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Schedule 8—Modifications to Rules of Court for the Federal Circuit and Family Court of Australia (Division 2)

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

Federal Circuit and Family Court of Australia (Division 2) Rules 2018

(1)       Despite the repeal of the Federal Circuit Court of Australia Act 1999 , the Federal Circuit Court Rules 2001 in force immediately before 1 January 2019 under section 81 of that Act:

                     (a)  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 ; and

                     (b)  are to be known as the Federal Circuit and Family Court of Australia (Division 2) Rules 2018 ; and

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

(2)       Subitem (1) 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the Chief Judge of the Federal Circuit and Family Court of Australia (Division 2) even though those Rules of Court were originally made by the Judges of the Federal Circuit Court of Australia or a majority of them.

2  Certain provisions to be omitted

The Federal Circuit Court Rules 2001 have effect as the Federal Circuit and Family Court of Australia (Division 2) Rules 2018 as if the following provisions were omitted:

                     (a)  rule 1.03;

                     (b)  subrule 2.04(1B);

                     (c)  subrule 25B.06(2) (note) (third dot point);

                     (d)  Schedule 2;

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

                      (f)  Dictionary (definition of Family Law Rules );

                     (g)  Dictionary (definition of the Court or a Judge ).

3  Certain provisions to be replaced

The Federal Circuit Court Rules 2001 have effect as the Federal Circuit and Family Court of Australia (Division 2) 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

Modification

1

rule 1.02A

1.02A  Authority

These Rules are made under Chapter 4 of the Federal Circuit and Family Court of Australia Act 2018 .

2

subrule 2.04(1A)

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

3

subrule 2.04(3)

(3) However, unless otherwise provided in these Rules, a document to be filed in a proceeding must be headed:

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

At ( Registry ).

4

Division 2.2 (heading)

Division 2.2—Filing documents in general federal law proceedings

5

subrule 2.05(1)

Note:          The Federal Court and Federal Circuit and Family Court of Australia (Division 2) Regulation 2012 provides that a document may not be filed in a registry of the Court unless the fee payable for the filing has been paid. The regulation also provides for an exemption or deferral of a fee, or payment of the fee on invoice, in certain circumstances.

6

paragraph 2.07A(4)(a)

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

7

rule 4.05 (note)

Note:          See subsection 141(2) of the Act, which provides for the Rules of Court made under Chapter 3 of the Act and the Federal Court of Australia Act 1976 to apply, with necessary modifications, if these Rules are insufficient.

8

paragraph 13.03A(1)(c)

(c)  produce a document as required by Part 14 (including because of the application of Chapter 13 of the Federal Circuit and Family Court of Australia (Division 1) Rules 2018 ); or

9

subparagraph 13.03A(2)(b)(v)

(v) produce a document as required by Part 14 (including because of the application of Chapter 13 of the Federal Circuit and Family Court of Australia (Division 1) Rules 2018 ); or

10

rule 14.01

14.01  Answers to specific questions

General federal law matters

(1) A declaration may be made under subsection 143(2) of the Act to allow interrogatories on the application of a party or on the motion of the Federal Circuit and Family Court of Australia (Division 2).

(2) If a declaration is made, the Federal Circuit and Family Court of Australia (Division 2) or a Registrar may make appropriate orders in relation to answers to specific questions, having regard to any relevant Federal Court Rules.

Note:          Interrogatories are not allowed in relation to a proceeding unless the Federal Circuit and Family Court of Australia (Division 2) or a Judge declares that it is appropriate in the interests of the administration of justice: see section 143 of the Act.

Family law or child support matters

(3) Chapter 13 of the Federal Circuit and Family Court of Australia (Division 1) Rules 2018 applies in relation to answers to specific questions in family law or child support proceedings.

11

rule 14.02

14.02  Discovery

General federal law matters

(1) A declaration may be made under subsection 143(2) of the Act to allow discovery on the application of a party or on the motion of the Federal Circuit and Family Court of Australia (Division 2).

Note:          Discovery is not allowed in relation to a proceeding unless the Federal Circuit and Family Court of Australia (Division 2) or a Judge declares that it is appropriate in the interests of the administration of justice: see section 143 of the Act.

(2) If a declaration is made, the Federal Circuit and Family Court of Australia (Division 2) or a Registrar may make an order for disclosure:

(a) generally; or

(b) in relation to particular classes of documents; or

(c) in relation to particular issues; or

(d) by a specified date.

Family law or child support matters

(3) Chapter 13 of the Federal Circuit and Family Court of Australia (Division 1) Rules 2018 applies in relation to discovery in family law or child support proceedings.

12

subrule 21.01(3) (note)

Note:          For the power of the Federal Circuit and Family Court of Australia (Division 2) to order an applicant in a proceeding to give security for the payment of costs and for other matters relating to security for costs: see the case management provisions and section 182 of the Act, and the case management provisions and section 117 of the Family Law Act for family law and child support proceedings.

13

subrule 22A.02(1) (note 1)

Note 1:       For the form of a notice of risk, see rule 22A.07.

14

rule 22A.07

22A.07  Notice relating to child abuse or family violence

For the purposes of section 67Z or 67ZBA of the Family Law Act, the Chief Judge may approve a form under subrule 2.04(1A).

 

4  Filing documents

The Federal Circuit Court Rules 2001 have effect as the Federal Circuit and Family Court of Australia (Division 2) Rules 2018 as if the following Division were inserted after Division 2.2:

Division 2.2A Filing documents in family law proceedings or child support proceedings

Subdivision 2.2A.1 General filing provisions

2.07C   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 2);

                             (ii)  the document is faxed to the Federal Circuit and Family Court of Australia (Division 2);

                            (iii)  the document is sent for filing to the Federal Circuit and Family Court of Australia (Division 2) 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 2) 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 2) 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 2).

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.

2.07D   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 6.13(1)(a) and (c) to (f).

2.07E   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 2.01—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 2.04; 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:          For acknowledgement of service, see rule 25.04.

2.07F   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 2) 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 25C.03(2).

2.07G   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 2); 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 rule 2.07F and subrule 25C.03(2)).

             (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)  the decision of the Chief Executive Officer or a Registrar 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 2) may notify each party to the case and each person to whom the document is directed.

2.07H   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 2), 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 Family Law Act.

Subdivision 2.2A.2 Registry records

2.07J  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 2) permits the removal.

2.07K   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 2) 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 15.29; 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 2.07G, have been accepted for filing.

             (2)  A party may apply to the Federal Circuit and Family Court of Australia (Division 2) 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 2) 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.

2.07L   Documents on file—removal, redaction and storage

             (1)  A document on a file of the Federal Circuit and Family Court of Australia (Division 2) 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 15.29; 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 2) 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 2) 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.

5  Powers of the Chief Executive Officer and Registrars

(1)       The Federal Circuit Court Rules 2001 have effect as the Federal Circuit and Family Court of Australia (Division 2) Rules 2018 as if Part 20 were modified by omitting all the words in Part 20 before the table in subrule 20.00A(1) and substituting the following:

Part 20 Powers of the Chief Executive Officer and Registrars

Division 20.1 Delegation of powers to the Chief Executive Officer and Registrars

20.00A   Delegation of powers to the Chief Executive Officer and Registrars

             (1)  For the purposes of subsection 221(1) of the Act, a power of the Federal Circuit and Family Court of Australia (Division 2) mentioned in an item of the following table is delegated to:

                     (a)  the Chief Executive Officer; and

                     (b)  a Registrar who is approved, or is in a class of Registrars who are approved, by the Chief Judge for the exercise of the power.

(2)       The Federal Circuit Court Rules 2001 have effect as the Federal Circuit and Family Court of Australia (Division 2) Rules 2018 as if item 1 of the table in subrule 20.00A(1) were substituted by the following:

 

1

subsection 117(1)

To order that a proceeding relating to a family law or child support matter be transferred from the Federal Circuit and Family Court of Australia (Division 2) to the Federal Circuit and Family Court of Australia (Division 1)

1A

section 151

To order, at any stage, a change of venue

1B

subsection 158(3)

To require a party’s lawyer to give the party an estimate of:

(a) the likely duration of a proceeding or part of a proceeding; and

(b) the likely amount of costs that the party will have to pay in connection with the proceeding or part of the proceeding

1C

subsection 159(1)

To give directions about the practice and procedure to be followed in relation to a proceeding or part of a proceeding

1D

subsection 159(3)

To make such order or direction as is appropriate when a party fails to comply with a direction about the practice and procedure to be followed in relation to a proceeding or part of a proceeding

 

(3)       The Federal Circuit Court Rules 2001 have effect as the Federal Circuit and Family Court of Australia (Division 2) Rules 2018 as if the following items were inserted before item 31 of the table in subrule 20.00A(1):

 

30A

rule 2.07K

To order the removal from a court file documents accepted for filing

30B

rule 2.07L

To order the redaction of a document on a court file

 

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

 

30C

Chapter 13

To makes orders in relation to disclosure

 

(4)       The Federal Circuit Court Rules 2001 have effect as the Federal Circuit and Family Court of Australia (Division 2) Rules 2018 as if Division 20.2 were substituted by the following:

Division 20.2 Review of decisions

20.01   Time for application for review

             (1)  For the purposes of subsection 223(1) of the Act, application for review of the exercise of a power by the Chief Executive Officer or a Registrar must be made within:

                     (a)  for the exercise of a power of the Court under the Family Law Act or Family Law Regulations mentioned in items 3 to 30 of the table in rule 20.00A—28 days; or

                     (b)  otherwise—7 days.

             (2)  A time prescribed under subrule (1) may be extended in a proceeding:

                     (a)  by the Court, the Chief Executive Officer or a Registrar on any terms as the Court, the Chief Executive Officer or Registrar thinks fit; or

                     (b)  with the consent of the parties to the proceeding.

20.02   Application for review

             (1)  An application for review of an exercise of power by the Chief Executive Officer or a Registrar must be in accordance with the approved form.

             (2)  An application must be listed for a hearing as soon as possible and, unless impractical to do so, within 14 days after the date of filing.

             (3)  The applicant must serve a sealed copy of the application on each other party to the proceeding within 7 days after it is filed.

             (4)  Unless the Court, the Chief Executive Officer or a Registrar otherwise orders, the application does not operate as a stay of the exercise of power under review.

20.03   Procedure for review

                   The review of an exercise of power by the Chief Executive Officer or a Registrar:

                     (a)  must proceed by way of a hearing de novo; and

                     (b)  may receive as evidence any affidavit or exhibit tendered before the Chief Executive Officer or Registrar; and

                     (c)  may, with leave, receive further evidence; and

                     (d)  may receive as evidence:

                              (i)  any transcript of the proceeding before the Chief Executive Officer or Registrar; or

                             (ii)  if there is no transcript, an affidavit sworn by a person who was present at the proceeding before the Chief Executive Officer or Registrar as a record of the proceeding.

6  Appellate jurisdiction of the Federal Circuit and Family Court of Australia (Division 2)

The Federal Circuit Court Rules 2001 have effect as the Federal Circuit and Family Court of Australia (Division 2) Rules 2018 as if the following Part were added at the end of Chapter 2:

Part 25C Appellate jurisdiction

Division 25C.1 Application

25C.01   Application

             (1)  This Part applies to an appeal to the Federal Circuit and Family Court of Australia (Division 2) from an order of a court of summary jurisdiction.

             (2)  This Part does not apply to an application to the Federal Circuit and Family Court of Australia (Division 2) for a review of an order of the Chief Executive Officer or a Registrar (see Division 20.2).

Division 25C.2 Appeals

Subdivision 25C.2.1 Institution of appeals

25C.02   Form of notice of appeal

             (1)  A party who wants to appeal to the Federal Circuit and Family Court of Australia (Division 2) must file a notice of appeal using the relevant form approved by the Chief Judge.

             (2)  If an appeal cannot be started without the leave of the Federal Circuit and Family Court of Australia (Division 2), 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 25C.16.

25C.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.

25C.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.

25C.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 2) 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.

25C.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 Judge.

             (2)  The application may be made during or after the period mentioned in rule 25C.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.

25C.07   Method of service

                   A notice of appeal under rule 25C.02 or an application under rule 25C.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.

25C.08   Address for service of respondent

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

25C.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 2) 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.

25C.10   Security for costs of appeal

             (1)  A party may apply to the Federal Circuit and Family Court of Australia (Division 2) 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.

25C.11   Directions

             (1)  A party may apply to the Federal Circuit and Family Court of Australia (Division 2) 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 2) for an order for the following:

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

                     (b)  joining or removing of 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 2);

                      (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 2) 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.

Subdivision 25C.2.2 Parties to appeals and interveners

25C.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 2) to be joined as a party.

Note:          The Federal Circuit and Family Court of Australia (Division 2) may order the addition or removal of any person as a party to the appeal.

25C.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 2) for leave to intervene in an appeal.

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

                     (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 2) in resolving the issues raised by the parties.

Note 2:       The Federal Circuit and Family Court of Australia (Division 2) 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 2) 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.

Subdivision 25C.2.3 Dealing with certain applications on the papers

25C.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 2) 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 2).

25C.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 Judge, stating the reason for the objection.

Note:          The Federal Circuit and Family Court of Australia (Division 2) will determine whether the application proceeds by way of oral argument.

Subdivision 25C.2.4 Ending appeals

25C.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 Judge; 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 2) 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 2) 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 2) decides that an appeal is not competent, the appeal is dismissed.

25C.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 Judge:

                     (a)  without the leave of the Federal Circuit and Family Court of Australia (Division 2)—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 2):

                              (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 2) 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.

25C.18   Application to dismiss appeal

             (1)  A respondent may apply to the Federal Circuit and Family Court of Australia (Division 2) 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.

25C.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 2) 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 2) for an order:

                     (a)  setting aside or varying the order; and

                     (b)  for the further conduct of the hearing.

7  Certain provisions to be added

The Federal Circuit Court Rules 2001 have effect as the Federal Circuit and Family Court of Australia (Division 2) 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 22A.08

(4) If, during the 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.

2

At the end of subrule 25A.01(1)

Note:          For appeals from the judgment of a court of summary jurisdiction exercising jurisdiction under the Assessment Act or the Registration Act, see sections 47A and 47B of the Family Law Act and Part 25C of these Rules.

3

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.

4

Dictionary

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 .

5

Dictionary

court event , in relation to family law proceedings and child support proceedings, includes:

(a) a hearing or part of a hearing; and

(b) a trial or part of a trial; and

(c) a conference; and

(d) an attendance with a family consultant performing the functions of a family consultant; and

(e) an attendance with a single expert witness performing the functions of a single expert witness.

6

Dictionary

judicial officer includes a Judge, the Chief Executive Officer and Registrar.

7

Dictionary

notice of appeal , in Part 25C, includes a notice of appeal in which leave to appeal is sought.

8  Other modifications

(1)       Except as provided for by another item of this Part, the Federal Circuit Court Rules 2001 have effect as the Federal Circuit and Family Court of Australia (Division 2) Rules 2018 as if they were modified as follows:

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

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

                     (c)  any reference to the Federal Circuit Court of Australia Act 1999 or the Act is to be read as a reference to the Federal Circuit and Family Court of Australia Act 2018 ;

                     (d)  any reference to the Federal Circuit Court Rules 2001 is to be read as a reference to the Federal Circuit and Family Court of Australia (Division 2) Rules 2018 ;

                     (e)  any reference to the Federal Circuit Court (Bankruptcy) Rules 2016 is to be read as a reference to the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2018 ;

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

                     (g)  any reference to the Federal Court and Federal Circuit Court Regulation 2012 is to be read as a reference to the Federal Court and Federal Circuit and Family Court of Australia (Division 2) Regulation 2012 ;

                     (h)  any reference 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 is to be read as including a reference to the Chief Executive Officer;

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

(2)       The Federal Circuit Court Rules 2001 have effect as the Federal Circuit and Family Court of Australia (Division 2) Rules 2018 so that a reference in the Rule of Court mentioned in an item in column 1 of the following table to a provision of the Federal Circuit Court of Australia Act 1999 mentioned in column 2 of the item is to be read as a reference to the provision of the Federal Circuit and Family Court of Australia Act 2018 mentioned in column 3 of the item:

 

References to provisions in the new law

Item

Column 1

Rule of Court

Column 2

Reference

Column 3

Modification

1

subrule 1.05(3) (note)

81(2)

184(2)

2

subrule 2.01(2) (note)

51

149

3

subrule 2.05(2) (note)

47 and 48

145 and 146

4

subrule 2.08B(3) (note)

88F and 88J

196 and 199

5

rule 2.09 (note 1)

49(1)

147(1)

6

rule 2.09 (note 2)

47

145

7

subrule 2.10(2) (note)

48(2)

146(2)

8

subrule 3.02(1)

92

214

9

subrule 8.02(4)

39(3) and (4)

120(3) and 117(3)

10

subrule 8.02(4) (note)

39(3) and (4)

120(3) and 117(3)

11

rule 10.04 (note 1)

23

125

12

rule 10.04 (note 1)

24

126

13

rule 10.04 (note 1)

25

127

14

rule 10.04 (note 2)

26, 34 and 35

128, 136 and 137

15

subrule 13.11(1)

88R

206

16

rule 13.11A

88T(2)

208(2)

17

rule 13.11A (note 1)

88T(2)

208(2)

18

rule 13.11A (note 2)

88T(3)

208(3)

19

subrule 15.04(2) (note)

63

165

20

subrule 15.26(1) (note)

59

162

21

paragraph 16.08(1)(a)

90

212

22

subrule 20.00A(1) (table item 2)

102(2)

220(2)

23

rule 26.01

77(3)(a)

179(3)(a)

24

rule 26.01 (note)

77(3)(b)

179(3)(b)

25

subrule 44.15(3) (note 2)

13

105

26

subrule 45.13B(1)

34

136

27

subrule 45.13B(1) (notes 1 and 2)

34

136

28

Dictionary (definition of vexatious proceeding )

88N(1)

7(1)

29

Dictionary (definition of vexatious proceedings order )

88N(1)

7(1)

9  Application of modifications

The Federal Circuit Court Rules 2001 have effect as the Federal Circuit and Family Court of Australia (Division 2) Rules 2018 as if the following Part were added at the end of Chapter 9:

Part 48 Transitional provisions relating to Part 1 of Schedule 8 to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2018

   

48.01   Application of modifications

                   The modifications to the Federal Circuit Court Rules 2001 made by Part 1 of Schedule 8 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.

48.02   Expiry of this Part

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

Part 2 Modifications of the Federal Circuit Court (Bankruptcy) Rules 2016

10  Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2018

(1)       Despite the repeal of the Federal Circuit Court of Australia Act 1999 , the Federal Circuit Court (Bankruptcy) Rules 2016 in force immediately before 1 January 2019 under section 81 of that Act:

                     (a)  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 ; and

                     (b)  are to be known as the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2018 ; and

                     (c)  apply, on and after 1 January 2019, with the modifications set out in this Part.

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

11  Certain provisions to be replaced

The Federal Circuit Court (Bankruptcy) Rules 2016 have effect as the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2018 as if rule 1.03 read as follows:

1.03   Authority

                   These Rules are made under Chapter 4 of the Federal Circuit and Family Court of Australia Act 2018 .

12  Other modifications

(1)       Except as provided for by another item of this Part, the Federal Circuit Court (Bankruptcy) Rules 2016 have effect as the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2018 as if they were modified as follows:

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

                     (b)  any reference to the Act is to be read as a reference to the Federal Circuit and Family Court of Australia Act 2018 ;

                     (c)  any reference to the Federal Circuit Court Rules 2001 is to be read as a reference to the Federal Circuit and Family Court of Australia (Division 2) Rules 2018 ;

                     (d)  any reference to a Registrar is to be read as including a reference to the Chief Executive Officer;

                     (e)  the note to subrule 1.07(3) is to be disregarded.

(2)       The Federal Circuit Court (Bankruptcy) Rules 2016 have effect as the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2018 so that a reference in the Rule of Court mentioned in an item in column 1 of the following table to a provision of the Federal Circuit Court of Australia Act 1999 mentioned in column 2 of the item is to be read as a reference to the provision of the Federal Circuit and Family Court of Australia Act 2018 mentioned in column 3 of the item:

 

References to provisions in the new law

Item

Column 1

Rule of Court

Column 2

Reference

Column 3

Modification

1

subrule 2.02(1)

102(2)(i)

220(2)(m)

2

subrule 2.02(2)

104(4)(b)

223(3)(b)

3

subrule 2.02(2)

102(2)

220(2)

4

subrule 2.02(2)

103(1)

221(1)

5

subrule 2.02(3)

104(2)

223(1)

6

subrule 7.05(1)

104(2)

223(1)

13  Application of modifications

The Federal Circuit Court (Bankruptcy) Rules 2016 have effect as the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2018 as if the following Division were added at the end of Part 14:

Division 14.2 Transitional provisions relating to Part 2 of Schedule 8 to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2018

14.02   Application of modifications

                   The modifications to the Federal Circuit Court (Bankruptcy) Rules 2016 made by Part 2 of Schedule 8 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.

14.03   Expiry of this Division

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