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

Schedule 2 Amendment of the Federal Magistrates Act 1999

   

Federal Magistrates Act 1999

1  Section 5

Insert:

family law or child support matter means a matter arising under:

                     (a)  the Family Law Act 1975 ; or

                     (b)  the Child Support (Assessment) Act 1989 ; or

                     (c)  the Child Support (Registration and Collection) Act 1988 (other than section 72Q); or

                     (d)  the Marriage Act 1961 .

2  Section 5 (paragraph (c) of the definition of Family law or child support proceedings )

Repeal the paragraph, substitute:

                     (c)  the Child Support (Registration and Collection) Act 1988 (other than section 72Q); or

                     (d)  the Marriage Act 1961 .

3  After section 10

Insert:

10AA   Jurisdiction—family law or child support matters

             (1)  Except as provided in subsections (2) and (4), the Federal Magistrates Court does not have original jurisdiction with respect to a family law or child support matter.

             (2)  The Federal Magistrates Court has original jurisdiction with respect to a family law or child support matter only if the matter is:

                     (a)  the subject of a proceeding in the Federal Magistrates Court to which subsection (3) applies; or

                     (b)  the subject of a proceeding transferred, after the commencement of this section, to the Federal Magistrates Court by the Family Court under section 33B of the Family Law Act 1975 ; or

                     (c)  the subject of an application under subsection 104(2) for review of the exercise of power by a Registrar in family law or child support proceedings; or

                     (d)  associated with a matter that is the subject of a proceeding that is pending in the Federal Magistrates Court.

             (3)  This subsection applies to family law or child support proceedings if the Federal Magistrates Court:

                     (a)  had begun the final hearing of an application for final orders (the final hearing ) in the proceedings before the commencement of this section; or

                     (b)  had not begun the final hearing in the proceedings before the commencement of this section, but had:

                              (i)  referred any of the matters in dispute in the proceedings for an external dispute resolution process; or

                             (ii)  required any of the parties to the proceedings to attend an external dispute resolution process.

             (4)  If the Federal Magistrates Court has original jurisdiction with respect to a family law or child support matter as described in subsection (2), then:

                     (a)  jurisdiction is taken to be conferred on the Federal Magistrates Court by the Family Law Act 1975 , the Child Support (Assessment) Act 1989 , the Child Support (Registration and Collection) Act 1988 or the Marriage Act 1961 (as the case requires); and

                     (b)  the Federal Magistrates Court is taken to be a court having or exercising jurisdiction under that Act;

for the purpose of dealing with that matter or hearing and determining a proceeding in respect of that matter.

Note:          The Federal Magistrates Court also has jurisdiction in respect of matters that are associated with a family law or child support matter referred to in subsection (4) (see section 18).

             (5)  For the purposes of subsection (3), an external dispute resolution process is:

                     (a)  arbitration under Division 4 of Part II of the Family Law Act 1975 or Part 4 of this Act; or

                     (b)  conciliation under Part 4 of this Act; or

                     (c)  mediation under Part 4 of this Act; or

                     (d)  family dispute resolution conducted by a family dispute resolution practitioner referred to in paragraph 10G(1)(a) or (b) of the Family Law Act 1975 .

Note:       The heading to section 10 is altered by adding at the end “ —general ”.

4  Subsection 19(1)

Omit “the Family Court or”.

Note:       The heading to section 19 is altered by omitting “ or the Family Court ”.

5  Subsection 19(2)

Repeal the subsection.

6  Paragraph 19(3)(b)

Omit “or the Family Court”.

7  After section 19

Insert:

19A   Applications in respect of family law or child support matters not to be made to the Federal Magistrates Court except in certain circumstances

             (1)  An application in respect of a family law or child support matter must not be made to the Federal Magistrates Court unless:

                     (a)  proceedings in respect of an associated matter are pending in the Federal Magistrates Court; or

                     (b)  the application is made under subsection 104(2) for review of the exercise of a power by a Registrar under subsection 102(2) or under a delegation under subsection 103(1) in family law or child support proceedings.

Note:          An application that may not be made to the Federal Magistrates Court because of subsection (1) may be made to the Family Court.

             (2)  This section has effect despite any other provision of this Act or any other law of the Commonwealth.

8  Subsection 20(2) (paragraph (a) of the note)

Omit “94”, substitute “94AAA”.

9  Part 4 (heading)

Repeal the heading, substitute:

Part 4 Dispute resolution for proceedings other than family law or child support proceedings

10  Division 1 of Part 4 (heading)

Repeal the heading.

11  Section 20A

Repeal the section, substitute:

20A   This Part does not apply to family law or child support proceedings

                   This Part applies to proceedings in the Federal Magistrates Court other than family law or child support proceedings.

Note:          The Family Law Act 1975 , in particular Parts II, III, IIIA and IIIB, contains provisions dealing with family counselling, family dispute resolution and other processes that apply to the Federal Magistrates Court in relation to family law or child support proceedings.

12  Subsection 23(2) (note)

Repeal the note.

13  Section 31

Repeal the section.

14  Division 2 of Part 4 (heading)

Repeal the heading.

15  Section 33

Repeal the section.

16  Subsection 43(2)

Repeal the subsection, substitute:

             (2)  In so far as the provisions applicable in accordance with subsection (1) are insufficient:

                     (a)  the Rules of Court made under the Family Law Act 1975 apply, with necessary modifications, so far as they are capable of application and subject to any directions of the Federal Magistrates Court or a Federal Magistrate, to the practice and procedure of the Federal Magistrates Court in relation to the jurisdiction of the Federal Magistrates Court with respect to family law or child support matters; and

                     (b)  the Rules of Court made under the Federal Court of Australia Act 1976 apply, with necessary modifications, so far as they are capable of application and subject to any directions of the Federal Magistrates Court or a Federal Magistrate, to the practice and procedure of the Federal Magistrates Court in relation to the jurisdiction of the Federal Magistrates Court with respect to any other matters.

17  At the end of subsection 50(1)

Add:

Note:          An application in respect of a family law or child support matter must not be made to the Federal Magistrates Court except as provided by section 19A.

18  After subsection 81(1)

Insert:

          (1A)  The Federal Magistrates, or a majority of them, must ensure, so far as practicable, that Rules of Court, so far as they apply in relation to the practice and procedure to be followed in the Federal Magistrates Court in relation to family law or child support matters, are not inconsistent with Rules of Court made under the Family Law Act 1975 that apply in relation to the practice and procedure to be followed in the General Division of the Family Court in relation to matters of that kind.

19  Division 1A of Part 7

Repeal the Division.

20  Paragraph 99(1)(e)

Omit “necessary;”, substitute “necessary.”.

21  Paragraph 99(1)(f)

Repeal the paragraph.

22  At the end of section 99

Add:

             (8)  The Chief Executive Officer must not appoint a person to be an officer of the Federal Magistrates Court unless the person is an officer of the Federal Court or the Family Court.

23  Section 100

Before “The Chief”, insert “(1)”.

24  At the end of section 100

Add:

             (2)  To avoid doubt, the Chief Executive Officer may make an arrangement under subsection (1) with the Registrar of the Federal Court, even if the Chief Executive Officer and the Registrar of the Federal Court are the same person.

25  Section 101

Repeal the section.

26  Subsection 106(1)

Repeal the subsection.

27  Subsection 107(1)

Repeal the subsection.

28  Subsection 107(2)

Omit “(2)”.

29  Subsection 109(1)

Repeal the subsection.

30  Subsection 110(1)

Repeal the subsection.

31  Subsection 110(2)

Omit “(2)”.

32  Section 111A

Repeal the section.

33  Subsection 115(1A)

Repeal the subsection.

34  Subsection 115(2)

Omit “or (1A)”.

35  At the end of clause 1 of Schedule 2

Add:

             (3)  The same person may hold the office of Chief Executive Officer and the office of Registrar of the Federal Court.

             (4)  Subclause (3) has effect despite anything in this Act or the Federal Court of Australia Act 1976 .