not commence at all if the Fair Work
Amendment (Repeal of 4 Yearly Review and Other Measures) Act 2018 does not commence.
Part 6 - Fair Work Laws Amendment (Proper Use of Worker Benefits) Act 2018
Fair Work Act 2009
Item 16 - Subsection 539(2) (table item 11A, column 3, paragraph (b))
1572. Item 16 repeals subsection 539(2), table item 11A, column 3, paragraph (b) of the
Fair Work Act 2009 (as amended by, the Fair Work Laws Amendment (Proper Use of Worker
Benefits) Act 2018), to update the reference to '(b) the Federal Circuit Court' to refer to '(b)
the Federal Circuit or Family Court of Australia (Division 2)'.
1573. Table item 11A in subsection 539(2) is a new provision inserted by Fair Work Laws
Amendment (Proper Use of Worker Benefits) Act 2018, to include a reference to new section
355A of the Fair Work Act 2009 (also inserted by that Amendment Act). The effect of this
amendment is to make new section 355A a civil remedy provision with a maximum penalty
of 60 penalty units, applicable to the Federal Court and the Federal Circuit Court.
293
1574. The amendment in item 16 reflects the continuation of the Federal Circuit Court as the
Federal Circuit and Family Court of Australia (Division 2). This is a consequential
amendment and does not affect the substantive operation of the paragraph.
1575. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of the Fair Work Laws Amendment (Proper Use of Worker Benefits) Act
2018. However, item 16 will not commence at all if the Fair Work Laws Amendment (Proper
Use of Worker Benefits) Act 2018 does not commence.
Part 7 - Family Law Amendment (Family Violence and Cross-examination of Parties)
Act 2018
Family Law Act 1975
Item 17 - Division 4 of Part XI (heading)
1576. The Family Law Amendment (Family Violence and Cross-Examination of Parties) Act
2018 inserts a new Division 4 titled 'Cross-examination of parties where allegations of family
violence' into Part XI of the Family Law Act. This Division provides appropriate protections
for victims of family violence when being cross-examined by the alleged perpetrator,
including a ban in specified circumstances against direct cross-examination.
1577. Item 17 of Schedule 5 repeals the heading 'Division 4--Cross-examination of parties
where allegations of family violence', and substitutes 'Division 3--Cross-examination of
parties where allegations of family violence'. Division 4 of Part XI of the Family Law Act
will become Division 3 due to the repeal of Division 3 of Part XI by item 131 of Schedule 1
of this Bill.
1578. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of Schedule 1 to the Family Law Amendment (Family Violence and
Cross-examination of Parties) Act 2018. However, item 17 will not commence at all if the
Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 does
not commence.
Part 8 - Family Law Amendment (Family Violence and Other Measures) Act 2018
1579. The Family Law Amendment (Family Violence and Other Measures) Act 2018 would
enhance the capacity of the family law system to provide effective outcomes for people who
are experiencing family violence. In particular, it aims to reduce the need for families to
interact with multiple courts across the federal family law and state or territory family
violence and child protection systems.
294
Division 1 - Amendments commencing after the Family Law Amendment (Family
Violence and Other Measures) Act 2018
Family Law Act 1975
Item 18 - At the end of section 47A
1580. The Family Law Amendment (Family Violence and Other Measures) Act 2018 inserts
a new section 69GA into the Family Law Act, which enables the regulations to prescribe
courts for which Subdivision C of Division 12 of Part VII applies in the same way as the
Subdivision applies to a court of summary jurisdiction. This would enhance the capacity of
the federal family law, and state and territory child protection and family violence systems, to
deliver integrated services to families with multiple legal needs, by removing some of the
existing Commonwealth legislative barriers to state and territory children's courts exercising
family law jurisdiction.
1581. The Act also inserts a new subsection (7) into section 96 to confirm that the
procedures for appeals from courts of summary jurisdiction would apply in the same way to
proceedings in courts prescribed by regulation under new section 69GA.
1582. Item 114 of Schedule 1 of this Bill repeals Part X of the Family Law Act, which
includes section 96. Item 72 of Schedule 1 of the Bill inserts a new Division 4 on Appeals,
which includes a new section 47A titled 'Appeals from courts of summary jurisdiction',
which replaces section 96.
1583. Item 18 of Schedule 5 of this Bill will ensure that new section 47A applies to
proceedings in courts prescribed in regulations under new section 69GA in the same way that
the section applies to proceedings heard in courts of summary jurisdiction.
1584. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of Part 1 of Schedule 1 to the Family Law Amendment (Family Violence
and Other Measures) Act 2018. However, item 16 will not commence at all if the Family Law
Amendment (Family Violence and Other Measures) Act 2018 does not commence.
Item 19 - Application
1585. Item 19 of Schedule provides that the amendment made by item 18 to Schedule 5
applies to a proceeding under the Family Law Act in the FCFC whether instituted before, on
or after the day item 19 commences
Federal Circuit and Family Court of Australia Act 2018
Item 20 - Before paragraph 25A(b)
1586. The Family Law Amendment (Family Violence and Other Measures) Act 2018 inserts
a new section 69GA into the Family Law Act, which enables the regulations to prescribe
courts for which Subdivision C of Division 12 of Part VII applies in the same way as the
Subdivision applies to a court of summary jurisdiction. This would enhance the capacity of
the federal family law, and state and territory child protection and family violence systems, to
deliver integrated services to families with multiple legal needs, by removing some of the
existing Commonwealth legislative barriers to state and territory children's courts exercising
family law jurisdiction.
295
1587. The Act also repeals existing subsection 28(2) of the Family Law Act and replaces it
with a new subsection which provides that the jurisdiction of the Family Court may be
exercised by one Judge or by a Full Court, in an appeal from either a court of summary
jurisdiction, or a court prescribed in regulations for the purposes of new section 69GA.
1588. Item 38 of Schedule 1 of this Bill repeals Parts IV and IVA of the Family Law Act,
which includes section 28.
1589. Item 20 of Schedule 5 inserts a new paragraph (ab) into section 25 of the Federal
Circuit and Family Court of Australia Act to ensure that appeals from state and territory
courts prescribed in regulations under section 69GA of the Family Law Amendment (Family
Violence and Other Measures) Act to have jurisdiction under Part VII of the Family Law Act
can be heard by the FCFC (Division 1).
1590. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of Part 1 of Schedule 1 to the Family Law Amendment (Family Violence
and Other Measures) Act 2018. However, item 20 will not commence at all if the Family Law
Amendment (Family Violence and Other Measures) Act 2018 does not commence.
Item 21 - Before paragraph 102(b)
1591. The Family Law Amendment (Family Violence and Other Measures) Act 2018 inserts
a new section 69GA into the Family Law Act, which enables the regulations to prescribe
courts for which Subdivision C of Division 12 of Part VII applies in the same way as the
Subdivision applies to a court of summary jurisdiction. This would enhance the capacity of
the federal family law, and state and territory child protection and family violence systems, to
deliver integrated services to families with multiple legal needs, by removing some of the
existing Commonwealth legislative barriers to state and territory children's courts exercising
family law jurisdiction.
1592. The Act also repeals existing subsection 28(2) of the Family Law Act and replaces it
with a new subsection which provides that the jurisdiction of the Family Court may be
exercised by one Judge or by a Full Court, in an appeal from either a court of summary
jurisdiction, or a court prescribed in regulations for the purposes of new section 69GA.
1593. Item 38 of Schedule 1 of this Bill repeals Parts IV and IVA of the Family Law Act,
which includes section 28.
1594. Item 21 of Schedule 5 inserts a new paragraph (ab) into section 102 of the Federal
Circuit and Family Court of Australia Act to ensure that appeals from state and territory
courts prescribed in regulations under section 69GA of the Family Law Amendment (Family
Violence and Other Measures) Act 2018 to have jurisdiction under Part VII of the Family
Law Act can be heard by the FCFC (Division 2).
1595. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of Part 1 of Schedule 1 to the Family Law Amendment (Family Violence
and Other Measures) Act 2018. However, item 21 will not commence at all if the Family Law
Amendment (Family Violence and Other Measures) Act 2018 does not commence.
296
Item 22 - At the end of section 111
1596. The Family Law Amendment (Family Violence and Other Measures) Act 2018
amends section 17A of the Federal Circuit Court of Australia Act 1999 to limit its application
to matters before the Federal Circuit Court where it is exercising its general federal law
jurisdiction. This removes any overlap between the court's existing summary dismissal power
under section 17A, and the new family law summary dismissal power under section 45A of
the Family Law Act introduced under this Act.
1597. Section 111 of the new Federal Circuit and Family Court of Australia Act 2018
replicates the existing section 17A of the Federal Circuit Court of Australia Act, which is
repealed by Schedule 4 of this Bill.
1598. Item 22 of Schedule 5 replicates the amendment to section 17A of the Federal Circuit
Court of Australia Act, such that section 111 of the Federal Circuit and Family Court of
Australia Act 2018 does not apply if the FCFC (Division 2) is exercising jurisdiction under
section 45A of the Family Law Act. That is, the new section 45A of the Family Law Act
would apply when the FCFC (Division 2) was hearing family law matters, and section 111 of
the Federal Circuit and Family Court of Australia Act 2018 would apply to all other matters.
1599. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of Part 1 of Schedule 1 to the Family Law Amendment (Family Violence
and Other Measures) Act 2018. However, item 22 will not commence at all if the Family Law
Amendment (Family Violence and Other Measures) Act 2018 does not commence.
Division 2 - Amendment required if this Act commences before the Family Law
Amendment (Family Violence and Other Measures) Act 2018
Family Law Act 1975
Item 23 - Subsection 123(1)
1600. The Family Law Amendment (Family Violence and Other Measures) Act 2018 inserts
a new section 69GA into the Family Law Act which provides for certain state and territory
courts to be prescribed as having family law jurisdiction. Subsection 3 allows the regulations
to prescribe different Rules of Court that are to apply in relation to section 69GA
proceedings, when a court prescribed under section 69GA is exercising family law
jurisdiction.
1601. The Family Law Amendment (Family Violence and Other Measures) Act also amends
subsection 123(1) making that provision subject to the new subsection 69GA(3).
1602. Existing subsection 123(1) gives judges the power to make Rules of Court to be
followed in the Family Court and any other courts exercising jurisdiction under the Act.
Therefore, when state and territory courts of summary jurisdiction are exercising jurisdiction
under the Act, they are required to follow the Family Law Rules made under section 123. The
amendment to subsection 123(1) clarifies that the Family Law Rules made under section 123
are to be followed in any other courts exercising jurisdiction under the Family Law Act,
unless different rules have been prescribed for a court under new subsection 69GA(3).
1603. Items 152 to 154 of Schedule 1 to this Bill make consequential amendments to
subsection 123(1) of the Family Law Act.
297
1604. Item 23 of Schedule 5 provides that the words 'subject to subsection 69GA(3)' are to
be inserted after 'to be followed' in subsection 123(1) of the Family Law Act. This will
ensure that section 123 remains subject to subsection 68GA(3).
1605. However, this amendment is contingent on the Federal Circuit and Family Court of
Australia Act 2018 commencing before the Family Law Amendment (Family Violence and
Other Measures) Act 2018. Should that occur, item 23 will commence immediately after the
commencement of Part 1 of Schedule 1 to the Family Law Amendment (Family Violence and
Other Measures) Act 2018. However, item 23 will not commence at all if the Family Law
Amendment (Family Violence and Other Measures) Act 2018 commences before 1 January
2019. In those circumstances, item 24 will apply.
Division 3 - Amendments required if the Act commences after the Family Law
Amendment (Family Violence and Other Measures) Act 2018
Family Law Act 1975
Item 24 - Subsection 123(1)
1606. The Family Law Amendment (Family Violence and Other Measures) Act 2018 inserts
a new section 69GA into the Family Law Act which provides for certain state and territory
courts to be prescribed as having family law jurisdiction. Subsection 3 allows the regulations
to prescribe different Rules of Court that are to apply in relation to section 69GA
proceedings, when a court prescribed under section 69GA is exercising family law
jurisdiction.
1607. The Family Law Amendment (Family Violence and Other Measures) Act 2018 also
amends subsection 123(1) making that provision subject to the new subsection 69GA(3).
1608. Existing subsection 123(1) gives judges the power to make Rules of Court to be
followed in the Family Court and any other courts exercising jurisdiction under the Act.
Therefore, when state and territory courts of summary jurisdiction are exercising jurisdiction
under the Act, they are required to follow the Family Law Rules made under section 123. The
amendment to subsection 123(1) clarifies that the Family Law Rules made under section 123
are to be followed in any other courts exercising jurisdiction under the Family Law Act,
unless different rules have been prescribed for a court under new subsection 69GA(3).
1609. Items 152 to 154 of Schedule 1 to this Bill make consequential amendments to
subsection 123(1) of the Family Law Act.
1610. Item 24 of Schedule 5 provides that the words 'subject to subsection 69GA(3), in a
court' are to be inserted in place of 'in the Family Court and, subject to subsection 69GA(3),
any other courts' in subsection 123(1) of the Family Law Act. This ensures that the reference
to subsection 69GA(3) is in the appropriate place as a consequence of the amendments to
section 123(1) in items 152 to 155 of this Bill.
1611. However, this amendment is contingent on the Federal Circuit and Family Court of
Australia Act 2018 commencing after the Family Law Amendment (Family Violence and
Other Measures) Act 2018. Should that occur, item 24 will commence on 1 January 2019.
However, item 24 will not commence at all if the Family Law Amendment (Family Violence
298
and Other Measures) Act 2018 commences after 1 January 2019. In those circumstances,
item 23 will apply.
Part 9--Family Law Amendment (Parenting Management Hearings) Act 2018
Family Law Act 1975
Item 25 - Subsection 4(1)
1612. Item 25 repeals the definition in subsection 4(1) of 'Federal Court Chief Executive
Officer'.
1613. Item 4 of Schedule 1 amends the definition of 'Chief Executive Officer' in the Family
Law Act to mean the 'Chief Executive Officer and Principal Registrar of the Federal Court of
Australia', to reflect the definition of 'Chief Executive Officer' in section 7 of the Federal
Circuit and Family Court of Australia Act 2018, therefore a specific reference to the Federal
Court is no longer necessary.
Item 26 - Paragraph 11PB(3)(b)
1614. Item 26 omits 'Federal Circuit Court' from paragraph 11PB(3)(b) and substitutes
'Federal Circuit and Family Court of Australia' to capture both the FCFC (Division 1) and
the FCFC (Division 2) in recognition of the fact that both Courts have jurisdiction to hear and
determine appeals, on questions of law, from a Panel determination or decision. Case
management practices (and the creation of a single point of entry) will ensure consistent
allocation of matters relating to parenting determinations.
Item 27 - Subsection 11PD(1) (note)
1615. Item 27 omits 'Federal Circuit Court' from subsection 11PD(1) (note) and substitutes
'Federal Circuit and Family Court of Australia' to capture both the FCFC (Division 1) and
the FCFC (Division 2) in recognition of the fact that both Courts have jurisdiction to stay the
operation of a parenting determination under subsection 11QA(2).
Item 28 - Subdivision F of Division 2 of Part IIIAA (heading)
1616. Item 28 omits 'Federal Circuit Court' from the heading to Subdivision F of Division 2
of Part IIIAA and substitutes 'Federal Circuit and Family Court of Australia' to capture both
the FCFC (Division 1) and the FCFC (Division 2) in recognition of the fact that both Courts
have jurisdiction to hear and determine appeals, on questions of law, from a Panel
determination or decision. Case management practices (and the creation of a single point of
entry) will ensure consistent allocation of matters relating to parenting determinations.
Item 29 - Section 11Q (heading)
1617. Item 29 omits 'Federal Circuit Court' from the subheading to section 11Q and
substitutes 'Federal Circuit and Family Court of Australia' to capture both the FCFC
(Division 1) and the FCFC (Division 2) in recognition of the fact that both Courts have
jurisdiction to hear and determine appeals, on questions of law, from a Panel determination or
299
decision. Case management practices (and the creation of a single point of entry) will ensure
consistent allocation of matters relating to parenting determinations.
Item 30 - Subsection 11Q(1)
1618. Item 30 omits 'Federal Circuit Court' from subsection 11Q(1) and substitutes 'Federal
Circuit and Family Court of Australia' to capture both the FCFC (Division 1) and the FCFC
(Division 2) in recognition of the fact that both Courts have jurisdiction to hear and determine
appeals, on questions of law, from a Panel determination or decision. Case management
practices (and the creation of a single point of entry) will ensure consistent allocation of
matters relating to parenting determinations.
Item 31 - Paragraph 11Q(2)(a)
1619. Item 31 omits 'Federal Circuit Court' from paragraph 11Q(2)(a) and substitutes
'Federal Circuit and Family Court of Australia' to capture both the FCFC (Division 1) and
the FCFC (Division 2) in recognition of the fact that both Courts have jurisdiction to hear and
determine appeals, on questions of law, from a Panel determination or decision. Case
management practices (and the creation of a single point of entry) will ensure consistent
allocation of matters relating to parenting determinations.
Item 32 - Paragraph 11Q(2)(b)
1620. Item 32 omits 'made under the Federal Circuit Court of Australia Act 1999' from
paragraph 11Q(2)(b) and substitutes 'made under Chapter 3 or 4 of the Federal Circuit and
Family Court of Australia Act 2018.'
1621. The Federal Circuit Court Act is being repealed. The relevant rules regarding the
institution of an appeal under this section will be those rules capable of creation under
Chapters 3 and 4 of the Federal Circuit and Family Court of Australia Act 2018. This
substitution captures Rules in relation to both the FCFC (Division 1) and the FCFC (Division
2), in recognition of the fact that both Courts have jurisdiction to hear and determine appeals,
on questions of law, from a Panel determination or decision. Case management practices
(and the creation of a single point of entry) will ensure consistent allocation of matters
relating to parenting determinations.
Item 33 - Subsection 11Q(3) (not including the heading)
1622. Item 33 repeals subsection 11Q(3), and substitutes 'The Federal Circuit and Family
Court of Australia has jurisdiction to hear and determine appeals in accordance with this
section.' This substitution captures both the FCFC (Division 1) and the FCFC (Division 2), in
recognition of the fact that both Courts have jurisdiction to hear and determine appeals, on
questions of law, from a Panel determination or decision. Case management practices (and
the creation of a single point of entry) will ensure consistent allocation of matters relating to
parenting determinations.
Item 34 - Subsection 11Q(4)
1623. Item 34 omits 'Federal Circuit Court' (wherever occurring) from subsection 11Q(4),
and substitutes 'Federal Circuit and Family Court of Australia'. This substitution captures
both the FCFC (Division 1) and the FCFC (Division 2), in recognition of the fact that both
Courts have jurisdiction to hear and determine appeals, on questions of law, from a Panel
300
determination or decision. Case management practices (and the creation of a single point of
entry) will ensure consistent allocation of matters relating to parenting determinations.
Item 35 - Subsection 11Q(5) (heading)
1624. Item 35 omits 'Federal Circuit Court' from the heading to subsection 11Q(5), and
substitutes 'Federal Circuit and Family Court of Australia.' This substitution captures both
the FCFC (Division 1) and the FCFC (Division 2), in recognition of the fact that both Courts
have jurisdiction to hear and determine appeals, on questions of law, from a Panel
determination or decision, and to make findings of fact where relevant under the section.
Case management practices (and the creation of a single point of entry) will ensure consistent
allocation of matters relating to parenting determinations.
Item 36 - Subsection 11Q(5)
1625. Item 36 omits 'Federal Circuit Court under subsection (1), the Court' from subsection
11Q(5), and substitutes 'Federal Circuit and Family Court of Australia under subsection (1),
the Federal Circuit and Family Court of Australia.' This amendment is necessary because of
the amendment to subsection 11Q(1) at item 30 of Schedule 5 of this Bill, which provides
that both the FCFC (Division 1) and the FCFC (Division 2) have jurisdiction to hear and
determine appeals, on questions of law, from a Panel determination or decision.
1626. Item 36 will provide that both the FCFC (Division 1) and the FCFC (Division 2) may
make findings of fact where relevant under the subsection.
Item 37 - Paragraph 11Q(5)(b)
1627. Item 37 omits 'Court that it is convenient for the Court' from paragraph 11Q(5)(b),
and substitutes 'Federal Circuit and Family Court of Australia that it is convenient.' This
substitution captures both the FCFC (Division 1) and the FCFC (Division 2), in recognition
of the fact that both Courts have jurisdiction to hear and determine appeals, on questions of
law, from a Panel determination or decision, and to make findings of fact where relevant
under the subsection.
Item 38 - Subparagraphs 11Q(5)(iv), (v), (vi) and (vii)
1628. Item 38 omits 'Court' from subparagraphs 11Q(5)(iv), (v), (vi) and (vii), and
substitutes 'Federal Circuit and Family Court of Australia.' This substitution captures both
the FCFC (Division 1) and the FCFC (Division 2), in recognition of the fact that both Courts
have jurisdiction to hear and determine appeals, on questions of law, from a Panel
determination or decision, and to make findings of fact where relevant under the subsection.
Case management practices (and the creation of a single point of entry) will ensure consistent
allocation of matters relating to parenting determinations.
Item 39 - Subsection 11Q(6)
1629. Item 39 omits 'Federal Circuit Court' from subsection 11Q(6) and substitutes 'Federal
Circuit and Family Court of Australia.' This amendment is necessary because of the
amendment to subsection 11Q(5) at item 36 of Schedule 5 of this Bill, which provides that
both the FCFC (Division 1) and the FCFC (Division 2) have jurisdiction to hear and
determine appeals on questions of law from a Panel determination or decision, and to make
findings of fact where relevant under the subsection.
301
Item 40 - Subsection 11Q(7)
1630. Item 40 omits 'Federal Circuit Court's power' from subsection 11Q(7) and substitutes
'power of the Federal Circuit and Family Court of Australia.' This substitution captures both
the FCFC (Division 1) and the FCFC (Division 2), in recognition of the fact that both Courts
have jurisdiction to hear and determine appeals, on questions of law, from a Panel
determination or decision, and are empowered to remit matters to be heard and decided again
by the Panel. Case management practices (and the creation of a single point of entry) will
ensure consistent allocation of matters relating to parenting determinations.
Item 41 - Subsection 11Q(8)
1631. Item 41 omits 'Federal Circuit Court' from subsection 11Q(8), and substitutes
'Federal Circuit and Family Court of Australia'. This substitution affirms that the FCFC
(Division 1) and the FCFC (Division 2) both have jurisdiction to hear and determine appeals,
on questions of law, from a Panel determination or decision, and to make finding of facts
where relevant.
Item 42 - Subsection 11QA(1)
1632. Item 42 omits 'Federal Circuit Court' from subsection 11QA(1), and substitutes
'Federal Circuit and Family Court of Australia.' This substitution captures both the FCFC
(Division 1) and the FCFC (Division 2), in recognition of the fact that both Courts have
jurisdiction to hear and determine appeals, on questions of law, from a Panel determination or
decision. Subsection 11QA(1) provides that the institution of an appeal with the FCFC does
not affect the operation of the decision or determination, and does not prevent the taking of
action to implement the decision or determination.
Item 43 - Subsections 11QA(2) and (3)
1633. Item 43 repeals and substitutes subsections 11QA(2) and (3). This substitution
provides that if an appeal is instituted from a decision or determination of the Panel, both the
FCFC (Division 1) and the FCFC (Division 2), and a judge of either Court, has the power to
make, vary or revoke an order affecting the operation of the decision or determination of the
Panel.
Item 44 - Section 11QB
1634. Item 44 omits 'Federal Circuit Court, the Panel must send to the Federal Circuit
Court' from section 11QB, and substitutes 'Federal Circuit and Family Court of Australia,
the Panel must send to the court in which the appeal is instituted.' This substitution is
necessary because of the amendments to subsection 11Q at items 23-33 of Schedule 5 of
this Bill, which provide that appeals, on questions of law, from a Panel determination or
decision may be instituted in both the FCFC (Division 1) and the FCFC (Division 2).
Item 45 - Section 11QC
1635. Item 45 omits 'Federal Circuit Court' (wherever occurring) from section 11QC, and
substitutes 'Federal Circuit and Family Court of Australia.' This substitution captures both
the FCFC (Division 1) and the FCFC (Division 2), in recognition of the fact that both Courts
are now empowered to make an order remitting a matter to be heard and decided or
determined again by the Panel.
302
Item 46 - Section 11WA (heading)
1636. Item 46 omits 'Federal Court' from the heading to section 11WA, so that the heading
reads 'Chief Executive Officer to assist Principal Member.' Item 4 of Schedule 1 of this Bill
amends the definition of 'Chief Executive Officer' in the Family Law Act to mean 'the Chief
Executive Officer and Principal Registrar of the Federal Court of Australia' so a specific
reference to the Federal Court is no longer necessary.
Item 47 - Subsections 11WA (1), (2), (3) and (4)
1637. Subsections 11WA(1), (2), (3) and (4) currently refer to the 'Federal Court Chief
Executive Officer.' Item 47 omits 'Federal Court' from these subsections.
1638. Item 4 of Schedule 1 of this Bill amends the definition of 'Chief Executive Officer' in
the Family Law Act to mean 'the Chief Executive Officer and Principal Registrar of the
Federal Court of Australia' so a specific reference to the Federal Court is no longer
necessary.
Item 48 - Section 11WC (heading)
1639. Item 48 omits 'Federal Court' from the heading to section 11WC, so that the heading
reads 'Delegation by Chief Executive Officer.' Item 4 of Schedule 1of this Bill amends the
definition of 'Chief Executive Officer' in the Family Law Act to mean 'the Chief Executive
Officer and Principal Registrar of the Federal Court of Australia' so a specific reference to
the Federal Court is no longer necessary.
Item 49 - Section 11WC
1640. This section currently refers to the 'Federal Court Chief Executive Officer.' Item 49
omits 'Federal Court,' wherever it occurs, from this section. Item 4 of Schedule 1 of this Bill
amends the definition of 'Chief Executive Officer' in the Family Law Act to mean 'the Chief
Executive Officer and Principal Registrar of the Federal Court of Australia' so a specific
reference to the Federal Court is no longer necessary.
Item 50 - Subsections 11WD(1) and (2)
1641. Subsections 11WD(1) and (2) currently refer to the 'Federal Court Chief Executive
Officer.' Item 50 omits 'Federal Court' from these subsections. Item 4 of Schedule 1 of this
Bill amends the definition of 'Chief Executive Officer' in the Family Law Act to mean 'the
Chief Executive Officer and Principal Registrar of the Federal Court of Australia' so a
specific reference to the Federal Court is no longer necessary.
Item 51 - Subsection 11WE(1)
1642. Section 11WE(1) currently refers to the 'Federal Court Chief Executive Officer.' Item
51 omits 'Federal Court' from this section. Item 4 of Schedule 1 of this Bill amends the
definition of 'Chief Executive Officer' in the Family Law Act to mean 'the Chief Executive
Officer and Principal Registrar of the Federal Court of Australia' so a specific reference to
the Federal Court is no longer necessary.
303
Item 52 - Subsection 11WE(1) (note)
1643. The note to subsection 11WE(1) currently refers to the 'Federal Court Chief
Executive Officer.' Item 52 omits 'Federal Court' from this note. Item 4 of Schedule 1 of this
Bill amends the definition of 'Chief Executive Officer' in the Family Law Act to mean 'the
Chief Executive Officer and Principal Registrar of the Federal Court of Australia' so a
specific reference to the Federal Court is no longer necessary.
Item 53 - Subsection 13L(1)
1644. Item 53 omits 'Family Court, the Federal Circuit Court' from subsection 13L(1), and
substitutes 'Federal Circuit and Family Court of Australia'. Section 13L allows a court to
refer proceedings under Part VII of the Family Law Act to a Parenting Management Hearings
Panel. This amendment appropriately reflects the continuation of the Family Court as the
FCFC (Division 1) and the Federal Circuit Court as the FCFC (Division 2) (collectively
referred to as the FCFC).
Item 54 - Section 70M (heading)
1645. Section 70M is headed 'Registrar to send documents etc. to overseas jurisdiction.'
1646. Item 54 omits 'Registrar' and substitutes 'Registry Manager' to accurately reflect
the person who currently has obligations under section 70M.
Item 55 - Application
1647. Item 55 provides that the amendment made by item 53 of Schedule 5 of this Bill
applies in relation to a proceeding commenced before, on or after the day this item
commences.
Federal Circuit and Family Court of Australia Act 2018
Item 56 - Section 6
1648. Item 56 amends the simplified outline at section 6 of the Federal Circuit and Family
Court of Australia Act 2018 to include references to the appellate jurisdiction of the FCFC
(Division 1) and the FCFC (Division 2) in relation to decisions or determinations of the
Parenting Management Hearing Panel.
Item 57 - Section 25 (heading)
1649. Item 57 omits 'from courts of summary jurisdiction' from the heading, so that the
heading reads 'Appeals in relation to family law matters'. This amendment is necessary, as
the FCFC will hear appeals from Panel determinations or decisions, in addition to appeals
from courts of summary jurisdiction.
Item 58 - After paragraph 25(a)
1650. Item 58 inserts new paragraph 25(aa) after paragraph 25(a). Section 25 sets out the
jurisdiction of the FCFC (Division 1) to hear and determine appeals in relation to family law
matters.
304
1651. This amendment reflects the broadened appellate jurisdiction of the FCFC, to hear
and determine appeals from a decision or determination of the Parenting Management
Hearings Panel in a parenting management hearing.
Item 59 - After paragraph 55(1)(c)
1652. Section 55 provides that the Chief Justice of the FCFC (Division 1) will have the
power to make Rules of Court
1653. Item 59 inserts new paragraph 55(1)(ca).This amendment provides that the Chief
Justice may make Rules of Court providing for, or in relation to, making orders under section
13L of the Family Law Act (which provides that the Court may refer Part VII proceedings to
Parenting Management Hearings Panels), and to matters transferred to the FCFC (Division 1)
under the Panel rules made for the purposes of paragraph 11SB(2)(b) of that Act.
Item 60 - Section 100 (heading)
1654. Item 60 omits 'from courts of summary jurisdiction' from the heading, so that the
heading reads 'Appeals in relation to family law matters'. This amendment is necessary, as
the FCFC will hear appeals from Panel determinations or decisions, in addition to appeals
from courts of summary jurisdiction.
Item 61 - After paragraph 100(a)
1655. Item 61 inserts new paragraph 100(aa). Section 100 sets out the jurisdiction of the
FCFC (Division 2) to hear and determine appeals in relation to family law matters.
1656. This amendment reflects the broadened appellate jurisdiction of the FCFC, to hear
and determine appeals from a decision or determination of the Parenting Management
Hearings Panel in a parenting management hearing.
Item 62 - At the end of section 188
1657. Item 62 inserts new subsection 188(3) at the end of section 188.
1658. This item provides that the Rules of Court may make provision for, or in relation to,
the making of orders under section 13L of the Family Law Act (which provides that the Court
may refer Part VII proceedings to Parenting Management Hearings Panels), and to matters
transferred to the FCFC (Division 2) under the Panel rules made for the purposes of
paragraph 11SB(2)(b) of that Act.
Item 63 - Subsection 242(1)
1659. Item 63 omits 'section 11A' from the subsection, and substitutes 'subsection 11A(1).'
This reflects the change in numbering of section 11A of the Family Law Act by the Family
Law Amendment (Parenting Management Hearings) Bill 2017.
Item 64 Subparagraph 247(2)(b)(iv)
1660. Item 64 amends the subparagraph by inserting the words 'or the Parenting
Management Hearing Panel' after 'a court.'
305
1661. As a result, the subparagraph allows the Governor-General to make regulations
providing for fees to be paid, in respect of services provided by the Federal Circuit and
Family Court of Australia, in circumstances other than where a court or the Parenting
Management Hearing Panel orders or directs the provision of the services.
Federal Court of Australia Act 1976
Item 65 - After subparagraph 18ZE(2)(b)(i)
1662. Item 65 inserts new subparagraph '(ii) section 11WD of the Family Law Act 1975'
after subparagraph 18ZE(2)(b)(i).
1663. Section 11WD provides for the engagement of staff to the Parenting Management
Hearing Panel. Item 65 provides that staff referred to in section 11WD of the Family Law
Act, together with other persons under subsection 18ZE(2) (as outlined at 18ZE(1)(a)),
constitute a Statutory Agency for the purposes of the Public Service Act 1999.
Part 10 - Government Procurement (Judicial Review) Act 2018
Government Procurement (Judicial Review) Act 2018
Item 66 - Section 3
1664. Item 66 updates section 3 of the Government Procurement (Judicial Review) Act
2018, to omit references to 'Federal Circuit Court' and substitute 'Federal Circuit and Family
Court of Australia (Division 2)'. Section 3 of the Government Procurement (Judicial Review)
Act 2018 provides for the outline of the Act. Item 66 appropriately reflects the continuation of
the Federal Circuit Court as the Federal Circuit and Family Court of Australia (Division 2)
and does not affect the substantive operation of the section.
1665. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of the Government Procurement (Judicial Review) Act 2018. However,
item 66 will not commence at all if the Government Procurement (Judicial Review) Act 2018
does not commence.
Item 67 - Section 4 (definition of Federal Circuit Court)
1666. Item 67 amends section 4 of the Government Procurement (Judicial Review) Act 2018
by repealing the definition of the 'Federal Circuit Court'. Section 4 provides the definitions
for the Act. Item 67 appropriately reflects the fact that the court will no longer be known by
this name once it is continued by the FCFC (Division 2).
1667. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of the Government Procurement (Judicial Review) Act 2018. However,
item 67 will not commence at all if the Government Procurement (Judicial Review) Act 2018
does not commence.
306
Item 68 - Section 8
1668. Item 68 amends section 8 of the Government Procurement (Judicial Review) Act 2018
by repealing the section and substituting a new simplified outline of Part 2 of that Act
(Injunctions) which refers to the 'Federal Circuit and Family Court of Australia (Division 2)'
instead of the 'Federal Circuit Court'. Item 68 appropriately reflects the continuation of the
Federal Circuit Court as the FCFC (Division 2). This is a consequential amendment and does
not affect the substantive operation of the section.
1669. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of the Government Procurement (Judicial Review) Act 2018. However,
item 68 will not commence at all if the Government Procurement (Judicial Review) Act 2018
does not commence.
Items 69 and 70 - Subsections 9(1) and (2) and paragraph 10(1)(a)
1670. Items 69 and 70 update subsections 9(1) and (2), and paragraph 10(1)(a) of the
Government Procurement (Judicial Review) Act 2018 by omitting 'Federal Circuit Court',
and substituting 'Federal Circuit and Family Court of Australia (Division 2)'. Section 9 sets
out circumstances in which the Court may grant a restraining or performance injunction.
Section 10(1) sets out factors the circumstances that must be satisfied and the factors the
court must consider before refusing to grant an injunction when compensation is a more
appropriate remedy than an injunction. These amendments appropriately reflect the
continuation of the Federal Circuit Court as the FCFC (Division 2) and do not affect the
substantive operation of the provisions.
1671. These items will commence on the later of either 1 January 2019 or immediately after
the commencement of the Government Procurement (Judicial Review) Act 2018. However,
items 69 and 70 will not commence at all if the Government Procurement (Judicial Review)
Act 2018 does not commence.
Item 71 - Sections 11 and 14
1672. Item 71 updates sections 11 and 14 of the Government Procurement (Judicial Review)
Act 2018 by omitting 'Federal Circuit Court', wherever it occurs, and substituting 'Federal
Circuit and Family Court of Australia (Division 2)'. Section 11 sets limits on the power of the
Court to grant an injunction. Section 14 clarifies that the other powers of the Court are not
affection by Part 2 of the Government Procurement (Judicial Review) Act 2018. These
amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC
(Division 2) and do not affect the substantive operation of the sections.
1673. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of the Government Procurement (Judicial Review) Act 2018. However,
item 71 will not commence at all if the Government Procurement (Judicial Review) Act 2018
does not commence.
Item 72 - Section 15
1674. Item 72 amends section 15 of the Government Procurement (Judicial Review) Act
2018 by repealing the section and substituting a new simplified outline of Part 3 of the Act
which refers to the 'Federal Circuit and Family Court of Australia (Division 2)' instead of the
307
'Federal Circuit Court'. This amendment appropriately reflects the continuation of the
Federal Circuit Court as the FCFC (Division 2) and does not affect the substantive operation
of the paragraph.
1675. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of the Government Procurement (Judicial Review) Act 2018. However,
item 72 will not commence at all if the Government Procurement (Judicial Review) Act 2018
does not commence.
Item 73 - Section 16
1676. Item 73 updates section 16 of the of the Government Procurement (Judicial Review)
Act 2018 by omitting 'Federal Circuit Court', and substituting 'Federal Circuit and Family
Court of Australia (Division 2)'. Section 16 sets out the orders that can be made by the Court
for the contravention of certain Commonwealth Procurement Rules. This amendment
appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2)
and does not affect the substantive operation of the paragraph.
1677. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of the Government Procurement (Judicial Review) Act 2018. However,
item 73 will not commence at all if the Government Procurement (Judicial Review) Act 2018
does not commence.
Part 11 - Industrial Chemical Act 2018
Industrial Chemicals Act 2018
Item 74 - Section 9 (paragraph (c) of the definition of issuing officer)
1678. Item 74 updates section 9 of the Industrial Chemicals Act 2018 by omitting 'Federal
Circuit Court of Australia' from paragraph (c) of the definition of issuing officer and
substituting 'Federal Circuit and Family Court of Australia (Division 2)'. Section 9 provides
definitions for various expressions used in the Industrial Chemical Act 2018. This
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2).
1679. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of the Industrial Chemicals Act 2018. However, item 74 will not
commence at all if the Industrial Chemicals Act 2018 does not commence.
Item 75 - Section 9 (paragraph (b) of the definition of relevant court)
1680. Item 75 updates section 9 of the Industrial Chemicals Act 2018 by repealing
paragraph (b) of the definition of relevant court, and substituting a paragraph that refers to
'the Federal Circuit and Family Court of Australia (Division 2); or'. Section 9 provides
definitions for various expressions used in the Industrial Chemical Act 2018. This
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2).
308
1681. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of the Industrial Chemicals Act 2018. However, item 75 will not
commence at all if the Industrial Chemicals Act 2018 does not commence.
Part 12 - Imported Food Control Amendment Act 2018
Imported Food Control Act 1992
Item 76 - Paragraphs 22(11)(b), 23(8)(b), 24(3)(b) and 26(3)(b)
1682. Item 76 amends paragraphs 22(11)(b), 23(8)(b), 24(3)(b) and 26(3)(b) of the Imported
Food Control Act 1992 (as amended by the Imported Food Control Amendment Act 2018).
Specifically, item 76 repeals these paragraphs and substitutes 'Federal Circuit and Family
Court of Australia (Division 2)' instead of the 'Federal Circuit Court'. These sections allow
for a range of enforcement actions to be taken in relation to the Imported Food Control Act
1992. These amendments appropriately reflect the continuation of the Federal Circuit Court
as the FCFC (Division 2) and do not affect the substantive operation of the provisions.
1683. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of the Imported Food Control Amendment Act 2018. However, item 76
will not commence at all if the Imported Food Control Amendment Act 2018 does not
commence.
Part 13 - Intellectual Property Laws Amendment (Productivity Commission Response
Part 1 and Other Measures) Act 2018
Division 1 - Main amendments
Plant Breeder's Rights Act 1994
Items 77, 78 and 79 - Subsections 56A(3), 57A(1) and (2) and section 57B
1684. Items 77, 78 and79 update subsections 56A(3), 57A(1) and (2) and section 57B of the
Plant Breeder's Rights Act 1994 (as amended by the Intellectual Property Laws Amendment
(Productivity Commission Response Part 1 and Other Measures) Act 2018). Specifically,
items 60, 61 and 62 amend these subsections by omitting 'Federal Circuit Court' and
substituting 'Federal Circuit and Family Court of Australia (Division 2)'. Subsection 56A(3)
sets out factors the Court is to have regard to if including an additional amount in an
assessment of damages for an infringement of a plant breeder right. Section 57A sets out the
relief a person may have from an unjustified threat of a proceeding for infringement of a plant
breeder right. Section 57B sets out the circumstances the Court is to be satisfied of in relation
to the respondent, before deciding not to grant relief to an application made under section
57A. These amendments appropriately reflect the continuation of the Federal Circuit Court as
the FCFC (Division 2) and do not affect the substantive operation of the provisions.
1685. These items will commence on the later of either 1 January 2019 or immediately after
the commencement of the Intellectual Property Laws Amendment (Productivity Commission
Response Part 1 and Other Measures) Act 2018. However, items 77, 78 and 79 will not
309
commence at all if the Intellectual Property Laws Amendment (Productivity Commission
Response Part 1 and Other Measures) Act 2018 does not commence.
Division 2 - Application provisions
Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and
Other Measures) Act 2018
Items 80 and 81- Subitems 223(2) and 237(2) of Schedule 2
1686. Items 80 and 81 update subitems 223(2) and 237(2) of Schedule 2 of the Intellectual
Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures)
Act 2018 to omit references to the 'Federal Circuit Court' and substituting with 'Federal
Circuit and Family Court of Australia (Division 2)'. Both subitems 223(2) and 237(2) set out
the conduct the Court can consider in assessing damages, or granting relief as part of the
transitional provisions in relation to amendments to the Plant Breeder's Rights Act 1994.
These amendments appropriately reflect the continuation of the Federal Circuit Court as the
FCFC (Division 2) and do not affect the substantive operation of the provisions.
1687. These items will commence on the later of either 1 January 2019 or immediately after
the commencement of the Intellectual Property Laws Amendment (Productivity Commission
Response Part 1 and Other Measures) Act 2018. However, items 80 and 81 will not
commence at all if the Intellectual Property Laws Amendment (Productivity Commission
Response Part 1 and Other Measures) Act 2018 does not commence.
Part 14 - Legislation Amendment (Sunsetting Review and Other Measures) Act 2018
Division 1--Amendments commencing after the Legislation Amendment (Sunsetting
Review and Other Measures) Act 2018
Federal Circuit and Family Court of Australia Act 2018
Item 82 - Subsection 56(3)
1688. Item 82 amends subsection 56(3) of the Federal Circuit and Family Court of
Australia Act 2018, to insert 'and Part 4 of Chapter 3' after the words 'and 16'.
1689. Section 56 of the Federal Circuit and Family Court of Australia Act 2018 provides
for the Chief Justice of the FCFC (Division 1) to make Rules of Court relating to the practice
and procedure to be followed in the Court, and prescribing any other matters required or
permitted to be prescribed. Subsection 56(3) provides that the Legislation Act 2003, other
than sections 8, 9, 10 and 16 of that Act, applies in relation to rules of court made by the
Court under the Federal Circuit and Family Court of Australia Act 2018 or another Act.
1690. Item 82 amends subsection 56(3) to exclude the application of Part 4 of Chapter 3
(which deals with sunsetting) of the Legislation Act 2003 to Rules of Court made by the
Court under the Federal Circuit Court Act or another Act. As noted in the Explanatory
Memorandum to the Legislation Amendment (Sunsetting Review and Other Measures) Bill
2018, it would not be inappropriate to exempt rules of court from the operation of the
310
sunsetting framework, as there are already numerous mechanisms in place to ensure that they
remain fit-for-purpose, relevant and required.
1691. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of the Legislation Amendment (Sunsetting Review and Other Measures)
Bill 2018. However, item 82 will not commence at all if the Legislation Amendment
(Sunsetting Review and Other Measures) Bill 2018 does not commence.
Item 83 - Paragraph 56(3)(a)
1692. Item 83 amends paragraph 56(3)(a) of the Federal Circuit and Family Court of
Australia Act 2018, to insert '(other than in subparagraph 14(1)(a)(ii) and subsection 14(3) of
that Act)' after the words 'legislative instrument'.
1693. This item amends paragraph 56(3)(a) of the Federal Circuit and Family Court of
Australia Act 2018 to provide that the Legislation Act applies as if a reference to a legislative
instrument were a reference to a rule of court made by the Chief Justice of the FCFC
(Division 1) under Chapter 3 of the Federal Circuit and Family Court of Australia Act 2018,
or another Act, except the references to a legislative instrument in subparagraph 14(1)(a)(ii)
and subsection 14(3) of the Legislation Act.
1694. Subparagraph 14(1)(a)(ii) and subsection 14(3) of the Legislation Act provide for
legislative and notifiable instruments to make provision in relation to a matter by applying,
adopting or incorporating the provisions of a disallowable legislative instrument at a
particular time or as in force from time to time.
1695. The effect of this item is to clarify that a rule of court made by the Chief Justice of the
FCFC (Division 1) under Chapter 3 of the Federal Circuit and Family Court of Australia Act
2018, or another Act, can also apply, adopt or incorporate the provisions of a disallowable
legislative instrument as in force at a particular time or as in force from time to time. As
legislative instruments are required to be registered and published on the Federal Register of
Legislation, this item is consistent with the general principle that materials incorporated by
reference should be freely accessible to the public.
1696. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of the Legislation Amendment (Sunsetting Review and Other Measures)
Bill 2018. However, item 83 will not commence at all if the Legislation Amendment
(Sunsetting Review and Other Measures) Bill 2018 does not commence.
Item 84 - Subsection 184(3)
1697. Item 84 amends subsection 184(3) of the Federal Circuit and Family Court of
Australia Act 2018 to insert 'and Part 4 of Chapter 3' after the words 'and 16'.
1698. Section 184(3) of the Federal Circuit and Family Court of Australia Act 2018
provides for the Chief Judge of the FCFC (Division 2) to make rules of court relating to the
practice and procedure to be followed in the Court, and prescribing any other matters
required or permitted to be prescribed. Subsection 184(3) provides that the Legislation Act
2003, other than sections 8, 9, 10 and 16 of that Act, applies in relation to rules of court made
by the Court under the Federal Circuit and Family Court of Australia Act 2018 or another
Act.
311
1699. Item 84 amends subsection 184(3) to exclude the application of Part 4 of Chapter 3
(which deals with sunsetting) of the Legislation Act 2003 to rules of court made by the Court
under the Federal Circuit Court Act or another Act. As noted in the Explanatory
Memorandum to the Legislation Amendment (Sunsetting Review and Other Measures) Bill
2018, it would not be inappropriate to exempt rules of court from the operation of the
sunsetting framework, as there are already numerous mechanisms in place to ensure that they
remain fit-for-purpose, relevant and required.
1700. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of the Legislation Amendment (Sunsetting Review and Other Measures)
Bill 2018. However, item 84 will not commence at all if the Legislation Amendment
(Sunsetting Review and Other Measures) Bill 2018 does not commence.
Item 85 - Paragraph 184(3)(a)
1701. Item 85 amends paragraph 184(3)(a) of the Federal Circuit and Family Court of
Australia Act 2018 to insert '(other than in subparagraph 14(1)(a)(ii) and subsection 14(3) of
that Act)' after the words 'legislative instrument'.
1702. This item amends paragraph 184(3)(a) of the Federal Circuit and Family Court of
Australia Act 2018 to provide that the Legislation Act applies as if a reference to a legislative
instrument were a reference to a rule of court made by the Chief Judge of the FCFC
(Division 2) under Chapter 4 of the Federal Circuit and Family Court of Australia Act 2018,
or another Act, except the references to a legislative instrument in subparagraph 14(1)(a)(ii)
and subsection 14(3) of the Legislation Act.
1703. Subparagraph 14(1)(a)(ii) and subsection 14(3) of the Legislation Act provide for
legislative and notifiable instruments to make provision in relation to a matter by applying,
adopting or incorporating the provisions of a disallowable legislative instrument at a
particular time or as in force from time to time.
1704. The effect of this item is to clarify that a rule of court made by the Chief Judge of the
FCFC (Division 2) under Chapter 4 of the Federal Circuit and Family Court of Australia Act
2018, or another Act, can also apply, adopt or incorporate the provisions of a disallowable
legislative instrument as in force at a particular time or as in force from time to time. As
legislative instruments are required to be registered and published on the Federal Register of
Legislation, this item is consistent with the general principle that materials incorporated by
reference should be freely accessible to the public.
1705. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of the Legislation Amendment (Sunsetting Review and Other Measures)
Bill 2018. However, item 85 will not commence at all if the Legislation Amendment
(Sunsetting Review and Other Measures) Bill 2018 does not commence.
Item 86 - Application provision
1706. Item 86 is an application provision, providing that items 82 and 83 above, which
relate to section 56 of the Federal Circuit and Family Court of Australia Act 2018, apply in
relation to Rules of Court covered by item 1 of Schedule 7 of this Act (modifications to the
standard Rules of Court for the FCFC (Division 1)) and Rules of Court made after 1 January
2019.
312
1707. Item 86 also provides that items 84 and 85 above, which relate to section 184 of the
Federal Circuit and Family Court of Australia Act 2018, apply in relation to Rules of Court
covered by items 1 and 7 of Schedule 8 to this Act (modifications to the Rules of Court for
the FCFC (Division 2)) and Rules of Court made after 1 January 2019.
Division 2 - Amendments required if this Act commences before the Legislation
Amendment (Sunsetting Review and Other Measures) Act 2018
Federal Court and Federal Circuit Court Regulation 2012
Item 87 - Section 4.02
1708. Item 87 repeals existing section 4.02 of the Federal Court and Federal Circuit Court
Regulation 2012 in circumstances where this Act commences before the Legislation
Amendment (Sunsetting Review and Other Measures) Act 2018, and substitutes new section
4.02.
1709. New section 4.02 provides that for the purposes of subsection 222(3) of the Federal
Circuit and Family Court of Australia Act 2018, subparagraph 14(1)(a)(ii) of the Legislation
Act 2003 applies in relation to the FCFC (Division 2) as if that subparagraph were modified
by inserting 'or the provisions of any Rules of Court made under Chapter 4 of the Federal
Circuit and Family Court of Australia Act 2018' after the reference to subsection (3).
Division 3 - Amendments required if this Act commences after the Legislation
Amendment (Sunsetting Review and Other Measures) Act 2018
Federal Court and Federal Circuit Court Regulation 2012
Item 88 - Section 4.02
1710. Item 88 repeals section 4.02 of the Regulation in circumstances where this Act
commences after the Legislation Amendment (Sunsetting Review and Other Measures) Act
2018.
Part 15 - Marine Safety (Domestic Commercial Vessel) Levy Collection Act 2018
Marine Safety (Domestic Commercial Vessel) Levy Collection Act 2018
Item 89 - Subparagraph 11(2)(c)(ii)
1711. Item 89 amends subparagraph 11(2)(c)(ii) of the Marine Safety (Domestic
Commercial Vessel) Levy Collection Act 2018 by repealing the subparagraph and substituting
a subparagraph that refers to the 'Federal Circuit and Family Court of Australia (Division 2)'
instead of the 'Federal Circuit Court'. Paragraph 11(2)(c) sets out the forums in which the
Australian Maritime Safety Authority can recover a levy on behalf of the Commonwealth.
This amendment appropriately reflects the continuation of the Federal Circuit Court as the
FCFC (Division 2) and does not affect the substantive operation of the provision.
1712. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of the Marine Safety (Domestic Commercial Vessel) Levy Collection Act
313
2018. However, item 89 will not commence at all if the Marine Safety (Domestic Commercial
Vessel) Levy Collection Act 2018 does not commence.
Part 16 - Offshore Petroleum and Greenhouse Gas Storage Amendment (Miscellaneous
Amendments) Act 2018
Offshore Petroleum and Greenhouse Gas Storage Act 2006
Items 90 to 97 - Subparagraphs 216(6)(b)(ii), 398(2)(b)(ii), 572D(3)(b)(ii), 572E(3)(b)(ii),
572F(2)(b)(ii), 577(3)(b)(ii), 577A(2)(b)(ii), 582A(2)(b)(ii), 583(2)(b)(ii), 589(4)(b)(ii),
589(5)(b)(ii), 596A(6)(b)(ii), 596A(7)(g)(ii), 597(4)(b)(ii), 597(5)(b)(ii), paragraphs
611N(3)(b), 634(3)(b) and subparagraphs 685(3)(b)(ii), 686(5)(b)(ii), 687(7)(b)(ii),
688(5)(b)(ii), 688A(5)(b)(ii), 688B(5)(b)(ii), 688C(5)(b)(ii), 695L(3)(b)(ii) and
695M(7)(b)(ii)
1713. Items 90 to 97 amend subparagraphs 216(6)(b)(ii), 398(2)(b)(ii), 572D(3)(b)(ii),
572E(3)(b)(ii), 572F(2)(b)(ii), 577(3)(b)(ii), 577A(2)(b)(ii), 582A(2)(b)(ii), 583(2)(b)(ii),
589(4)(b)(ii), 589(5)(b)(ii), 596A(6)(b)(ii), 596A(7)(g)(ii), 597(4)(b)(ii), 597(5)(b)(ii),
paragraphs 611N(3)(b), 634(3)(b) and subparagraphs 685(3)(b)(ii), 686(5)(b)(ii),
687(7)(b)(ii), 688(5)(b)(ii), 688A(5)(b)(ii), 688B(5)(b)(ii), 688C(5)(b)(ii), 695L(3)(b)(ii) and
695M(7)(b)(ii) of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (as
amended by the Offshore Petroleum and Greenhouse Gas Storage Amendment
(Miscellaneous Amendments) Act 2018). Specifically, items 72 to 79 repeal the above-
mentioned paragraphs and subparagraphs and substitute subparagraphs or paragraphs that
refers to the 'Federal Circuit and Family Court of Australia (Division 2)' instead of the
'Federal Circuit Court'. These paragraphs and subparagraphs set out forums in which various
debts due to the Commonwealth can be recoverable. These amendments appropriately reflect
the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not affect the
substantive operation of the provisions.
1714. These items will commence on the later of either 1 January 2019 or immediately after
the commencement of the Offshore Petroleum and Greenhouse Gas Storage Amendment
(Miscellaneous Amendments) Act 2018. However, items 90 to 97 will not commence at all if
the Offshore Petroleum and Greenhouse Gas Storage Amendment (Miscellaneous
Amendments) Act 2018 does not commence.
Part 17 - Public Sector Superannuation Legislation Amendment Act 2018
Federal Circuit and Family Court of Australia Act 2018
Item 98 - Paragraph 72(1)(a)
1715. Item 98 amends paragraph 95(1)(a) of the Federal Circuit and Family Court of
Australia Act 2018 by repealing the paragraph and substituting a paragraph that refers to a
child who has attained the age of 18 years, instead of 16 years. Section 72 sets out the
meaning of eligible child. This amendment reflects amendments made by the Public Sector
Superannuation Legislation Amendment Act 2018 to the Judges' Pension Act 1968, updating
the definition of 'eligible child' in that Act, to refer to people who have attained the age of 18
314
years, instead of 16 years. As explained in the explanatory memorandum to the Public Sector
Superannuation Legislation Amendment Act 2018, the amendments are required since the
pre-existing provisions reflected a time when a significant percentage of students left formal
education at age 16, which is no longer the case: more students now remain in formal
education until at least age 18.
1716. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of the Public Sector Superannuation Legislation Amendment Act 2018.
However, item 98 will not commence at all if the Public Sector Superannuation Legislation
Amendment Act 2018 does not commence.
Item 99 - Application provision
1717. Item 99 provides that the amendment made by item 98 applies in relation to a Judge
of the Federal Circuit and Family Court of Australia (Division 2) or a retired disabled Judge
(as defined by the Federal Circuit and Family Court of Australia Act 2018) who dies on or
after the day the commencement of this Bill and the commencement of the Public Sector
Superannuation Legislation Amendment Act 2018; noting that items 80 and 81 will not
commence unless the Public Sector Superannuation Legislation Amendment Act 2018
commences. (For more information on commencement, refer to subitem 27 of the table in
item 2 of this Bill.)
Part 18 - Road Vehicle Standards Act 2018
Road Vehicle Standards Act 2018
Item 100 - Subsection 5(1) (definition of Federal Circuit Court)
1718. Item 100 amends subsection 5(1) of the Road Vehicle Standards Act 2018 by
repealing the definition of Federal Circuit Court. Subsection 5(1) provides definitions for
that Act.
1719. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of the Road Vehicle Standards Act 2018. However, item 83 will not
commence at all if the Road Vehicle Standards Act 2018 does not commence.
Item 101 - Subsection 5(1) (paragraph (b) of the definition of relevant court)
1720. Item 101 amends subsection 5(1) of the Road Vehicle Standards Act 2018 by
repealing paragraph (b) of the definition of relevant court and substituting a new paragraph
(b) that refers to the 'Federal Circuit and Family Court of Australia (Division 2)' instead of
the 'Federal Circuit Court'. This amendment appropriately reflects the continuation of the
Federal Circuit Court as the FCFC (Division 2) following the commencement of the Federal
Circuit and Family Court of Australia Act 2018 and does not affect the substantive operation
of the Act.
1721. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of the Road Vehicle Standards Act 2018. However, item 101 will not
commence at all if the Road Vehicle Standards Act 2018 does not commence.
315
Item 102 - Subparagraphs 50(4)(c)(iii) and 52(3)(c)(iii)
1722. Item 102 updates subparagraphs 50(4)(c)(iii) and 52(3)(c)(iii) of the Road Vehicle
Standards Act 2018 by omitting 'Federal Circuit Court', and substituting 'Federal Circuit and
Family Court of Australia (Division 2)'. Section 50(4) outlines the persons who can be
considered an authorised applicant for the purposes of Part 2 of the Regulatory Powers Act.
This amendment appropriately reflects the continuation of the Federal Circuit Court as the
FCFC (Division 2) following the commencement of the Federal Circuit and Family Court of
Australia Act 2018 and does not affect the substantive operation of the Act.
1723. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of the Road Vehicle Standards Act 2018. However, item 102 will not
commence at all if the Road Vehicle Standards Act 2018 does not commence.
Part 19 - Space Activities Amendment (Launches and Returns) Act 2018
Space Activities Act 1998
Item 103 - Section 8 (definition of Federal Circuit Court)
1724. Item 103 amends section 8 of the Space Activities Act 1998 (as amended by the Space
Activities Amendment (Launches and Returns) Act 2018) by repealing the definition of
Federal Circuit Court. Subsection 5(1) provides definitions for application in that Act. This
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2) following the commencement of the Federal Circuit and Family Court of
Australia Act 2018 and does not affect the substantive operation of the Act.
1725. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of the Space Activities Amendment (Launches and Returns) Act 2018.
However, item 103 will not commence at all if the Space Activities Amendment (Launches
and Returns) Act 2018 does not commence.
Items 104 to 108 - Subsection 59(8), section 72 (heading), section 72, section 75F
(heading), and section 75F
1726. Items 104 to 108 amend subsection 59(8), section 72 (heading), section 72, section
75F (heading), and section 75F of the Space Activities Act 1998 (as amended by the Space
Activities Amendment (Launches and Returns) Act 2018) by omitting the reference to the
'Federal Circuit Court', and substituting the reference with 'Federal Circuit and Family Court
of Australia (Division 2)'. Subsection 59(8) outlines when an unpaid fee becomes a debt due
to the Commonwealth and how it is recoverable. Section 72 (as amended by the Space
Activities Amendment (Launches and Returns) Act 2018) provides which courts have
jurisdiction to hear and determine actions for compensation for damages, to which Part 4 of
the Space Activities Act 1998 applies. Section 75F provides which courts have jurisdiction to
hear and determine actions for compensation made under Part 4A of the Space Activities
Amendment (Launches and Returns) Act 2018. These amendments appropriately reflect the
continuation of the Federal Circuit Court as the FCFC (Division 2) and do not affect the
substantive operation of the provisions.
316
1727. These items will commence on the later of either 1 January 2019 or immediately after
the commencement of the Space Activities Amendment (Launches and Returns) Act 2018.
However, items 104 to 108 will not commence at all if the Space Activities Amendment
(Launches and Returns) Act 2018 does not commence.
Item 109 - Paragraph 81(3)(b)
1728. Item 109 amends paragraph 81(3)(b) of the Space Activities Act 1998 (as amended by
the Space Activities Amendment (Launches and Returns) Act 2018) by repealing the
paragraph and substituting a paragraph that refers to the 'Federal Circuit and Family Court of
Australia (Division 2)' instead of the 'Federal Circuit Court'. Section 81 provides how and by
whom the civil penalty provisions of the Space Activities Act 1998 are enforceable. This
amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2) and does not affect the substantive operation of the provision.
1729. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of the Space Activities Amendment (Launches and Returns) Act 2018.
However, item 109 will not commence at all if the Space Activities Amendment (Launches
and Returns) Act 2018 does not commence.
Item 110 - Subsection 107(2)
1730. Item 110 amends subsection 107(2) of the Space Activities Act 1998 (as amended by
the Space Activities Amendment (Launches and Returns) Act 2018) by omitting the reference
to the 'Federal Circuit Court', and substituting the reference with 'Federal Circuit and Family
Court of Australia (Division 2)'. Subsection 107 provides the forums that a person may take
proceedings for the recovery of compensation from the Commonwealth in relation to
acquisition of property by the Commonwealth. This amendment appropriately reflects the
continuation of the Federal Circuit Court as the FCFC (Division 2) and does not affect the
substantive operation of the provision.
1731. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of the Space Activities Amendment (Launches and Returns) Act 2018.
However, item 93 will not commence at all if the Space Activities Amendment (Launches and
Returns) Act 2018 does not commence.
Part 20 - Telecommunications Legislation Amendment (Competition and Consumer)
Act 2018
Telecommunications Act 1997
Item 111 - Section 7 (definition of Federal Circuit Court)
1732. Item 111 amends section 7 of the Telecommunications Act 1997 (as amended by the
Telecommunications Legislation Amendment (Competition and Consumer) Act 2018) by
repealing the definition of 'Federal Circuit Court'. Subsection 5(1) provides definitions for
application in that Act. This amendment appropriately reflects the continuation of the Federal
Circuit Court as the FCFC (Division 2).
317
1733. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of the Telecommunications Legislation Amendment (Competition and
Consumer) Act 2018. However, item 111 will not commence at all if the Telecommunications
Legislation Amendment (Competition and Consumer) Act 2018 does not commence.
Telecommunications (Consumer Protection and Service Standards) Act 1999
Item 93B - Subparagraphs 102E(b)(ii) and 102N(5)(b)(ii)
1734. Item 112 amends subparagraphs 102E(b)(ii) and 102N(5)(b)(ii) of the
Telecommunications (Consumer Protection and Service Standards) Act 1999 (as amended
by the Telecommunications Legislation Amendment (Competition and Consumer) Act 2018)
by repealing the subparagraphs and substituting a subparagraph that refers to the 'Federal
Circuit and Family Court of Australia (Division 2)' instead of the 'Federal Circuit Court'.
Section 102E provides the forums in which a charge, or instalment of charge, can be
recovered on behalf of the Commonwealth. Subsection 102N(5) provides the forums in
which a late payment penalty can be recovered on behalf of the Commonwealth. These
amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC
(Division 2) and do not affect the substantive operation of the provisions.
1735. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of the Telecommunications Legislation Amendment (Competition and
Consumer) Act 2018. However, item 112 will not commence at all if the Telecommunications
Legislation Amendment (Competition and Consumer) Act 2018 does not commence.
Part 21 - Underwater Cultural Heritage Act 2018
Underwater Cultural Heritage Act 2018
Item 113 - Subparagraphs 41(3)(f)(ii), 42(2)(f)(ii), 43(2)(b)(ii), 45(2)(b)(ii) and
46(2)(b)(ii)
1736. Item 113 amends subparagraphs 41(3)(f)(ii), 42(2)(f)(ii), 43(2)(b)(ii), 45(2)(b)(ii) and
46(2)(b)(ii) of the Underwater Cultural Heritage Act 2018 by repealing the paragraphs and
substituting subparagraphs that refer to the 'Federal Circuit and Family Court of Australia
(Division 2)' instead of the 'Federal Circuit Court'. Subsections 41(3), 42(2), 43(2), 45(2)
and 46(2) set out the forums considered a relevant court for the purposes of the Regulatory
Powers (Standard Provisions) Act 2014 as it applies to the Underwater Cultural Heritage Act
2018. These amendments appropriately reflect the continuation of the Federal Circuit Court
as the FCFC (Division 2) and do not affect the substantive operation of the provisions.
1737. This item will commence on the later of either 1 January 2019 or immediately after
the commencement of the Underwater Cultural Heritage Act 2018. However, item 113 will
not commence at all if the Underwater Cultural Heritage Act 2018 does not commence.
318
Schedule 6 - Amendments to the Federal Court Rules 2011
Federal Court Rules 2011
1738. Schedule 6 amends the Federal Court Rules for the purpose of ensuring they are
appropriate in application to the Family Law Appeal Division of the Federal Court and to
reflect changes to arrangements for transfers between the Federal Court and FCFC. The
Federal Court Rules provide for the practice and procedure to be followed in the Federal
Court and in Registries of the Court. They may extend to all matters incidental to any
practice or procedure necessary or convenient to be prescribed for the conduct of any
business of the Court.
Item 1 - Division 27.1
1739. Part 27 of the Federal Court Rules deals with the transfer of proceedings. Item 1
repeals Division 27.1 of the Federal Court Rules and substitutes new Divisions 27.1 and
27.1A which contain rules concerning the transfer of proceedings to the Federal Court from
the FCFC (Division 2), and from the Federal Court to the FCFC (Division 2).
1740. Rule 27.01 provides that a party may apply to the Federal Court for a discretionary
transfer of civil proceedings from the FCFC (Division 2) in accordance with section 32AC of
the Federal Court Act.
1741. Rule 27.02 outlines the factors that a party should address in their application in
support of a discretionary transfer of civil proceedings from the FCFC (Division 2) to the
Federal Court. These factors include whether the proceedings the subject of the transfer
application involve questions of general importance; whether it would be less expensive and
more convenient to the parties if the matter were transferred; whether the proceedings would
be determined more quickly if transferred; and the wishes of the parties.
1742. Rule 27.08 provides that a party may apply to the Federal Court for a discretionary
transfer of proceedings to the FCFC (Division 1) under any of the Administrative Decisions
(Judicial Review) Act 1977, the Australian Consumer Law, the Bankruptcy Act 1966 or the
Income Tax Assessment Act 1936.
Items 2 to 9 - Division 27.2 (heading), rule 27.11 (heading), rule 27.11, rule 27.12 (note),
rule 27.13 (heading), subrule 27.13(1), subrule 27.13(1), subrule 27.13(3)
1743. Items 2 to 9 update Division 27.2 (heading), rule 27.11 (heading), rule 27.11, rule
27.12 (note), rule 27.13 (heading), subrule 27.13(1), subrule 27.13(1), and subrule 27.13(3)
of the Federal Court Rules by omitting the reference to the 'Federal Circuit Court of
Australia', and substituting the reference with 'Federal Circuit and Family Court of Australia
(Division 2)'.
1744. Division 27.2 relates to the transfer of proceedings in the Federal Court. Rule 27.11
provides for the transfer of proceedings (other than an appeal) or an appeal under the
Administrative Appeals Tribunal Act 1975 to the Federal Circuit Court. Rule 27.12 provides
the factors to be taken into account by the Court in relation to appeals and proceedings. Rule
27.13 provides for the transfer of proceedings from the Federal Circuit Court. The
amendments under items 2 to 9 reflect the continuation of the Federal Circuit Court as the
FCFC (Division 2), and do not affect the substantive operation of these provisions.
319
Items 10 and 11 - Subrule 35.31(4), at the end of rule 35.31
1745. Items 10 and 11 amend rule 35.31 to account for the creation of the Family Law
Appeal Division of the Federal Court. Rule 35.31 allows a party to file a notice to withdraw
their application for leave to appeal or application for extension of time to seek leave to
appeal. Subrule 35.31(4) imposes a mandatory requirement on the party who withdraws their
application to pay the costs of each other party to the application withdrawn.
1746. Item 10 amends subrule 35.31(4) to exclude the imposition of automatic payment of
costs from family law proceedings heard by the Family Law Appeal Division of the Federal
Court. This is appropriate as costs do not generally follow the event in family law
proceedings. These amendments account for the application of section 117 of the Family Law
Act, which requires that each party bear their own costs unless they are able to show
circumstances justifying the making of a costs order.
1747. Item 11 inserts new subrules 35.31(5) and 35.31(6) to apply to family law
proceedings in the Family Law Appeal Division. Subrule 35.31(5) provides that if a notice
under subrule 35.51(1) is filed for a matter that would have been heard in the Family Law
Appeal Division of the Federal Court, the party who filed the notice may be ordered to pay
the costs of the other parties, as distinct from other proceedings under subrule 35.31(4) where
the withdrawing party must pay costs of the other parties to the application. The note under
subrule 35.31(5) refers to section 117 of the Family Law Act and Part VB of the Federal
Court Act, which allows for the Court to make orders concerning costs.
1748. In order for the other parties to seek costs against the withdrawing party, they must
file an application for costs within 28 days after the notice of withdrawal as provided in
subrule 35.31(6). The time limit for seeking costs is consistent with the approach taken in
family law proceedings under the rule 22.42 of the Family Law Rules, where applications for
costs of a discontinued appeal, application for leave to appeal, or application in an appeal
must be filed within 28 days. These amendments appropriately reflect the creation of the new
Family Law Appeal Division in the Federal Court and the fact that the approach to costs
differs in family law matters than in other proceedings.
Item 12 - Subrule 35.41(2)
1749. Item 12 updates subrule 35.41(2) by omitting the reference to the 'Federal Circuit
Court of Australia', and substituting the reference with 'Federal Circuit and Family Court of
Australia (Division 2)'. Rule 35.41 relates to the revocation or variation of a grant of leave by
the Court. This amendment reflects the continuation of the Federal Circuit Court as the FCFC
(Division 2), and does not affect the substantive operation of this provision.
Item 13 - Paragraph 36.01(1)(a)
1750. Subrule 36.01(1) prescribes which form a party is to use when filing a Notice of
Appeal in the Federal Court. The forms differ based on whether the appeal is from a decision
in a family law matter which would be heard by the Family Law Appeal Division of the
Federal Court or whether the appeal is from a non-family law matter.
1751. Item 13 repeals paragraph 36.01(1)(a) and substitutes new paragraphs 36.01(1)(a) and
36.01(1)(aa), to prescribe which form a party is to use if they are appealing a family law
decision to the Family Law Appeal Division of the Federal Court; or appealing a decision
320
from the Federal Circuit and Family Court (Division 2) in relation to any other matter which
would not be heard in the Family Law Appeal Division. These amendments reflect the
creation of the new Family Law Appeal Division in the Federal Court and the continuation of
the Federal Circuit Court as the FCFC (Division 2).
Item 14 - Rule 36.01 (note 4)
1752. This item repeals note 4 to rule 36.01 and replaces it with the text provided. Note 4 to
rule 36.01 currently provides for the appellate jurisdiction of the Court to be exercised by the
Full Court or by a single Judge in certain circumstances as outlined in section 25 of the
Federal Court Act. As a result of the reforms conferring new appellate jurisdiction on the
Federal Court through the creation of the Family Law Appeal Division and amendments to
section 25 of the Federal Court Act following the passage of the Federal Circuit and Family
Court of Australia Act 2018, item 14 updates note 4 to refer the reader to subsection 25(1) of
the Federal Court Act.
Item 15 - Paragraph 36.02(c)
1753. Item 15 updates paragraph 36.02(c) by omitting the reference to the 'Federal Circuit
Court of Australia', and substituting the reference with 'Federal Circuit and Family Court of
Australia'. Rule 36.02 relates to the conditions under which a notice of appeal must be filed.
The amended Rule operates to provide that a notice of appeal from a judgment of the FCFC
should be filed in the District Registry in the State or Territory where the proceeding was last
heard before the judgment was pronounced or the order was made. For example, if the
proceeding was last heard in the Sydney Registry, then a notice of appeal should be filed in
that same registry.
1754. This amendment reflects the establishment of the FCFC and the creation of the
Family Law Appeal Division in the Federal Court. In light of the family law appellate
jurisdiction being conferred on the Family Law Appeal Division of the Federal Court, appeals
from Family Courts of States will be covered by paragraph 36.02(b), as they are courts of a
State.
Item 16 - At the end of rule 36.04
1755. Item 16 inserts new subrule 36.04(3), which provides that in an appeal from a court
concerning a decision made under the Child Support (Assessment) Act 1989 or the Child
Support (Registration and Collection) Act 1988, the appellant must give a copy of the notice
of appeal to the Child Support Registrar. This amendment reflects the creation of the new
Family Law Appeal Division in the Federal Court, which will have appellate jurisdiction to
hear and determine appeals from a decision of a court made under the Child Support
(Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988.
Item 17 - Before paragraph 36.11(2)(a)
1756. Item 17 inserts a new paragraph 36.11(2)(aa) into the Federal Court Rules to account
for the creation of the new Family Law Appeal Division in the Federal Court. Rule 36.11
provides that a party to proceedings may apply to the Federal Court (constituted by a single
Judge) for directions. Subrule 36.11(2) outlines the types of directions that a party may seek
the single judge to make. The new paragraph 36.11(2)(aa) provides that a party may apply to
the Court for an extension of time to seek leave to appeal a decision to the Family Law
321
Appeal Division. This amendment reflects the creation of the new Family Law Appeal
Division in the Federal Court, and replicates powers held by Full Court of the Family Court
to make directions in appeal proceedings.
Items 18 and 19 - Subrule 36.11(2) (note), at the end of rule 36.11
1757. Item 18 updates the numbering of the note under subrule 36.11(2) to reflect the
insertion of note 2 at the end of rule 36.11, which is being added by item 19.
1758. Item 19 inserts note 2 at the end of rule 36.11, which provides that a family law
appeal may be dealt with by the Family Law Appeal Division without an oral hearing if the
parties consent in accordance with section 25A of the Federal Court Act, which reflects the
necessary amendments following the passage of the Federal Circuit and Family Court of
Australia Act 2018.
Item 20 - After subrule 36.21(1)
1759. Item 20 inserts subrule 36.21(1A) after subrule 36.21(1), to account for the creation of
the Family Law Appeal Division in the Federal Court. Subrule 36.21(1A) will allow for an
independent children's lawyer who wants to vary or set aside an order under appeal in
proceedings heard in the Family Law Appeal Division to file a notice of cross-appeal, in
accordance with the prescribed form.
Item 21 - Subrule 36.21(2)
1760. Item 21 amends subrule 36.21(2), by substituting the words 'For the purposes of
subrules (1) and (1A), the'. This amendment is a consequential amendment to reflect the
insertion of subrule 36.21(1A) by item 20, which allows independent children's lawyers to
file a notice of cross-appeal in the same manner currently outlined for respondents.
Item 22 - Rule 36.22
1761. Item 22 amends rule 36.22 by inserting the words 'or an independent children's
lawyer' after 'respondent'. Rule 36.22 prescribes the time to file a notice of cross-appeal, by
inserting the words 'or an independent children's lawyer'. Rule 36.22, as amended, will
provide that both the respondent and the independent children's lawyer will have 21 days
from the time they are served with a notice of appeal to file a notice of cross-appeal, should
they wish to do so. This amendment reflects the creation of the Family Law Appeal Division
and the necessary amendments following the passage of the Federal Circuit and Family
Court of Australia Act 2018.
Item 23 - Subrule 36.23(1)
1762. Item 23 amends subrule 36.23(1), by inserting the words 'or an independent
children's lawyer' after 'respondent'. Item 23 has the effect of extending the application of
subrule 36.23(1) to independent children's lawyers such that an independent children's
lawyer may seek an extension of time to file a notice of cross-appeal, in accordance with the
process prescribed in rule 36.23. This amendment reflects the creation of the Family Law
Appeal Division and the necessary amendments following the passage of the Federal Circuit
and Family Court of Australia Act 2018.
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Items 24 and 25 - Rule 36.24
1763. Items 24 and 25 amend rule 36.24, by inserting the words 'or an independent
children's lawyer' after the first occurring reference to 'respondent' and 'or independent
children's lawyer' after the second occurring reference to 'respondent'. Items 24 and 25
extend the application of subrule 36.24(1) to independent children's lawyers such that an
independent children's lawyer may seek an extension of time to file a notice of contention, in
accordance with the process currently prescribed in rule 36.24 for respondents. These
amendments reflect the creation of the Family Law Appeal Division and the necessary
amendments following the passage of the Federal Circuit and Family Court of Australia Act
2018.
Items 26 and 27 - Rule 36.41 (note), at the end of rule 36.41
1764. Item 26 updates the numbering of the note under rule 36.41 to reflect the insertion of
note 2 at the end of rule 36.41, which is being added by item 27.
1765. Item 27 inserts Note 2 at the end of rule 36.41, which provides that a family law
appeal may be dealt with by the Family Law Appeal Division of the Federal Court without an
oral hearing if the parties consent in accordance with section 25A of the Federal Court Act.
These amendments reflect the creation of the Family Law Appeal Division and the necessary
amendments following the passage of the Federal Circuit and Family Court of Australia Act
2018.
Item 28 - Rule 36.43
1766. Item 28 amends rule 36.43, by inserting the words 'or an independent children's
lawyer' after 'respondent'. Rule 36.43 currently allows a respondent to file a notice outlining
their objections to an application being considered without an oral hearing under rule 36.41.
Item 28 extends the application of rule 36.43 to independent children's lawyers such that an
independent children's lawyer may file a notice of objection, in the same manner as a
respondent under rule 36.43. This amendment reflects the creation of the Family Law Appeal
Division and the necessary amendments following the passage of the Federal Circuit and
Family Court of Australia Act 2018.
Item 29 - After subrule 36.51(4)
1767. Division 36.5 of the Federal Court Rules specifies what documents are to be included
in the appeal books and how they are to be prepared. Item 29 inserts subrule 36.51(4A),
which provides that appeal books must not include any offer to compromise or settle or the
details of such an offer, unless the terms of the offer are relevant to the appeal. Subrule
36.51(4A) replicates subrule 22.19(2) of the Family Law Rules.
Item 30 - After rule 36.51
1768. Item 30 inserts new rule 36.51A to apply to the preparation of appeal books for
appeals heard by the Family Law Appeal Division of the Federal Court. This rule does not
extend to appeals heard in other divisions of the Federal Court. New subrule 36.51A(2)
provides that the appellant is responsible for preparing and filing the appeal books, including
obtaining any transcript required to be included in the appeal books. The responsibility for
preparing and filing the appeal books will fall to the cross-appellant if the Court so orders.
323
1769. New subrule 36.51A(3) provides that if the Court is satisfied that preparation of the
appeal books would impose exceptional hardship on the appellant, the Court may order that a
respondent or Registrar prepare and file the appeal books.
1770. The note to new subrule 36.51A(3) provides that if a Registrar prepares the appeal
books in family law proceedings, the appellant or cross-appellant (if so ordered) is still
responsible for obtaining the transcript. The reason for this note is to ensure that parties are
aware that they are still responsible for purchasing a copy of the transcript which was
prepared by the contractor providing transcription services to the relevant court, in
circumstances where a Registrar is preparing their appeal books. For the avoidance of doubt,
where a Registrar of the Court prepares appeal books, the Court is not responsible for
purchasing the transcript from the Court's transcription provider. Details concerning how a
party may acquire a copy of a transcript of their proceedings are available on the website of
the relevant court which heard the proceedings.
1771. New subrule 36.51A(4) provides that where an order is made under subrule 36.51A(3)
for a Registrar or the respondent to prepare the appeal books, the Court may order the
appellant to pay the costs of preparing the appeal books. Such costs may include the costs of
printing or photocopying documents and exhibits from the Court file to be included in the
appeal books.
1772. The amendments provided by item 30 reflect the creation of the new Family Law
Appeal Division in the Federal Court and largely reflect rule 22.18 of the Family Law Rules.
Item 31 - At the end of subrule 36.55(2)
1773. Item 31 inserts a new paragraph 36.55(2)(d) at the end of rule 36.55(2) to include the
time for filing documents in a family law appeal by an independent children's lawyer. The
time limit for filing an outline of the independent children's lawyer's submissions on the
appeal and chronology of relevant events by an independent children's lawyer is not later
than 5 business days before the hearing of an appeal. This timeframe was provided to allow
the independent children's lawyer the opportunity to take account and respond to the material
filed by the appellant and respondent to the family law appeal. This amendment reflects the
creation of the Family Law Appeal Division and the necessary amendments following the
passage of the Federal Circuit and Family Court of Australia Act 2018.
Item 32 - After paragraph 36.55(3)(b)
1774. Item 32 inserts a new paragraph 36.55(3)(c) after paragraph 36.55(3)(b), to include
the time for filing a list of authorities and list of any legislation to which the independent
children's lawyer intends to refer to in the appeal. The time for filing these documents is not
later than 4 business days before the hearing of the appeal. This amendment reflects the
creation of the Family Law Appeal Division and the necessary amendments following the
passage of the Federal Circuit and Family Court of Australia Act 2018.
Item 33 - After rule 36.57
1775. Item 33 inserts new rule 36.58 concerning subpoenas after rule 36.57.
Subrule 36.58(1) provides that the rule only applies to appeals in the Family Law Appeal
Division of the Federal Court. Subrule 36.58(2) provides that a party may only issue a
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subpoena in a family law appeal if the Family Law Appeal Division gives leave to issue a
subpoena.
1776. Subrule 36.58(3) provides that a document produced in a family law appeal as a result
of a subpoena issued under subrule 36.58(2) may only be inspected with leave of the Family
Law Appeal Division of the Federal Court.
1777. Rule 36.58 restricts any evidence being adduced in an appeal by imposing a
requirement for parties to seek leave to issue a subpoena. These accord with the notion that
an appeal is not a re-hearing of proceedings where parties may adduce fresh evidence.
1778. The amendments provided by item 33 reflect the creation of the Family Law Appeal
Division in the Federal Court and largely reflects rule 22.34 of the Family Law Rules.
Item 34 - Division 36.5
1779. Item 34 omits the text 'Rules 36.58-36.70 left blank' and replaces it with the text
provided. This amendment accounts for the addition of the new rule 36.58 and does not affect
the substantive operation of the rules.
Item 35 - Subrules 36.72(1) and (3)
1780. Rule 36.72 currently requires that any notice of objection to competency of an appeal
must be filed by a respondent within 14 days of service of the notice of appeal.
1781. Item 35 amends subrules 36.72(1) and (3) by inserting 'or an independent children's
lawyer' after 'respondent'. These amendments extend the application of rule 36.72 to
independent children's lawyers in the same manner currently afforded to respondents. These
amendments reflect the creation of the Family Law Appeal Division and the necessary
amendments following the passage of the Federal Circuit and Family Court of Australia Act
2018.
Items 36 and 37 - Subrule 36.72(4)
1782. Subrule 36.72(4) currently precludes a respondent from claiming costs of an appeal
where they have not filed a notice of objection to competency of an appeal and the appeal is
dismissed by the Court as not competent.
1783. Items 36 and 37 amend subrule 36.72(4), by inserting the words 'or an independent
children's lawyer' after the first occurring reference to 'respondent' and 'or independent
children's lawyer' after the second occurring reference to 'respondent'. These amendments
extend the operation of subrule 36.72(4) to independent children's lawyers such that if an
independent children's lawyer has not filed a notice of competency under subrule 36.72(1)
and the appeal is dismissed by the Court as not competent, the independent children's lawyer
is not entitled to costs of the appeal. This amendment reflects the creation of the Family Law
Appeal Division and the necessary amendments following the passage of the Federal Circuit
and Family Court of Australia Act 2018.
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Items 38 and 39 - Subrule 36.73(4), at the end of rule 36.73
1784. Items 38 and 39 amend rule 36.73 to account for the creation of the Family Law
Appeal Division of the Federal Court. Rule 36.73 allows a party to file a notice to discontinue
their appeal. Subrule 36.73(4) imposes a mandatory requirement on the party who
discontinues their appeal to pay the costs of each other party to the discontinued appeal. Item
38 amends subrule 36.73(4) to exclude the imposition of automatic payment of costs from
family law proceedings heard by the Family Law Appeal Division of the Federal Court. This
is most appropriate as costs do not follow the event in family law proceedings. These
amendments account for the application of section 117 of the Family Law Act, which
requires that each party bear their own costs unless they are able to show circumstances
justifying the making of a costs order.
1785. Item 39 inserts new subrules 36.73(5) and 36.73(6) to apply to family law
proceedings in the Family Law Appeal Division. New subrule 36.73(5) provides that if a
notice under subrule 36.73(1) is filed for a matter that would have been heard in the Family
Law Appeal Division of the Federal Court, the party who filed the notice may be ordered to
pay the costs of the other parties, as distinct from other proceedings under subrule 36.73(4)
where the discontinuing party must pay costs of the other parties to the application, unless the
parties otherwise agree. The note under subrule 36.73(5) refers to section 117 of the Family
Law Act and Part VB of the Federal Court Act, which allows the Court to make costs orders.
1786. In order for the other parties to seek costs against the discontinuing party, they must
file an application for costs within 28 days after the notice of discontinuance is filed. The
time limit for seeking costs is consistent with the approach taken in family law proceedings
under the rule 22.42 of the Family Law Rules, where applications for costs of a discontinued
appeal must be filed within 28 days. These amendments appropriately reflect the creation of
the new Family Law Appeal Division in the Federal Court and the fact that the approach to
costs differs in family law matters compared to other proceedings.
Item 40 - Before rule 40.01
1787. Item 40 inserts a note at the start of Division 40.1, before rule 40.01. Division 40.1 of
the Federal Court Rules outlines general rules concerning costs. The Note inserted by this
item directs parties seeking costs in family law proceedings before the Family Law Appeal
Division to have regard to section 117 of the Family Law Act, in addition to the general costs
rules. For avoidance of doubt, where there is an inconsistency between the costs rules
contained in Part 40 of the Federal Court Rules and section 117 of the Family Law Act, the
Family Law Act shall prevail.
1788. This amendment appropriately reflects the creation of the new Family Law Appeal
Division in the Federal Court and the fact that the approach to costs differs in family law
matters compared to proceedings.
Item 41 - Subrules 40.43(2) and (3)
1789. Item 41 updates subrules 40.43(2) and (3) by omitting the reference to the 'Federal
Circuit Court of Australia', and substituting the reference with 'Federal Circuit and Family
Court of Australia (Division 2)'. This amendment reflects the continuation of the Federal
Circuit Court as the FCFC (Division 2) and does not affect the substantive operation of the
rule.
326
Item 42 - In the appropriate position in Part 43
1790. Item 42 inserts a new Division 43.1 into Chapter 7 of the Federal Court Rules, which
provides for transitional provisions relating to the amendments to the Rules made by
Schedule 6 of this Act. Division 43.1 is intended to cover proceedings which will be heard in
the Family Law Appeal Division of the Federal Court and the transition from the
commencement of the new Rules regardless of whether proceedings were instituted before,
on or after 1 January 2019, when this Act comes into effect and the Family Law Appeal
Division is created.
1791. Division 43.1 contains rules 43.01 and 43.02. Rule 43.01 provides that the
amendments to the Federal Court Rules made by Schedule 6 of this Bill have application to
proceedings commenced before, on or after 1 January 2019. As such, upon the passage of this
Act the amendments to the Federal Court Rules contained in Schedule 6 of this Act will apply
to all proceedings on foot in the Federal Court regardless of when the proceedings were
commenced.
1792. Rule 43.02 provides that Division 43.1 will be repealed at the start of 1 January 2021.
Item 43 - Schedule 1
1793. Schedule 1 is a dictionary defining the meaning of words and expressions used in the
Federal Court Rules. Item 43 inserts definitions of 'Child Support Registrar', 'Federal Circuit
and Family Court of Australia' and 'independent children's lawyer' into the dictionary for the
Federal Court Rules. The dictionary provides definitions to assist in interpreting the rules.
1794. The new definitions provide that 'Child Support Registrar means the Child Support
Registrar under section 10 of the Child Support (Registration and Collection) Act 1988',
'Federal Circuit and Family Court of Australia means (a) the Federal Circuit and Family
Court of Australia (Division 1); or (b) the Federal Circuit and Family Court of Australia
(Division 2)', and 'independent children's lawyer has the same meaning as in subsection 4(1)
of the Family Law Act 1975'.
1795. The inclusion of the terms 'Child Support Registrar' and 'independent children's
lawyer' in the dictionary are to assist interpreting the new rules using these terms which have
been inserted for application to proceedings in the Family Law Appeal Division of the
Federal Court.
1796. The inclusion of the 'Federal Circuit and Family Court of Australia' in the dictionary
is to assist in interpreting the reference to the 'Federal Circuit and Family Court of Australia'
used throughout the Rules. A reference to the 'Federal Circuit and Family Court of Australia'
can mean either the FCFC (Division 1) or the FCFC (Division 2), while a reference to the
FCFC (Division 1) is prescriptive and only applies to the FCFC (Division 1), similarly a
reference to the FCFC (Division 2) only applies to the FCFC (Division 2).
Item 44 - Part 3.3 of Schedule 2 (table items 23 and 24, column headed 'Description (for
information only)')
1797. Item 44 updates Schedule 2, Part 3.3 table items 23 and 24 by omitting the references
to the 'Federal Circuit Court of Australia', and substituting the references with 'Federal
Circuit and Family Court of Australia (Division 2)'. Table item 23 relates to the power of the
327
Federal Court to order the transfer of a proceeding to the Federal Circuit Court (under
subsection 32AB(1) of the Federal Court Act). Table item 24 relates to the power of the
Federal Court to make a necessary order pending the disposal of a proceeding by the Federal
Court (under subsection 32AB(7) of the Federal Court Act).
1798. These amendments reflect the continuation of the Federal Circuit Court as the FCFC
(Division 2), and do not affect the substantive operation of the Rules.
Items 45 and 46 - Part 3.7 of Schedule 2 (after table item 212), Part 3.7 of Schedule 2
(after table item 213)
1799. Schedule 2 sets out the powers of the Federal Court that may be exercised by a
Registrar, whether under a provision of an Act or of the Federal Court Rules. Part 3.7 of
Schedule 2 sets out a table of powers that may be exercised by a Registrar in accordance with
specified Federal Court Rules.
1800. Item 45 inserts table item 212A to the table of powers exercisable by registrars under
the Federal Court Rules. Table item 212A extends the power under rule 35.22 to make
directions about the conduct of proceedings and provides that a Registrar has the power to
give a direction about the management, conduct and hearing of an application to the Family
Law Appeal Division of the Federal Court.
1801. Item 46 inserts table item 213A to the table of powers exercisable by registrars under
the Federal Court Rules. Table item 213A allows registrars to make directions in relation to
the preparation of appeal books for appeals heard by the Family Law Appeal Division in
accordance with the new rule 36.51A. See item 30 of this Schedule for further guidance
concerning rule 36.51A.
328
Schedule 7--Modifications to the standard Rules of Court for the Federal Circuit and
Family Court of Australia (Division 1)
1802. Schedule 7 modifies the standard Rules of Court made under the Family Law Act, the
Family Law Rules, for application to the FCFC (Division 1) on and from 1 January 2019.
These rules will be known as the Federal Circuit and Family Court of Australia (Division 1)
Rules 2018 ('FCFC (Division 1) Rules') and will only apply as modified to the FCFC
(Division 1).
Item 1 - Definitions
1803. Item 1 defines 'standard Rules of Court' for the purposes of Schedule 7 of this Act.
The definition provides that 'standard Rules of Court has the same meaning as in the Family
Law Act 1975'. Section 4(1) of the Family Law Act provides that 'standard Rules of Court
means Rules of Court made under this Act'. These definitions refer to the Family Law Rules.
The definition assists in interpreting references to standard Rules of Court throughout
Schedule 7. This amendment takes into account the Rules of Court that have the capacity to
be created under Chapter 3 of the Federal Circuit and Family Court of Australia Act 2018.
Item 2 - Federal Circuit and Family Court of Australia (Division 1) Rules 2018
1804. Schedule 7 modifies the standard Rules of Court made under the Family Law Act, for
application to the FCFC (Division 1) on and from 1 January 2019.
1805. Subitem 2(1) provides that the standard Rules of Court as in force immediately before
1 January 2019, will be Rules of Court covered by the new section 56 of the Federal Circuit
and Family Court of Australia Act 2018, and are to be known as the FCFC (Division 1) Rules
2018 ('FCFC (Division 1) Rules'). It also provides that these rules will apply to the FCFC
(Division 1) on and from 1 January 2019 with the modifications set out in Schedule 7 of this
Act.
1806. Subitem 2(2) provides that the Chief Justice of the FCFC (Division 1) may repeal the
FCFC (Division 1) Rules, regardless of the fact that the standard Rules of Court were
originally made by a majority of judges of the Family Court.
1807. Subitem 2(3) provides that for the avoidance of doubt, the standard Rules of Court
which were previously made under section 123 of the Family Law Act and in force
immediately before 1 January 2019 will continue as the standard Rules of Court for the
purposes of the Family Law Act.
1808. Subitem 2(4) provides that amendments to the standard Rules of Court made on or
after 1 January 2019 do not apply for the purposes of the FCFC (Division 1) Rules 2018 and
the modifications made by Schedule 7 of this Act.
Item 3 - Certain provisions to be omitted
1809. Item 3 provides that the standard Rules of Court will have effect as the FCFC
(Division 1) Rules as if the list of Rules provisions were omitted from the standard Rules of
Court. The purpose of these omissions is to reflect the structural changes to the federal courts
and their enabling legislation.
329
Item 4 - Certain provisions to be replaced
1810. Item 4 provides that the standard Rules of Court will have effect as the FCFC
(Division 1) Rules as if the table of provisions from the standard Rules of Court identified in
column 1 of the modifications table were replaced with the items set out in column 2 of the
modifications table. The purpose of these modifications is to reflect the structural changes to
the federal courts and their enabling legislation.
Item 5 - Notice of risk
1811. Item 5 provides that the standard Rules of Court will have effect as the FCFC
(Division 1) Rules as if existing Rule 2.04D were substituted by new Rule 2.04D. New rule
2.04 will be titled 'Notice relating to child abuse or family violence', and will provide that for
the purposes of section 67Z or 67ZBA of the Act, the Chief Justice of the FCFC (Division 1)
may approve a form under subrule 24.04(1). The Rule will also provide that a person who
files a notice mentioned in subsection 67Z(2) or 67ZBA(2) of the Act (other than in relation
to an application for consent orders) must file an affidavit or affidavits when or before the
notice is filed, setting out the evidence on which the allegations in the notice are based. The
modification in this item also notes that Subsections 67Z(2) and 67ZBA(2) of the Act relate
to an allegation by a party that a child has been abused or is at risk of being abused, or there
has been, or there is a risk of, family violence by one of the parties to the proceedings.
1812. The effect of this item is to provide that the form to be used for the of filing a notice
of risk is the one approved by the Chief Justice of the FCFC (Division 1), rather than as
currently prescribed in the Rules.
Item 6 - Powers of the Chief Executive Officer, Registrars and Deputy Registrars
1813. Item 6 provides that the standard Rules of Court have effect as the FCFC (Division 1)
Rules as if existing Chapter 18 were substituted by new Chapter 18. New Chapter 18 outlines
the powers of the FCFC (Division 1) which are delegated to the Chief Executive Officer and
Registrars and Deputy Registrars of the FCFC (Division 1), together with the process for
reviewing an order made by a person who has exercised delegated powers. Specifically, new
Chapter 18 contains:
Part 18.1 - Delegation of Powers
Division 18.1.1 - General
Rule 18.01 - 'Protection for persons exercising powers and functions under
delegation' - provides that the Chief Executive Officer, a Registrar or Deputy Registrar of
the FCFC (Division 1), while exercising a power or function in connection with a power of
the Court, has the same protection and immunity as a Judge of the Court.
Division 18.1.2 - Delegation of powers of the Chief Executive Officer, Registrars and Deputy
Registrars
Rule 18.02 - 'Application of Division 18.1.2'.
Rule 18.03 - 'Chief Executive Officer and Registrars' - provides a table of powers of
the Chief Executive Officer, and each Registrar approved by the Chief Justice of FCFC
330
(Division 1) to exercise powers, which have been delegated (subrule 18.03(1)) and a table of
each power vested in the FCFC (Division 1) by the Rules, as delegated to the Chief Executive
Officer and each Registrar (subrule 18.03(2)).
Rule 18-04 - 'Chief Executive Officer, Registrars and Deputy Registrars' - provides
that each power mentioned in the tables under subrules 18.04(1) and (2) is delegated to the
Chief Executive Officer and each Registrar and Deputy Registrar of the FCFC (Division 1).
Part 18.2 - Review of decisions
Rule 18.5 - 'Application of Part 18.2'.
Rule 18.06 - 'Review of order or decision' - provides that a party may apply for a
review of an order mentioned in an item of the table in subrule 18.06(1), within the time
specified by the table.
Rule 18.07 - 'Stay' - provides that the filing of an application for a review of an order
does not operate as a stay of the order, except in relation to a divorce order that has been
granted by the Chief Executive Officer, a Registrar or a Deputy Registrar, where an
application for review is taken to be an appeal within the meaning of subsection 55(3) of the
Act.
Rule 18.08 - 'Power of Federal Circuit and Family Court of Australia (Division 1) on
review' - provides that the FCFC (Division 1) must hear an application for review of an order
of the Chief Executive Officer, a Registrar or Deputy Registrar as an original hearing.
Item 7 - Appellate jurisdiction of the Federal Circuit and Family Court of Australia
(Division 1)
1814. Item 7 provides that the standard Rules of Court have effect as the FCFC (Division 1)
Rules as if existing Chapter 22 were substituted by new Chapter 22. The amendments
contained in item 7 reflect the fact that as a result of the creation of the Family Law Appeal
Division in the Federal Court, the FCFC (Division 1) will only hear appeals from decisions of
courts of summary jurisdiction. As such, many of the rules contained in Chapter 22 of the
standard Rules of Court will no longer be required for the FCFC.
1815. This item reproduces the relevant Rules of Court that will be required for the FCFC
(Division 1) to hear appeals de novo from decisions of courts of summary jurisdiction. The
appellate jurisdiction conferred on the FCFC (Division 1) to hear appeals from courts of
summary jurisdiction will also be conferred on the FCFC (Division 2). As such, the rules
contained in this item largely mirror those contained in item 5 of Schedule 8 for application
to the FCFC (Division 2). These include:
Rule 22.01 - 'Application of Chapter 22'
Rule 22.02 - 'Form of notice of appeal' - provides that a party wanting to appeal to
the FCFC (Division 1) must file a notice of appeal using the relevant form approved by the
Chief Justice of the FCFC (Division 1).
331
Rule 22.03 - 'Filing of notice of appeal' - provides that for an appeal from a
judgment of a court of a State or Territory, a notice of appeal must be filed in a Registry
located in that particular State or Territory.
Rule 22.04 - 'Time for filing and service notice of appeal' - provides that a notice of
appeal must be filed within 28 days after the date of the judgment being appealed, or on or
before another date fixed by the Court for that purpose.
Rule 22.05 - 'Service on parties and lodgements' - provides that an appellant or a
person seeking leave to appeal must serve a notice of appeal on each person who was a party
to, or who has leave to intervene in, the proceeding in the court appealed from. The appellate
must lodge a copy of the notice of appeal with the Registrar, Master or proper officer of the
Court within 7 days of filing, and must provide a copy of the notice of appeal to the Child
Support Registrar for child support proceedings under the Child Support (Assessment) Act
1989 or the Child Support (Registration and Collection) Act 1988.
Rule 22.06 - 'Extension of time to file notice of appeal' - provides that a party who
wants to apply for an extension of time within which to file a notice of appeal must file an
application, using the relevant form approved by the Chief Justice of the FCFC (Division 1).
Rule 22.07 - 'Method of service' - provides how the notice of appeal must be served.
Rule 22.08 - 'Address for service of respondent' - provides that a respondent to an
appeal or application for leave to appeal under rule 22.02, or to an application under rule
22.06, must file a notice of address for service within 14 days after being serviced with the
notice of appeal or application.
Rule 22.09 - 'Stay of execution or proceedings under judgment appealed from' -
provides that an appeal does not operate as a stay of execution or of proceedings under the
judgment subject to appeal, or invalidate any proceedings already undertaken.
Rule 22.10 - 'Security for costs of appeal' - provides that a party may apply to the
FCFC (Division 1) for an order that the appellant give security for the costs of the appeal, and
the manner, time and terms for giving the security and that the appeal be stayed until security
is given, and that if the appellant fails to comply with the order to provide security within the
specified time, that the appeal be stayed or dismissed.
Rule 22.11 - 'Directions' - provides that a party may apply to the FCFC (Division 1)
for directions in relation to the management, conduct and hearing of an appeal.
Rule 22.12 - 'Parties' - provides that each party to the proceeding in the court
appealed from who may be affected by the relief sought in a notice of appeal, or who might
be interested in maintaining the judgment under appeal, must be joined as an appellant or
respondent to the appeal. A person must not be named as an appellant without consent.
Rule 22.13 - 'Applications to intervene' - provides that another person who was not a
party to the proceeding being appealed from may apply to the FCFC (Division 1) for leave to
intervene in the appeal.
332
Rule 22.14 - 'Certain applications may be dealt with without an oral hearing' -
provides the circumstances under which a party may apply to the FCFC (Division 1) for an
order that proceedings be dealt with without an oral hearing.
Rule 22.15 - 'Objection to application being considered without oral hearing' -
provides that a respondent who objects to an application being considered without an oral
hearing must file a notice, stating the reason, and using the form approved by the Chief
Justice of the FCFC (Division 1).
Rule 22.16 - 'Notice of objection to competency of appeal' - provides that a
respondent who objects to the competency of an appeal must, within 14 days after being
served with a notice of appeal, file a notice of objection to competency. The appellant will
carry the burden of establishing the competency of the appeal.
Rule 22.17 - 'Discontinuance of appeal or application' - provides that appellant party
may discontinue an appeal, or an application for leave to appeal, by filing a notice of
discontinuance using the form approved by the Chief Justice of the FCFC (Division 1). If the
form is filed before the hearing of the appeal, leave of the Court will not be required to file;
however if the form is filed at the hearing, or after the hearing but before judgment, leave of
the Court is required.
Rule 22.18 - 'Application to dismiss appeal' - provides that a respondent may apply
to the Court for an order that the appeal be dismissed for the failure by an appellant to comply
with a direction of the Court; comply with these Rules; attend a hearing relating to the
appeal; or prosecute the appeal.
Rule 22.19 - 'Absence of party' - provides the orders that may be sought by a party
when the other party is absent when an appeal is called on for hearing.
Item 8 - Filing documents
1816. Item 8 provides that the standard Rules of Court have effect as the FCFC (Division 1)
Rules as if existing Part 24.2, the heading to Part 24.3 and rule 24.12 were substituted by new
Part 24.2, the heading to Part 24.3 and rule 24.12. Specifically, new Part 24.2 contains:
Rule 24.05 - 'How a document is filed' - provides the methods and timing for filing a
document.
Rule 24.06 - 'Filing a document by fax' - provides the circumstances in which a
document may be faxed and how this must be done.
Rule 24.07 - 'Filing a document using the web portal' - provides the method for
filing a document using the Court's web portal.
Rule 24.09 - 'Documents filed during a case' - provides that a document filed in a
case that has started must be filed in the filing registry, unless the document is filed via the
web portal.
Rule 24.10 - 'When documents will not be accepted for filing' - provides the
circumstances under which a document will not be accepted for filing.
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Rule 24.11 - 'Filing a notice of payment into court' - provides that any person who
pays money into Court must file a Notice of Payment in the FCFC (Division 1) stating the
amount and purpose.
Rule 24.12 - 'Removal of document from registry' - provides that a document may
be removed from a registry only it is necessary to transmit the document between registries;
or the Court permits the removal.
Rule 24.12A - 'Documents accepted for filing - removal from files and storage' -
provides the conditions for removal of a document which has been accepted for filing from a
file of the FCFC (Division 1).
Rule 24.12B - 'Documents on file - removal, redaction and storage' - provides the
conditions for removal of a document from the Court file and its replacement with a redacted
copy.
Item 9 - Certain provisions to be added
1817. Item 9 provides that the standard Rules of Court will operate as the FCFC
(Division 1) Rules, as if the provisions contained in item 9 of the additions table were added
to the standard Rules of Court.
1818. In particular, table item 1 provides that an additional provision be added to the end of
rule 1.16, which will read '(5) An expression has the same meaning in these Rules as it has in
the Family Law Act 1975.' Rule 1.16 of the standard Rules of Court introduces the dictionary
which contains terms that are defined for the purposes of the rules. The dictionary forms part
of the Rules and is contained at the end of the Rules. Item 1 to the table relies on section 13
of the Legislation Act 2003 to import relevant definitions from the Federal Circuit and
Family Court of Australia Act 2018. Section 13 of the Legislation Act 2003 extends the
application of the Acts Interpretation Act 1901 to apply to legislative instruments, which
includes the standard Rules of Court.
1819. Table item 2 inserts a new rule 19.08A after existing rule 19.08. New rule 19.08A
provides for a party to an appeal or an application for leave to appeal may apply for an order
that another pay costs. The content of what may be included in such an application in
provided at subrule 19.08A(2), subject to the requirements at subrule 19.08A(3).
1820. Table item 3 inserts a note after 19.10(1), referring readers to the case management
provisions, particularly subsection 49(5) of the Federal Circuit and Family Court of
Australia Act 2018 for the power of the FCFC (Division 1) to order a lawyer to bear costs
personally.
1821. Table items 4 and 5 insert notes after subclauses 6(1) of Parts 1 and 2 of Schedule 1 of
the FCFC (Division 1) Rules, referring parties to proceedings in the FCFC (Division 1) to the
case management provisions which apply to the FCFC (Division 1) in the Federal Circuit
and Family Court of Australia Act 2018 and section 117 of the Family Law Act.
1822. Table item 6 inserts a definition of business day, which in a given place, means any
day other than a Saturday or Sunday, a day that is a public holiday in the place, or any other
day on which the filing registry in the place is closed.
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1823. Table item 7 inserts a definition of 'case management provisions' into the dictionary
for the FCFC (Division 1) Rules. 'Case management provisions' for the purposes of the
FCFC (Division 1) is defined as meaning 'the provisions of Division 4 of Part 5 of Chapter 3
of the Federal Circuit and Family Court of Australia Act 2018.'
Item 10 - Other modifications
1824. Item 10 provides that unless otherwise specified in Schedule 7, the standard Rules of
Court will apply to the FCFC (Division 1) as the FCFC (Division 1) Rules, if the terms listed
in item 10 were modified and read as follows:
(a) references to the Family Law Rules should be read as the Federal Circuit and Family
Court of Australia (Division 1) Rules 2018;
(b) references to the Family Law Rules should be read as the FCFC (Division 1) Rules
2018;
(c) references to the main purpose or main purpose of these Rules should be read as
overarching purpose or overarching purpose of these Rules;
(d) references to the Family Court of Australia, the Family Court or 'a Family Court' or
'the Court' are to be read as references to the FCFC (Division 1);
(e) references to the Family Court of Australia should be read as the Federal Circuit and
Family Court of Australia (Division 1);
(f) references to the Federal Circuit Court of Australia or the Federal Circuit Court are
references to the FCFC (Division 2);
(g) references to 'a court' or 'the court' are to be read as references to the FCFC
(Division 1), except in the provisions listed in subparagraphs 7(1)(g)(i) to (xii);
(h) references to the Child Support Agency should be read as the Department of Human
Services;
(i) references to a Judicial Registrar are to be disregarded, as this position is no longer
used in the Family Court and will not be used in the FCFC (Division 1);
(j) references to rule 1.04 are to be disregarded, as this rule will be repealed from the
standard Rules of Court;
(k) references to Schedule 2 are to be disregarded, as this Schedule will be repealed from
the standard Rules of Court;
(l) references to section 35B of the Bankruptcy Act 1966 are to be disregarded, as
section 35B relates to the Family Court of Western Australia and will be covered by the
standard Rules of Court, and will not be required in the FCFC (Division 1) Rules.
Item 11 - Application of modifications
1825. Item 11 provides that the standard Rules of Court will have effect as the FCFC
(Division 1) Rules, as if a new Part 27.4 were added at the end of Chapter 27 of the Rules.
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1826. Part 27.4 contains transitional provisions relating to the modifications to the standard
Rules of Court made by Schedule 7 of this Act. New rule 27.09 provides that the
modifications by Schedule 7 cover proceedings which will be heard by the FCFC
(Division 1) and the transition from the commencement of the new Rules regardless of
whether proceedings were instituted before, on or after 1 January 2019, being the date when
this Act comes into effect.
1827. New Rule 27.10 provides that Part 27.4 will be repealed at the start of 1 July 2021.
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Schedule 8--Modifications to Rules of Court for the Federal Circuit and Family Court
of Australia (Division 2)
Part 1 --Modifications of the Federal Circuit Court Rules 2001
Item 1 - Federal Circuit and Family Court of Australia (Division 2) Rules 2018
1828. The purpose of item 1 of Part 1 is to provide that, despite the repeal of the Federal
Circuit Court Act, the Federal Circuit Court Rules in force immediately before 1 January
2019 under section 81 of that Act are taken, on and after that day, to be Rules of Court
covered by Chapter 4 of the Federal Circuit and Family Court of Australia Act 2018. They
are also to be known as the Federal Circuit and Family Court of Australia (Division 2) Rules
2018 ('FCFC (Division 2) Rules') and they have effect on and after 1 January 2019, with the
modifications set out in Part 1 of Schedule 8.
1829. The item goes on to provide that it does not prevent the amendment or repeal of the
Federal Circuit and Family Court of Australia (Division 2) Rules 2018 by the Chief Judge of
the FCFC (Division 2) even though those Rules of Court were originally made by the Judges
of the Federal Circuit Court or a majority of them.
Item 2 - Certain provisions to be omitted
1830. The purpose of item 2 is to provide that Federal Circuit Court Rules have effect as the
FCFC (Division 2) Rules as though certain rules, subrules and definitions were omitted. The
purpose of these omissions is to reflect the structural changes to the federal courts and their
enabling legislation.
Item 3 - Certain provisions to be replaced
1831. Item 3 provides that the Federal Circuit Court Rules have effect as the FCFC
(Division 2) Rules as if the provisions identified in column 1 of an item of the table were
modified as set out in column 2 of the item. The purpose of these modifications is to reflect
the structural changes to the federal courts and their enabling legislation.
Item 4 - Filing documents
1832. Item 4 provides that the Federal Circuit Court Rules have effect as the FCFC
(Division 2) Rules as if a new Division 2.2A was inserted after Division 2.2. The purpose of
Division 2.2A is to provide Rules for the filing of documents in family law or child support
proceedings, consistent with those provided for by item 8 of Schedule 7 to have effect for
proceedings in the FCFC (Division 1). Specifically, new Division 2.2A contains:
Rule 2.07C - 'How a document is filed' - provides the methods and timing for filing
a document.
Rule 2.07D - 'Filing a document by fax' - provides the circumstances in which a
document may be faxed and how this must be done.
Rule 2.07E - 'Filing a document using the web portal' - provides the method for
filing a document using the Court's web portal.
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Rule 2.07F - 'Documents filed during a case' - provides that a document filed in a
case that has started must be filed in the filing registry, unless the document is filed via the
web portal.
Rule 2.07G - 'When documents will not be accepted for filing' - provides the
circumstances under which a document will not be accepted for filing.
Rule 2.07H - 'Filing a notice of payment into court' - provides that any person who
pays money into Court must file a Notice of Payment in the FCFC (Division 1) stating the
amount and purpose.
Rule 2.07J - 'Removal of document from registry' - provides that a document may be
removed from a registry only if is necessary to transmit the document between registries; or
the Court permits the removal.
Rule 2.07K - 'Documents accepted for filing - removal from files and storage' -
provides the conditions for removal of a document which has been accepted for filing from a
file of the FCFC (Division 1).
Rule 2.07L - 'Documents on file - removal, redaction and storage' - provides the
conditions for removal of a document from the Court file and its replacement with a redacted
copy.
Item 5 - Powers of the Chief Executive Officer and Registrars
1833. To reflect the Federal Circuit Court Rules having effect as the FCFC (Division 2)
Rules, this item has the effect of substituting all the words in Part 20 of the Rules before the
table in subrule 20.00A(1) with a new Part 20--Powers of the Chief Executive Officer and
Registrars. The insertion of new Part 20 reflects the new role of the Chief Executive Officer
and Registrars within the FCFC (Division 2).
Item 6 - Appellate jurisdiction of the Federal Circuit and Family Court of Australia
(Division 2)
1834. Item 6 provides that the Federal Circuit Court Rules have effect as the FCFC
(Division 2) Rules as if new Part 25C--Appellate jurisdiction, were added at the end of
Chapter 2 of the Rules. Part 25C applies to an appeal to the FCFC (Division 2) from an order
of a court of summary jurisdiction. The Part provides provisions which deal with the
institution of appeals, parties to appeals and interveners, dealing with certain applications on
the papers and ending appeals under the new court structure.
1835. This item applies relevant Rules of Court that will be required for the FCFC
(Division 2) to hear appeals de novo from decisions of courts of summary jurisdiction. The
appellate jurisdiction conferred on the FCFC (Division 2) to hear appeals from courts of
summary jurisdiction will also be conferred on the FCFC (Division 1). As such, the rules
contained in this item largely mirror those contained in item 7 of Schedule 7 for application
to the FCFC (Division 1). These include:
Rule 25C.01 - 'Application'
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Rule 25C.02 - 'Form of notice of appeal' - provides that a party wanting to appeal to
the FCFC (Division 2) must file a notice of appeal using the relevant form approved by the
Chief Justice of the FCFC (Division 2).
Rule 25C.03 - 'Filing of notice of appeal' - provides that for an appeal from a
judgment of a court of a State or Territory, a notice of appeal must be filed in a Registry
located in that particular State or Territory.
Rule 25C.04 - 'Time for filing and service notice of appeal' - provides a notice of
appeal must be filed within 28 days after the date of the judgment being appealed, or on or
before another date fixed by the Court for that purpose.
Rule 25C.05 - 'Service on parties and lodgements' - provides that an appellant or a
person seeking leave to appeal must serve a notice of appeal on each person who was a party
to, or who has leave to intervene in, the proceeding in the court appealed from. The appellate
must lodge a copy of the notice of appeal with the Registrar, Master or proper officer of the
Court within 7 days of filing, and must provide a copy of the notice of appeal to the Child
Support Registrar for child support proceedings under the Child Support (Assessment) Act
1989 or the Child Support (Registration and Collection) Act 1988.
Rule 25C.06 - 'Extension of time to file notice of appeal' - provides that a party who
wants to apply for an extension of time within which to file a notice of appeal must file an
application, using the relevant form approved by the Chief Judge of the FCFC (Division 2).
Rule 25C.07 - 'Method of service' - provides how the notice of appeal must be
served.
Rule 25C.08 - 'Address for service of respondent' - provides that a respondent to an
appeal or application for leave to appeal under rule 25C.02, or to an application under rule
25C.06 must file a notice of address for service within 14 days after being serviced with the
notice of appeal or application.
Rule 25C.09 - 'Stay of execution or proceedings under judgment appealed from' -
provides that an appeal does not operate as a stay of execution or of proceedings under the
judgment subject to appeal, or invalidate any proceedings already undertaken.
Rule 25C.10 - 'Security for costs of appeal' - provides that a party may apply to the
FCFC (Division 2) for an order that the appellant give security for the costs of the appeal, and
the manner, time and terms for giving the security and that the appeal be stayed until security
is given, and that if the appellant fails to comply with the order to provide security within the
specified time, that the appeal be stayed or dismissed.
Rule 25C.11 - 'Directions' - provides that a party may apply to the FCFC
(Division 2) for directions in relation to the management, conduct and hearing of an appeal.
Rule 25C.12 - 'Parties' - provides that each party to the proceeding in the court
appealed from who may be affected by the relief sought in a notice of appeal, or who might
be interested in maintaining the judgment under appeal, must be joined as an appellant or
respondent to the appeal. A person must not be named as an appellant without consent.
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Rule 25C.13 - 'Applications to intervene' - provides that another person who was not
a party to the proceeding being appealed from may apply to the FCFC (Division 2) for leave
to intervene in the appeal.
Rule 25C.14 - 'Certain applications may be dealt with without an oral hearing' -
provides the circumstances under which a party may apply to the FCFC (Division 2) for an
order that proceedings be dealt with without an oral hearing.
Rule 25C.15 - 'Objection to application being considered without oral hearing' -
provides that a respondent who objects to an application being considered without an oral
hearing must file a notice, stating the reason, and using the form approved by the Chief
Justice of the FCFC (Division 2).
Rule 25C.16 - 'Notice of objection to competency of appeal' - provides that
respondent who objects to the competency of an appeal must, within 14 days after being
served with a notice of appeal, file a notice of objection to competency: The appellant will
carry the burden of establishing the competency of the appeal.
Rule 25C.17 - 'Discontinuance of appeal' - provides that an appellant may
discontinue an appeal by filing a notice of discontinuance using the form approved by the
Chief Justice of the FCFC (Division 2). If the form is filed before the hearing of the appeal,
leave of the Court will not be required to file; however if the form is filed at the hearing, or
after the hearing but before judgment, leave of the Court is required.
Rule 25C.18 - 'Application to dismiss appeal' - provides that a respondent may apply
to the Court for an order that the appeal be dismissed for the failure by an appellant to comply
with a direction of the Court; comply with these Rules; attend a hearing relating to the
appeal; or prosecute the appeal.
Rule 25C.19 - 'Absence of party' - provides the orders that may be sought by a party
when the other party is absent when an appeal is called on for hearing.
Item 7 - Certain provisions to be added
1836. Item 6 provides that the Federal Circuit Court Rules have effect as the FCFC
(Division 2) Rules as if certain provisions listed in the table 'Additions' were added. The item
provides that 'case management provisions' means the provisions of Division 4 of Part 6 of
Chapter 4 of the Federal Circuit and Family Court of Australia Act 2018. These provisions
are:
New subrule (4) at the end of rule 22A.08 provides that if during a proceeding, a
family violence order affecting the child or a member of the child's family is varied, any
party affected by the variation must as soon as practicable after the order is varied, file a copy
of the variation. This subrule is added for consistency with the requirements of the FCFC
(Division 1) Rules (see modifications made by item 5 of Schedule 7).
New definition of 'business day' in the Dictionary. 'Business day' is defined to
mean, in a place, any day other than a Saturday or Sunday, or a day that is a public holiday in
the place, or any other day on which the filing registry in the place is closed.
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New definition of 'case management provisions' in the Dictionary. 'Case
management provisions' is defined to mean the provisions of Division 4 of Part 6 of
Chapter 4 of the Federal Circuit and Family Court of Australia Act 2018.
New definition of 'court event' in the Dictionary. 'Court event' is defined, in relation
to family law proceedings and child support proceedings, to include a hearing or part of a
hearing, a trial or part of a trial, a conference, an attendance with a family consultant
performing the functions of a family consultant, and an attendance with a single expert
witness performing the functions of a single expert witness.
New definition of 'judicial officer' in the Dictionary. 'Judicial officer' is defined to
include a Judge, the Chief Executive Officer and Registrar.
Item 8 - Other modifications
1837. Item 8 provides that unless otherwise specified in another item of Part 1 of
Schedule 8, the Federal Circuit Court Rules will apply to the FCFC (Division 2) as the FCFC
(Division 2) Rules, if the terms listed in item 7 were modified and read as follows:
(a) references to the Family Court of Australia or the Family Court are to be read as
references to the Federal Circuit and Family Court of Australia (Division 1);
(b) references to the Federal Circuit Court of Australia or the Court are to be read as
references to the Federal Circuit and Family Court of Australia (Division 2);
(c) references to the Federal Circuit Court Act or the Act are to be read as references to
the Federal Circuit and Family Court of Australia Act 2018;
(d) references to the Federal Circuit Court Rules should be read as the Federal Circuit
and Family Court of Australia (Division 2) Rules 2018;
(e) references to the Federal Circuit Court (Bankruptcy) Rules 2016 should be read as the
Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2018;
(f) references to the Family Law Rules should be read as the Federal Circuit and Family
Court of Australia (Division 1) Rules 2018;
(g) references to the Federal Court and Federal Circuit Court Regulation 2012 should be
read as the Federal Court and Federal Circuit and Family Court of Australia (Division 2)
Regulation 2018;
(h) references to a Registrar (other than the Child Support Registrar or the Registrar of
the Tribunal) in relation to a family law proceeding or a child support proceeding, should be
read as including reference to the Chief Executive Officer of the Federal Court;
(i) references to the Child Support Agency should be read as references to the
Department of Human Services.
1838. The provisions in this item include general changes arising as a result of the new court
structure, including changes to the nomenclature of the courts. For example, the item
specifies that references to the Family Court of Australia or the Family Court are to be read
as a reference to the Federal Circuit and Family Court of Australia (Division 1). The item
341
includes changes to the relevant legislation, such as references to the 'Federal Circuit Court
of Australia Act 1999' being read as references to the 'Federal Circuit and Family Court of
Australia Act 2018'.
1839. This item also includes a table, which cross-references Rules of Court against
provisions of the Federal Circuit Court Act, and cross-references these provisions against the
modified provisions provided by the Federal Circuit and Federal Court of Australia Act
2018.
Item 9 - Application of modifications
Item 9 provides that the Federal Circuit Court Rules have effect as the FCFC (Division 2)
Rules as if new Part 48--Transitional provisions relating to Part 1 of Schedule 8 of this
Act--were added at the end of Chapter 9. The Part provides that the modifications to the
Federal Circuit Court Rules made by Part 1 of Schedule 8 to this Act apply in relation to a
proceeding commenced before, on or after 1 January 2019. The Part also provides that it is
repealed at the start of 1 July 2021.
Part 2--Modifications of the Federal Circuit Court (Bankruptcy) Rules 2016
Part 2 of Schedule 8 sets out the amendments that will apply to the Federal Circuit Court
(Bankruptcy) Rules 2016, following the creation of the FCFC and repeal of the Federal
Circuit Court Act. With effect from 1 January 2019, the Federal Circuit and Family Court of
Australia (Division 2) (Bankruptcy) Rules 2018 will replace the current Federal Circuit Court
(Bankruptcy) Rules 2016, with necessary modifications set out in Part 2 of Schedule 8.
Item 10 - Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy)
Rules 2018
1840. Subitem 9(1) provides that despite the repeal of the Federal Circuit Court Act, the
Federal Circuit Court (Bankruptcy) Rules 2016 as in force immediately before 1 January
2019 under that Act, will continue in force after 1 January 2019 to be Rules of Court covered
by section 184 of the Federal Circuit and Family Court of Australia Act 2018.
1841. Subitem 10(1) also provides that the Federal Circuit Court (Bankruptcy) Rules 2016
will be known as the Federal Circuit and Family Court of Australia (Division 2)
(Bankruptcy) Rules 2018. These rules will apply on and from 1 January 2019 with
modifications set out in Part 2 of Schedule 8 of this Act.
1842. Subitem 10(2) provides that the Chief Judge of the FCFC (Division 2) may repeal the
Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2018,
regardless of the fact that those rules were originally made by a majority of judges of the
Federal Circuit Court.
Item 11 - Certain provisions to be replaced
1843. Item 11 provides that the Federal Circuit Court (Bankruptcy) Rules 2016 will have
effect as the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules
2018 as if as if rule 1.03, were replaced with the text provided. Rule 1.03 currently provides
that the Federal Circuit Court (Bankruptcy) Rules 2016 are made under the authority of the
Federal Circuit Court Act.
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1844. Item 11 provides that the Federal Circuit Court (Bankruptcy) Rules 2016 have effect
as if rule 1.03 read that 'These Rules will be made under the authority of Chapter 4 of the
Federal Circuit and Family Court of Australia Act 2018.'
1845. This amendment appropriately reflects the continuation of the Federal Circuit Court
as the FCFC (Division 2) under the Federal Circuit and Family Court of Australia Act 2018.
Item 12 - Other modifications
1846. Subitem 12(1) provides that except as otherwise specified in Part 2 of Schedule 8, the
Federal Circuit Court (Bankruptcy) Rules 2016 will apply as the Federal Circuit and Family
Court of Australia (Division 2) (Bankruptcy) Rules 2018, as if the terms listed in subitem 9(1)
were modified in those rules, and read as follows:
references to 'the Court' (being the Federal Circuit Court) are to be read as references
to the FCFC (Division 2);
references to 'the Act' are to be read as a references to the Federal Circuit and Family
Court of Australia Act 2018;
references to the 'Federal Circuit Court Rules 2001' are to be read as references to
the Federal Circuit and Family Court of Australia (Division 2) Rules 2018;
references to a 'Registrar' are to be read as including a reference to the Chief
Executive Officer;
the note to subrule 1.07(3) is to be disregarded.
1847. Subitem 12(2) contains a table of modifications to references to specific rules in the
Federal Circuit Court Act, which will need to be updated as a result of the repeal of the
Federal Circuit Court Act and passage of the Federal Circuit and Family Court of Australia
Act 2018.
1848. Subitem 12(2) provides that the Federal Circuit Court (Bankruptcy) Rules 2016 will
apply as the Federal Circuit and Family Court of Australia (Division 2) Bankruptcy Rules
2018 such that: a reference to a Rule of Court listed in column 1 of the modifications table
should be read as a reference to the corresponding provision in column 3 of the Federal
Circuit and Family Court of Australia Act 2018, rather than a reference which currently
appears in the provisions identified in column 2 of the table (which refers to the Federal
Circuit Court Act), which will be repealed.
Item 13 - Application of modifications
1849. Item 13 provides that the Federal Circuit Court (Bankruptcy) Rules 2016 will have
effect as the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules
2018, with inclusion of a new Division 14.2 at the end of Part 14.
1850. New Division 14.2 contains Rules 14.02 and 14.03, which are transitional provisions
relating to the modifications to the Rules made by Part 2 of Schedule 8 of the Federal Circuit
and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act
2018. Rule 14.02 provides that the modifications made by Part 2 of Schedule 8 of this Act
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cover proceedings under the Bankruptcy Act 1966 which will be heard by the FCFC (Division
2) and the transition from the commencement of the new Rules, regardless of whether
proceedings were instituted before, on or after 1 January 2019, being the date when the
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional
Provisions) Act 2018 comes into effect.
1851. Rule 14.03 provides that Division 14.2 will be repealed at the start of 1 July 2021.
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Schedule 9--Amendments to the standard Rules of Court
1852. This Schedule contains amendments to the Family Law Rules as they will operate as
standard Rules of Court. These Rules apply to any court other than the Family Law Appeal
Division of the Federal Court, the FCFC (Division 1) or the FCFC (Division 2). This
includes, for example, state and territory courts of summary jurisdiction exercising family
law jurisdiction. For modifications to the Family Law Rules as they apply for Division 1 see
Schedule 7 of this Bill.
Family Law Rules 2004
Item 1 - Paragraph 1.05(2)(g)
1853. Item 1 omits the words 'or appeal' from paragraph 1.05(2)(g). Rule 1.05 provides that
each party must comply with pre-action procedures. Subrule 1.05(2) sets out exceptions for
this, including if the case is a child support application or appeal. 'Appeal' will no longer be
relevant as none of the appeals that are governed by current Chapter 22 (see current rule
22.01) are appeals heard by courts whose practice and procedure will continue to be governed
by the standard Rules of Court and, as a consequence, Chapter 22 will be repealed (see item
72 of Schedule 9 of this Bill).
Item 2 - Subrule 1.08(3) (note)
1854. Item 2 amends the note at subrule 1.08(3) to remove a reference to subclause 6.10(1)
of Schedule 6 which is being repealed by item 93 of Schedule 9 of this Bill. Schedule 6
governs the costs rules for work commenced before 1 July 2008 and is no longer required.
Item 3 - Rule 1.13
1855. Item 3 omits the word 'appeal' from rule 1.13 which provides for a judicial officer
hearing an application or appeal. 'Appeal' will no longer be relevant as none of the appeals
that are governed by current Chapter 22 (see current rule 22.01) are appeals heard by courts
whose practice and procedure will continue to be governed by the standard Rules of Court
and, as a consequence, Chapter 22 will be repealed (see item 72 of Schedule 9 of this Bill).
Item 4 - Rule 1.18
1856. Item 4 repeals rule 1.18, which provides that the Family Court of Australia must sit at
the times and places the Chief Justice directs. This Rule applies to the Family Court only and
is not relevant for the standard Rules of Court which will be used by other courts, such as
state and territory courts of summary jurisdiction and will not apply to the FCFC (Division 1)
(the continuation of the Family Court).
Item 5 - Rule 2.01 (paragraph (f) of note 2)
1857. Item 5 amends paragraph (f) of Note 2 under rule 2.01. Paragraph (f) currently
provides the words 'an application relating to the failure of a party to comply with a bond, see
Chapter 21;'. The item removes the semi-colon from the paragraph and replaces it with a full
stop, to reflect the repeal of paragraphs (g) and (h) by item 6 of Schedule 9 of this Bill.
Item 6 - Rule 2.01 (paragraphs (g) and (h) of note 2)
1858. Item 6 repeals paragraphs (g) and (h) of Note 2 under rule 2.01. Rule 2.01 provides a
list of application forms to be filed, depending on the kind of application. Paragraph (g) of
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Note 2 refers to 'an appeal or an application relating to an appeal, see Chapter 22; and'.
References to appeals will no longer be relevant as none of the appeals that are governed by
current Chapter 22 (see current rule 22.01) are appeals heard by courts whose practice and
procedure will continue to be governed by the standard Rules of Court and, as a consequence,
Chapter 22 will be repealed (see item 72 of Schedule 9 of this Bill).
Paragraph (h) relates to bankruptcy cases and is will no longer be relevant to the standard
Rules of Court given the repeal of Chapter 26 (see item 85 of Schedule 9 of this Bill).
Item 7 - Rule 2.01 (item 5 of Table 2.1, column headed "Kind of application")
1859. Item 7 omits a reference to 'Judicial Registrar'. Judicial Registrar is a role specifically
defined by reference to the Family Court and, as a result of standard rules of court no longer
applying to the FCFC (Division 1) (the continuation of the Family Court) this reference will
no longer be relevant.
Item 8 - Subrule 2.02(1) (item 6 of Table 2.2, column headed "Application")
1860. Item 8 omits the words 'or appeal'. References to appeals will no longer be relevant
as none of the appeals that are governed by current Chapter 22 (see current rule 22.01) are
appeals heard by courts whose practice and procedure will continue to be governed by the
standard Rules of Court and, as a consequence, Chapter 22 will be repealed (see item 72 of
Schedule 9 of this Bill).
Item 9 - Subrule 2.02(1) (item 7 of Table 2.2, column headed "Application")
1861. Item 9 omits a reference to 'Judicial Registrar'. Judicial Registrar is a role specifically
defined by reference to the Family Court and, as a result of standard rules of court no longer
applying to the FCFC (Division 1) (the continuation of the Family Court) this reference will
no longer be relevant.
Item 10 - Rule 2.04 (definition of Registry Manager)
1862. Item 10 repeals the definition of Registry Manager from rule 2.04. The definition
currently provides that 'Registry Manager has the same meaning as in section 67Z of the
Act.' Item 89 of Schedule 1 of this Bill repeals this definition. References to a Registry
Manager will rely on the definition contained in subsection 4(1) (which is being amended by
item 13 of Schedule 1 of this Bill) so that differing definitions of Registry Manager are not
used throughout the Family Law Act, regulations and rules.
Item 11 - Rule 2.04D
1863. Item 11 repeals and replaces rule 2.04D, which deals with the prescribed form for a
notice mentioned in subsection 67Z(2) (child abuse) or 67ZBA(2) (family violence) of the
Act. New rule 2.04D provides that the Chief Justice may approve a form under
subrule 24.04(1), removing the specific references to the prescribed forms, to allow flexibility
to create new forms appropriate to the new court structure.
1864. Amended subrule 2.04D(2) retains the references to filing affidavits setting out the
evidence on which the allegations in the notice are based. Item 11 also inserts a new Note 1
and Note 2, with clearer cross-references to subsections 67Z(2) and 67ZBA(2) and filing a
notice under subrule 24.04(1).
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Item 12 - Chapter 4 (summary) (paragraph (c) of the note)
1865. Item 12 repeals paragraph (c) of the note contained within the Chapter 4 summary.
Paragraph (c) currently refers to the role of the judicial registrar. Judicial Registrar is a role
specifically defined by reference to the Family Court and, as a result of standard rules of
court no longer applying to the FCFC (Division 1) (the continuation of the Family Court) this
reference will no longer be relevant.
Item 13 - Chapter 4 (summary) (paragraph (e) of the note)
1866. Item 13 amends paragraph (e) of the note contained within the Chapter 4 summary.
Paragraph (e) currently provides the words 'an Application resulting from a contravention of
an order or in relation to contempt (see Chapter 21);'. Item 13 removes the semi-colon from
the paragraph and replaces it with a full stop to reflect the repeal of paragraphs (f) and (g) by
item 14 of Schedule 9 of this Bill.
Item 14 - Chapter 4 (summary) (paragraph (f) and (g) of the note)
1867. Item 14 repeals paragraphs (f) and (g) of the note contained within the Chapter 4
summary. Paragraph (f) provides the words 'an Application relating to an appeal (see Chapter
22); or'. Similarly, paragraph (g) provides the words 'an appeal (see Chapter 22).' These
references are no longer necessary as none of the appeals that are governed by current
Chapter 22 (see current rule 22.01) are appeals heard by courts whose practice and procedure
will continue to be governed by the standard Rules of Court and, as a consequence, Chapter
22 will be repealed (see item 72 of Schedule 9 of this Bill).
Items 15 and 16 Division 4.2.4 (note) and Division 4.2.5 (overview) (note)
1868. Items 15 and 16 repeal identical notes in Division 4.2.4 (spousal or de facto
maintenance) and 4.2.5 (child support and child maintenance). The Notes provide that
'Applications should not be made under this Division unless an associated matter is pending
in the court or filing with the Federal Circuit Court is not available. Under section 33B of the
Family Law Act, the Family Court may transfer the proceeding to the Federal Circuit Court
without notice to the parties.' This note is no longer relevant as neither the FCFC (Division 1)
(the continuation of the Family Court) or the FCFC (Division 2) (the continuation of the
Federal Circuit Court) will be governed by the standard Rules of Court.
Item 17 - Rule 4.16 (note 2)
Item 17 repeals Note 2 at rule 4.16, which provides the words 'Chapter 22 sets out the
procedure for appealing from a decision of a court.' Item 72 of Schedule 9 of this Bill repeals
Chapter 22 as none of the appeals that are governed by current Chapter 22 (see current rule
22.01) are appeals heard by courts whose practice and procedure will continue to be governed
by the standard Rules of Court.
Item 18 - Rule 4.16 (note 3)
1869. Item 18 amends Note 3 at rule 4.16. The item retitles Note 3 as Note 2, to reflect the
renumbered notes following the repeal of Note 2 by item 17 of Schedule 9 of this Bill.
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Item 19 - Subrule 4.18(2)
1870. Item 19 replaces references to the 'Child Support Agency' with the 'Department of
Human Services' to reflect current arrangements for payment of child support.
Item 20 - Rule 4.19
1871. Item 20 replaces references to the 'Child Support Agency' with the 'Department of
Human Services' to reflect current arrangements for payment of child support.
Item 21 - Subrule 5.01(6) (note 1)
1872. Item 21 amends Note 1 at subrule 5.01(6) to remove a reference to an 'Application for
review of a Judicial Registrar's or Registrar's order (see Chapter 18)'. Chapter 18 is being
repealed by item 56 of Schedule 9 of this Bill.
Item 22 - Subrule 5.02(2)
1873. Item 22 omits a reference to 'Judicial Registrar'. Judicial Registrar is a role
specifically defined by reference to the Family Court and, as a result of standard rules of
court no longer applying to the FCFC (Division 1) (the continuation of the Family Court) this
reference will no longer be relevant.
Item 23 - Rule 5.14 (note)
1874. Item 23 repeals the note at rule 5.14 (Request for hearing in absence of parties), which
provides that 'This Part also applies to an Application in an Appeal (see rule 22.45).' This
note is no longer required as none of the appeals that are governed by current Chapter 22 (see
current rule 22.01) are appeals heard by courts whose practice and procedure will continue to
be governed by the standard Rules of Court and, as a consequence, Chapter 22 will be
repealed (see item 72 of Schedule 9 of this Bill).
Items 24 and 25 - Paragraphs 6.01(b) and paragraph 6.01(c)
1875. Items 24 and 25 repeals references to 'an appellant in an appeal' (paragraph 6.01(b))
and 'or appeal' (paragraph 6.01(c)). These references are no longer necessary or correct as
none of the appeals that are governed by current Chapter 22 (see current rule 22.01) are
appeals heard by courts whose practice and procedure will continue to be governed by the
standard Rules of Court and, as a consequence, Chapter 22 will be repealed (see item 72 of
Schedule 9 of this Bill).
Item 26 - Rule 6.16 (definition of bankruptcy proceedings)
1876. Item 26 replaces the reference to 'Federal Circuit Court' with 'Federal Circuit and
Family Court of Australia (Division 2)' to reflect the continuation of the Federal Circuit
Court as the FCFC (Division 2).
Item 27 - Subrule 7.10(2)
1877. Item 27 removes the references in subrule 7.10(2) to a Notice of Appeal and rule
22.40. These references are no longer necessary or correct as none of the appeals that are
governed by current Chapter 22 (see current rule 22.01) are appeals heard by courts whose
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practice and procedure will continue to be governed by the standard Rules of Court and, as a
consequence, Chapter 22 will be repealed (see item 72 of Schedule 9 of this Bill).
Item 28 - Subrule 8.02(5)
1878. Item 28 repeals and replaces subrule 8.02(5) to remove a reference to an appeal. This
reference is no longer necessary or correct as none of the appeals that are governed by current
Chapter 22 (see current rule 22.01) are appeals heard by courts whose practice and procedure
will continue to be governed by the standard Rules of Court and, as a consequence, Chapter
22 will be repealed (see item 72 of Schedule 9 of this Bill).
Item 29 and 30 - Paragraphs 8.07(2)(c) and 8.07(2)(d)
1879. Items 29 and 30 remove a reference to a 'Notice of Appeal' (paragraph 8.07(2)(d))
and update the punctuation to reflect this change (paragraph 8.07(2)(c)). This reference is no
longer necessary or correct as none of the appeals that are governed by current Chapter 22
(see current rule 22.01) are appeals heard by courts whose practice and procedure will
continue to be governed by the standard Rules of Court and, as a consequence, Chapter 22
will be repealed (see item 72 of Schedule 9 of this Bill).
Item 31 - Subrule 8.07(5)
1880. Item 31 repeals subrule 8.07(5) to remove a reference to 'Notice of Appeal'. This
reference is no longer necessary or correct as none of the appeals that are governed by current
Chapter 22 (see current rule 22.01) are appeals heard by courts whose practice and procedure
will continue to be governed by the standard Rules of Court and, as a consequence, Chapter
22 will be repealed (see item 72 of Schedule 9 of this Bill).
Item 32 - Subrule 9.06(2)
1881. Item 32 omits a reference to 'Judicial Registrar'. Judicial Registrar is a role
specifically defined by reference to the Family Court and, as a result of standard rules of
court no longer applying to the FCFC (Division 1) (the continuation of the Family Court) this
reference will no longer be relevant.
Item 33 - Part 10.1 (note to Part heading)
1882. Item 33 amends the note at Part 10.1 - Offers to settle by substituting 'a court' for
'the Family Court'. The note provides that '[t]his Part sets out the rules that apply to offers to
settle in the Family Court.' The note is misleading in that it implies that the Part applies only
to offers to settle in the Family Court - it also applies to other courts and so it is appropriate
to retain this note for the operation of the standard Rules of Court.
Item 34 - Subrule 10.01(2)
1883. Item 34 repeals subrules 10.01(2) which relates to appeals. This reference is no longer
necessary or correct as none of the appeals that are governed by current Chapter 22 (see
current rule 22.01) are appeals heard by courts whose practice and procedure will continue to
be governed by the standard Rules of Court and, as a consequence, Chapter 22 will be
repealed (see item 72 of Schedule 9 of this Bill).
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Item 35 - Paragraphs 10.03(2)(b) and 10.04(2)(b)
1884. Item 35 amends paragraphs 10.03(2)(b) and 10.04(2)(b) to remove the reference to 'or
appeal'. This reference is no longer necessary or correct as none of the appeals that are
governed by current Chapter 22 (see current rule 22.01) are appeals heard by courts whose
practice and procedure will continue to be governed by the standard Rules of Court and, as a
consequence, Chapter 22 will be repealed (see item 72 of Schedule 9 of this Bill).
Items 36 - 38 Subrules 10.15A(2), 10.15A(3) and 10.15A(4) (notes)
1885. Items 36, 37 and 38 repeal and replace identical notes at subrules 10.15A(2),
10.15A(3) and 10.15A(4). Rule 10.15A deals with parenting orders by consent which involve
allegations of abuse or family violence. The notes provide a reference to the form at Schedule
2 prescribed under sections 67Z(2) and 67ZBA(2) of the Family Law Act current and rule
2.04D. As discussed at item 6 of Schedule 9 of this Bill, rule 2.04D is being repealed and
replaced with new rule 2.04D which provides that the Chief Justice may approve a form
under subrule 24.04(1), removing the specific references to the prescribed forms, to allow
flexibility to create new forms appropriate to the new court structure. Schedule 2, which
contains the prescribed form, is also being repealed (see item 91 of Schedule 9 of this Bill).
The amended notes in Rules 10.15A reflect this new arrangement.
Item 39 - Subrule 11.18(1) (note)
1886. Item 39 repeals the note at subrule 11.18. This note refers to the power of the Family
Court to transfer proceedings to the Federal Circuit and is will no longer be relevant as
neither the FCFC (Division 1) (the continuation of the Family Court) or the FCFC
(Division 2) (the continuation of the Federal Circuit Court) will be governed by the standard
Rules of Court.
Item 40 - Paragraph 12.01(c)
1887. Item 40 omits the words 'or appeal' from paragraph 12.01(c). This reference is no
longer necessary or correct as none of the appeals that are governed by current Chapter 22
(see current rule 22.01) are appeals heard by courts whose practice and procedure will
continue to be governed by the standard Rules of Court and, as a consequence, Chapter 22
will be repealed (see item 72 of Schedule 9 of this Bill).
Item 41 - Subparagraph 12.03(2)(c)(i)
1888. Item 41 repeals and replaces subparagraph 12.03(2)(c)(i), which provides the words
'(i) is suitable to remain in the Family Court; or'. New subparagraph 12.03(2)(c)(i) provides
'is suitable to remain in the court; or'. This amendment reflects the updated nomenclature
associated with the new court structure, by removing the reference to the Family Court and
that the standard Rules of Court will no longer govern the practice and procedures of the
FCFC (Division 1) (the continuation of the Family Court).
Item 42 - Subparagraph 12.04(1)(a)(iii)
1889. Item 42 repeals and replaces subparagraph 12.04(1)(a)(iii). Subparagraph
12.04(1)(a)(iii) deals with the initial procedural hearing in a parenting case and provides the
words 'to determine whether the case is suitable to remain in the Family Court or should be
transferred to another court exercising jurisdiction under the Act; and'. New subparagraph
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12.04(1)(a)(iii) uses the wording 'to determine whether the case is suitable to remain in the
court or should be transferred to another court exercising jurisdiction under the Act; and'.
This amendment reflects the updated nomenclature associated with the new court structure by
removing the reference to the Family Court and that the standard Rules of Court will no
longer govern the practice and procedures of the FCFC (Division 1) (the continuation of the
Family Court).
Item 43 - Rule 13.07 (paragraph (b) of note 1)
1890. Item 43 repeals a reference to 'or appeal' in paragraph (b) of note 1 of Rule 13.07.
This reference is no longer necessary or correct as none of the appeals that are governed by
current Chapter 22 (see current rule 22.01) are appeals heard by courts whose practice and
procedure will continue to be governed by the standard Rules of Court and, as a consequence,
Chapter 22 will be repealed (see item 72 of Schedule 9 of this Bill).
Item 44 - Paragraph 13.17(e)
1891. Item 44 repeals a reference to 'or appeal' in paragraph 13.17(e). This reference is no
longer necessary or correct as none of the appeals that are governed by current Chapter 22
(see current rule 22.01) are appeals heard by courts whose practice and procedure will
continue to be governed by the standard Rules of Court and, as a consequence, Chapter 22
will be repealed (see item 72 of Schedule 9 of this Bill).
Item 45 - Paragraphs 13.19(1)(c) and 13.25(c)
1892. Item 45 repeals a reference to 'or appeal' in paragraphs 13.19(1)(c) and 13.25(c).
These references are no longer necessary or correct as none of the appeals that are governed
by current Chapter 22 (see current rule 22.01) are appeals heard by courts whose practice and
procedure will continue to be governed by the standard Rules of Court and, as a consequence,
Chapter 22 will be repealed (see item 72 of Schedule 9 of this Bill).
Item 46 - Subrule 15.17(1)
1893. Item 46 amends subrule 15.17(1), which deals with issuing a subpoena by deleting the
words 'Subject to rule 22.34, the court may issue:'. Rule 22.34 is repealed as part of the
repeal of Chapter 22--Appeals (see item 72 of Schedule 9 of this Bill).
Item 47 - Subrule 15.26(2) (note)
1894. Item 47 repeals the note at subrule 15.26(2) as the note refers to the appeal process.
This reference is no longer necessary or correct as none of the appeals that are governed by
current Chapter 22 (see current rule 22.01) are appeals heard by courts whose practice and
procedure will continue to be governed by the standard Rules of Court and, as a consequence,
Chapter 22 will be repealed (see item 72 of Schedule 9 of this Bill).
Item 48 - Subrule 15.35(2)
1895. Item 48 repeals a reference to 'or appeal' in subrule 15.35(2). This reference is no
longer necessary or correct as the practice and procedures related to appeals heard by the
FCFC will be governed by the Rules of Court made under the Federal Circuit and Family
Court of Australia Act 2018 and the practice and procedure relevant to appeals heard by the
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Family Law Appeal Division of the Federal Court will be governed by Rules of Court made
under the Federal Court Act.
Item 49 - Paragraph 15.35(4)(b)
1896. Item 49 repeals a reference to 'or appeal' in paragraph 15.35(4)(b). This reference is
no longer necessary or correct as none of the appeals that are governed by current Chapter 22
(see current rule 22.01) are appeals heard by courts whose practice and procedure will
continue to be governed by the standard Rules of Court and, as a consequence, Chapter 22
will be repealed (see item 72 of Schedule 9 of this Bill).
Item 50 - Paragraph 15.41(1)(d)
1897. Item 50 repeals and substitutes paragraph 15.41(1)(d), which excludes the application
of Part 15.5 to 'evidence from family consultant employed by a Family Court (including
evidence from a person appointed under regulation 7 of the Regulations).' The substituted
paragraph includes a reference to the relevant regulation (the current reference to regulation 8
is inaccurate). The reference to regulation 7 is appropriate as it is a possibility that state
courts exercising jurisdiction under the Family Law Act may utilise the services of family
consultants, appointed by federal courts, in the future.
Item 51 - Chapter 16 (summary)
1898. Item 51 amends the summary of Chapter 16 by omitting the second sentence, which
reads 'Further specific provisions in Chapter 16A apply to a trial to which Division 12A of
Part VII of the Act applies.' Item 53 of Schedule 9 of this Bill repeals Part 16A.2 (trials of
certain cases to which Division 12A of Part VII of Act applies).
Item 52 - Paragraph 16.01(c)
1899. Item 52 repeals a reference to 'or appeal' in paragraph 16.01(c). This reference is no
longer necessary or correct as none of the appeals that are governed by current Chapter 22
(see current rule 22.01) are appeals heard by courts whose practice and procedure will
continue to be governed by the standard Rules of Court and, as a consequence, Chapter 22
will be repealed (see item 72 of Schedule 9 of this Bill).
Item 53 - Part 16A.2
1900. Item 53 repeals Part 16A.2, which deals with the trials of certain cases to which
Division 12A of Part VII of the Act applies. Part 16A.2 is expressed to apply only to
proceedings pending in the Family Court (see Rule 16A.06), which is continued in existence
as the FCFC (Division 1), and not the state and territory courts to which the standards Rules
of Court will exclusively apply.
Item 54 - 17.01A(1)(d)
1901. Item 54 repeals a reference to the appeals process in paragraph 17.01A(1)(d). This
reference is no longer required as none of the appeals that are governed by current Chapter 22
(see current rule 22.01) are appeals heard by courts whose practice and procedure will
continue to be governed by the standard Rules of Court and, as a consequence, Chapter 22
will be repealed (see item 72 of Schedule 9 of this Bill).
352
Item 55 - Paragraph 17.04(2)(a)
1902. Item 55 amends paragraph 17.04(2)(a), which deals with orders for payment of money
by removing a reference to 'the Marshal' as the current definition of Marshal is specific to the
Family Court and standard Rules of Court will not govern the practice and procedure in the
FCFC (Division 1) (the continuation of the Family Court)
Item 56 - Chapter 18
1903. Item 56 repeals Chapter 18--Powers of Judicial Registrars, Registrars and Deputy
Registrars. This Chapter deals with the powers of the court that are delegated to Judicial
Registrars, Registrars and Deputy Registrars of the Family Court. As the standard Rules of
Court will no longer govern the practice and procedure of the FCFC (Division 1) (the
continuation of the Family Court) Chapter 18 will no longer be relevant,
Item 57 - Chapter 19 (summary)
1904. Item 57 amends the summary at Chapter 19 by omitting the words 'Chapter 26
contains provisions which regulate the charges of lawyers for a part of a case involving
bankruptcy matters.' This reference to bankruptcy matters under Chapter 26 will no longer be
relevant to the standard Rules of Court given the repeal of Chapter 26 (see item 85 of
Schedule 9 of this Bill).
Item 58 - Chapter 19 (summary)
1905. Item 58 amends the summary at Chapter 19 by omitting the words 'Schedule 6
Costs-- rules before 1 July 2008 sets out the rules that apply to cases not covered by this
Chapter.' Schedule 6 is being repealed by item 93 of Schedule 9 of this Bill. Schedule 6
governs the costs rules for work commenced before 1 July 2008 and is no longer required.
Item 59 - Subrule 19.08(3) (note 4)
1906. Item 59 repeals Note 4 to subrule 19.08(3) as it refers to cost orders related to appeals
in Part 22.10. Chapter 22 is repealed by item 72 of Schedule 9 of this Bill.
Item 60 - Rule 19.09
1907. Item 60 repeals rule 19.09 which relates specifically to the Family Court. This rule is
not applicable to state and territory courts and, given that the standard Rules of Court will no
longer govern the practice and procedures of the FCFC (Division 1) (the continuation of the
Family Court), this rule will no longer be relevant. .
Item 61 - At the end of paragraph 19.41(2)(a)
1908. Item 61 inserts the word 'or' at the end of paragraph 19.41(2)(a) to reflect the change
at item 62 of Schedule 9 of this Bill.
Item 62 - Paragraph 19.41(2)(b)
1909. Item 62 repeals paragraph 19.41(2)(b) to delete a reference to 'a form in Schedule 2'.
Schedule 2 is being repealed by item 91 of Schedule 9 of this Bill.
353
Item 63 - Paragraph 19.51(2)(a)
1910. Item 63 repeals current paragraph 19.51(2)(a) as it contains a reference to the 'Full
Court' (referring the Full Court of the Family Court) which is not relevant for state and
territory courts and, given that the standard Rules of Court will no longer govern the practice
and procedures of the FCFC (Division 1) (the continuation of the Family Court), this
reference will no longer be relevant.
Item 64 - Paragraph 20.03(3)(b)
1911. Item 64 omits 'Child Support Agency' in paragraph 20.03(3)(b) and substitutes
'Department of Human Services' to reflect the current arrangements for payment of child
support.
Item 65 - Subrule 20.03(3)
1912. Item 65 omits 'Child Support Agency' in subrule 20.03(3) and substitutes
'Department of Human Services' to reflect the current arrangements for payment of child
support.
Item 66 - Paragraph 20.04(c)
1913. Item 66 omits 'the Marshal or' from paragraph 20.04(c), which deals with who may
enforce an obligation where the obligation is a fine or an order that a bond be forfeited. The
current definition of Marshal is specific to the Family Court and, as the standard Rules of
Court will not govern the practice and procedure in the FCFC (Division 1) (the continuation
of the Family Court), this reference is no longer necessary.
Item 67 - Paragraph 20.44(1)(c)
1914. Item 67 repeals paragraph 20.44(1)(c) which applies the standard Rules of Court
where 'the Marshal' applies to the court for an order relating to a sequestration order. The
current definition of Marshal is specific to the Family Court and, as the standard Rules of
Court will not govern the practice and procedure in the FCFC (Division 1) (the continuation
of the Family Court), this reference is no longer necessary.
Item 68 - Chapter 21 (summary) (third dot point)
1915. Item 68 omits all the words after 'children' in the third point of the summary of
Chapter 21--'Enforcement of parenting orders, contravention of orders and contempt'. The
third dot point provides 'an order to locate or recover children Application should not be
made under this Chapter unless an associated matter is pending in the court or filing with the
Federal Circuit Court is not available. Under section 33B of the Family Law Act, the Family
Court may transfer the proceeding to the Federal Circuit Court without notice to the parties.'
1916. This amendment is necessary as the transfer of proceedings between the FCFC
(Division 1) (the continuation of the Family Court) and the FCFC (Division 2) (the
continuation of the Federal Circuit Court) will no longer be relevant as the practice and
procedure of either of these courts will not be governed by the standard Rules of Court.
354
Item 69 - Rules 21.03
1917. Item 69 repeals rule 21.03 which provides that the Family Court may direct the
Marshal to make or continue an application under Chapter 21 of the standard Rules of Court.
1918. The current definition of Marshal is specific to the Family Court and rule 21.03
expressly applies only in the Family Court. As the standard Rules of Court will not govern
the practice and procedure in the FCFC (Division 1) (the continuation of the Family Court),
this rule will no longer be appropriate.
Item 70 - At the end of paragraphs 21.17(1)(a) and (b)
1919. Item 70 adds 'or' to the end of paragraphs 21.17(1)(a) and (b) to make clear that a
warrant may authorise any of the persons identified in paragraphs 21.17(1)(a) to (d) to
proceed to enforce the warrant.
Item 71 - Paragraph 21.17(1)(c)
1920. Item 71 repeals paragraph 21.17(1)(c), which provides that a warrant may authorise
the Marshal to proceed to enforce the warrant.
1921. The current definition of Marshal is specific to the Family Court and, as the standard
Rules of Court will not govern the practice and procedure in the FCFC (Division 1) (the
continuation of the Family Court), this reference is no longer appropriate.
Item 72 - Chapter 22
1922. Item 72 repeals Chapter 22 - 'Appeals'. The contents of Chapter 22 will no longer be
relevant as none of the appeals that are governed by current Chapter 22 (see current rule
22.01) are appeals heard by courts whose practice and procedure will continue to be governed
by the standard Rules of Court.
1923. Under the new court structure, the FCFC will be primarily responsible from hearing
appeals from courts of summary jurisdiction and the Family Law Appeal Division of the
Federal Court will the majority of other appeals.
Item 73 - Subrule 24.04(1)
1924. Item 73 omits 'in consultation with the other judges', from subrule 24.04(1) and
substitutes 'of the Federal Circuit and Family Court of Australia (Division 1)' to reflect that it
is the Chief Justice of the FCFC (Division 1) who alone approves a form for the purposes of
the standard Rules of Court.
Item 74 - Subrule 24.04(2)
1925. Item 74 repeals subrule 24.04(2) which provides that a reference in these Rules to a
'Notice of Child Abuse, Family Violence or Risk of Family Violence' (Notice of Risk) is a
reference to the Form in Schedule 2.
1926. Item 91 of Schedule 9 of this Bill repeals Schedule 2. This is required as a result of
amendments made by Schedule 1 of this Bill to section 67Z and 67ZBA of the Family Law
355
Act removing the requirement that the Notice of Risk be prescribed in the applicable Rules of
Court.
Item 75 - Subrule 24.04(3)
1927. Item 75 omits 'or a form in Schedule 2' in subrule 24.04(3) to reflect that Schedule 2
is being repealed by item 901 of Schedule 9 of this Bill and, as such, references to Schedule 2
will no longer be appropriate.
Item 76 - Subrule 24.03(4)
1928. Item 76 omits the reference to the 'Federal Circuit Court' in subrule 24.02(4) and
substitutes a reference to the 'Federal Circuit and Family Court of Australia (Division 2)' to
appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2)
providing that a document in a form approved by the FCFC (Division 2) is taken to be
substantial compliance with the form approved for the same purposes under these Rules.
Item 77 - Rule 24.05 (note 2)
1929. Item 77 repeals note 2 to subrule 24.03(4) as the rule is specific to the electronic filing
policy and procedures of the Family Court. As the standard Rules of Court will not govern
the practice and procedure in the FCFC (Division 1) (the continuation of the Family Court),
this note will no longer be relevant.
Item 78 - Rule 24.05 (note 4)
1930. Item 78 repeals note 4 to rule 24.05 as the note expressly refers to the Family Court
website for information about whether the Family Court has the facility to accept documents
by electronic communication and the standard Rules of Court will not govern the practice and
procedure in the FCFC (Division 1).
1931. Item 78 substitutes a new note 4 to subrule 24.05(3), which more generally provides
that the rules relating to filing by electronic communication apply only if the court has the
facility to accept documents by electronic communication.
Item 79 - Paragraph 24.07(5)(a)
1932. Item 79 omits 'or appeal' from paragraph 24.07(5)(a) in recognition that, with the
repeal of Chapter 22 (see item 72 of Schedule 9 of this Bill), appeals will no longer be
governed by the standard Rules of Court.
Item 80 - Rule 24.07 (note 1)
1933. Item 80 repeals note 1 to subrule 24.07 as the note expressly refers to the
Family Court website for information about whether the Family Court has the facility to
accept documents by electronic communication and the standard Rules of Court will not
govern the practice and procedure in the FCFC (Division 1).
1934. Item 80 substitutes a new note 1 to subrule 24.07(6), which more generally provides
that the rules relating to filing by electronic communication apply only if the court has the
facility to accept documents by electronic communication.
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Item 81 - Rule 24.09 (note 1)
1935. Item 81 omits the reference to 'Note 1'at the end of subrule 24.09(2) and substitutes
'Note' necessitated by the repeal of Note 2 (see item 82 of Schedule 9 of this Bill) rendering
Note 1 the sole note to the rule.
Item 82 - Rule 24.09 (note 2)
1936. Item 82 repeals Note 2 to subrule 24.09(2). Note 2 refers the rule 22.10 for
information regarding where to file documents in an appeal. As the entirety of Chapter 22
will be repealed (see item 72 of Schedule 9 of this Bill), this reference will no longer be
accurate.
Item 83 - Paragraph 24.10(1)(f)
1937. Item 83 omits 'rules 22.10 and' from paragraph 24.10(1)(f) and substitutes 'rule' as,
given the entirety of Chapter 22 will be repealed (see item 72 of Schedule 9 of this Bill), this
reference will no longer be accurate and, as a consequence of removing this reference, only
one rule will be referred to in paragraph 24.10(1)(f).
Item 84 - Subrule 24.14(4)
1938. Item 84 omits, from subrule 24.14(4) 'or appeal' in recognition that, with the repeal of
Chapter 22 (see item 72 of Schedule 9 of this Bill), appeals will no longer be governed by the
standard Rules of Court.
Item 85 - Chapters 25, 26 and 26A
1939. Item 85 repeals Chapter 25 - 'Applications under the Corporations Act 2001 and the
Corporations (Aboriginal and Torres Strait Islander) Act 2006', Chapter 26 - 'Cases to which
the Bankruptcy Act 1966 applies' and Chapter 26A - Cases to which the Trans-Tasman
Proceedings Act 2010 applies' as the various rule making powers, relied on to make these
rules are rule making powers specific either to federal courts or, more narrowly, the Family
Court. As the standard Rules of Court will no longer apply to the FCFC (Division 1), and
paragraph 123(1)(bb) of the Family Law Act, will be repealed, there will no longer be a rule
making power to support these schedules.
Item 86 - Chapter 26B (summary)
1940. Item 86 omits 'Delegation of the Family Court's power in such cases is set out in
Chapter 18 of these Rules' as the delegations of the Family Court's powers are no longer
relevant to the standard Rules of Court and, as a consequence Chapter 18 is repealed by item
56 of Schedule 9 of this Bill.
Item 87 - At the end of Chapter 27
1941. Item 87 inserts a new Part 27.5 Transitional provisions relating to Schedule 9 to the
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional
Provisions) Act 2018' at the end of Chapter 27.
1942. New Rule 27.11 (Application) provides that amendments to the standard Rules of
Court made by Schedule 9 to the Federal Circuit and Family Court of Australia
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(Consequential Amendments and Transitional Provisions) Act 2018 apply in relation to a
proceeding commenced before, on or after 1 January 2019.
1943. New Rule 27.12 (Expiry of this Part) provides that Part 27.5 is repealed on 1 July
2021 as, at this date, transitional provisions will no longer be necessary.
Item 88 - Subclause 2(3) of Part 1 of Schedule 1
1944. Item 88 omits, from subclause 2(3) of Part 1 of Schedule 1, 'and paragraph 6.10(1)(b)
of Schedule 6' because of the repeal of Schedule 6 (see item 93 of Schedule 9 of this Bill)
rendering this reference redundant.
Item 89 - Clause 6 of Part 2 of Schedule 1 (note)
1945. Item 89 omits, from clause 6 of Part 2 of Schedule 'and clause 6.03 of Schedule 6'
because of the repeal of Schedule 6 (see item 93 of Schedule 9 of this Bill) rendering this
reference redundant.
Item 90 - Paragraph 6(1)(f) of Part 2 of Schedule 1
1946. Item 90 omits, from paragraph 6(1)(f) of Part 2 of Schedule 1, 'and clause 6.03 of
Schedule 6' because of the repeal of Schedule 6 (see item 93 of Schedule 9 of this Bill)
rendering this reference redundant.
Item 91 - Schedule 2
1947. Item 91 repeals Schedule 2. This is required as a result of amendments made by
Schedule 1 of this Bill to section 67Z and 67ZBA of the Family Law Act removing the
requirement that the Notice of Risk be prescribed in the applicable Rules of Court and
amendments made by item 11 of Schedule 9 of this Bill.
Item 92 - Schedule 3 (note 1 to Schedule heading)
1948. Item 92 repeals note 1 to Schedule 3 and replaces it with a new note 1 to remove the
reference to clause 6.19 of Schedule 6 necessitated by the repeal of Schedule 6 (see item 93
of Schedule 9 of this Bill) rendering this reference redundant.
Item 93 - Schedule 6
1949. Item 93 repeals Schedule 6 - 'Costs - rules before July 2008' as this Schedule will no
longer apply to any matters governed by the standard Rules of Court.
Item 94 - Dictionary (note 3)
1950. Item 94 omits 'paragraph 46(1)(b) of the Acts Interpretation Act 1901' from Note 3 to
the Dictionary and substitute 'paragraph 13(1)(b) of the Legislation Act 2003' to update the
statutory reference for the relevant interpretation principle.
Item 95 - Dictionary
1951. Item 95 repeals a number of definitions from the Dictionary which are no longer
relevant or are replaced by new definitions in Schedule 9 of this Bill as a result of standard
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rules of court no longer applying to the FCFC (Division 1) (the continuation of the Family
Court). The definitions repealed by this item are: appeal, Appeal Registrar, Appeal Registry,
appellant and applicant.
Item 96 - Dictionary (at the end of paragraphs (a), (b), (c), (d) and (e) of the definition
of application)
1952. Item 96 inserts 'and' at the end of the first five paragraphs of the definition of
application to make clear that the definition includes all of the paragraphs.
Item 97 - Dictionary (paragraph (f) of the definition of application)
1953. Item 97 repeals paragraph (f) 'a Notice of Appeal' of the definition of application
contained in the Dictionary in recognition that, with the repeal of Chapter 22 (see item 72 of
Schedule 9 of this Bill), appeals will no longer be governed by the standard Rules of Court.
Item 98 - Dictionary (definition of Child Support Agency)
1954. Item 98 repeals the definition of Child Support Agency from the Dictionary as the
Child Support Agency no longer exists.
Item 99 - Dictionary
1955. Item 99 inserts a definition of Child Support Application into the Dictionary defining
by reference to applications (and not appeals) under the Assessment Act or Registration Act.
Item 100 - Dictionary (definition of Child Support Application or Appeal)
1956. Item 100 repeals the definition of Child Support Application or Appeal from the
Dictionary as a replacement definition, removing the appeals aspect, is inserted by item 99 of
Schedule 9 of this Bill.
Item 101 - Dictionary (definition of child support liability)
1957. Item 101 omits, from the definition of child support liability in the dictionary, 'Child
Support Agency' and substitutes 'Department of Human Services' to accurately reflect the
body currently responsible for arrangements for payment of child support.
Item 102 - Dictionary (definition of costs agreement)
1958. Item 102 repeals the definition of costs agreement in the dictionary and substitutes a
new definition which, in effect, repeals the definition relevant to agreements entered into
before 1 July 2008 as this definition no longer has application.
Item 103 - Dictionary (definition of costs notice)
1959. Item 103 omits 'or Schedule 6' from the definition of costs notice in the dictionary,
necessitated by the repeal of Schedule 6 (see item 93 of Schedule 9 of this Bill) rendering this
reference redundant.
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Item 104 - Dictionary (definition of enforcement officer)
1960. Item 104 repeals the current definition of enforcement officer in the Dictionary and
substitutes a new definition that does not include the Marshal or delegate of the Marshal as
the Marshal is a role specific to the Family Court and, as the standard Rules of Court will not
govern the practice and procedure in the FCFC (Division 1) (the continuation of the Family
Court), the inclusion of the Marshal or delegates of the Marshal, is no longer necessary.
Item 105 - Dictionary (definition of Family Court)
1961. Item 105 repeals the definition of Family Court from the Dictionary and substitutes a
new definition with relevant references to the Family Court replaced with references to the
FCFC (Division 1) to appropriately reflect the continuation of the Family Court as the FCFC
(Division 1).
Item 106 - Dictionary (definition of Family Law Magistrate of Western Australia)
1962. Item 106 repeals the definition of Family Law Magistrate of Western Australia from
the Dictionary as this term is currently only used in Chapter 22 which will be repealed by
item 72 of Schedule 9 of this Bill.
Item 107 - Dictionary (definition of financial case)
1963. Item 107 omits 'other than an appeal' from the definition of financial consistent with
the repeal of Chapter 22 dealing with appeals (see item 72 of Schedule 9 of this Bill).
Item 108 - Dictionary (paragraph (h) of the definition of fresh application)
1964. Item 108 repeals paragraph (h) of the definition of fresh application in the Dictionary
as paragraph (h) includes an application for an appeal and a re-hearing following an appeal
and, because appeals will no longer be covered by the standard Rules of Court as a result of
the repeal of Chapter 22 (see item 72 of Schedule 9 of this Bill) this paragraph is no longer
relevant.
Item 109 - Dictionary (paragraph (i) of the definition of fresh application)
1965. Item 109 omits the reference to 'Judicial Registrar' in paragraph (i) of the definition
of fresh application contained in the Dictionary as Judicial Registrar is a role that was
specific to the Family Court and, as a result of standard rules of court no longer applying to
the FCFC (Division 1) (the continuation of the Family Court) this reference is no longer
relevant.
Item 110 - Dictionary (definition of judicial officer)
1966. Item 110 omits the reference to 'Judicial Registrar' in the definition of judicial officer
contained in the Dictionary as Judicial Registrar is a role that was specific to the Family
Court and, as a result of standard rules of court no longer applying to the FCFC (Division 1)
(the continuation of the Family Court) this reference is no longer relevant.
360
Item 111 - Dictionary
1967. Item 111 repeals a number of definitions from the Dictionary which are no longer
relevant or are replaced by new definitions in in Schedule 9 of this Bill as a result of standard
rules of court no longer applying to the FCFC (Division 1) (the continuation of the Family
Court). The definitions repealed by this item are Marshal and notice of contention.
Item 112 - Dictionary (paragraph (b) of the definition of order, first occurring)
1968. Item 112 omits the reference to an appeal in paragraph (b) of the definition of order
contained in the Dictionary consistent with the repeal of Chapter 22 dealing with appeals
(item 72 of Schedule 9 of this Bill).
Item 113 - Dictionary (definition of penalty unit)
1969. The note to the definition of penalty unit, contained in the Dictionary, specifies that,
at the time of commencement of these Rules, a penalty unit is $110.
1970. Item 113 repeals this note as the information is not of assistance and does not reflect
the current value of a penalty unit.
Item 114 - Dictionary
1971. Item 114 repeals a number of definitions from the Dictionary which are no longer
relevant, are adequately defined in the Family Law Act or are replaced by new definitions in
Schedule 9 of this Bill as a result of standard rules of court no longer applying to the FCFC
(Division 1) (the continuation of the Family Court). The definitions repealed by this item are
pre-argument statement, Regional Appeal Registrar, Regional Appeal Registry and Registrar.
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Schedule 10 - Transitional provisions
1972. This Schedule provides for transitional provisions.
Part 1 - Introduction
Item 1 - Definitions
1973. Item 1 defines several terms for the purposes of Schedule 10.
'Family Court of a State' is defined to mean a court to which section 41 of the Family
Law Act (as amended) applies.
'Family Court of Australia' is defined as meaning the federal court known,
immediately before 1 January 2019, as the Family Court of Australia.
'Federal Circuit and Family Court of Australia' is defined as having the same
meaning as in the new law.
'Federal Circuit Court of Australia' is defined as meaning the federal court known,
immediately before 1 January 2019, as the Federal Circuit Court of Australia.
'Federal Court' is defined as the Federal Court of Australia.
'new law' is defined as meaning the Federal Circuit and Family Court of Australia
Act 2018.
'standard Rules of Court' is defined as having the same meaning as in the Family Law
Act.
Part 2 - Continuity of the Family Court of Australia, and Judges and personnel of the
Court
1974. Part 2 provides a framework to preserve and transition the appointments of the Chief
Justice of the Family Court, the Deputy Chief Justice of the Family Court, Senior Judges of
the Family Court and Judges of the Family Court and certain other personnel of the Family
Court to the FCFC (Division 1).
Item 2 - Change in title of judicial offices
1975. Item 2 provides for the change in title of the offices of the Chief Justice, Deputy Chief
Justice, Senior Judges and Judges of the Family Court.
1976. Subitem 2(1), when read with subitem 2(5), provides that the office of Chief Justice of
the Family Court under Part IV of the Family Law Act, as in force immediately before
1 January 2019, is the same office as the office of Chief Justice of the FCFC (Division 1)
under the Federal Circuit and Family Court of Australia Act 2018.
1977. Subitem 2(2), when read with subitem 2(5), provides that the office of Deputy Chief
Justice of the Family Court under Part IV of the Family Law Act, as in force immediately
before 1 January 2019, is the same office as the office of Deputy Chief Justice of the FCFC
(Division 1) under the Federal Circuit and Family Court of Australia Act 2018.
362
1978. Subitem 2(3), when read with subitem 2(5), provides that the office of Senior Judge of
the Family Court under Part IV of the Family Law Act, as in force immediately before
1 January 2019, is the same office as the office of Senior Judge of the FCFC (Division 1)
under the Federal Circuit and Family Court of Australia Act 2018.
1979. Subitem 2(4), when read with subitem 2(5), provides that the office of Judge of the
Family Court under Part IV of the Family Law Act, as in force immediately before
1 January 2019, is the same office as the office of Judge of the FCFC (Division 1) under the
Federal Circuit and Family Court of Australia Act 2018.
Item 3 - Appointments to judicial offices
1980. Item 3 provides for the transition and continuation of appointments to judicial offices
held by the Chief Justice, Deputy Chief Justice, Senior Judges and Judges of the Family
Court to the FCFC (Division 1).
1981. Subitem 3(1) provides that the person holding office as Chief Justice of the Family
Court immediately before 1 January 2019 continues to hold that office under the title of Chief
Justice of the FCFC (Division 1) under the Federal Circuit and Family Court of Australia Act
2018.
1982. Subitem 3(2) provides that the person holding office as Deputy Chief Justice of the
Family Court immediately before 1 January 2019 continues to hold that office under the title
of Deputy Chief Justice of the FCFC (Division 1) under the Federal Circuit and Family
Court of Australia Act 2018.
1983. Subitem 3(3) provides that a person holding office as a Senior Judge of the Family
Court immediately before 1 January 2019 continues to hold that office under the title of
Senior Judge of the FCFC (Division 1) under the Federal Circuit and Family Court of
Australia Act 2018.
1984. Subitem 3(4) provides that a person holding office as a Judge of the Family Court
immediately before 1 January 2019 continues to hold that office under the title of Judge of
the FCFC (Division 1) under the Federal Circuit and Family Court of Australia Act 2018.
1985. Subitem 3(5) provides that despite the repeal of Part IV of the Family Law Act,
section 23 of that Act continues to apply to preserve the seniority of all persons who held
office as a Judge of the Family Court immediately before 1 January 2019. This provision
preserves existing seniority of Judges of the Family Court, including those appointed to the
Appeal Division of the Family Court, prior to the restructure.
Item 4 - Officers and staff of the Family Court of Australia
1986. Item 4 provides for the transition and continuation of officers and staff of the
Registries of the Family Court of Australia as officers and staff of the FCFC (Division 1).
1987. Subitem 4(1), when read with subitem 4(3), provides that people who are officers of
the Family Court (including Registrars, Deputy Registrars, Registry Managers, family
consultants, the Marshal and Deputy Marshals) immediately before 1 January 2019, as
identified in subsection 38N(1) of Part IVA of the Family Law Act, will continue on and after
that day as officers of the FCFC (Division 1).
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1988. Subitem 4(2), when read with subitem 4(3), provides that people who are staff of the
Registries of the Family Court immediately before 1 January 2019, as identified in subsection
38N(7) of the Part IVA of the Family Law Act, will continue on and after 1 January 2019 as
staff of Registries of the FCFC (Division 1).
Item 5 - Application of subsection 25B(1) of the Acts Interpretation Act 1901
1989. Item 5 provides that subsection 25B(1) of the Acts Interpretation Act 1901 applies for
the purposes of alterations made by this Act, as if the Family Court of Australia were a body
and the offices of Chief Justice, Deputy Chief Justice, Senior Judge and Judge of the Family
Court were offices.
1990. Subsection 25B(1) of the Acts Interpretation Act provides that where an Act alters the
name of a body or an office, then the office continues in existence under the new name so
that its identity is not affected; and that in any Act, instrument under an Act, award or other
industrial determination, other order, contract, legal or other proceedings, or other instrument,
a reference to the office under the former name shall, except in relation to matters that
occurred before the alteration took place, be construed as a reference to the office under the
new name.
Item 6 - Things done by the Family Court of Australia or Judges of the Court
1991. Item 6 applies to anything done by or in relation to the Family Court or Judges of the
Family Court before 1 January 2019.
1992. Item 6 clarifies that the amendments made by this Act do not affect the validity of
anything done before 1 January 2019 by or in relation to: the Family Court; a Full Court of
the Family Court; the Chief Justice, Deputy Chief Justice, a Senior Judge or a Judge of the
Family Court; or a Judge of the Family Court when performing functions or exercising
powers under an Act, in that Judge's personal capacity. For example, the validity of an order
made by a Judge of the Family Court or the Full Court of the Family Court is not affected by
the amendments contained in this Act.
1993. Further, item 6 puts beyond doubt that nothing in this Bill, or any of the amendments
in the Federal Circuit and Family Court of Australia Act 2018, of themselves, constitute a
significant change in circumstances or new factor that would enable a decided family law
matter to be reopened or a matter reinstituted. (That is, these reforms do not of themselves
meet the test of Rice and Asplund (1979) FLC 90-725).
Item 7 - Things done by, or in relation to, the Chief Executive Officer
1994. Subitem 7(1) provides that anything done by, or in relation, to the Chief Executive
Officer of the Family Court will be taken to be done by, or in relation the Federal Court CEO
for the purposes of the operation of any law on and after 1 January 2019.
1995. However, under subitems 7(2) and (3), the Minister may determine in writing that
subitem 7(1) does not apply in relation to a specified thing done by the Chief Executive
Officer of the Family Court, including making an instrument.
1996. Subitem 7(4) clarifies that a determination made by the Minister is not a legislative
instrument. Subitem 7(4) is included to assist readers, as a determination made by the
Minister under subitem 7(2) is not a legislative instrument within the meaning of subsection
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8(1) of the Legislation Act 2003. Determinations made under subitem 7(2) will only apply to
a single person, the Chief Executive Officer of the Family Court. Further, a determination
under subitem 7(2) will only determine particular circumstances in which the law applies,
rather than determining or altering the law more generally.
Item 8 - Things done by, or in relation to, a Registrar or Deputy Registrar
1997. Subitem 8(1) provides that anything done by, or in relation to, the Registrar or Deputy
Registrar of the Family Court will be taken to be done by, or in relation to, a Registrar or
Deputy Registrar of the FCFC (Division 1) for the purposes of the operation of any law on
and after 1 January 2019.
1998. However, under subitems 8(2) and (3), the Minister may determine in writing that
subitem 8(1) does not apply in relation to a specified thing done by a Registrar or Deputy
Registrar of the Family Court, including making an instrument.
1999. Subitem 8(4) clarifies that a determination made by a Minister is not a legislative
instrument. Subitem 8(4) is included to assist readers, as a determination made by the
Minister under subitem 8(2) is not a legislative instrument within the meaning of subsection
8(1) of the Legislation Act 2003. Determinations made under subitem 8(2) will only apply to
a Registrar or Deputy Registrar of the Family Court. Further, a determination under subitem
8(2) will only determine particular circumstances in which the law applies, rather than
determining or altering the law more generally
Item 9 - Things done by, or in relation to, a Registry Manager
2000. Subitem 9(1) provides that anything done by, or in relation to, the Registry Manager
of a Family Court Registry will be taken to be done by, or in relation to, the Registry
Manager of a Registry of the FCFC (Division 1) for the purposes of the operation of any law
on and after 1 January 2019.
2001. However, under subitems 9(2) and (3), the Minister may determine in writing that
subitem 9(1) does not apply in relation to a specified thing done by the Registry Manager of a
Family Court Registry, including making an instrument.
2002. Subitem 9(4) clarifies that a determination made by a Minister is not a legislative
instrument. Subitem 9(4) is included to assist readers, as a determination made by the
Minister under subitem 9(2) is not a legislative instrument within the meaning of subsection
8(1) of the Legislation Act 2003. Determinations made under subitem 9(2) will only apply to
the Registry Manager of a Family Court Registry. Further, a determination under subitem
9(2) will only determine particular circumstances in which the law applies, rather than
determining or altering the law more generally.
Item 10 - Things done by, or in relation to, the Marshal or a Deputy Marshal
2003. Subitem 10(1) provides that anything done by, or in relation to, the Marshal or a
Deputy Marshal of the Family Court will be taken to be done by, or in relation to, Marshal or
a Deputy Marshal of the FCFC (Division 1) for the purposes of the operation of any law on
and after 1 January 2019.
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2004. However, under subitems 10(2) and (3), the Minister may determine in writing that
subitem 10(1) does not apply in relation to a specified thing done by the Marshal or a Deputy
Marshal of the Family Court, including making an instrument.
2005. Subitem 10(4) clarifies that a determination made by a Minister is not a legislative
instrument. Subitem 10(4) is included to assist readers, as a determination made by the
Minister under subitem 10(2) is not a legislative instrument within the meaning of subsection
8(1) of the Legislation Act 2003. Determinations made under subitem 10(2) will only apply to
the Marshal or a Deputy Marshal of the Family Court. Further, a determination under subitem
10(2) will only determine particular circumstances in which the law applies, rather than
determining or altering the law more generally.
Item 11 - Registries
2006. Item 11 provides that notwithstanding the repeal of Part IV of the Family Law Act, a
Registry of the Family Court which exists immediately before 1 January 2019 will continue
in existence on and after 1 January 2019 as a Registry of the FCFC (Division 1).
Item 12 - Complaints
2007. Item 12 provides that if in relation to a Judge of the Family Court, a complaint is
made about the Judge on or after 1 January 2019 and the circumstances that gave rise to the
complaint occurred before 1 January 2019, then the Chief Justice of the FCFC (Division 1)
may deal with the complaint under section 32 of the Federal Circuit and Family Court of
Australia Act 2018. The reference to the FCFC (Division 1) in subparagraph 32(4)(b)(ii) of
that Act is taken to include a reference to the Family Court for the purposes of dealing with
the complaint under this item.
Part 3--Continuity of the Federal Circuit Court of Australia, and Judges and personnel
of the Court
2008. Part 3 provides a framework to preserve and transition the appointments of the Chief
Judge of the Federal Circuit Court and Judges of the Federal Circuit Court and certain other
personnel of the Federal Circuit Court to the FCFC (Division 2).
Item 13 - Change in title of judicial offices
2009. Item 13 provides for the change in title of the offices of the Chief Judge of the Federal
Circuit Court and Judges of the Federal Circuit Court.
2010. Subitem 13(1), when read with subitem 13(3), provides that the office of Chief Judge
of the Federal Circuit Court under the Federal Circuit Court Act, as in force immediately
before 1 January 2019, is the same office as the office of Chief Judge of the FCFC (Division
2) under the Federal Circuit and Family Court of Australia Act 2018.
2011. Subitem 13(2), when read with subitem 13(3), provides that the office of Judge (other
than the Chief Judge) of the Federal Circuit Court under the Federal Circuit Court Act, as in
force immediately before 1 January 2019, is the same office as the office of Judge of the
FCFC (Division 2) under the Federal Circuit and Family Court of Australia Act 2018.
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Item 14 - Appointments to judicial offices
2012. Item 14 provides for the transition and continuation of appointments to judicial offices
held by the Chief Judge and Judges of the Federal Circuit Court to the FCFC (Division 2) and
saving of assignments of judges of the Federal Circuit Court to particular locations or
registries.
2013. Subitem 14(1) provides that the person holding office as the Chief Judge of the
Federal Circuit Court immediately before 1 January 2019 continues to hold that office under
the title of Chief Judge of the FCFC (Division 2) under the Federal Circuit and Family Court
of Australia Act 2018.
2014. Subitem 14(2) provides that a person holding office as a Judge (other than the Chief
Judge) of the Federal Circuit Court immediately before 1 January 2019 continues to hold that
office under the title of Judge of the FCFC (Division 2) under the Federal Circuit and Family
Court of Australia Act 2018.
2015. Subitem 14(3) provides for the saving and transition of any instruments of assignment
of Judges to particular locations or registries that were issued by the Chief Judge of the
Federal Circuit Court under subsection 12(4) of the Federal Circuit Court Act, to continue in
force after 1 January 2019 as if that instrument had been made under subsection 115(1) of the
Federal Circuit and Family Court of Australia Act 2018.
2016. Subitem 14(4) provides that any approval of an instrument of assignment given by the
Minister under subsection 12(5) of the Federal Circuit Court Act will continue as if given
under subsection 115(2) of the Federal Circuit and Family Court of Australia Act 2018.
Item 15 - Officers and staff of the Federal Circuit Court of Australia
2017. Item 15 provides that officers of the Federal Circuit Court (including Registrars, the
Sheriff and Deputy Sheriffs, the Marshal and Deputy Marshals, and family consultants)
immediately before 1 January 2019, as identified in subsection 99(1) of the Federal Circuit
Court Act, will continue on and after 1 January 2019 as officers of the FCFC (Division 2).
2018. Item 15 also provides that staff of Registries of the Federal Circuit Court before
1 January 2019, as identified in section 112 of the Federal Circuit Court Act, continue on and
after 1 January 2019 as staff of Registries of the FCFC (Division 2).
Item 16 - Application of subsection 25B(1) of the Acts Interpretation Act 1901
2019. Item 16 provides that subsection 25B(1) of the Acts Interpretation Act applies for the
purposes of alterations made by this Act, as if the Federal Circuit Court of Australia were a
body, and the offices of Chief Judge and Judges of the Federal Circuit Court were offices.
2020. Subsection 25B(1) of the Acts Interpretation Act provides that where an Act alters the
name of a body or an office, then the office continues in existence under the new name so
that its identity is not affected; and that in any Act, instrument under an Act, award or other
industrial determination, other order, contract, legal or other proceedings, or other instrument,
a reference to the office under the former name shall, except in relation to matters that
occurred before the alteration took place, be construed as a reference to the office under the
new name.
367
Item 17 - Things done by, or in relation to, the Federal Circuit Court of Australia or
Judges of the Court
2021. Item 17 applies to anything done by or in relation to the Federal Circuit Court or
Judges of the Federal Circuit Court before 1 January 2019.
2022. Item 17 clarifies that the repeal of the Federal Circuit Court Act and the amendments
made by Act do not affect the validity of anything done before 1 January 2019 by, or in
relation to: the Federal Circuit Court; the Chief Judge or a Judge of the Federal Circuit Court;
a Judge of the Federal Circuit Court while a Federal Magistrate; or a Judge of the Federal
Circuit Court when performing functions or exercising powers under an Act, in that Judge's
personal capacity. For example, the validity of an order made by a Judge of the Federal
Circuit Court is not affected by the repeal of the Federal Circuit Court Act, the amendments
contained in this Bill or the Federal Circuit and Family Court of Australia Act 2018.
2023. Further, item 17 puts beyond doubt that nothing in this Bill, or any of the amendments
in the Federal Circuit and Family Court of Australia Act 2018, of themselves, constitute a
significant change in circumstances or new factor that would enable a decided family law
matter to be reopened or a matter reinstituted. (That is, these reforms do not of themselves
meet the test of Rice and Asplund (1979) FLC 90-725).
Item 18 - Things done by, or in relation to, the Chief Executive Officer
2024. Subitem 18(1) provides that anything done by, or in relation to, the Chief Executive
Officer of the Federal Circuit Court will be taken, despite the repeal of the Federal Circuit
Court Act, to be done by, or in relation to, the Federal Court CEO for the purposes of any law
as in force on and after 1 January 2019.
2025. However, under subitems 18(2) and (3), the Minister may determine in writing that
subitem 18(1) does not apply in relation to a specified thing done by the Chief Executive
Officer of the Federal Circuit Court, including making an instrument.
2026. Subitem 18(4) clarifies that a determination made by a Minister is not a legislative
instrument. Subitem 18(4) is included to assist readers, as a determination made by the
Minister under subitem 18(2) is not a legislative instrument within the meaning of subsection
8(1) of the Legislation Act 2003. Determinations made under subitem 18(2) will only apply to
a single person, the Chief Executive Officer of the Federal Circuit Court. Further, a
determination under subitem 18(2) will only determine particular circumstances in which the
law applies, rather than determining or altering the law more generally.
Item 19 - Things done by, or in relation to, a Registrar
2027. Subitem 19(1) provides that anything done by, or in relation to a Registrar of the
Federal Circuit Court will be taken, despite the repeal of the Federal Circuit Court Act, to be
done by, or in relation to, a Registrar of the FCFC (Division 2) for the purposes of any law as
in force on and after 1 January 2019.
2028. However, under subitems 19(2) and (3), the Minister may determine in writing that
subitem 19(1) does not apply in relation to a specified thing done by a Registrar of the
Federal Circuit Court, including making an instrument.
368
2029. Subitem 19(4) clarifies that a determination made by a Minister is not a legislative
instrument. Subitem 19(4) is included to assist readers, as a determination made by the
Minister under subitem 19(2) is not a legislative instrument within the meaning of subsection
8(1) of the Legislation Act 2003. Determinations made under subitem 19(2) will only apply to
a Registrar of the Federal Circuit Court. Further, a determination under subitem 19(2) will
only determine particular circumstances in which the law applies, rather than determining or
altering the law more generally.
Item 20 - Things done by, or in relation to, the Sheriff or a Deputy Sheriff
2030. Subitem 20(1) provides that anything done by, or in relation to the Sheriff or a Deputy
Sheriff of the Federal Circuit Court will be taken, despite the repeal of the Federal Circuit
Court Act, to be done by, or in relation to, the Sheriff or a Deputy Sheriff of the FCFC
(Division 2) for the purposes of any law as in force on and after 1 January 2019.
2031. However, under subitems 20(2) and (3), the Minister may determine in writing that
subitem 20(1) does not apply in relation to a specified thing done by the Sheriff or a Deputy
Sheriff of the Federal Circuit Court, including making an instrument.
2032. Subitem 20(4) clarifies that a determination made by a Minister is not a legislative
instrument. Subitem 20(4) is included to assist readers, as a determination made by the
Minister under subitem 20(2) is not a legislative instrument within the meaning of subsection
8(1) of the Legislation Act 2003. Determinations made under subitem 20(2) will only apply to
the Sheriff or a Deputy Sheriff of the Federal Circuit Court. Further, a determination under
subitem 20(2) will only determine particular circumstances in which the law applies, rather
than determining or altering the law more generally.
Item 21 - Things done by, or in relation to, the Marshal or a Deputy Marshal
2033. Subitem 21(1) provides that anything done by, or in relation to the Marshal or a
Deputy Marshal Sheriff of the Federal Circuit Court will be taken, despite the repeal of the
Federal Circuit Court Act, to be done by, or in relation to, the Marshal or a Deputy Marshal
of the FCFC (Division 2) for the purposes of any law as in force on and after 1 January 2019.
2034. However, under subitems 21(2) and (3), the Minister may determine in writing that
subitem 21(1) does not apply in relation to a specified thing done by the Marshal or a Deputy
Marshal of the Federal Circuit Court, including making an instrument.
2035. Subitem 21(4) clarifies that a determination made by a Minister is not a legislative
instrument. Subitem 21(4) is included to assist readers, as a determination made by the
Minister under subitem 21(2) is not a legislative instrument within the meaning of subsection
8(1) of the Legislation Act 2003. Determinations made under subitem 21(2) will only apply to
the Marshal or a Deputy Marshal of the Federal Circuit Court. Further, a determination under
subitem 21(2) will only determine particular circumstances in which the law applies, rather
than determining or altering the law more generally.
Item 22 - Registries
2036. Item 22 provides that notwithstanding the repeal of the Federal Circuit Court Act, a
Registry of the Federal Circuit Court which exists before 1 January 2019, will continue in
existence on and after 1 January 2019 as a Registry of the FCFC (Division 2).
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Item 23 - Complaints
2037. Item 23 provides that if in relation to a Judge of the Federal Circuit Court, a complaint
is made about the Judge on or after 1 January 2019 and the circumstances that gave rise to the
complaint occurred before 1 January 2019, then the Chief Judge of the FCFC (Division 2)
may deal with the complaint under section 113 of the Federal Circuit and Family Court of
Australia Act 2018. The reference to the FCFC (Division 2) in subparagraph 113(4)(b)(ii) of
that Act is taken to include a reference to the Federal Circuit Court for the purposes of
dealing with the complaint under this item.
Part 4--Transitional arrangements for appeals
2038. Part 4 provides transitional arrangements for family law appeals which are on foot as
at 1 January 2019, as well as appeals which are eligible to be filed as at 1 January 2019 and
appeals which would otherwise be impacted as a result of the transfer of appellate jurisdiction
from the Appeal Division of the Family Court to the Family Law Appeal Division of the
Federal Court.
Division 1--Appeals or applications not made, but time for making appeal or
application not expired
Item 24 - Appeals to the High Court
2039. Item 24 clarifies that the time limits applicable to applications for special leave to
appeal to the High Court under section 95 of the Family Law Act are not impacted by the
amendments to the Family Law Act made by this Act.
Item 25 - Appeals to Family Law Appeal Division of the Federal Court
2040. Subitem 25(1) provides that where the time for instituting an appeal under Part X of
the Family Law Act (other than section 96), or an application for leave to appeal under
section 94AA of that Act has not ended on 1 January 2019, a party may institute an appeal or
application for leave to appeal in the Family Law Appeal Division of the Federal Court.
Appeals under section 96 of the Family Law Act are dealt with by item 26.
2041. Subitem 25(2) provides that for the purposes of subitem 25(1), any appeal or
application for leave to appeal to the Family Law Appeal Division must be made in
accordance with the Federal Court Rules (as amended by this Act).
2042. Subitem 25(3) provides, for the avoidance of doubt, that these appeals are to be heard
and determined by the Family Law Appeal Division of the Federal Court in accordance with
the Federal Court Act (as amended), the Family Law Act (as amended) and any other law of
the Commonwealth as relevant, rather than the law as in force at the time the right to institute
an appeal or seek leave to appeal accrued.
2043. Subitem 25(4) provides that for the purposes of applying the Federal Court of
Australia Act 1976 (as amended), any reference to the FCFC (Division 1) is taken to include
reference to a single judge of the Family Court of Australia.
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Item 26 - Right of appeal to Federal Circuit and Family Court of Australia
2044. Subitem 26(1) provides that where the time for instituting an appeal under section 96
of the Family Law Act (from a court of summary jurisdiction) has not ended on
1 January 2019, parties may institute despite the amendments to the Family Law Act, if the
time limit for instituting an appeal in the Family Court against a decision of a court of
summary jurisdiction under section 96 of the Family Law Act has not ended on
1 January 2019, a party may institute an appeal in either division of the FCFC.
2045. Subitem 26(2) provides that for the purposes of subitem 26(1), any appeal must be
made in accordance with the FCFC (Division 1) or FCFC (Division 2) Rules of Court as
applicable.
2046. Subitem 26(3) provides, for the avoidance of doubt, that these appeals are to be heard
and determined by the FCFC in accordance with the Federal Circuit and Family Court of
Australia Act 2018, the Family Law Act (as amended) and any other law of the
Commonwealth as relevant, rather than the law as in force at the time the right to institute an
appeal accrued.
Item 27 - Extensions of time to appeal or seek leave to appeal
2047. Subitem 27(1) provides that despite amendments to the Family Law Act made by this
Act if, on 1 January 2019, a party could seek an extension of time:
to institute an appeal under the Family Law Act (other than under section 96 of that
Act); or
seek leave to appeal under the Family Law Act
then, after 1 January 2019, a person may file that application for an extension of time in the
Family Law Appeal Division of the Federal Court.
2048. Subitem 27(2) clarifies that the Family Law Appeal Division is to hear any
application according to the Federal Court of Australia Act 1976 (as amended), the Family
Law Act 1975 (as amended), and any other relevant law of the Commonwealth.
2049. Subitem 27(3) provides that despite amendments to the Family Law Act made by this
Act, if a party could seek an extension of time to appeal under section 96 of the Family Law
Act as at 1 January 2019, then, after 1 January 2019, a person may bring that application to
the FCFC.
2050. Item 27 provides transitional arrangements for all appeals or applications for leave to
appeal which would be covered by Part X of the Family Law Act.
Division 2--Matters not substantively heard before 1 January 2019
2051. Division 2 of Part 4, Schedule 10 provides a framework for the hearing and
determination of family law appeals which are on foot in the Family Court before 1 January
2019 and in relation to which a substantive hearing has not yet taken place.
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Item 28 - Matters before a Judge or Full Court of the Family Court of Australia
2052. Subitem 28(1) provides transitional arrangements for applications for leave to appeal
and appeals which have been instituted in the Family Court prior to 1 January 2019, where a
substantive hearing has not taken place in the Family Court by that date. In such
circumstances, the appeals and applications for leave to appeal of the kind described in
subitem 28(1) will be dealt with and substantively heard in the Family Law Appeal Division
of the Federal Court, rather than the Family Court.
2053. In particular, subitem 28(1) provides that if prior to 1 January 2019 any of the
following occur:
an application for leave to appeal is instituted under section 94AA of the Family Law
Act;
an appeal is instituted under Part X of that Act;
facts and a question of law are stated in the form of a special case for the opinion of
the Full Court of the Family Court (under section 94A of the Family Law Act); and
on 31 December 2018 a substantive hearing of
the application,
appeal, or
special case stated (in the form of a special case for the opinion of the Full Court of
the Family Court)
has not occurred in the Full Court of the Family Court, or the application for leave to appeal
under section 94AA has not been by a single Judge of the Family Court, then after
1 January 2019, the Family Law Appeal Division of the Federal Court will hear the appeal,
application or case stated as if it were instituted in the Family Law Appeal Division of the
Federal Court.
2054. Subitems 28(2) and (3) clarify that the Family Law Appeal Division is to hear and
determine the application, appeal or special case according to the Federal Court of Australia
Act 1976 (as amended), the Family Law Act 1975 (as amended), and any other relevant law of
the Commonwealth. For the purposes of applying the Federal Court of Australia Act 1976
(as amended), any reference to the FCFC (Division 1) is taken to include a reference to the
Family Court of Australia.
2055. Subitems 28(4), (5) and (6) provide that if, as at 31 December 2018, the Family Court
constituted by a single Judge or a Full Court, has reserved judgment following the hearing of
a procedural application of the kind outlined in subsection 94(2D) or 94AAA(10) of the
Family Law Act, then the FCFC (Division 1) must deliver judgment on the procedural
application, before the proceeding can be dealt with by Family Law Appeal Division of the
Federal Court.
2056. Subitem 28(7) provides that in circumstances where subitems 28(4) or 28(5) do not
apply, for example, where a procedural application of the kind described has been filed but
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not yet heard in the Family Court, then the Family Law Appeal Division of the Federal Court
must deal with the procedural application (of the kind outlined in subsection 94(2D) or
94AAA(10) of the Family Law Act), before dealing with the application or appeal mentioned
in subitem 28(1), and that for this purpose, subitems (2) and (3) apply.
2057. Subitem 28(8) clarifies that if the opinion of the Judges constituting the Full Court of
the FCFC (Division 1) is divided, the majority opinion will prevail. If however the Judges are
equally divided in opinion, if the appeal was from a judgment of a single Judge of the Family
Court, or of a State and Territory Supreme or Family Court, then the judgment appealed from
is to be affirmed; and in any other case, the opinion of the most senior Judges constituting the
Full Court is to prevail.
2058. Subitem 28(9) provides for the transfer of documents for the purpose of the Family
Law Appeal Division hearing and determining a matter described in subitem 28(1) such that:
all documents filed in the Family Court before 1 January 2019 in relation to the matter
are to be transferred to the Federal Court,
any money paid to the Family Court in relation to the matter, before 1 January 2019,
is to be transferred to the Federal Court (noting that in practice, this will only relate to court
security payments as court fees will have been paid directly to the Federal Court), and
everything done in, or in relation to, the matter in the Family Court before
1 January 2019 is taken to have been done in the Federal Court.
2059. Subitem 28(10) provides that to avoid doubt, a Full Court of the FCFC (Division 1)
has jurisdiction to deal with an application of a procedural nature for the purposes of subitem
28(2) and a single Judge of the FCFC (Division 1) has jurisdiction to deal with an application
of a procedural nature for the purposes of subitem 28(3).
2060. Subitem 28(11) provides that in item 22, 'Full Court' in relation to the FCFC
(Division 1) means 2 or more Judges of the FCFC (Division 1).
Item 29 - Appeals from courts of summary jurisdiction
Appeals before a single Judge of the Family Court of Australia
2061. Subitem 29(1) provides transitional arrangements for appeals from courts of summary
jurisdiction which have been instituted in the Family Court prior to 1 January 2019, and a
substantive hearing has not taken place in the Family Court by that date. In such
circumstances, the appeals instituted under section 96 of the Family Law Act will be dealt
with and substantively heard in the FCFC by a single Judge.
2062. Subitem 29(1) provides that if, prior to 1 January 2019:
an appeal is instituted under section 96 of the Family Law Act, and
on 31 December 2018:
there has not been a substantive hearing of the appeal by a single judge of the Family
Court and,
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the appeal has not been referred to the Full Court of the Family Court under
subsection 96(5) of that Act,
then after 1 January 2019, a single Judge of the FCFC (Division 1) is to hear and determine
the appeal.
2063. Subitem 29(2) clarifies that the Judge of the FCFC (Division 1) is to hear any
application according to the Federal Court of Australia Act 1976 (as amended), the Family
Law Act 1975 (as amended), and any other relevant law of the Commonwealth.
Appeals before a Full Court of the Family Court of Australia
2064. Subitem 29(3) provides that if, prior to 1 January 2019:
an appeal is instituted under section 96 of the Family Law Act, and
the appeal hast been referred to the Full Court of the Family Court under subsection
96(5) of that Act (or an application for referral has been made), and
on 31 December 2018:
there has not been a substantive hearing of the appeal by a single judge of the Family
Court
then, after 1 January 2019, a Full Court of the Family Law Appeal Division of the Federal
Court is to hear and determine the appeal or application, despite the referral.
2065. Subitem 29(4) provides that to avoid doubt, the Full Court of the Family Law Appeal
Division of the Federal Court is to hear and determine the appeal under this item according to
the Federal Court Act (as amended by this Act), the Family Law Act (as amended by the
Act), and any other Commonwealth law.
Division 3--Matters substantively heard, in whole or in part, before 1 January 2019
2066. Division 3 of Part 4, Schedule 10 provides a framework for the hearing and
determination of family law appeals and applications in an appeal which are on foot in the
Family Court before 1 January 2019 and in relation to which a substantive hearing has either
wholly or partly taken place in the Family Court by that date.
Item 30 - Matters before the Full Court of the Family Court of Australia
2067. Item 30(1) provides that if, prior to 1 January 2019, a Full Court of the Family Court
has either fully or partly heard:
an application for leave to appeal is instituted under section 94AA of the Family Law
Act,
an appeal allowed under Part X of that Act,
an appeal referred under subsection 96(5) or
a special case for the opinion of the Full Court; and
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on 31 December 2018, either:
a substantive hearing of the appeal, application or special case has not concluded, or
a substantive hearing of the appeal, application or special case has concluded, but
judgment has not been delivered,
then, after 1 January 2019 (and despite the amendments to the Family Law Act made by this
Act), the Full Court of the FCFC (Division 1) must conclude the substantive hearing of the
appeal, application or special case (if required) and deliver judgment.
2068. Subitem 30(2) provides that a Full Court of the FCFC (Division 1) may have regard to
any evidence and arguments given, received or adduced by or before the Full Court of the
Family Court, as constituted before 1 January 2019.
2069. Subitem 30(3) provides that except in the case of an appeal referred under subsection
96(5) of the Family Law Act, a Full Court of the FCFC (Division 1) may give reasons for a
decision to dismiss an appeal in short form, if it is of the opinion that the appeal does not
raise a question of general principle.
2070. Subitem 30(4) clarifies that if the opinion of the Judges constituting a Full Court of
the FCFC (Division 1) is divided, the majority opinion will prevail. If, however, the Judges
are equally divided in opinion, if the appeal was from a judgment of a single Judge of the
Family Court, or of a State and Territory Supreme or Family Court, then the judgment
appealed from is to be affirmed; and in any other case, the opinion of the most senior Judge
of the Full Court is to prevail.
2071. Subitem 30(5) provides that to avoid doubt, a Full Court of the FCFC (Division 1) has
appellate jurisdiction of the purposes of this item.
2072. Subitem 30(6) provides that in this item, Full Court in relation to the FCFC (Division
1) means two or more Judges.
Item 31 - Matters before a Judge of the Family Court of Australia
2073. Item 31(1) provides that if, prior to 1 January 2019, a single Judge of the Family
Court has either fully or partly heard:
an application for leave to appeal is instituted under section 94AA of the Family Law
Act, or
an appeal allowed under Part X of that Act, and
on 31 December 2018, either:
a substantive hearing of the appeal or application has not concluded, or
a substantive hearing of the appeal or application has concluded, but judgment has not
been delivered,
then, after 1 January 2019 (and despite the amendments to the Family Law Act made by this
Act), the Judge, as a Judge of the FCFC (Division 1), must deliver the judgment.
375
2074. Subitem 31(2) provides that except in the case of an appeal referred under subsection
96(5) of the Family Law Act, the single Judge may give reasons for a decision to dismiss an
appeal in short form, if the Judge is of the opinion that the appeal does not raise a question of
general principle.
2075. Subitem 31(3) provides that to avoid doubt, a single Judge of the FCFC (Division 1)
has appellate jurisdiction for the purposes of this item.
Division 4--Miscellaneous
Item 32 - Constituting a Full Court of the Federal Circuit and Family Court of
Australia (Division 1)
2076. Subitem 32(1) provides that for the purposes of subitems 28(4) and 30(1) of this Act,
the Chief Justice must allocate another Judge of the FCFC (Division 1) to be a member of the
Full Court if:
One or more of the Judges involved are not available to constitute a Full Court, and
The allocation of another judge is necessary to constitute a Full Court.
2077. Subitem 32(2) provides that provides that for the purposes of subitems 28(4) and
30(1) of this Act, the Chief Justice may allocate another Judge of the FCFC (Division 1) to be
a member of the Full Court if:
One or more of the Judges involved are not available to constitute a Full Court, and
The Chief Justice otherwise considers it necessary.
2078. Subitem 32(3) provides that in this item, Full Court in relation to the FCFC (Division
1) means two or more Judges.
Item 33 - Unavailability of a Judge of the Federal Circuit and Family Court of
Australia (Division 1)
2079. Subitem 33(1) provides that for the purposes of subitems 28(5) and 31(1), if the single
Judge of the FCFC (Division 1) is not available to deliver judgment, then Chief Justice must
allocate another Judge of the Court to do so.
2080. Subitem 33(2) provides that a Judge allocated under subitem 33(1) may have regard
to evidence and arguments given, received and adduced by or before the Judge of the Family
Court before 1 January 2019 and may receive further evidence or submissions or hear further
argument, if required.
Item 34 - Other matters
2081. Item 34 provides discretion to the Chief Justice, in consultation with the Chief Judge
of the FCFC (Division 2), to give any direction necessary to ensure that an application
relating or incidental to a proceeding mentioned in this Part, and which is made before, on or
after 1 January 2019, is heard and determined, and judgment is delivered, pending the
disposal of the proceeding. The Chief Justice must consider the workload and resources of
the FCFC in making such a direction.
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Item 35 - Application of case management provisions
2082. Item 35 provides for the application of the case management provisions to
proceedings which come before the Family Law Appeal Division of the Federal Court or the
FCFC before, on or after 1 January 2019, as a result of an item of this Part.
2083. Subitem 35(1) provides that the case management provisions in Part VB of the
Federal Court Act will apply to all proceedings in the Family Law Appeal Division of the
Federal Court, commenced before, on or after 1 January 2019.
2084. Subitem 35(2) provides that the case management provisions contained in Division 4
of Part 5 of Chapter 3 of the Federal Circuit and Family Court of Australia Act 2018, will
apply to all family law proceedings in the FCFC (Division 1) commenced before, on or after
1 January 2019.
2085. Subitem 35(3) provides that the case management provisions contained in Division 4
of Part 6 of Chapter 4 of the Federal Circuit and Family Court of Australia Act 2018, will
apply to all civil proceedings in the FCFC (Division 2) commenced before, on or after
1 January 2019.
Part 5--Miscellaneous
Item 36 - Prior judicial service
2086. Item 36 continues the existing position for the definition of 'prior judicial service'.
Item 36 clarifies that paragraph 91(3)(b) of the Federal Circuit and Family Court of Australia
Act 2018 has effect, on and after 1 January 2019, as if paragraph (c) of the definition of 'prior
judicial service' in subsection 7(1) of that Act included a reference to a Federal Magistrate.
The definition of 'prior judicial service' is relevant in calculating pensions for retired
disabled Judges under subsection 91(3) of the Federal Circuit and Family Court of Australia
Act 2018.
2087. The note at item 36 clarifies for readers that the appointment of a Federal Magistrate
under the former Federal Magistrates Act 1999 continued as an appointment of a Judge of
the Federal Circuit Court.
Item 37 - Application of case management provisions
2088. Item 37 provides for the case management provisions contained in the Federal Circuit
and Family Court of Australia Act 2018, Division 4 of Part 5 of Chapter 3 for the FCFC
(Division 1) and Division 4 of Part 6 of Chapter 4 for the FCFC (Division 2), to apply to
proceedings commenced before, on or after 1 January 2019.
2089. The case management provisions in the Federal Circuit and Family Court of
Australia Act 2018 provide that the overarching purpose of family law and civil practice and
procedure provisions of the FCFC is to facilitate the just resolution of disputes according to
law and as quickly, inexpensively and efficiently as possible.
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Item 38 - Transitional rules
2090. Subitem 38(1) provides that the Minister may, by legislative instrument, make rules
prescribing matters of a transitional nature related to the amendments or repeals made by this
Act or the enactment of the Federal Circuit and Family Court of Australia Act 2018.
2091. Subitem 38(2) prescribes a limit on the transitional rules which may be made and
provides the Minister may not make rules which: create an offence; provide powers of arrest
or detention or entry, search or seizure; impose a tax; set an amount to be appropriated from
the Consolidated Revenue Fund under an appropriation in this Act or the Federal Circuit and
Family Court of Australia Act 2018; or directly amend the text of this Act or the Federal
Circuit and Family Court of Australia Act 2018.
Item 39 - Schedule does not limit certain provisions of the Acts Interpretation Act 1901
2092. Item 39 confirms that this Schedule does not limit the operation of section 7 or
subsection 25B(1) of the Acts Interpretation Act 1901.
2093. Item 5 of Schedule 10 of this Bill provides that subsection 25B(1) of the Acts
Interpretation Act 1901 applies as if the Family Court were a body, and the offices of Chief
Justice, Deputy Chief Justice, Senior Judge and Judge were offices. Item 16 of Schedule 10
also provides that subsection 25B(1) of the Acts Interpretation Act 1901 applies as if the
Federal Circuit Court were a body, and the offices of Chief Judge and Judge were offices.
Section 7 of the Acts Interpretation Act 1901 provides for the effect of repeal or amendment
of an Act or part thereof.
2094. Item 39 clarifies that, where section 7 or subsection 25B(1) of the Acts Interpretation
Act 1901 will apply, items in this Schedule are not intended to limit the operation of these
provisions.
378