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Schedule 7—Modifications to the standard Rules of Court for the Federal Circuit and Family Court of Australia (Division 1)

Schedule 7 Modifications to the standard Rules of Court for the Federal Circuit and Family Court of Australia (Division 1)

   

1  Definitions

In this Schedule:

standard Rules of Court has the same meaning as in the Family Law Act 1975 .

Federal Circuit and Family Court of Australia (Division 1) Rules 2018

(1)       The standard Rules of Court, in force immediately before 1 January 2019:

                     (a)  are also taken, on and after that day, to be Rules of Court covered by Chapter 3 of the Federal Circuit and Family Court of Australia Act 2018 ; and

                     (b)  are to be known as the Federal Circuit and Family Court of Australia (Division 1) Rules 2018 ; and

                     (c)  have effect, on and after 1 January 2019, with the modifications set out in this Schedule.

(2)       Subitem (1) does not prevent the amendment or repeal of the Federal Circuit and Family Court of Australia (Division 1) Rules 2018 by the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) even though those Rules of Court were originally made by the Judges of the Family Court of Australia, or a majority of them, as standard Rules of Court.

(3)       To avoid doubt, this item does not affect the continuity of the standard Rules of Court made under section 123 of the Family Law Act 1975 , and in force immediately before 1 January 2019, as the standard Rules of Court for the purposes of that Act.

(4)       However, amendments to the standard Rules of Court made on or after 1 January 2019 do not apply for the purposes of the Federal Circuit and Family Court of Australia (Division 1) Rules 2018 and the modifications made by this Schedule.

3  Certain provisions to be omitted

The standard Rules of Court have effect as the Federal Circuit and Family Court of Australia (Division 1) Rules 2018 as if the following provisions were omitted:

                     (a)  rule 1.04;

                     (b)  rule 1.18;

                     (c)  rule 2.01 (note 3);

                     (d)  rule 2.04 (definition of Registry Manager );

                     (e)  subrule 8.02(1) (note);

                      (f)  subrule 10.06(3) (note 3);

                     (g)  rules 11.01 to 11.03;

                     (h)  subrule 12.13(3) (note);

                      (i)  subrule 13.15(4) (note 1);

                      (j)  subrule 15.52(1) (note 2);

                     (k)  Chapter 19 (summary, paragraph relating to Schedule 6);

                      (l)  Schedules 2 and 6;

                    (m)  Dictionary (note 3);

                     (n)  Dictionary (definition of Appeal Registrar );

                     (o)  Dictionary (definition of Appeal Registry );

                     (p)  Dictionary (definition of appellant );

                     (q)  Dictionary (definition of applicant );

                      (r)  Dictionary (definition of Child Support Agency );

                      (s)  Dictionary (definition of court );

                      (t)  Dictionary (definition of excluded child order );

                     (u)  Dictionary (definition of Family Court );

                     (v)  Dictionary (definition of Family Law Magistrate of Western Australia );

                    (w)  Dictionary (definition of file );

                     (x)  Dictionary (definition of notice of contention );

                     (y)  Dictionary (note to the definition of penalty unit );

                     (z)  Dictionary (definition of pre-argument statement );

                    (za)  Dictionary (definition of Regional Appeal Registrar );

                   (zb)  Dictionary (definition of Regional Appeal Registry );

                    (zc)  Dictionary (definition of registered ).

4  Certain provisions to be replaced

The standard Rules of Court have effect as the Federal Circuit and Family Court of Australia (Division 1) Rules 2018 as if the provisions identified in column 1 of an item of the following table were modified as set out in column 2 of the item:

 

Modifications

Item

Column 1

Rule of Court

Column 2

Substituted text

1

rule 1.02

1.02  Commencement

These Rules commence on 1 January 2019.

2

subrule 1.08(3) (note)

Note:          The Federal Circuit and Family Court of Australia (Division 1) may take into account a failure to comply with this rule when considering costs: see subrule 19.10(1).

3

Division 4.2.4 (note)

Note:          Applications should not be made under this Division unless an associated matter is pending in the Federal Circuit and Family Court of Australia (Division 1). Under section 34 of the Federal Circuit and Family Court of Australia Act 2018 , the Federal Circuit and Family Court of Australia (Division 1) may transfer the proceeding to the Federal Circuit and Family Court of Australia (Division 2).

4

Division 4.2.5 (note in overview)

Note:          Applications should not be made under this Division unless an associated matter is pending in the Federal Circuit and Family Court of Australia (Division 1). Under section 34 of the Federal Circuit and Family Court of Australia Act 2018 , the Federal Circuit and Family Court of Australia (Division 1) may transfer the proceeding to the Federal Circuit and Family Court of Australia (Division 2).

5

rule 4.16 (note 2)

Note 2:       Chapter 22 sets out the procedure for appealing from a decision of a court of summary jurisdiction.

6

subrule 5.03(2) (note)

Note:          The Federal Circuit and Family Court of Australia (Division 1) may take into account a party’s failure to comply with subrule (1) when applying the case management provisions and considering any order for costs (see subsections 117(2) and (2A) of the Act).

7

rule 5.14 (note)

Note:          This Part also applies to an Application in an Appeal (see rule 22.18).

8

subrule 7.04(1) (note)

Note:          If a document is not served within the time period, service after that time is ineffective unless the Federal Circuit and Family Court of Australia (Division 1) orders otherwise (see rules 1.12 and 7.02).

9

subrule 7.10(2)

(2) At the time of service of an Application, Subpoena or Notice of Appeal on a prisoner, the prisoner must be informed, in writing, about the requirement to attend by electronic communication under rule 5.07 or 12.12 (whichever applies).

10

Part 10.1 (note)

Note:          Each party is encouraged at all times to make an offer to settle to the other party in an effort to resolve a case. Part 10.1 contains 2 Divisions.

11

subrule 10.01(1) (note)

Note:          See also paragraph 117(2A)(f) and section 117 of the Act, and the case management provisions generally, in relation to offers to settle.

12

subrule 10.06(3) (note 2)

Note 2:       An offer to settle is a factor that must be taken into account when the Federal Circuit and Family Court of Australia (Division 1) exercises its discretion in relation to costs (see the case management provisions and paragraph 117(2A)(f) of the Act).

13

subrule 10.15A(2) (note)

Note:          If the party alleges that the child concerned 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, the party making the allegation, or if represented by a lawyer, that party’s lawyer, must also file and serve a notice in a form approved under subrule 24.04(1) (see subsections 67Z(2) and 67ZBA(2) of the Act).

14

subrule 10.15A(3) (note)

Note:          If the party alleges that the child concerned 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, the party making the allegation, or if represented by a lawyer, that party’s lawyer, must also file and serve a notice in a form approved under subrule 24.04(1) (see subsections 67Z(2) and 67ZBA(2) of the Act).

15

subrule 10.15A(4) (note)

Note:          If the party alleges that the child concerned 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, the party making the allegation, or if represented by a lawyer, that party’s lawyer, must also file and serve a notice in a form approved under subrule 24.04(1) (see subsections 67Z(2) and 67ZBA(2) of the Act).

16

subrule 11.18(1)

(1) In making a decision under rule 11.17, the Federal Circuit and Family Court of Australia (Division 1) may consider:

(a) the public interest; and

(b) whether the case, if transferred or removed, is likely to be dealt with:

(i) at less cost to the parties; or

(ii) at more convenience to the parties; or

(iii) earlier; and

(c) the availability of a judicial officer specialising in the type of case to which the application relates; and

(d) the availability of particular procedures appropriate to the case; and

(e) the financial value of the claim; and

(f) the complexity of the facts, legal issues, remedies and procedures involved; and

(g) the adequacy of the available facilities, having regard to any disability of a party or witness, and any safety concerns; and

(h) the wishes of the parties.

Note:          See also subsection 34(3) of the Federal Circuit and Family Court of Australia Act 2018 for matters that the Federal Circuit and Family Court of Australia (Division 1) must have regard to in deciding whether a case should be transferred to the Federal Circuit and Family Court of Australia (Division 2).

17

rule 11.20

11.20  Transfer between courts

If an order is made to transfer a case from a court to the Federal Circuit and Family Court of Australia (Division 1), the Registry Manager, after receiving the file, must:

(a) fix a date for a procedural hearing; and

(b) give each party notice of the date fixed.

18

subrule 15.17(1)

(1) The Federal Circuit and Family Court of Australia (Division 1) may issue:

(a) a subpoena for production; or

(b) a subpoena to give evidence; or

(c) a subpoena for production and to give evidence.

19

paragraph 15.41(1)(d)

(d) evidence from a family consultant (including evidence from a person appointed under regulation 7 of the Regulations).

20

rule 15.64 (note)

Note:          For the powers of the Federal Circuit and Family Court of Australia (Division 1) to award costs, see the case management provisions and subsection 117(2) of the Act.

21

rule 19.08 (heading)

19.08  Order for costs—proceedings other than appeals

22

subrule 19.08(3) (note 4)

Note 4:       For costs orders related to appeals, see the case management provisions and rule 19.08A.

23

rule 19.18

19.18  Costs and disbursements

Unless the Federal Circuit and Family Court of Australia (Division 1) orders otherwise, a party entitled to costs in a proceeding (other than costs to which the Bankruptcy Act applies) is entitled to:

(a) costs in accordance with Schedule 3; and

(b) disbursements properly incurred.

Note:          For costs in a proceeding to which the Bankruptcy Act 1966 applies, see Chapter 26.

24

paragraph 19.51(2)(a)

(a) it was reasonable to engage counsel to attend in the case; and

25

Chapter 21 (summary, third dot point)

·                           an order to locate or recover children. Application should not be made under this Chapter unless an associated matter is pending in the Federal Circuit and Family Court of Australia (Division 1). Under section 34 of the Federal Circuit and Family Court of Australia Act 2018 , the Federal Circuit and Family Court of Australia (Division 1) may transfer the proceeding to the Federal Circuit and Family Court of Australia (Division 2).

26

paragraph 23.01(1)(a)

(a) may be registered in the Federal Circuit and Family Court of Australia (Division 1); and

27

rule 23.01A

23.01A  Registration of State child orders under section 70C of the Act

(1) For the purposes of section 70C of the Act, a State child order made under a law of a prescribed State may be registered in the Federal Circuit and Family Court of Australia (Division 1) by filing a sealed copy of the order in a registry of the Court.

(2) In this rule:

State includes a Territory.

28

rule 23.01B

23.01B  Registration of de facto maintenance orders under section 90SI of the Act

For the purposes of subsection 90SI(1) of the Act, an order with respect to the maintenance of a party to a de facto relationship may be registered in the Federal Circuit and Family Court of Australia (Division 1) by filing a sealed copy of the order in a registry of the Court.

29

rule 24.04

24.04  Forms

(1) The Chief Justice may approve a form for the purposes of these Rules.

(2) Strict compliance with an approved form is not required and substantial compliance is sufficient.

Note:          The requirements of the Federal Circuit and Family Court of Australia (Division 1) in relation to preparing and lodging documents are set out in practice notes issued by the Chief Justice.

(3) A document in a form approved for the Federal Court of Australia is taken to be in substantial compliance with the form approved for the same purpose under these Rules.

(4) A document in a form approved for the Federal Circuit and Family Court of Australia (Division 2) is taken to be in substantial compliance with the form approved for the same purpose under these Rules.

30

paragraph 24.13(3)(c)

(c) the need for security of:

(i) personnel of the Federal Circuit and Family Court of Australia; and

(ii) personnel of the Federal Court of Australia; and

(iii) parties, children and witnesses;

31

Chapter 25 (first paragraph of the summary)

Chapter 25 sets out the procedure for a case started in or transferred to the Federal Circuit and Family Court of Australia (Division 1) under the Corporations Act 2001 or the Corporations (Aboriginal and Torres Strait Islander) Act 2006 .

32

rule 25.03

25.03  Modification of Corporations Rules

The Corporations Rules, in their application under rule 25.02, are modified so that each reference to paragraph 35A(1)(h) of the Federal Court of Australia Act 1976 in rule 16.1 is read as a reference to paragraph 66(2)(m) of the Federal Circuit and Family Court of Australia Act 2018 .

33

Chapter 26 (summary, first paragraph)

Chapter 26 sets out the rules about a case in which the Federal Circuit and Family Court of Australia (Division 1) has jurisdiction in bankruptcy under section 35 or 35A of the Bankruptcy Act 1966 . For delegated powers, see Chapter 18 of these Rules.

34

Chapter 26A (summary, first paragraph)

Chapter 26A sets out the rules about a case in the Federal Circuit and Family Court of Australia (Division 1) to which the Trans-Tasman Proceedings Act 2010 applies. For delegated powers, see Chapter 18 of these Rules.

35

Chapter 26B (summary, fourth sentence)

For delegated powers, see Chapter 18 of these Rules.

36

subclause 2(3) of Part 1 of Schedule 1

(3) The Federal Circuit and Family Court of Australia (Division 1) may take into account compliance and non-compliance with the pre-action procedures when it is making orders about case management and considering orders for costs (see paragraphs 1.10(2)(d) and 19.10(1)(b)).

37

clause 6 of Part 1 of Schedule 1 (note to heading)

Note:           See the case management provisions and rules 1.08 and 19.03.

38

paragraph 6(1)(f) of Part 1 of Schedule 1

(f) advise clients of the estimated costs of legal action (see the case management provisions and rule 19.03);

39

subclause 2(3) of Part 2 of Schedule 1

(3) The Federal Circuit and Family Court of Australia (Division 1) may take into account compliance and non-compliance with the pre-action procedures when it is making orders about case management and considering orders for costs (see paragraphs 1.10(2)(d) and 19.10(1)(b)).

40

clause 6 of Part 2 of Schedule 1 (note to heading)

Note:           See the case management provisions and rules 1.08 and 19.03.

41

paragraph 6(1)(f) of Part 2 of Schedule 1

(f) advise clients of the estimated costs of legal action (see the case management provisions and rule 19.03);

42

Schedule 3 (note 1)

Note 1:        See rule 19.18.

43

Dictionary (definition of appeal )

appeal means an appeal to the Federal Circuit and Family Court of Australia (Division 1) from a court of summary jurisdiction under section 47A of the Act.

44

Dictionary (note to definition of attend )

Note:          See rules 5.06, 12.12 and 16.05 for attendance by electronic communication.

45

Dictionary (definition of costs agreement )

costs agreement means a written agreement between a party and the party’s lawyer, about the costs to be charged by the lawyer for work done for a case for the party, in accordance with the law of a State or Territory.

46

Dictionary (definition of costs notice )

costs notice means a brochure, approved by the Chief Executive Officer, about costs under Chapter 19.

47

Dictionary (definition of Marshal )

Marshal means the person mentioned in paragraph 71(1)(c) of the Federal Circuit and Family Court of Australia Act 2018 .

5  Notice of risk

The standard Rules of Court have effect as the Federal Circuit and Family Court of Australia (Division 1) Rules 2018 as if rule 2.04D were substituted by the following:

2.04D   Notice relating to child abuse or family violence

             (1)  For the purposes of section 67Z or 67ZBA of the Act, the Chief Justice may approve a form under subrule 24.04(1).

             (2)  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 setting out the evidence on which the allegations in the notice are based, no later than the time the notice is filed.

Note 1:       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.

Note 2:       The party making the allegation, or if represented by a lawyer, that party’s lawyer, must file a notice in a form approved under subrule 24.04(1).

6  Powers of the Chief Executive Officer, Registrars and Deputy Registrars

The standard Rules of Court have effect as the Federal Circuit and Family Court of Australia (Division 1) Rules 2018 as if Chapter 18 were substituted by the following:

Chapter 18 Powers of the Chief Executive Officer, Registrars and Deputy Registrars

Summary of Chapter 18

Chapter 18 sets out:

(a)    the powers of the Federal Circuit and Family Court of Australia (Division 1) that are delegated to the Chief Executive Officer, and Registrars and Deputy Registrars of the Court; and

(b)    the process for reviewing an order made by a delegate.

The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.

A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.

Part 18.1 Delegation of powers

Division 18.1.1 General

18.01   Protection for persons exercising powers and functions under delegation

                   The Chief Executive Officer, or a Registrar or Deputy Registrar of the Federal Circuit and Family Court of Australia (Division 1), exercising a power of the Court or performing any 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 to the Chief Executive Officer, Registrars and Deputy Registrars

18.02   Application of Division 18.1.2

                   This Division applies to:

                     (a)  the Chief Executive Officer; and

                     (b)  a Registrar or Deputy Registrar who is enrolled as a lawyer of the High Court or of the Supreme Court of a State or Territory.

18.03   Chief Executive Officer and Registrars

             (1)  Each power of the Federal Circuit and Family Court of Australia (Division 1) mentioned in an item of the following table is delegated to:

                     (a)  the Chief Executive Officer; and

                     (b)  each Registrar who is approved, or is in a class of Registrars approved, by the Chief Justice to exercise the power.

 

Delegated powers

Item

Provisions

Family Law Act 1975

1

section 63H

2

section 65D (except an excluded child order)

3

section 65L

4

sections 66G, 66M, 66P and 66Q

5

section 66S

6

section 66W

7

subsection 67D(1) and section 67E

8

subsection 67M(2)

9

subsection 67N(2)

10

section 67U

11

section 67ZD

12

subsections 68B(1) and (2)

13

sections 69V and 69VA, subsection 69W(1), section 69X and subsection 69ZC(2)

14

sections 74 and 77

15

subsection 83(1)

16

subsection 87(3)

17

sections 90SE and 90SG

18

section 90SI

19

section 100B

20

section 102A

21

section 106A

22

subsection 117(2)

Child Support (Assessment) Act 1989

23

section 139

Child Support (Registration and Collection) Act 1988

24

subsection 105(2)

 

             (2)  Each power vested in the Federal Circuit and Family Court of Australia (Division 1) by these Rules and mentioned in an item of the following table is delegated to the Chief Executive Officer and each Registrar.

 

Powers delegated under these Rules

Item

Provision

1

Part 6.3

2

subrule 10.11(5)

3

rule 13.14

4

rule 15.02

5

Part 15.4

6

Division 20.3.2

7

rule 20.37

8

rule 20.39

9

Part 20.5

10

Part 20.6

11

Part 20.7

12

Part 21.4

 

18.04   Chief Executive Officer, Registrars and Deputy Registrars

             (1)  Each power of the Federal Circuit and Family Court of Australia (Division 1) mentioned in an item of the following table is delegated to:

                     (a)  the Chief Executive Officer; and

                     (b)  each Registrar and Deputy Registrar.

 

Delegated powers

Item

Provisions

Family Law Act 1975

1

section 11F

2

section 11G

3

section 13B

4

section 13C

5

section 13D

6

sections 13E and 13F

7

subsection 44(1C)

8

paragraph 44(3A)(d) (but only if all parties consent to leave being granted)

9

paragraph 44(3B)(d) (but only if all parties consent to leave being granted)

10

subsection 44(6) (but only if all parties consent to leave being granted)

11

subsection 45(2)

12

section 48 (if the case is undefended)

13

subsection 55(2)

14

section 55A

15

section 57

16

subsection 60I(9)

17

subsection 60I(10)

18

subsection 60J(1)

19

section 62G

20

subsection 63E(3)

21

paragraph 65G(2)(b)

22

subsection 67M(2)

23

subsection 67N(2)

24

paragraphs 67ZBB(2)(a), (b) and (c) (procedural orders only)

25

section 68L

26

subsection 68M(2)

27

section 69ZW

28

paragraphs 79(9)(c) and 90SM(9)(c)

29

subsection 91B(1)

30

subsections 92(1) and (2)

31

subsection 97(1A)

32

subsection 97(2)

33

section 98A

34

section 101

35

section 106A

36

subsection 117(2) (except an order as to security for costs)

Family Law Regulations 1984

37

subregulation 4(1)

38

regulation 5

39

paragraph 6(1)(a)

40

subregulation 23(6)

41

subregulation 67Q(4)

Federal Circuit and Family Court of Australia Act 2018

42

section 34

43

section 47

44

subsection 49(3)

45

subsection 50(1)

46

subsection 50(3)

47

subsection 66(2) (except subparagraph 66(2)(o)(iv) and paragraph (2)(q), and subject to subsections 67(5) and (6))

Bankruptcy Act 1966

48

section 33

49

section 81

50

section 264B

51

subsection 309(2)

Trans-Tasman Proceedings Act 2010

52

subsection 31(1)

53

paragraph 32(1)(b)

54

subsections 36(1), (4) and (6)

55

subsection 37(4)

56

section 38

             (2)  Each power vested in the Federal Circuit and Family Court of Australia (Division 1) by these Rules and mentioned in an item of the following table is delegated to:

                     (a)  the Chief Executive Officer; and

                     (b)  each Registrar and Deputy Registrar.

 

Powers delegated under these Rules

Item

Provision

1

Part 1.2

2

Part 1.3

3

rule 5.06

4

rule 5.07

5

subrule 5.11(2)

6

Part 5.4

7

rule 6.04

8

rule 6.05

9

Part 6.3

10

rule 6.15

11

Chapter 7

12

rule 8.02

13

rule 10.11 (except subrule (5))

14

Part 10.4

15

subrules 11.06(1) and (2)

16

subrule 11.10(1)

17

rule 11.14

18

Part 11.3

19

Chapter 12

20

Chapter 13 (except paragraph 13.14(b))

21

rule 14.01 (except subrules (2) and (5))

22

rule 15.04

23

rule 15.13

24

Divisions 15.3.1 and 15.3.2

25

Part 15.5

26

rule 16A.04

27

paragraph 17.02(1)(g)

28

Chapter 19 (except Parts 19.3 and 19.8)

29

Chapter 20 (except paragraph 20.07(c) in so far as that paragraph incorporates paragraphs 20.05(c) and (d), Division 20.3.2, rules 20.37 and 20.39, and Parts 20.5, 20.6 and 20.7)

30

Chapter 23

31

Chapter 24

32

rule 26.05

33

paragraph 26.12(a)

34

rule 26.13

35

paragraph 26.18(a)

36

rule 26.29

37

rule 26.30

38

Part 26B.1

39

Divisions 26B.2.1 and 26B.2.2

Part 18.2 Review of decisions

   

18.05   Application of Part 18.2

                   This Part applies to an application for the review of an order of the Chief Executive Officer, a Registrar or Deputy Registrar.

Note:          Section 69 of the Federal Circuit and Family Court of Australia Act 2018 provides that a party may apply for the review of an order made under delegation.

18.06   Review of order or decision

             (1)  A party may apply for a review of an order mentioned in an item of the following table by filing an Application in a Case and a copy of the order appealed from in the filing registry within the time mentioned in the item.

 

Reviewable orders or decisions

Item

For the review of an order made by …

an application must be made within …

1

the Chief Executive Officer or a Registrar exercising a power mentioned in subrule 18.03(1)

28 days after the Chief Executive Officer or Registrar makes the order

2

the Chief Executive Officer or a Registrar exercising a power delegated under subrule 18.03(2)

7 days after the Chief Executive Officer or Registrar makes the order

3

unless item 5 of this table applies, the Chief Executive Officer, a Registrar or Deputy Registrar exercising a power delegated under rule 18.04

7 days after the Chief Executive Officer, Registrar or Deputy Registrar makes the order

4

unless item 5 of this table applies, the Chief Executive Officer, a Registrar or Deputy Registrar exercising a power because of a direction by the Federal Circuit and Family Court of Australia (Division 1) or a Judge of the Court under section 66 of the Federal Circuit and Family Court of Australia Act 2018

7 days after the Chief Executive Officer, Registrar or Deputy Registrar makes the order

5

the Chief Executive Officer, Registrar or Deputy Registrar in a bankruptcy case

21 days after the Chief Executive Officer, Registrar or Deputy Registrar makes the order

 

             (2)  A party may apply for a review of any other order or decision made under these Rules by the Chief Executive Officer, a Registrar or Deputy Registrar by filing an Application in a Case and a copy of the order or decision appealed from in the filing registry within 28 days after the order or decision is made.

Note 1:       Chapter 5 sets out the procedure for filing an Application in a Case. The application for review will be listed for hearing by a Judge within 28 days after the date of filing of the application.

Note 2:       A person may apply for an extension of the time in which an application must be made (see rule 1.14).

18.07   Stay

             (1)  Subject to subrule (3), the filing of an application for a review of an order does not operate as a stay of the order.

             (2)  A party may apply for a stay of an order in whole or in part.

Note:          Chapter 5 sets out the procedure for making an Application in a Case.

             (3)  If a divorce order has been granted by the Chief Executive Officer, a Registrar or Deputy Registrar, an application for review of the order is taken to be an appeal within the meaning of subsection 55(3) of the Act.

18.08   Power of Federal Circuit and Family Court of Australia (Division 1) on review

             (1)  The Federal Circuit and Family Court of Australia (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.

Note:          In an original hearing, the Federal Circuit and Family Court of Australia (Division 1) rehears the whole matter and does not simply review the decision.

             (2)  The Federal Circuit and Family Court of Australia (Division 1) may receive as evidence:

                     (a)  any affidavit or exhibit tendered in the first hearing; or

                     (b)  any further affidavit or exhibit; or

                     (c)  the transcript (if any) of the first hearing; or

                     (d)  if a transcript is not available, an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.

7  Appellate jurisdiction of the Federal Circuit and Family Court of Australia (Division 1)

The standard Rules of Court have effect as the Federal Circuit and Family Court of Australia (Division 1) Rules 2018 as if Chapter 22 were substituted by the following:

Chapter 22 Appellate jurisdiction

Part 22.1 Application

   

22.01   Application of Chapter 22

             (1)  This Chapter applies to an appeal to the Federal Circuit and Family Court of Australia (Division 1) from an order of a court of summary jurisdiction.

             (2)  This Chapter does not apply to an application to the Federal Circuit and Family Court of Australia (Division 1) for a review of an order of the Chief Executive Officer, or a Registrar or Deputy Registrar (see Chapter 18).

Part 22.2 Appeals

Division 22.2.1 Institution of appeals

22.02   Form of notice of appeal

             (1)  A party who wants to appeal to the Federal Circuit and Family Court of Australia (Division 1) must file a notice of appeal using the relevant form approved by the Chief Justice.

             (2)  If an appeal cannot be started without the leave of the Federal Circuit and Family Court of Australia (Division 1), leave must be sought in the notice of appeal.

             (3)  The notice of appeal must include the party’s address for service.

Note 1:       The notice of appeal will include a note that before taking any step in the proceeding the respondent must file a notice of address for service.

Note 2:       A respondent may, within 14 days of being served with the notice of appeal, object to the competency of the appeal—see rule 22.16.

22.03   Filing of notice of appeal

             (1)  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 State or Territory.

             (2)  If an appeal has been started, a document filed in the appeal must be filed in the same Registry in which the appeal was filed.

22.04   Time for filing and serving notice of appeal

                   A notice of appeal must be filed:

                     (a)  within 28 days after the date on which the judgment appealed from was pronounced or the order was made; or

                     (b)  on or before a date fixed for that purpose by the court appealed from.

22.05   Service on parties and lodgements

             (1)  An appellant or a person seeking leave to appeal must serve a notice of appeal on each person who was a party to, or given leave to intervene in, the proceeding in the court appealed from.

Note:          The Federal Circuit and Family Court of Australia (Division 1) may direct that the notice of appeal be served on any other person.

             (2)  The appellant or the person seeking leave to appeal must, within 7 days after filing the notice of appeal, lodge a copy of the notice of appeal with the office of the Registrar, Master or proper officer of the court appealed from.

             (3)  For an appeal from a court exercising jurisdiction under the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988 , the person seeking leave to appeal must give a copy of the notice of appeal to the Child Support Registrar.

22.06   Extension of time to file notice of appeal

             (1)  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.

             (2)  The application may be made during or after the period mentioned in rule 22.04.

             (3)  The application must be accompanied by the following:

                     (a)  the judgment or orders from which the appeal is to be brought;

                     (b)  the reasons for the judgment or orders, if published;

                     (c)  an affidavit stating why the notice of appeal was not filed within time.

22.07   Method of service

                   A notice of appeal under rule 22.02 or an application under rule 22.06 must be served in one of the following ways:

                     (a)  by serving a signed and sealed copy of the document personally on the party;

                     (b)  by delivering a signed and sealed copy of the document to that party’s address for service in the proceeding in the court appealed from.

22.08   Address for service of respondent

                   A respondent to an appeal or an 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 served with the notice of appeal or application, and before taking a step in the proceeding.

Note:          A respondent who does not want to contest the relief sought in the notice of appeal may file a submitting notice in accordance with rule 8.07.

22.09   Stay of execution or proceedings under judgment appealed from

             (1)  An appeal does not:

                     (a)  operate as a stay of execution or a stay of any proceedings under the judgment subject to the appeal; or

                     (b)  invalidate any proceedings already taken.

             (2)  However, an appellant, person seeking leave to appeal or interested person may apply to the Federal Circuit and Family Court of Australia (Division 1) for an order to stay the execution of the proceeding to which the appeal or application relates.

             (3)  An application may be made under subrule (2) even though the court from which the appeal is brought has previously refused an application of a similar kind.

22.10   Security for costs of appeal

             (1)  A party may apply to the Federal Circuit and Family Court of Australia (Division 1) for an order:

                     (a)  that the appellant give security for the costs of the appeal, and for the manner, time and terms for giving the security; and

                     (b)  that the appeal be stayed until security is given; and

                     (c)  if the appellant fails to comply with the order to provide security within the time specified in the order—that the appeal be stayed or dismissed.

             (2)  An application under subrule (1) must be accompanied by an affidavit stating the facts in support of the application.

22.11   Directions

             (1)  A party may apply to the Federal Circuit and Family Court of Australia (Division 1) for directions in relation to the management, conduct and hearing of an appeal.

             (2)  Without limiting subrule (1), a party may apply to the Federal Circuit and Family Court of Australia (Division 1) for an order for the following:

                     (a)  an extension of the time within which to appeal;

                     (b)  joining or removing a party to the appeal;

                     (c)  security for costs;

                     (d)  giving summary judgment;

                     (e)  making an interlocutory order pending, or after, the determination of an appeal to the Federal Circuit and Family Court of Australia (Division 1);

                      (f)  making an order by consent disposing of an appeal including an order for costs;

                     (g)  dismissing an appeal for want of prosecution;

                     (h)  vacating a hearing date;

                      (i)  making an order that an appeal to the Federal Circuit and Family Court of Australia (Division 1) be dismissed for:

                              (i)  failure to comply with a direction of the Federal Circuit and Family Court of Australia; or

                             (ii)  failure of the appellant to attend a hearing relating to the appeal;

                      (j)  the conduct of the appeal including:

                              (i)  the use of written submissions; and

                             (ii)  limiting the time for oral argument;

                     (k)  the conduct of the appeal without an oral hearing subject to the condition that the parties be entitled to present written submissions.

Division 22.2.2 Parties to appeals and interveners

22.12   Parties

             (1)  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:

                     (a)  an appellant or respondent to the appeal; or

                     (b)  a respondent to the application for leave to appeal.

             (2)  A person must not be named as an appellant without the person’s consent.

             (3)  A person who is not a party to an appeal, but is a person mentioned in subrule (1), may apply to the Federal Circuit and Family Court of Australia (Division 1) to be joined as a party.

Note:          The Federal Circuit and Family Court of Australia (Division 1) may order the addition or removal of any person as a party to the appeal.

22.13   Applications to intervene

             (1)  A person who was not a party to the proceeding in the court appealed from may apply to the Federal Circuit and Family Court of Australia (Division 1) for leave to intervene in an appeal.

             (2)  The person must satisfy the Federal Circuit and Family Court of Australia (Division 1):

                     (a)  that the intervener’s contribution will be useful and different from the contribution of the parties to the appeal; and

                     (b)  that the intervention would not unreasonably interfere with the ability of the parties to conduct the appeal as they wish; and

                     (c)  of any other matter that the Court considers relevant.

Note 1:       The role of the intervener is solely to assist the Federal Circuit and Family Court of Australia (Division 1) in resolving the issues raised by the parties.

Note 2:       The Federal Circuit and Family Court of Australia (Division 1) may give leave to the intervener to intervene on conditions, and with the rights, privileges and liabilities (including liabilities for costs), determined by the Court.

Note 3:       When giving leave, the Federal Circuit and Family Court of Australia (Division 1) may specify the form of assistance to be given by the intervener and the manner of participation of the intervener and, in particular:

(a)    the matters that the intervener may raise; and

(b)    whether the intervener’s submissions are to be oral, in writing, or both.

Division 22.2.3 Dealing with certain applications on the papers

22.14   Certain applications may be dealt with without an oral hearing

                   A party may apply to the Federal Circuit and Family Court of Australia (Division 1) for an order that the following applications be dealt with without an oral hearing:

                     (a)  an application for leave to appeal;

                     (b)  an application for an extension of time within which to institute an appeal;

                     (c)  an application to join or remove a party to an appeal;

                     (d)  an application to give summary judgment;

                     (e)  an application to dismiss an appeal for:

                              (i)  a failure to comply with a direction of the Federal Circuit and Family Court of Australia; or

                             (ii)  a failure to attend a hearing related to the appeal; or

                            (iii)  want of prosecution;

                      (f)  an application for directions;

                     (g)  with the consent of the parties—an application to dispose of an appeal to the Federal Circuit and Family Court of Australia (Division 1).

22.15   Objection to application being considered without oral hearing

                   A respondent who objects to an application being considered without an oral hearing must file a notice, using the relevant form approved by the Chief Justice, stating the reason for the objection.

Note:          The Federal Circuit and Family Court of Australia (Division 1) will determine whether the application proceeds by way of oral argument.

Division 22.2.4 Ending appeals

22.16   Notice of objection to competency of appeal

             (1)  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:

                     (a)  using the relevant form approved by the Chief Justice; and

                     (b)  that, briefly but specifically, states the grounds of the objection.

             (2)  The appellant carries the burden of establishing the competency of an appeal.

             (3)  A respondent may apply to the Federal Circuit and Family Court of Australia (Division 1) for the question of competency to be heard and determined before the hearing of the appeal.

             (4)  If a respondent has not filed a notice under subrule (1), and the appeal is dismissed by the Federal Circuit and Family Court of Australia (Division 1) as not competent, the respondent is not entitled to any costs of the appeal.

             (5)  If the Federal Circuit and Family Court of Australia (Division 1) decides that an appeal is not competent, the appeal is dismissed.

22.17   Discontinuance of appeal or application

             (1)  A party may discontinue an appeal, or an application for leave to appeal, by filing a notice of discontinuance, using the relevant form approved by the Chief Justice:

                     (a)  without the leave of the Federal Circuit and Family Court of Australia (Division 1)—at any time before the hearing of the appeal or application, as the case may be; or

                     (b)  with the leave of the Federal Circuit and Family Court of Australia (Division 1):

                              (i)  at the hearing; or

                             (ii)  after the hearing and before the judgment is pronounced or the order is made.

             (2)  A notice of discontinuance has the effect of an order of the Federal Circuit and Family Court of Australia (Division 1) dismissing the party’s appeal or application for leave to appeal.

             (3)  A notice of discontinuance filed by one appellant does not affect any other appellant in the appeal.

             (4)  A party who files a notice of discontinuance may be ordered to pay the costs of all other parties.

Note:          For the award of costs, see the case management provisions and section 117 of the Family Law Act 1975 .

             (5)  An application for costs must be filed within 28 days after the filing of the notice of discontinuance.

22.18   Application to dismiss appeal

             (1)  A respondent may apply to the Federal Circuit and Family Court of Australia (Division 1) for an order that the appeal be dismissed for the failure by an appellant to do any of the following:

                     (a)  comply with a direction of the Court;

                     (b)  comply with these Rules;

                     (c)  attend a hearing relating to the appeal;

                     (d)  prosecute the appeal.

             (2)  An application under subrule (1) must be served on the appellant:

                     (a)  at the appellant’s address for service; or

                     (b)  personally.

Note:          The Federal Circuit and Family Court of Australia (Division 1) may make orders subject to conditions—see subrule 1.10(2). The Court may fix a time for the doing of an act and, in default, order that the appeal be dismissed.

22.19   Absence of party

             (1)  If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Federal Circuit and Family Court of Australia (Division 1) for an order that:

                     (a)  if the absent party is the appellant:

                              (i)  the appeal be dismissed; or

                             (ii)  the hearing be adjourned; or

                            (iii)  the hearing proceed only if specified steps are taken; or

                     (b)  if the absent party is the respondent:

                              (i)  the hearing proceed generally; or

                             (ii)  the hearing be adjourned; or

                            (iii)  the hearing proceed only if specified steps are taken.

             (2)  If a hearing proceeds in a party’s absence and during or at the conclusion of the hearing an order is made, the party who was absent may apply to the Federal Circuit and Family Court of Australia (Division 1) for an order:

                     (a)  setting aside or varying the order; and

                     (b)  for the further conduct of the hearing.

8  Filing documents

The standard Rules of Court have effect as the Federal Circuit and Family Court of Australia (Division 1) Rules 2018 as if Part 24.2, the heading to Part 24.3 and rule 24.12 were substituted by the following:

Part 24.2 Filing documents

   

24.05   How a document is filed

             (1)  A document is filed if:

                     (a)  any of the following apply:

                              (i)  the document is delivered or posted to the Federal Circuit and Family Court of Australia (Division 1);

                             (ii)  the document is faxed to the Federal Circuit and Family Court of Australia (Division 1);

                            (iii)  the document is sent for filing to the Federal Circuit and Family Court of Australia (Division 1) using the web portal of the Federal Circuit and Family Court of Australia;

                            (iv)  the document is accepted for filing by the Registrar or another judicial officer in the Federal Circuit and Family Court of Australia (Division 1) during a court event; and

                     (b)  except in the circumstance mentioned in subparagraph (a)(iv), the document is accepted in the filing registry by being stamped as ‘filed’; and

                     (c)  the filing fee (if any) is paid.

             (2)  A document that is faxed to the Federal Circuit and Family Court of Australia (Division 1) or filed using the web portal is taken to be received:

                     (a)  if the whole document is received by 4.30 pm on a business day—on that day; and

                     (b)  if the whole document is not received by 4.30 pm on a business day—on the next business day.

             (3)  Except as otherwise required by these Rules or an order, a document to be relied on in a court event must be filed at least one day before the date fixed for that event.

Note 1:       If a person sends a document for filing using the web portal, the person is responsible for ensuring that the document is received by the Federal Circuit and Family Court of Australia (Division 1).

Note 2:       A Registrar or another judicial officer may require a party to give an undertaking to pay a filing fee before accepting a document for filing.

24.06   Filing a document by fax

             (1)  A document may be filed by fax if:

                     (a)  the matter is urgent; and

                     (b)  the total number of pages, including the cover page, is not more than 25; and

                     (c)  it is not practicable to lodge the document in the filing registry in any other way because:

                              (i)  the filing party is unrepresented, and lives more than 20 kilometres from the filing registry; or

                             (ii)  the filing party is represented by a lawyer whose principal office is more than 20 kilometres from the filing registry.

             (2)  The document must be:

                     (a)  sent to an approved fax number for the filing registry; and

                     (b)  accompanied by:

                              (i)  a letter to the Registry Manager, setting out the facts relied on under subrule (1) for filing the document by fax; and

                             (ii)  a cover page, setting out the matters mentioned in paragraphs 7.16(2)(a), (c), (d) and (f).

Note:          For service by fax and restrictions relating to the number of pages that may be faxed, see rule 7.16.

24.07   Filing a document using the web portal

             (1)  If a document is sent for filing using the web portal, the document must:

                     (a)  be sent using the web portal of the Federal Circuit and Family Court of Australia; and

                     (b)  be in an electronic format approved by the Chief Executive Officer; and

                     (c)  if the document is required to comply with rule 24.01—comply with that rule; and

                     (d)  if the document is required to be in an approved form—so far as practicable, be in an approved form that complies with rule 24.04; and

                     (e)  be capable of being printed in the form in which it was created without any loss of content.

Note:          The electronic format approved by the Chief Executive Officer is available on the Federal Court’s website: see http://www.fedcourt.gov.au.

             (2)  If a document (other than an Acknowledgement of Service) is sent for filing using the web portal and is required to be signed, but not sworn, the document is taken to be signed, before it is sent, by the party or lawyer who sent it for filing.

             (3)  An affidavit may be sent for filing as an image.

             (4)  If a document (other than an affidavit) is required to be sworn and is sent for filing using the web portal, the document:

                     (a)  is taken to have been sworn by the deponent before it is sent; and

                     (b)  must bear the name of the deponent, witness and date of swearing.

             (5)  If a party or a party’s lawyer sends a sworn document for filing using the web portal, the party or lawyer must:

                     (a)  keep the printed form of the document bearing the original signature until the end of the case or appeal; and

                     (b)  make the document available for inspection on request.

             (6)  If a document is sent for filing using the web portal, the Registry Manager may send to the person filing the document an electronic communication recording the date of receipt or the date and time of receipt.

Note:          An Acknowledgement of Service must be signed by the person served with the documents if the party serving the documents wants to prove service by affidavit in accordance with rule 7.13. If the affidavit is sent for filing using the web portal, the party who served it must keep, and make available if necessary, the original of the affidavit and the Acknowledgement of Service. If an Acknowledgement of Service is required to be signed to prove service, the person served will need to sign the acknowledgement and return it so that the other party can identify the signature.

24.09   Documents filed during a case

                   A document filed in a case that has started must be filed in the filing registry, unless the document is sent for filing using the web portal. If the document is sent for filing using the web portal, it must bear the file number of the case.

Note 1:       In urgent circumstances, the Federal Circuit and Family Court of Australia (Division 1) may order that an application be listed for hearing in another registry, or that a hearing or conference take place by electronic communication.

Note 2:       For where to file documents in an appeal, see subrule 22.03(2).

24.10   When documents will not be accepted for filing

             (1)  A document will not be accepted for filing if:

                     (a)  the document is not substantially complete; or

                     (b)  the document is not in the proper form in accordance with these Rules; or

                     (c)  the document is not executed in the way required by these Rules; or

                     (d)  the document does not otherwise comply with:

                              (i)  a requirement of these Rules; or

                             (ii)  the electronic filing procedures of the Federal Circuit and Family Court of Australia (Division 1); or

                     (e)  the document is tendered for filing after the time specified in these Rules or an order for filing the document; or

                      (f)  a Registrar or another judicial officer is satisfied that:

                              (i)  on its face, the document appears to be an abuse of process, frivolous, scandalous or vexatious; or

                             (ii)  by reference to any documents already filed or submitted for filing with the document, it appears to be an abuse of process, frivolous, scandalous or vexatious; or

                     (g)  the document is tendered for filing in connection with a current case in a registry that is not the filing registry (see subrule 22.03(2) and rule 24.09).

             (2)  If a document is not accepted for filing, a Registrar or judicial officer may give directions about any step already taken on the document, including a direction about costs.

             (3)  A person may apply for review of:

                     (a)  a Registrar’s decision to not accept a document for filing; or

                     (b)  directions given by a Registrar or judicial officer under subrule (2);

by filing an Application in a Case without notice.

Note:          If a document is sent using the web portal and is not accepted, the Federal Circuit and Family Court of Australia (Division 1) may notify each party to the case and each person to whom the document is directed.

24.11   Filing a notice of payment into court

                   A person who pays money into court must file a Notice of Payment into the Federal Circuit and Family Court of Australia (Division 1), stating the amount and purpose for which the money is paid into the Court.

Note:          See paragraphs 66P(1)(f), 67D(2)(e) and 80(1)(f) of the Act.

Part 24.3 Registry records

   

24.12   Removal of document from registry

                   A document may be removed from a registry only if:

                     (a)  it is necessary to transmit the document between registries; or

                     (b)  the Federal Circuit and Family Court of Australia (Division 1) permits the removal.

24.12A   Documents accepted for filing—removal from files and storage

             (1)  A document which has been accepted for filing will be removed from a file of the Federal Circuit and Family Court of Australia (Division 1) if:

                     (a)  the Court has ordered that the document be removed from the Court file:

                              (i)  on its own initiative; or

                             (ii)  on the application of a party; or

                     (b)  for an affidavit—the Court has ordered that the affidavit be removed from the Court file:

                              (i)  on its own initiative; or

                             (ii)  on the application of a party under rule 15.13; or

                     (c)  the Court is satisfied that the document:

                              (i)  is otherwise an abuse of process of the Court; or

                             (ii)  should not, under rule 24.10, have been accepted for filing.

             (2)  A party may apply to the Federal Circuit and Family Court of Australia (Division 1) for an order under subparagraph (1)(c)(i) or (ii) that a document be removed from the Court file.

             (3)  A document removed from a file of the Federal Circuit and Family Court of Australia (Division 1) under this rule must be stored:

                     (a)  if an order mentioned in this rule specifies a way to store the document—in the way specified in the order; or

                     (b)  otherwise—as directed by the Registry Manager.

24.12B   Documents on file—removal, redaction and storage

             (1)  A document on a file of the Federal Circuit and Family Court of Australia (Division 1) will be removed from the Court file and replaced with a redacted copy if:

                     (a)  the Court has ordered that the document be removed and replaced:

                              (i)  on its own initiative; or

                             (ii)  on the application of a party; or

                     (b)  for an affidavit—the Court has ordered that the affidavit be removed and replaced with a redacted copy:

                              (i)  on its own initiative; or

                             (ii)  on the application of a party under rule 15.13; or

                     (c)  the Court is satisfied that:

                              (i)  any part of the document is otherwise an abuse of process of the Court; and

                             (ii)  it is reasonably practicable for that part of the document to be redacted.

             (2)  A party may apply to the Federal Circuit and Family Court of Australia (Division 1) for an order under paragraph (1)(c) that a document be removed from the Court file and replaced with a redacted copy.

             (3)  If a part or parts of a document are struck out or removed under this rule:

                     (a)  the corresponding part or parts of the redacted copy of the document must be unable to be read in any way; and

                     (b)  the redacted copy must be marked with:

                              (i)  the date on which the order was made; and

                             (ii)  each date on which redaction was performed.

             (4)  A document removed from a file of the Federal Circuit and Family Court of Australia (Division 1) under this rule must be stored:

                     (a)  if an order mentioned in this rule specifies a way to store the document—in the way specified in the order; or

                     (b)  otherwise—as directed by the Registry Manager.

9  Certain provisions to be added

The standard Rules of Court have effect as the Federal Circuit and Family Court of Australia (Division 1) Rules 2018 as if the following provisions were added:

 

Additions

Item

Column 1

Rule of Court

Column 2

Addition

1

At the end of rule 1.16

(5) An expression has the same meaning in these Rules as it has in the Family Law Act 1975 .

(6) To the extent of any inconsistency between the meaning of an expression defined in the Federal Circuit and Family Court of Australia Act 2018 and the Family Law Act 1975 , the meaning set out in the Federal Circuit and Family Court of Australia Act 2018 prevails.

2

After rule 19.08

19.08A  Order for costs—appeals

(1) A party to an appeal or an application for leave to appeal may apply for an order that another person pay costs.

(2) An application for costs may be made:

(a) at any stage during an appeal or an application for leave to appeal; or

(b) by filing an application in relation to an appeal within 28 days after the court makes an order disposing of the appeal or an application for leave to appeal.

(3) A party applying for an order for costs on an indemnity basis must inform the court if the party is bound by a costs agreement in relation to those costs and, if so, the terms of the costs agreement.

Note 1:       The Federal Circuit and Family Court of Australia (Division 1) may make an order for costs on its own initiative (see rule 1.10).

Note 2:       A party may apply for an order for costs within 28 days after:

(a)        the filing of a notice of discontinuance by the other party (see rule 22.17); or

(b)        the dismissal of an appeal (see rule 22.18); or

(c)        the dismissal of an application in relation to an appeal (see rule 22.11).

Note 3:       A party may apply for an extension of time to make an application (see rule 1.14).

(4) In making an order for costs, the Federal Circuit and Family Court of Australia (Division 1) may set a time for payment of the costs that may be before the appeal is finished.

3

After subrule 19.10(1)

Note:          See the case management provisions, and in particular, subsection 49(5) of the Federal Circuit and Family Court of Australia Act 2018 for the power of the Federal Circuit and Family Court of Australia (Division 1) to order a lawyer to bear costs personally.

4

After subclause 6(1) of Part 1 of Schedule 1

Note:          For the purposes of paragraphs (1)(f) and (g), see also the case management provisions and section 117 of the Act.

5

After subclause 6(1) of Part 2 of Schedule 1

Note:          For the purposes of paragraphs (1)(f) and (g), see also the case management provisions and section 117 of the Act.

6

Dictionary

business day , in a place, means any day other than:

(a) a Saturday or Sunday; or

(b) a day that is a public holiday in the place; or

(c) any other day on which the filing registry in the place is closed.

7

Dictionary

case management provisions means the provisions of Division 4 of Part 5 of Chapter 3 of the Federal Circuit and Family Court of Australia Act 2018 .

8

Dictionary

notice of appeal includes a notice of appeal in which leave to appeal is sought.

10  Other modifications

Except as provided for by another item of this Schedule, the standard Rules of Court have effect as the Federal Circuit and Family Court of Australia (Division 1) Rules 2018 as if they were modified as follows:

                     (a)  any reference to the Family Law Rules 2004 is to be read as a reference to the Federal Circuit and Family Court of Australia (Division 1) Rules 2018 ;

                     (b)  any reference to the Family Law Rules 2004 is to be read as a reference to the Federal Circuit and Family Court of Australia (Division 1) Rules 2018;

                     (c)  any reference to the main purpose or the main purpose of these Rules is to be read as a reference to the overarching purpose;

                     (d)  any reference to the Family Court of Australia, the Family Court, a Family Court or the Court is to be read as a reference to the Federal Circuit and Family Court of Australia (Division 1);

                     (e)  any reference to the Family Court of Australia is to be read as a reference to the Federal Circuit and Family Court of Australia (Division 1) ;

                      (f)  any reference to the Federal Circuit Court of Australia or Federal Circuit Court is to be read as a reference to the Federal Circuit and Family Court of Australia (Division 2);

                     (g)  any reference to a court or the court is to be read as a reference to the Federal Circuit and Family Court of Australia (Division 1), except in:

                              (i)  paragraph 4.16(a); and

                             (ii)  subparagraph 4.29(c)(ii); and

                            (iii)  paragraph 15.34(1)(a); and

                            (iv)  paragraph 15.72(1)(a); and

                             (v)  subrule 15.72(2); and

                            (vi)  subrule 16.05(3) (note); and

                           (vii)  subrule 21.02(3); and

                          (viii)  paragraph 21.07(b); and

                            (ix)  paragraph 21.19(2)(b); and

                             (x)  paragraph 26B.27(1)(a); and

                            (xi)  the Dictionary (definition of certified copy ); and

                           (xii)  any provision that refers to a person’s duty to the court or a lawyer in relation to their duty as an officer of the court; and

                          (xiii)  a reference to the court record; and

                          (xiv)  a reference to a court event or the court event;

                     (h)  any reference to the Child Support Agency is to be read as a reference to the Department of Human Services;

                      (i)  any reference to a Judicial Registrar is to be disregarded;

                      (j)  any reference to rule 1.04 is to be disregarded;

                     (k)  any reference to Schedule 2 is to be disregarded;

                      (l)  any reference to section 35B of the Bankruptcy Act is to be disregarded.

11  Application of modifications

The standard Rules of Court have effect as the Federal Circuit and Family Court of Australia (Division 1) Rules 2018 as if the following Part were added at the end of Chapter 27:

Part 27.4 Transitional provisions relating to Schedule 7 to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2018

   

27.09   Application of modifications

                   The modifications to the standard Rules of Court made by Schedule 7 to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2018 apply in relation to a proceeding commenced before, on or after 1 January 2019.

27.10   Expiry of this Part

                   This Part is repealed at the start of 1 July 2021.