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Access to Justice (Family Court Restructure and Other Measures) Bill 2010

Schedule 1 Amendment of the Family Law Act 1975

Part 1 Main amendments

Family Law Act 1975

1  Subsection 4(1)

Insert:

Administrative Judge (Appellate and Superior Division) means the Administrative Judge (Appellate and Superior Division) of the Family Court.

2  Subsection 4(1)

Insert:

Administrative Judge (General Division) means the Administrative Judge (General Division) of the Family Court.

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

Repeal the definition.

4  Subsection 4(1)

Insert:

Appellate and Superior Division means the Appellate and Superior Division of the Family Court.

5  Subsection 4(1)

Insert:

Appellate Judge means any of the following Judges:

                     (a)  the Chief Justice;

                     (b)  the Deputy Chief Justice;

                     (c)  the Administrative Judge (Appellate and Superior Division);

                     (d)  any other Judge who is assigned to the Appellate and Superior Division as an Appellate Judge under section 22A.

6  Subsection 4(1)

Insert:

Chief Justice means the Chief Justice of the Family Court, and includes the Deputy Chief Justice if the Deputy Chief Justice is for the time being performing the duties and exercising the powers of the Chief Justice.

7  Subsection 4(1)

Insert:

Court means the Family Court of Australia.

8  Subsection 4(1)

Insert:

Deputy Chief Justice means the Deputy Chief Justice of the Family Court.

9  Subsection 4(1)

Insert:

Division , in relation to the Family Court, means the Appellate and Superior Division or the General Division.

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

Repeal the definition, substitute:

Full Court means:

                     (a)  3 or more Judges of the Appellate and Superior Division sitting together, where a majority of those Judges are Appellate Judges; or

                     (b)  in relation to particular proceedings:

                              (i)  3 or more Judges of the Appellate and Superior Division sitting together, where, at the commencement of the hearing of the proceedings, a majority of those Judges were Appellate Judges; or

                             (ii)  2 Judges of the Appellate and Superior Division sitting together, where those Judges are permitted, by subsection 28(4), to complete the hearing and determination, or the determination, of those proceedings.

11  Subsection 4(1)

Insert:

Judge , in relation to the Family Court, includes the Chief Justice, the Deputy Chief Justice, the Administrative Judge (Appellate and Superior Division) and the Administrative Judge (General Division).

12  Subsection 4(1)

Insert:

Judge of the Appellate and Superior Division means any of the following Judges:

                     (a)  the Chief Justice;

                     (b)  the Deputy Chief Justice;

                     (c)  the Administrative Judge (Appellate and Superior Division);

                     (d)  any other Judge who is assigned to the Appellate and Superior Division under section 22A.

13  Subsection 4(1)

Insert:

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

                     (a)  the Administrative Judge (General Division);

                     (b)  any other Judge who is assigned to the General Division under section 22A.

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

Repeal the paragraphs.

15  Paragraph 11B(b)

Repeal the paragraph.

16  Section 11B (note)

Repeal the note, substitute:

Note:          The Chief Executive Officer has all of the functions and powers of family consultants, and may direct consultants in the performance of their functions. See Division 1A of Part IVA.

17  Subparagraph 11E(1)(e)(i)

Omit “of that court”.

18  After subsection 13G(2)

Insert:

          (2A)  The arbitrator must not refer a question of law arising in relation to the arbitration to the Federal Magistrates Court unless:

                     (a)  in the case of section 13E arbitration—the Federal Magistrates Court ordered the arbitration; or

                     (b)  in the case of relevant property or financial arbitration—the Federal Magistrates Court made orders under section 13F in relation to the arbitration.

19  After subsection 13J(1)

Insert:

          (1A)  An application for review of an award made in an arbitration must not be made to the Federal Magistrates Court unless:

                     (a)  in the case of section 13E arbitration—the Federal Magistrates Court ordered the arbitration; or

                     (b)  in the case of relevant property or financial arbitration—the Federal Magistrates Court made orders under section 13F in relation to the arbitration.

20  Subsection 13K(1)

Omit “award is”, substitute “award or agreement is”.

21  Division 1 of Part IV

Repeal the Division.

22  Division 2 of Part IV (heading)

Repeal the heading, substitute:

Division 2 Creation of the Court etc.

23  Subsections 21(3) and (4)

Repeal the subsections, substitute:

             (3)  The Court consists of:

                     (a)  a Chief Justice; and

                     (b)  a Deputy Chief Justice; and

                     (c)  an Administrative Judge (Appellate and Superior Division); and

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

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

24  Section 21A

Repeal the section, substitute:

21A   Divisions of Court

                   For the purposes of the organisation and conduct of the business of the Court, the Court comprises the following 2 Divisions:

                     (a)  the Appellate and Superior Division;

                     (b)  the General Division.

25  Subsection 21B(1)

Repeal the subsection, substitute:

             (1)  The Chief Justice is responsible for ensuring the effective, orderly and expeditious discharge of the business of:

                     (a)  the Court as a whole; and

                     (b)  each Division of the Court (including the allocation of resources between the Divisions).

26  Subsection 21B(1A)

Omit “Chief Judge”, substitute “Chief Justice”.

27  Subsections 21B(2) to (5)

Repeal the subsections, substitute:

             (2)  The Deputy Chief Justice is to assist the Chief Justice in the exercise of the functions and powers conferred on the Chief Justice by this section.

             (3)  The Administrative Judge (Appellate and Superior Division) is to assist the Chief Justice in the exercise in relation to the Appellate and Superior Division of the functions and powers conferred on the Chief Justice by this section.

             (4)  The Administrative Judge (General Division) is to assist the Chief Justice in the exercise in relation to the General Division of the functions and powers conferred on the Chief Justice by this section.

             (5)  In exercising, or assisting in the exercise of, the functions or powers mentioned in paragraph (1A)(a), the Chief Justice, the Deputy Chief Justice, the Administrative Judge (Appellate and Superior Division) and the Administrative Judge (General Division) have the same protection and immunity as if they were exercising, or assisting in the exercise of, those functions or powers as, or as members of, the Court.

             (6)  Despite section 39B of the Judiciary Act 1903, the Federal Court of Australia does not have jurisdiction with respect to a matter relating to:

                     (a)  the exercise by the Chief Justice of the functions or powers mentioned in subsection (1A); or

                     (b)  the assistance by the Deputy Chief Justice, the Administrative Judge (Appellate and Superior Division) or the Administrative Judge (General Division) in the exercise of those functions or powers.

28  Before section 22

Insert:

Subdivision A Appointment, seniority, remuneration etc.

Note:       The heading to section 22 is replaced by the heading “ Appointment and removal of Judges ”.

29  Subsections 22(2AAA) to (2AFA)

Repeal the subsections.

30  Subsection 22(2AG)

Renumber as subsection (3).

31  Subsection 22(2AH)

Renumber as subsection (4).

32  Subsection 22(2AH)

Omit “(2AG)”, substitute “(3)”.

33  Subsection 22(2A)

Renumber as subsection (5).

34  Subsection 22(2B)

Renumber as subsection (6).

35  Subsections 22(3) to (4)

Repeal the subsections.

36  At the end of section 22

Add:

             (7)  A reference in subsection (3), (5) or (6) to a Judge of the Family Court of Australia is a reference to a Judge of the Appellate and Superior Division.

Certain Judges may hold office on part-time basis

             (8)  A Judge who is assigned to the General Division under section 22A may be appointed on a part-time basis.

37  After section 22

Insert:

22A   Assignment of Judges to a Division of the Court

Assignment at time of appointment

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

                     (a)  must assign the Judge to:

                              (i)  the Appellate and Superior Division; or

                             (ii)  the General Division; and

                     (b)  if the Governor-General assigns the Judge to the Appellate and Superior Division—may assign the Judge to that Division as an Appellate Judge.

Assignment of particular office holders

             (2)  If the person appointed as the Chief Justice, the Deputy Chief Justice or the Administrative Judge (Appellate and Superior Division) is not already assigned to the Appellate and Superior Division as an Appellate Judge, the Governor-General must assign the person to that Division as an Appellate Judge.

             (3)  If the person appointed as the Administrative Judge (General Division) is not already assigned to the General Division, the Governor-General must assign the person to that Division.

Assignment during term of appointment

             (4)  During the term of appointment of a Judge who is assigned to the Appellate and Superior Division but not as an Appellate Judge, the Governor-General may, with the consent of the Judge but not otherwise, assign the Judge to that Division as an Appellate Judge.

             (5)  During the term of appointment of a Judge who is assigned to the General Division, the Governor-General may, with the consent of the Judge but not otherwise, assign the Judge to the Appellate and Superior Division (either as an Appellate Judge or not).

Limit on number of Appellate Judges

             (6)  The Governor-General must not assign a Judge to the Appellate and Superior Division as an Appellate Judge under subsection (1), (4) or (5) if, as a result of that assignment, the number of Appellate Judges (not including the Judges referred to in subsection (2)) would exceed the prescribed number.

             (7)  Subsection (6) does not apply to the assignment of a Judge referred to in subsection (2).

22B   Assignment of Judges to particular locations

             (1)  The commission of appointment of a Judge must assign the Judge to a particular location. The Judge:

                     (a)  must not sit at another location on a permanent basis unless the Attorney-General and the Chief Justice consent; and

                     (b)  cannot be required to sit at another location on a permanent basis unless the Judge consents (in addition to the consents required by paragraph (a)); and

                     (c)  may sit at another location on a temporary basis.

             (2)  In deciding whether to consent as mentioned in paragraph (1)(a), the Chief Justice has the same protection and immunity as if he or she were making that decision as, or as a member of, the Court.

             (3)  Despite section 39B of the Judiciary Act 1903 , the Federal Court of Australia does not have jurisdiction with respect to a matter relating to the exercise by the Attorney-General or the Chief Justice of the power to consent as mentioned in paragraph (1)(a).

22C   Resignation

             (1)  A Judge may resign office by writing under his or her hand addressed to the Governor-General.

             (2)  The resignation takes effect on:

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

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

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

             (1)  This section applies if a person who holds office as a Judge of the Court is appointed to one of the following offices (a higher office ):

                     (a)  Deputy Chief Justice;

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

                     (c)  Administrative Judge (General Division).

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

             (3)  The person may resign the higher office without resigning the office of Judge of the Court.

             (4)  If the person resigns the higher office without resigning the office of Judge of the Court, the assignment under section 22A that was in force in relation to the person while the person held the higher office continues in force after the resignation.

             (5)  Subsection (4) does not limit the application of section 22A to the person after the resignation.

22E   Style

             (1)  A Judge, or former Judge, of the Appellate and Superior Division is entitled to be styled “The Honourable”.

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

                     (a)  an Appellate Judge is entitled to include the letters “JA” after his or her name; and

                     (b)  any other Judge of the Appellate and Superior Division is entitled to include the letters “SJ” (Senior Judge) after his or her name.

38  Subsection 23(1)

Omit “Chief Judge”, substitute “Chief Justice”.

Note:       The following heading to subsection 23(1) is inserted “ Chief Justice ”.

39  Subsection 23(2)

Omit “Chief Judge” (wherever occurring), substitute “Chief Justice”.

Note:       The following heading to subsection 23(2) is inserted “ Deputy Chief Justice ”.

40  Subsections 23(3) and (4)

Repeal the subsections, substitute:

Administrative Judge (Appellate and Superior Division)

             (3)  The Administrative Judge (Appellate and Superior Division) is senior to all other Judges of the Court other than the Chief Justice and the Deputy Chief Justice.

Other Appellate Judges

             (4)  The remaining Appellate Judges have seniority next to the Administrative Judge (Appellate and Superior Division) according to the days on which their assignments to the Appellate and Superior Division as an Appellate Judge took effect.

41  Subsection 23(5)

Omit “appointments as Judge Administrator and assignments to the Appeal Division”, substitute “assignments to the Appellate and Superior Division as an Appellate Judge”.

42  Subsections 23(6) to (11)

Repeal the subsections, substitute:

Other Judges assigned to the Appellate and Superior Division

             (6)  The remaining Judges assigned to the Appellate and Superior Division have seniority next to the Appellate Judges to whom subsection (4) applies according to the days on which their assignments to the Appellate and Superior Division took effect.

             (7)  Where, because 2 or more assignments to the Appellate and Superior Division took effect on the same day, subsection (6) does not determine priority between the Judges concerned, those Judges have such seniority in relation to each other as is assigned to them by the Governor-General.

Effect of termination of assignment

             (8)  If:

                     (a)  a Judge’s assignment (the old assignment ) to the Appellate and Superior Division terminates (whether because of resignation or otherwise); and

                     (b)  an assignment (the new assignment ) of the same kind as the old assignment takes effect for the Judge immediately after the termination;

then, for the purposes of this section, the new assignment is treated as if it took effect on the day the old assignment took effect.

             (9)  For the purposes of subsection (8), an assignment to the Appellate and Superior Division as an Appellate Judge is not an assignment of the same kind as an assignment to the Appellate and Superior Division but not as an Appellate Judge.

43  Subsection 24(1)

Repeal the subsection, substitute:

             (1)  Whenever:

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

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

the Deputy Chief Justice or, if the Deputy Chief Justice is unavailable, the next senior Judge of the Appellate and Superior Division who is in Australia and is available and willing to do so is to perform the duties and may exercise the powers of the Chief Justice.

Note:       The heading to section 24 is altered by omitting “ Chief Judge ” and substituting “ Chief Justice ”.

44  Subsection 24(2)

Omit “Chief Judge”, substitute “Chief Justice”.

45  Sections 25 and 26

Repeal the sections, substitute:

24A   Certain references in other laws to Judge of a superior court etc. not to include Judge of the General Division

             (1)  In any other law of the Commonwealth, the expressions “Judge of a superior court” and “Judges of a superior court” do not include a Judge of the General Division.

Note:          See, for example, section 48C of the Australian Capital Territory (Self-Government) Act 1988 .

             (2)  A reference in any other law of the Commonwealth to a period during which a person has served as a Judge in a superior court does not include a reference to a period during which the person served as a Judge of the General Division.

Note:          See, for example, section 34B of the Australian Security Intelligence Organisation Act 1979 and section 105.2 of the Criminal Code .

25   Remuneration etc.

             (1)  The following Judges are to be paid such remuneration (within the meaning of Part II of the Remuneration Tribunal Act 1973 ) as is determined by the Remuneration Tribunal:

                     (a)  the Chief Justice;

                     (b)  the Deputy Chief Justice;

                     (c)  the Administrative Judge (Appellate and Superior Division);

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

                     (e)  the Administrative Judge (General Division);

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

             (2)  Subsection (1) has effect subject to the Remuneration Tribunal Act 1973 .

Note 1:       Subsection 3(2) of the Remuneration Tribunal Act 1973 provides that a reference in Part II of that Act to remuneration is to be read as including a reference to annual allowances.

Note 2:       Under subsection 7(4) of the Remuneration Tribunal Act 1973 , the Remuneration Tribunal may determine any matter significantly related to the remuneration of a Judge of the Court.

             (3)  The remuneration of Judges of the Appellate and Superior Division accrues from day to day and is payable monthly.

             (4)  Judges of the General Division are to be treated as if they were Judges of a court of record for the purposes of determining:

                     (a)  their remuneration; and

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

Note:          Subdivision B of this Division sets out other terms and conditions that apply in relation to Judges of the General Division.

             (5)  The remuneration of a Judge is not to be diminished during his or her continuance in office.

26   Oath or affirmation of allegiance and office

             (1)  Before proceeding to discharge the duties of his or her office, a Judge must take an oath or affirmation of allegiance in the form in the Schedule to the Constitution, and also an oath or affirmation in the following form:

                   I, ( name ), do swear that I will well and truly serve in the office of ( Chief Justice, Deputy Chief Justice, Administrative Judge (Appellate and Superior Division), Administrative Judge (General Division) or Judge, as the case may be ) of the Family Court of Australia and that I will do right to all manner of people according to law, without fear or favour, affection or ill-will. So help me God.

                   or

                   I, ( name ), do solemnly and sincerely promise and declare that ( as above, omitting the words “So help me God” ).

             (2)  A Judge of the Appellate and Superior Division must take an oath or affirmation under subsection (1) before:

                     (a)  the Governor-General; or

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

                     (c)  another Judge of the Appellate and Superior Division; or

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

             (3)  A Judge of the General Division must take an oath or affirmation under subsection (1) before:

                     (a)  the Governor-General; or

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

                     (c)  another Judge of the Court; or

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

46  At the end of Division 3 of Part IV

Add:

Subdivision B Other terms and conditions of Judges of the General Division

26A   Application of this Subdivision

                   This Subdivision sets out other terms and conditions that apply in relation to Judges of the General Division.

Note:          Judges of the General Division are to be treated as if they were Judges of a court of record for the purposes of determining other terms and conditions that apply in relation to them: see subsection 25(4).

26B   Definitions

             (1)  In this Subdivision:

beneficiary , in respect of a payment under section 26J, has the meaning given by subsection 26J(4).

Commonwealth superannuation contribution , in respect of a Judge or a retired disabled Judge, means a Commonwealth contribution to the Judge’s choice of:

                     (a)  a complying superannuation fund (within the meaning of section 45 of the Superannuation Industry (Supervision) Act 1993 ); or

                     (b)  a retirement savings account (within the meaning of section 8 of the Retirement Savings Accounts Act 1997 ).

eligible child has the meaning given by section 26L.

eligible spouse has the meaning given by section 26K.

Judge means a Judge of the General Division.

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

marital or couple relationship has the meaning given by subsection 26K(5).

partner : a person is the partner of another person if the 2 persons have a relationship as a couple (whether the persons are the same sex or different sexes).

prior judicial service , in relation to a retired disabled Judge, means service, prior to the Judge’s appointment as a Judge of the Court, as one of the following:

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

                     (b)  the holder of an office, being an office the holder of which has, by virtue of an Act, the same status as a Justice or Judge of a federal court;

                     (c)  a Federal Magistrate of the Federal Magistrates Court;

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

                     (e)  a magistrate of a State or Territory;

                      (f)  in the case of a State or Territory office that qualifies the holder of the office for a pension or retiring allowance under a law of the State or Territory relating to pensions or retiring allowances payable to retired Judges—a holder of the office (including an acting holder).

Note:          If the Judge was appointed as a Judge of the Court more than once, see subsection (2).

retired disabled Judge means a person certified by the Minister to be a retired disabled Judge under paragraph 26F(2)(a).

retires , in relation to a Judge, means ceases, otherwise than by death, to hold any office as a Judge of the Court.

Prior judicial service

             (2)  For the purposes of the definition of prior judicial service in subsection (1), if a retired disabled Judge was appointed as a Judge of the Court more than once, the reference to the Judge’s appointment as a Judge of the Court is taken to be a reference to the Judge’s most recent appointment as a Judge of the Court.

26C   Outside work

             (1)  A Judge must not engage in paid work outside the duties of the Judge’s office if that work is incompatible with the holding of a judicial office under Chapter III of the Constitution.

             (2)  A Judge must not:

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

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

             (3)  This section does not, by implication, limit the application to a Judge of any doctrine of constitutional incompatibility.

             (4)  In this section:

paid work means work for financial gain or reward (whether as an employee, a self-employed person or otherwise).

26D   Leave

                   A Judge has the recreation leave entitlements that are determined by the Remuneration Tribunal.

26E   Other terms and conditions

             (1)  A Judge holds office on such terms and conditions (if any) in relation to matters not covered by this Act as are specified in a written determination made by the Governor-General for the purposes of this subsection.

             (2)  The Minister must cause a copy of a determination under subsection (1) to be tabled in each House of the Parliament.

             (3)  Either House may, following a motion upon notice, pass a resolution disallowing the determination. To be effective, the resolution must be passed within 15 sittings days of the House after the copy of the determination was tabled in the House.

             (4)  If neither House passes such a resolution, the determination takes effect on the day immediately after the last day upon which such a resolution could have been passed.

26F   Certification of retired disabled Judge

             (1)  If:

                     (a)  a Judge retires; and

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

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

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

                     (a)  if the Minister is satisfied that the retirement was due to permanent disability or infirmity—certify that the Judge is a retired disabled Judge; or

                     (b)  otherwise—refuse to so certify.

             (3)  If the Minister refuses to so certify, application may be made to the Administrative Appeals Tribunal for review of the refusal.

26G   Pensions for retired disabled Judges

Entitlement to pension

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

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

                     (b)  he or she dies;

whichever happens first.

Annual rate of pension

             (2)  The annual rate of the pension is 60% of the annual rate of salary the Judge would have been entitled to from time to time if he or she had not retired.

             (3)  However, the rate of the pension must be reduced by the amount of any pension or retiring allowance:

                     (a)  payable to the Judge, whether under a law or otherwise, out of money provided in whole or in part by the Commonwealth, a State or a Territory (other than a Commonwealth superannuation contribution the Judge was entitled to under a determination under subsection 26E(1)); and

                     (b)  payable to the Judge by reason of prior judicial service, or prior judicial service and any other service.

             (4)  For the purposes of subsection (2), the annual rate of salary is the annual rate of remuneration determined under section 25:

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

                     (b)  if any arrangements have been entered into for any amount of the annual rate of remuneration (other than an allowance covered by paragraph (a)) to be provided in the form of another benefit—including that amount.

When pension is due and payable

             (5)  The pension is due daily, but is payable on the days on which salary payments are made to Judges of the General Division.

Safety, Rehabilitation and Compensation Act 1988

             (6)  For the purposes of Division 3 of Part II of the Safety, Rehabilitation and Compensation Act 1988 :

                     (a)  the pension is taken to be a pension payable to the Judge under a superannuation scheme; and

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

26H   Superannuation for retired disabled Judges

             (1)  A retired disabled Judge who has not attained the age of 65 years is entitled to a Commonwealth superannuation contribution until:

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

                     (b)  he or she dies;

whichever happens first.

             (2)  The amount of the Commonwealth superannuation contribution is the amount of the Commonwealth superannuation contribution (if any) the Judge would have been entitled to from time to time, under a determination under subsection 26E(1), if he or she had not retired.

             (3)  The Commonwealth superannuation contribution is to be made by payments on the days on which salary payments are made to Judges of the General Division.

26J   Death benefits

Entitlement to payment

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

                     (a)  a Judge, or a retired disabled Judge, who has not attained the age of 65 years dies; and

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

Amount

             (2)  The amount of the payment is the amount of the Commonwealth superannuation contribution (if any) the Judge would have been entitled to, under a determination under subsection 26E(1), during the period in subsection (3) if:

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

                     (b)  the amount of the Commonwealth superannuation contribution the Judge was entitled to under that determination did not change during that period.

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

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

                     (b)  ending on the day on which the Judge would have attained the age of 65 years.

Beneficiaries

             (4)  The beneficiaries in respect of the payment are each eligible spouse and eligible child the Judge leaves.

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

             (6)  If there is more than one beneficiary in respect of the payment, the payment is payable to the beneficiaries in the proportions (totalling 100% of the amount of the payment) the Minister considers appropriate, having regard to the respective circumstances of each beneficiary.

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

Beneficiaries—eligible children

             (7)  If the payment (or a proportion of the payment) is payable to an eligible child, the Minister may, in writing, direct that:

                     (a)  some or all of the payment or proportion be paid to a specified person for the benefit of the child (including for the support or education of the child); or

                     (b)  if the Minister is satisfied that, by reason of special circumstances, it is desirable to do so in the interests of the child—some or all of the payment or proportion be spent in a specified manner for the benefit of the child.

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

             (8)  The Minister may be requested to give a direction under subsection (7) in respect of an eligible child.

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

                     (a)  if he or she is satisfied that he or she should make a direction in respect of the child—give such a direction; or

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

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

Applications for review

           (10)  Application may be made to the Administrative Appeals Tribunal for review of the following:

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

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

                     (c)  a refusal by the Minister under paragraph (9)(b) to give a direction.

26K   Relationship definitions

Meaning of eligible spouse

             (1)  For the purposes of this Subdivision, subsections (2), (3) and (4) set out the 3 circumstances in which a person is an eligible spouse of a Judge, or a retired disabled Judge, who dies.

             (2)  A person is an eligible spouse of a Judge who dies if the person had a marital or couple relationship with the Judge at the time of the death of the Judge.

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

                     (a)  the person had a marital or couple relationship with the Judge at the time of the Judge’s death; and

                     (b)  the marital or couple relationship began:

                              (i)  before the Judge retired; or

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

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

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

                     (b)  the person did not, at the time of the Judge’s death, have a marital or couple relationship with the Judge but was legally married to him or her; and

                     (c)  in the Minister’s opinion, the person was wholly or substantially dependent upon the Judge at the time of the Judge’s death; and

                     (d)  in the case of a marital or couple relationship that began after the Judge retired—the marital or couple relationship began before the Judge attained the age of 60 years.

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

Meaning of marital or couple relationship

             (5)  For the purposes of this Subdivision, a person had a marital or couple relationship with another person at a particular time if:

                     (a)  the person had been living with the other person as the other person’s husband or wife or partner for a continuous period of at least 3 years up to that time; or

                     (b)  both:

                              (i)  the person had been living with the other person as the other person’s husband or wife or partner for a continuous period of less than 3 years up to that time; and

                             (ii)  the Minister, having regard to any relevant evidence, is of the opinion that the person ordinarily lived with the other person as the other person’s husband or wife or partner on a permanent and bona fide domestic basis at that time;

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

Note 1:       Subsection (7) lists some of the evidence relevant to subparagraph (5)(b)(ii).

Note 2:       For review of decisions under subparagraph (5)(b)(ii), see subsection (9).

             (6)  For the purposes of this Subdivision, a marital or couple relationship is taken to have begun at the beginning of the continuous period mentioned in paragraph (5)(a) or subparagraph (5)(b)(i).

             (7)  For the purpose of subparagraph (5)(b)(ii), relevant evidence includes, but is not limited to, evidence establishing any of the following:

                     (a)  that the person was wholly or substantially dependent on that other person at the time;

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

                     (c)  the persons’ relationship was registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section;

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

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

                             (ii)  adopted by the persons during the period of the relationship; or

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

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

Meaning of living with a person

             (8)  For the purposes of this Subdivision, a person is taken to be living with another person if the Minister is satisfied that the person would have been living with that other person except for a period of:

                     (a)  temporary absence; or

                     (b)  absence because of special circumstances (for example, absence because of the person’s illness or infirmity).

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

Applications for review

             (9)  Application may be made to the Administrative Appeals Tribunal for review of a decision by the Minister under paragraph (4)(c), subparagraph (5)(b)(ii) or subsection (8).

26L   Meaning of eligible child

             (1)  For the purposes of this Subdivision, a person is an eligible child of a Judge, or a retired disabled Judge, who dies if:

                     (a)  the person:

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

                             (ii)  has not attained the age of 25 years and is receiving full-time education at a school, college or university; and

                     (b)  one of the following applies:

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

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

                            (iii)  in the Minister’s opinion, the person was wholly or substantially dependent on the Judge at the time of the Judge’s death;

                            (iv)  in the Minister’s opinion, the person would have been wholly or substantially dependent on the Judge but for the Judge’s death.

             (2)  Application may be made to the Administrative Appeals Tribunal for review of a decision by the Minister under subparagraph (1)(b)(iii) or (iv).

26M   Appropriation

                   The following are to be paid out of the Consolidated Revenue Fund, which is appropriated accordingly:

                     (a)  pensions under section 26G;

                     (b)  Commonwealth superannuation contributions under section 26H;

                     (c)  payments under section 26J.

47  Division 4 of Part IV

Repeal the Division.

48  Subsection 27(2)

Omit “, may be constituted by 2 or more Judges”, substitute “in the Appellate and Superior Division, may be constituted by 2 or more Judges of that Division”.

49  Subsection 27(2) (note)

Omit “Chief Judge”, substitute “Chief Justice”.

50  Subsections 28(1) to (3)

Repeal the subsections, substitute:

             (1)  The original jurisdiction of the Court may be exercised by one or more Judges of the Appellate and Superior Division.

             (2)  The jurisdiction of the Court in an appeal from a court of summary jurisdiction is to be exercised by:

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

                     (b)  a Full Court.

          (2A)  Nothing in this Act prevents an Appellate Judge from exercising the jurisdiction of the Court that, under subsection (1) or (2), is to be exercised by one or more Judges of the Appellate and Superior Division.

             (3)  The jurisdiction of the Court in an appeal from a Judge of the Appellate and Superior Division, or a Judge of the Supreme Court of a State or Territory, is to be exercised by a Full Court.

Note:          Section 94AAA deals with the exercise of the jurisdiction of the Court in other appeals (including appeals from Judges of the General Division).

Note:       The heading to section 28 is altered by adding at the end “ by Judges of the Appellate and Superior Division ”.

51  Paragraphs 28(4)(a) and (b)

Repeal the paragraphs, substitute:

                     (a)  if only 2 Judges remain and one of those Judges is an Appellate Judge, or if more than 2 Judges remain and a majority of those Judges are Appellate Judges—by the Court constituted by the remaining Judges; or

                     (b)  with the consent of the parties—by the Court constituted by the remaining Judge or Judges and an additional Judge or Judges of the Appellate and Superior Division, where a majority of the Judges constituting the Court are Appellate Judges.

52  Subsection 28(6)

Repeal the subsection.

53  After section 28

Insert:

29   Exercise of jurisdiction by Judges of the General Division

             (1)  Subject to this section, the original jurisdiction of the Court may be exercised by one Judge of the General Division.

             (2)  A Judge of the General Division is not to exercise the original jurisdiction of the Court with respect to a proceeding mentioned in an item of the following table.

 

Item

Proceedings

1

A proceeding with respect to the transfer of a PPS matter (within the meaning of the Personal Property Securities Act 2009 ) under subsection 211(1) of that Act

2

A proceeding for interim relief under Part 4 of the Trans-Tasman Proceedings Act 2010

3

A proceeding for leave under section 9 of the Evidence and Procedure (New Zealand) Act 1994

             (3)  A Judge of the General Division is not to exercise the original jurisdiction of the Court with respect to a proceeding mentioned in an item of the following table unless:

                     (a)  the Chief Justice directs the Judge to deal with the proceeding; or

                     (b)  the proceeding is in respect of a matter that is associated with a matter that has arisen in a proceeding before the Judge; or

                     (c)  the proceeding has been referred to the Judge under section 33AA.

 

Item

Proceedings

1

A proceeding of a kind referred to in subparagraph (a)(ii) or paragraph (b) of the definition of matrimonial cause in subsection 4(1) of this Act

2

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

3

A proceeding transferred to the Court under section 18A of the Administrative Decisions (Judicial Review) Act 1977

4

A proceeding transferred to the Court under section 12GL of the Australian Securities and Investments Commission Act 2001

5

A proceeding with respect to bankruptcy (within the meaning of the Bankruptcy Act 1966 )

6

A proceeding with respect to a civil matter arising under the Aboriginal and Torres Strait Islander Corporations legislation (within the meaning of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 )

7

A proceeding with respect to a civil matter arising under the Corporations legislation (within the meaning of the Corporations Act 2001 )

8

A proceeding:

(a) for an order under subsection 7(1), 9A(1) or 11(1) of the Foreign Evidence Act 1994 ; or

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

9

A proceeding transferred to the Court under the Jurisdiction of Courts (Cross-vesting) Act 1987 or a law of a State, the Australian Capital Territory or the Northern Territory relating to cross-vesting of jurisdiction

10

A proceeding with respect to a PPS matter (within the meaning of the Personal Property Securities Act 2009 ) of a kind with respect to which the Federal Magistrates Court does not have jurisdiction under section 207 of that Act

11

A proceeding transferred to the Court under section 14ZZS of the Taxation Administration Act 1953

12

A proceeding transferred to the Court under section 86B of the Trade Practices Act 1974

13

A proceeding of a kind prescribed by the regulations

             (4)  Original jurisdiction that is conferred on the Court after the commencement of this section is not to be exercised by a Judge of the General Division, except so far as express provision to the contrary is made by this Act or any other law of the Commonwealth.

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

                   The Court constituted by one or more Judges may sit and exercise the jurisdiction of the Court even if the Court constituted by one or more other Judges is at the same time sitting and exercising the jurisdiction of the Court.

54  Paragraph 30(b)

Omit “Chief Judge”, substitute “Chief Justice”.

55  After section 33

Insert:

33AA   Referral of proceedings from one Division to the other

             (1)  If a proceeding is pending in a Division of the Court, the Judge or Judges dealing with the proceeding may refer the proceeding to the other Division of the Court.

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

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

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

             (3)  The standard Rules of Court may make provision in relation to the referral of a proceeding under this section.

             (4)  In particular, the standard Rules of Court may set out factors that are to be taken into account by a Judge in deciding whether to refer a proceeding under this section.

             (5)  In deciding whether to refer a proceeding under this section, the Judge or Judges dealing with the proceeding must have regard to:

                     (a)  any standard Rules of Court made for the purposes of subsection (3); and

                     (b)  whether the referral will facilitate the resolution of the dispute as quickly, inexpensively and efficiently as possible.

             (6)  If a proceeding is referred under this section, the Judge or Judges who referred the proceeding may make such orders as the Judge or Judges consider necessary pending the disposal of the proceeding.

             (7)  An appeal does not lie from a decision to refer, or not to refer, a proceeding under this section.

56  Subsection 33A(1)

Repeal the subsection, substitute:

             (1)  Proceedings must not be instituted in the Family Court in respect of a matter if proceedings in respect of an associated matter are pending in the Federal Magistrates Court.

57  Subsection 33B(2)

Repeal the subsection.

58  Subsection 33B(8A)

Repeal the subsection, substitute:

          (8A)  The Federal Magistrates Court has jurisdiction in a matter that is the subject of a proceeding transferred to it under this section.

          (8B)  A proceeding transferred to the Federal Magistrates Court under this section is to be treated as if it had been instituted in the Federal Magistrates Court.

59  Subsection 33B(10)

Repeal the subsection.

60  Section 33C

Repeal the section.

61  Section 34

Omit “(1)”.

62  Subsections 37(1) and (2)

Omit “Chief Judge”, substitute “Chief Justice”.

63  Subsection 37A(1)

Omit “, or a majority of them, may,”, substitute “of the Court may, in accordance with section 124 and”.

64  Subsections 37A(3) and (4)

Omit “applicable”.

65  Subsection 37A(9)

Omit “applicable Rules of Court made by the Judges or a majority of them”, substitute “Rules of Court made”.

66  Paragraph 37A(14)(b)

Omit “Chief Judge”, substitute “Chief Justice”.

67  Subsection 37A(15) (note)

Omit “26B,”.

68  Subsections 37B(1) to (4)

Omit “Chief Judge” (wherever occurring), substitute “Chief Justice”.

69  Subsection 37B(5)

Repeal the subsection, substitute:

             (5)  In this section:

Principal Registrar means the Principal Registrar of the Court.

Registrar means a Registrar of the Court.

70  Section 37C

Omit “shall”, substitute “of the Court must”.

71  Section 37C

Omit “Chief Judge”, substitute “Chief Justice”.

72  Division 1 of Part IVA (heading)

Repeal the heading, substitute:

Division 1 Management responsibilities of the Chief Justice and the Chief Executive Officer

73  Section 38A

Omit “Chief Judge” (wherever occurring), substitute “Chief Justice”.

74  Section 38B

Omit “Chief Judge”, substitute “Chief Justice”.

75  Section 38C

Omit “Chief Judge”, substitute “Chief Justice”.

76  Section 38D

Omit “Chief Judge” (wherever occurring), substitute “Chief Justice”.

77  Subsection 38F(4)

Omit “Chief Judge”, substitute “Chief Justice”.

78  Subsection 38G(2)

Omit “Chief Judge” (wherever occurring), substitute “Chief Justice”.

79  Subsection 38J(1)

Omit “Chief Judge”, substitute “Chief Justice”.

80  Section 38L

Omit “Chief Judge”, substitute “Chief Justice”.

81  Subsection 38M(1)

Omit “Chief Judge”, substitute “Chief Justice”.

82  Subsections 38N(2) and (6)

Omit “Chief Judge”, substitute “Chief Justice”.

83  Subsection 38S(1)

Omit “Chief Judge”, substitute “Chief Justice”.

84  Section 38W

Omit “Chief Judge”, substitute “Chief Justice”.

Note:       The heading to section 38W is altered by omitting “ Chief Judge ” and substituting “ Chief Justice ”.

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

Repeal the subsections.

86  Paragraph 39A(1)(b)

Repeal the paragraph.

87  Paragraph 39B(1)(b)

Repeal the paragraph.

88  Subsection 39B(1) (note 2)

Repeal the note.

89  Subsection 39B(1) (note 3)

Omit “Note 3”, substitute “Note 2”.

90  Subparagraph 46(1)(a)(ii)

Omit “; or”, substitute “; and”.

91  Subparagraph 46(1)(a)(iii)

Repeal the subparagraph.

92  Subparagraph 46(1)(b)(ii)

Omit “Territory; or”, substitute “Territory.”.

93  Subparagraph 46(1)(b)(iii)

Repeal the subparagraph.

94  Paragraph 46(1C)(b)

Omit “Territory; or”, substitute “Territory.”.

95  Paragraph 46(1C)(c)

Repeal the paragraph.

96  Paragraph 46(2A)(d)

Omit “Territory; or”, substitute “Territory.”.

97  Paragraph 46(2A)(e)

Repeal the paragraph.

98  Paragraph 46(3A)(c)

Repeal the paragraph.

99  Subsection 65D(3) (note)

Repeal the note.

100  Subsection 69H(4)

Repeal the subsection.

Note:       The heading to section 69H is altered by omitting “ , Northern Territory Supreme Court and Federal Magistrates Court ” and substituting “ and Northern Territory Supreme Court ”.

101  Paragraph 69N(2)(c)

Omit “Territory; or”, substitute “Territory.”.

102  Paragraph 69N(2)(d)

Repeal the paragraph.

103  Paragraph 69N(3)(c)

Omit “Territory; or”, substitute “Territory.”.

104  Paragraph 69N(3)(d)

Repeal the paragraph.

105  Subparagraph 69N(5)(b)(iii)

Omit “Territory; or”, substitute “Territory.”.

106  Subparagraph 69N(5)(b)(iv)

Repeal the subparagraph.

107  Paragraph 69N(6)(c)

Omit “Territory; or”, substitute “Territory.”.

108  Paragraph 69N(6)(d)

Repeal the paragraph.

109  Section 69ZO

Omit “Judicial Registrar,”.

110  Subsection 69ZR(3)

Omit “Judicial Registrar,”.

111  Paragraphs 70NFD(a) and (b)

Repeal the paragraphs, substitute:

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

                     (b)  by the Family Court.

112  Paragraph 87(11)(b)

Before “Rules”, insert “applicable”.

113  Paragraph 94(1)(a)

After “constituted”, insert “by one or more Judges of the Appellate and Superior Division sitting”.

Note:       The heading to section 94 is replaced by the heading “ Appeals to Full Court of Family Court ”.

114  Subsection 94(1AA)

Repeal the subsection, substitute:

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

                     (a)  a decree or decision of a Judge of the Appellate and Superior Division exercising original or appellate jurisdiction under this Act or any other law rejecting an application that he or she disqualify himself or herself from further hearing a matter; or

                     (b)  a decree or decision of a Judge of a Family Court of a State, or a Judge of a Supreme Court of a State or Territory, exercising original or appellate jurisdiction under this Act rejecting an application that he or she disqualify himself or herself from further hearing a matter.

115  Subsections 94(2B) and (2D)

Omit “a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division”, substitute “an Appellate Judge or other Judge of the Appellate and Superior Division if there is no Appellate Judge”.

116  Before paragraph 94AAA(1)(a)

Insert:

                    (aa)  a decree of the Family Court, constituted by a Judge of the General Division, exercising original jurisdiction under this Act or any other law; or

                   (ab)  a decree or decision of a Judge of the General Division exercising original jurisdiction under this Act or any other law rejecting an application that he or she disqualify himself or herself from further hearing a matter; or

Note:       The heading to section 94AAA is replaced by the heading “ Other appeals to Family Court ”.

117  Subsection 94AAA(3)

Omit “Chief Judge”, substitute “Chief Justice”.

118  Subsection 94AAA(13)

Repeal the subsection, substitute:

           (13)  The single Judge referred to in subsection (3), (8) or (10) must be a Judge of the Appellate and Superior Division but need not be an Appellate Judge.

119  Subsection 94AA(1) (cell at table item 1, column headed “Appeal from”)

After “constituted”, insert “by one or more Judges of the Appellate and Superior Division sitting”.

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

Insert:

3A

a prescribed decree of the Family Court (constituted by a Judge of the General Division)

the Family Court

(a) a single Judge of the Appellate and Superior Division (who need not be an Appellate Judge); or

(b) a Full Court of the Family Court

121  Subsection 94AA(1) (paragraph (a) of the cell at table item 4, column headed “Who determines the application for leave to appeal”)

Repeal the paragraph, substitute:

(a) a single Judge of the Appellate and Superior Division (who need not be an Appellate Judge); or

122  Subsection 94AA(1) (paragraph (a) of the cell at table item 5, column headed “Who determines the application for leave to appeal”)

Repeal the paragraph, substitute:

(a) a single Judge of the Appellate and Superior Division (who need not be an Appellate Judge); or

123  Paragraphs 94AA(2)(b) and (c)

Repeal the paragraphs, substitute:

                     (b)  an Appellate Judge; or

                     (c)  another Judge of the Appellate and Superior Division if there is no Appellate Judge available.

124  Subsection 94AA(2A)

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

125  Paragraph 94AA(2A)(b)

Repeal the paragraph, substitute:

                     (b)  a single Judge of the Appellate and Superior Division (who need not be an Appellate Judge).

126  After subsection 94A(2)

Insert:

          (2A)  If, in proceedings in the General Division of the Family Court, being proceedings in which a decree or decision to which subsection 94AAA(1) applies could be made, a question of law arises which:

                     (a)  the Judge; and

                     (b)  at least one of the parties;

wish to have determined by a Full Court of the Family Court before the proceedings are further dealt with:

                     (c)  the Judge must state the facts and question in the form of a special case for the opinion of a Full Court; and

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

          (2B)  The Full Court may draw from the facts and the documents any inference, whether of fact or of law, which could have been drawn from them by the Judge.

127  At the end of subsection 96(1)

Add:

Note:          The jurisdiction of the Family Court in an appeal from a court of summary jurisdiction is to be exercised by a Judge of the Appellate and Superior Division or by a Full Court: see subsection 28(2).

128  At the end of section 96

Add:

             (7)  The Judge referred to in paragraph (6)(b) or (c) must be a Judge of the Appellate and Superior Division but need not be an Appellate Judge.

129  Before section 97

Insert:

Subdivision A Proceedings in the Family Court and courts exercising jurisdiction under this Act

96B   Application of Subdivision

                   This Subdivision applies in relation to proceedings in the Family Court or in another court when exercising jurisdiction under this Act.

96C   Conduct of proceedings

                   In proceedings under this Act, the court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.

130  Subsection 97(1A)

Omit “Judicial Registrar,”.

Note:       The heading to section 97 is replaced by the heading “ Exercise of jurisdiction in open court and in Chambers ”.

131  Subsection 97(3)

Repeal the subsection.

132  At the end of Division 1 of Part XI

Add:

Subdivision B Proceedings in the Family Court

102BAA   Application of Subdivision

             (1)  This Subdivision applies in relation to proceedings in the Appellate and Superior Division or the General Division of the Family Court.

             (2)  This Subdivision has effect subject to Subdivision C and any other provision of this Act with respect to the practice and procedure of the Family Court in particular matters.

102BAB   Limits on length of documents

             (1)  The Court may give directions about limiting the length of documents required or permitted to be filed in the Court.

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

102BAC   Limits on length of oral argument

             (1)  The Court may give directions about limiting the time for oral argument in proceedings before the Court.

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

102BAD   Written submissions

             (1)  The Court may give directions about the use of written submissions in proceedings before the Court.

             (2)  The Court may give directions limiting the length of written submissions in proceedings before the Court.

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

102BAE   Orders and commission for examination of witnesses

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

                     (a)  order the examination of a person upon oath or affirmation before the Court, a Judge, an officer of the Court or other person, at any place within Australia; or

                     (b)  order that a commission issue to a person, either within or beyond Australia, authorising him or her to take the evidence of a person on oath or affirmation;

and the Court may:

                     (c)  by the same or a subsequent order, give any necessary directions concerning the time, place and manner of the examination; and

                     (d)  empower any party to the proceeding to give in evidence in the proceeding the evidence taken under paragraph (b) on such terms (if any) as the Court directs.

102BAF  Time limits on giving evidence

             (1)  The Court may give directions about limiting the time for giving evidence in proceedings before the Court.

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

102BAG   Court may question witnesses

             (1)  The Court may:

                     (a)  put a question to a person giving evidence in a proceeding if, in the opinion of the Court, the question is likely to assist in:

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

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

                     (b)  require the person to answer the question.

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

102BAH   Evidence may be given orally or by affidavit

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

             (2)  However, the Court may:

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

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

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

                     (a)  the standard Rules of Court; and

                     (b)  any other law of the Commonwealth.

Cross-examination of person who makes an affidavit

             (4)  If:

                     (a)  a person makes an affidavit; and

                     (b)  a party to a proceeding in the Court adduces, or proposes to adduce, evidence by the affidavit;

a party to the proceeding may request the person to appear as a witness to be cross-examined with respect to the matters in the affidavit.

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

             (6)  If:

                     (a)  a request under subsection (4) is given to a person who has made an affidavit; and

                     (b)  the person does not appear as a witness to be cross-examined with respect to the matters in the affidavit;

the Court is to give the matters in the affidavit such weight as the Court thinks fit in the circumstances.

102BAI   Formal defects not to invalidate

             (1)  Proceedings in the Court are not invalidated by a formal defect or an irregularity, unless the Court is of the opinion that:

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

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

             (2)  The Court may, on such conditions (if any) as the Court thinks fit, make an order declaring that the proceeding is not invalid:

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

                     (b)  by reason of an irregularity.

Subdivision C Proceedings in the General Division of the Family Court

102BBA   Application of Subdivision

             (1)  This Subdivision applies in relation to proceedings in the General Division of the Family Court.

             (2)  This Subdivision has effect subject to any other provision of this Act (other than Subdivision B) with respect to the practice and procedure of the Family Court in particular matters.

102BBB   Use of streamlined procedures and dispute resolution processes

                   The Court must:

                     (a)  endeavour to use streamlined procedures; and

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

102BBC   Reserved judgments etc.

             (1)  If:

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

                     (b)  the Judge who heard the proceeding subsequently prepares orders and reasons, but is not available to publish those orders and reasons;

those orders and reasons may be made public by another Judge of the General Division on behalf of the Judge who heard the proceeding.

             (2)  If:

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

                     (b)  the Judge who heard the proceeding has prepared reasons, but is not available to publish those reasons;

those reasons may be made public by another Judge of the General Division on behalf of the Judge who heard the proceeding.

133  At the end of subsection 102M(1)

Add:

Note:          Section 27 allows the Family Court constituted by 2 or more Judges of the Appellate and Superior Division to sit in different places in Australia at the same time.

134  Paragraph 102N(1)(b)

Before “Rules”, insert “standard”.

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

Omit “applicable”, insert “standard”.

136  Subsection 109A(1)

Omit “, or a majority of them,”.

137  Subsection 109A(5) (note)

Repeal the note, substitute:

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

138  Subsection 111C(7A)

Omit “, or a majority of them,”.

139  Subsection 121(10) (note)

Omit “26B,”.

140  Subsection 123(1)

Omit “, or a majority of them, may”, substitute “of the Court may, in accordance with section 124,”.

141  Subsection 123(1)

Omit “Court and any”, substitute “Court or any”.

142  Paragraph 123(2)(b)

Omit “Chief Judge”, substitute “Chief Justice”.

143  Subsection 123(2A)

Omit “Chief Judge”, substitute “Chief Justice”.

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

Repeal the subsection.

145  Section 123 (note)

Repeal the note, substitute:

Note:          The power to make Rules of Court conferred by this section is extended by section 109A and subsection 111C(7A) of this Act and by certain other Acts that confer jurisdiction on the Court. A power to make Rules of Court is also contained in section 37A of this Act.

146  Section 124

Repeal the section, substitute:

124   Requirements relating to the making of Rules of Court

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

                     (a)  both Divisions of the Court and (if applicable) other courts exercising jurisdiction under this Act; or

                     (b)  the Appellate and Superior Division and (if applicable) other courts exercising jurisdiction under this Act; or

                     (c)  the General Division only.

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

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

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

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

             (3)  Rules of Court covered by paragraph (1)(b) must be made by a majority of Judges of the Appellate and Superior Division.

             (4)  Rules of Court covered by paragraph (1)(c) must be made by a majority of Judges of the General Division.

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

             (6)  A reference in subsection (1) to a court exercising jurisdiction under this Act does not include a reference to the Federal Magistrates Court.



 

Part 2 Other amendments

Family Law Act 1975

147  Subsection 29(2) (table item 3)

Repeal the item.

148  Subsection 29(3) (table item 12)

Repeal the item, substitute:

12

A proceeding transferred to the Court under section 138E of the Competition and Consumer Act 2010