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

Schedule 3 Amendment of other Acts

Part 1 Amendments relating to the restructure of the Family Court

Division 1—Attorney-General

Administrative Decisions (Judicial Review) Act 1977

1  Subsection 3(1) (definition of Family Court Judge )

Omit “Chief Judge, the Deputy Chief Judge, a Judge Administrator or a Senior Judge”, substitute “Chief Justice, the Deputy Chief Justice, the Administrative Judge (Appellate and Superior Division) or the Administrative Judge (General Division)”.

2  Subparagraph (zd)(i) of Schedule 1

Omit “Chief Judge or the Deputy Chief Judge”, substitute “Chief Justice or the Deputy Chief Justice”.

3  Subparagraph (zd)(ii) of Schedule 1

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

4  Subparagraph (zd)(ii) of Schedule 1

Omit “22(2AAA)(a)”, substitute “22B(1)(a)”.

Bankruptcy Act 1966

5  Subsection 5(1) (definition of Family Court Judge )

Omit “Chief Judge, the Deputy Chief Judge, a Judge Administrator or a Senior Judge”, substitute “Chief Justice, the Deputy Chief Justice, the Administrative Judge (Appellate and Superior Division) or the Administrative Judge (General Division)”.

Federal Court of Australia Act 1976

6  Section 15A

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

Note:       The heading to section 15A is altered by omitting “ Chief Judge ” and substituting “ Chief Justice ”.

Federal Proceedings (Costs) Act 1981

7  Subsection 3(1) (paragraph (j) of the definition of Federal appeal )

Omit “the Full Court of”.

Judges (Long Leave Payments) Act 1979

8  Title

Omit “ (other than Justices of the High Court and Federal Magistrates) ”.

9  Section 3 (paragraph (a) of the definition of Judge )

Omit “the High Court or the Federal Magistrates Court”, substitute “a Justice of the High Court, a Judge of the General Division of the Family Court of Australia or a Federal Magistrate”.

10  Section 3

Insert:

Judge of the General Division of the Family Court of Australia means a Judge of the General Division of that Court after the commencement of Part 1 of Schedule 1 to the Access to Justice (Family Court Restructure and Other Measures) Act 2010 .

Judiciary Act 1903

11  Subsection 39B(2)

After “Judges”, insert “of the Appellate and Superior Division”.

Jurisdiction of Courts (Cross-vesting) Act 1987

12  At the end of subsection 5(1)

Add:

Note:          See also subsection (5A) in relation to proceedings pending in the Family Court.

13  At the end of subsection 5(4)

Add:

Note:          See also subsection (5A) in relation to proceedings pending in the Family Court.

14  At the end of subsection 5(5)

Add:

Note:          See also subsection (5A) in relation to proceedings pending in the Family Court.

15  After subsection 5(5)

Insert:

          (5A)  A reference in subsection (1), (4) or (5) to a proceeding pending in the Family Court is a reference to a proceeding pending in the Family Court constituted by one or more Judges of the Appellate and Superior Division of that Court.

16  Paragraph 6A(2)(a)

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

17  Subparagraph 8(1)(b)(i)

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

18  Paragraph 10(a)

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

Marriage Act 1961

19  Subsection 92(1)

Omit “the Federal Magistrates Court,”.

Personal Property Securities Act 2009

20  Subsection 210(2) (paragraph (b) of note 2)

Omit “to 33C”, substitute “and 33B”.

Division 2—Families, Housing, Community Services and Indigenous Affairs

Child Support (Assessment) Act 1989

21  Section 98X

Omit “, the Federal Magistrates Court”.

22  Subsection 99(1)

Omit “and the Federal Magistrates Court”.

23  Subsection 101(3)

After “Judge”, insert “of the Appellate and Superior Division of that Court”.

24  Paragraph 102(1)(a)

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

Note:       The heading to section 102 is replaced by the heading “ Appeals to Full Court of Family Court ”.

25  Subsection 102(2)

After “Judge”, insert “(other than a Judge of the General Division of the Family Court)”.

26  Subsections 102(6) and (8)

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”.

27  Before paragraph 102A(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

Note:       The heading to section 102A is replaced by the heading “ Other appeals to Family Court ”.

28  Paragraph 102A(1)(b)

Omit “Federal Magistrate”, substitute “Judge of the General Division of the Family Court, or a Federal Magistrate,”.

29  Subsection 102A(2)

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

30  Subsection 102A(12)

Repeal the subsection, substitute:

           (12)  The single Judge referred to in subsection (2), (7) or (9) must be a Judge of the Appellate and Superior Division of the Family Court but need not be an Appellate Judge of the Family Court.

31  After subsection 103(2)

Insert:

          (2A)  If, in proceedings in the Family Court, being proceedings in which a decree to which subsection 102A(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, that could have been drawn from them by the Judge.

32  At the end of section 105

Add:

             (9)  The Judge referred to in paragraph (8)(b) or (c) must be a Judge of the Appellate and Superior Division of the Family Court but need not be an Appellate Judge of the Family Court.

Child Support (Registration and Collection) Act 1988

33  Subsection 4(1) (definition of Judge )

Repeal the definition.

34  Section 103ZC

Omit “, the Federal Magistrates Court”.

35  Subsection 104(1)

Omit “and the Federal Magistrates Court”.

36  Subsection 106(3)

After “Judge”, insert “of the Appellate and Superior Division of that Court”.

37  Paragraph 107(1)(a)

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

Note:       The heading to section 107 is replaced by the heading “ Appeals to Full Court of Family Court ”.

38  Subsection 107(1A)

After “Judge”, insert “(other than a Judge of the General Division of the Family Court)”.

39  Subsections 107(5) and (7)

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”.

40  Before paragraph 107A(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

Note:       The heading to section 107A is replaced by the heading “ Other appeals to Family Court ”.

41  Paragraph 107A(1)(b)

Omit “Federal Magistrate”, substitute “Judge of the General Division of the Family Court, or a Federal Magistrate,”.

42  Subsection 107A(2)

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

43  Subsection 107A(12)

Repeal the subsection, substitute:

           (12)  The single Judge referred to in subsection (2), (7) or (9) must be a Judge of the Appellate and Superior Division of the Family Court but need not be an Appellate Judge of the Family Court.

44  After subsection 108(2)

Insert:

          (2A)  If, in proceedings in the Family Court, being proceedings in which a decree to which subsection 107A(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, that could have been drawn from them by the Judge.

45  At the end of section 110

Add:

             (9)  The Judge referred to in paragraph (8)(b) or (c) must be a Judge of the Appellate and Superior Division of the Family Court but need not be an Appellate Judge of the Family Court.

Division 3—Finance and Deregulation

Judges’ Pensions Act 1968

46  Title

Before “ Judges ”, insert “ certain ”.

47  Subsection 4(1) (paragraph (a) of the definition of appropriate current judicial salary )

Omit “or (e)”, substitute “, (e) or (f)”.

48  Subsection 4(1) (at the end of the definition of appropriate current judicial salary )

Add:

             ; and (f)  in the case of a Judge (other than a Chief Judge or a Deputy Chief Judge) of the Family Court of Australia who retired or died before the commencement of Part 1 of Schedule 1 to the Access to Justice (Family Court Restructure and Other Measures) Act 2010 —the salary for the time being payable to a Judge of the Appellate and Superior Division of the Family Court of Australia.

49  Subsection 4(1) (paragraph (a) of the definition of Judge )

Omit “the Federal Magistrates Court”, substitute “a Judge of the General Division of the Family Court of Australia or a Federal Magistrate”.

50  Subsection 4(1)

Insert:

Judge of the Appellate and Superior Division of the Family Court of Australia does not include the Chief Justice, the Deputy Chief Justice or the Administrative Judge (Appellate and Superior Division) of that Court.

51  Subsection 4(1)

Insert:

Judge of the General Division of the Family Court of Australia means a Judge of the General Division of that Court after the commencement of Part 1 of Schedule 1 to the Access to Justice (Family Court Restructure and Other Measures) Act 2010 .

Division 4—Treasury

Australian Securities and Investments Commission Act 2001

52  Subsection 12BA(1) (definition of Family Court Judge )

Omit “Chief Judge, the Deputy Chief Judge, a Judge Administrator or a Senior Judge”, substitute “Chief Justice, the Deputy Chief Justice, the Administrative Judge (Appellate and Superior Division) or the Administrative Judge (General Division)”.

Competition and Consumer Act 2010

53  Section 130 (definition of Family Court Judge )

Omit “Chief Judge, the Deputy Chief Judge, a Judge Administrator or a Senior Judge”, substitute “Chief Justice, the Deputy Chief Justice, the Administrative Judge (Appellate and Superior Division) or the Administrative Judge (General Division)”.

Taxation Administration Act 1953

54  Section 14ZQ (definition of Family Court Judge )

Omit “Chief Judge, the Deputy Chief Judge, a Judge Administrator or a Senior Judge”, substitute “Chief Justice, the Deputy Chief Justice, the Administrative Judge (Appellate and Superior Division) or the Administrative Judge (General Division)”.

Trade Practices Act 1974

55  Subsection 4(1) (definition of Family Court Judge )

Omit “Chief Judge, the Deputy Chief Judge, a Judge Administrator or a Senior Judge”, substitute “Chief Justice, the Deputy Chief Justice, the Administrative Judge (Appellate and Superior Division) or the Administrative Judge (General Division)”.



 

Part 2 Other amendment

Administrative Appeals Tribunal Act 1975

56  At the end of section 70

Add:

             (3)  Without limiting the generality of subsection (1), the regulations may make provision:

                     (a)  prescribing fees to be payable in respect of proceedings before the Tribunal; and

                     (b)  for, or in relation to, the waiver (in whole or in part) of such fees.

57  Application

The amendment made by item 56 of this Schedule applies in relation to proceedings before the Tribunal:

                     (a)  that commence after the commencement of this item; or

                     (b)  that commenced, but were not completed, before the commencement of this item.