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

Schedule 4 Application, saving and transitional provisions

Part 1 Definitions

1  Definitions

In this Schedule:

Administrative Judge (General Division) has the meaning given by subsection 4(1) of the new Family Law Act.

Appeal Division means the Appeal Division of the Family Court before the commencement time.

Appellate and Superior Division means the Appellate and Superior Division of the Family Court after the commencement time.

Appellate Judge has the meaning given by subsection 4(1) of the new Family Law Act.

commencement time means the time when Part 1 of Schedule 1 to this Act commences.

Chief Judge has the meaning given by section 20 of the old Family Law Act.

Chief Justice has the meaning given by subsection 4(1) of the new Family Law Act.

Deputy Chief Judge has the meaning given by section 20 of the old Family Law Act.

Deputy Chief Justice has the meaning given by subsection 4(1) of the new Family Law Act.

Family Court means the Family Court of Australia.

family law or child support matter has the meaning given by section 5 of the Federal Magistrates Act 1999 , as in force after the commencement time.

family law or child support proceedings has the meaning given by section 5 of the Federal Magistrates Act 1999 , as in force after the commencement time.

Federal Magistrate means a Federal Magistrate of the Federal Magistrates Court.

Judge means a Judge of the Family Court.

new Family Law Act means the Family Law Act 1975 as in force after the commencement time.

new General Division means the General Division of the Family Court after the commencement time.

old Family Law Act means the Family Law Act 1975 as in force immediately before the commencement time.

old General Division means the General Division of the Family Court before the commencement time.



 

Part 2 Restructure of the Family Court

2  Continuity of the Family Court

The amendments made by Part 1 of Schedule 1 do not affect the continuity, after the commencement time, of the Family Court.

3  Transitional—change of title of offices of Chief Judge and Deputy Chief Judge

(1)       To avoid doubt, the office of Chief Judge of the Family Court under the old Family Law Act is the same office as the office of Chief Justice under the new Family Law Act.

(2)       To avoid doubt, the office of Deputy Chief Judge of the Family Court under the old Family Law Act is the same office as the office of Deputy Chief Justice under the new Family Law Act.

4  Transitional—references to Chief Justice and Deputy Chief Justice

References to Chief Justice

(1)       A reference in an Act or instrument to the Chief Justice, whether enacted before or after the commencement time, is taken to include a reference to the person:

                     (a)  holding the office of Chief Judge immediately before the commencement time; and

                     (b)  continuing to hold that office.

References to Deputy Chief Justice

(2)       A reference in an Act or instrument to the Deputy Chief Justice, whether enacted before or after the commencement time, is taken to include a reference to the person:

                     (a)  holding the office of Deputy Chief Judge immediately before the commencement time; and

                     (b)  continuing to hold that office.

5  Transitional—references to Chief Judge and Deputy Chief Judge

References to Chief Judge

(1)       A reference in an instrument in force immediately before the commencement time to the Chief Judge is taken, after that time, to be a reference to:

                     (a)  the Chief Justice; or

                     (b)  the person:

                              (i)  holding the office of Chief Judge immediately before the commencement time; and

                             (ii)  continuing to hold that office.

References to Deputy Chief Judge

(2)       A reference in an instrument in force immediately before the commencement time to the Deputy Chief Judge is taken, after that time, to be a reference to:

                     (a)  the Deputy Chief Justice; or

                     (b)  the person:

                              (i)  holding the office of Deputy Chief Judge immediately before the commencement time; and

                             (ii)  continuing to hold that office.

6  Transitional—assignment of Judges to new Divisions of Family Court

Judges who were members of the Appeal Division before commencement time

(1)       A Judge (including the Chief Justice and the Deputy Chief Justice) who, immediately before the commencement time, was a member of the Appeal Division under subsection 22(2AA) of the old Family Law Act is taken, after that time, to be assigned, under section 22A of the new Family Law Act, to the Appellate and Superior Division as an Appellate Judge.

Judges who were assigned to the old General Division before commencement time

(2)       A Judge who, immediately before the commencement time, was assigned to the old General Division under subsection 22(2AF) of the old Family Law Act is taken, after that time, to be assigned, under section 22A of the new Family Law Act, to the Appellate and Superior Division (but not as an Appellate Judge).

Assignment under new Family Law Act not limited

(3)       This item does not limit the application, after the commencement time, of section 22A of the new Family Law Act to a Judge covered by this item.

7  Transitional—assignment of Judges to particular locations

A Judge who, immediately before the commencement time, was assigned to a particular location under subsection 22(2AAA) of the old Family Law Act is taken, after that time, to be assigned to that location under subsection 22B(1) of the new Family Law Act.

8  Saving—style for former Judges

Despite the repeal of subsection 22(4) of the old Family Law Act by Part 1 of Schedule 1, that subsection continues to apply, after the commencement time, in relation to a person who was a former Judge before that time.

9  Saving—seniority of Judges

Appellate Judges

(1)       Subitems (2) and (3) apply to a Judge if, immediately before the commencement time, the seniority of the Judge was determined under subsection 23(3), (4) or (5) of the old Family Law Act.

(2)       For the purposes of the application, after the commencement time, of subsection 23(4) or (5) of the new Family Law Act to the Judge:

                     (a)  the Judge is taken to have been assigned to the Appellate and Superior Division as an Appellate Judge on the day on which the Judge’s assignment to the Appeal Division under the old Family Law Act took effect; and

                     (b)  if subsection 23(3) of the old Family Law Act applied to the Judge—the Judge has such seniority in relation to each other Judge to whom that subsection applied as he or she had before the commencement time.

(3)       If subsection 23(4) of the new Family Law Act does not determine priority between 2 or more Appellate Judges, then those Appellate Judges are taken, for the purposes of subsection 23(5) of the new Family Law Act, to have such seniority in relation to each other after the commencement time, as they had under subsection 23(5) of the old Family Law Act immediately before that time.

Other Judges assigned to the Appellate and Superior Division

(4)       Subitems (5) and (6) apply to a Judge if, immediately before the commencement time, the seniority of the Judge was determined under subsection 23(8) or (9) of the old Family Law Act.

(5)       For the purposes of the application, after the commencement time, of subsection 23(6) or (7) of the new Family Law Act to the Judge, the Judge is taken to have been assigned to the Appellate and Superior Division:

                     (a)  if subsection 23(10) of the old Family Law Act applied to the Judge—on the day on which the Judge’s appointment as a Judge took effect because of that subsection; or

                     (b)  in any other case—on the day on which the Judge’s appointment as a Judge took effect.

(6)       If subsection 23(6) of the new Family Law Act does not determine priority between 2 or more Judges, then those Judges are taken, for the purposes of subsection 23(7) of the new Family Law Act, to have such seniority in relation to each other after the commencement time, as they had under subsection 23(9) of the old Family Law Act immediately before that time.

Assignment under new Family Law Act may affect seniority

(7)       This item does not prevent any changes to a Judge’s seniority as a result of the application, after the commencement time, of section 22A of the new Family Law Act to the Judge.

10  Saving—things done by Family Court or Judge before commencement time

To avoid doubt, the amendments made by Part 1 of Schedule 1 do not affect the validity of anything done by the Family Court or a Judge before the commencement time.

11  Transitional—remuneration etc.

(1)       This item applies in relation to a determination made by the Remuneration Tribunal, under subsections 7(3) and (4) of the Remuneration Tribunal Act 1973 , that relates to the remuneration to be paid to a Judge of the Family Court if:

                     (a)  the determination was in force immediately before the commencement time; and

                     (b)  the determination is in force after the commencement time.

(2)       The determination has effect after the commencement time as if:

                     (a)  a reference to a Judge of the Family Court were a reference to a Judge of the Appellate and Superior Division; and

                     (b)  a reference to a Judge assigned to the Appeal Division were a reference to an Appellate Judge (other than the Chief Justice or the Deputy Chief Justice); and

                     (c)  the references to Judge Administrator and Senior Judge were omitted; and

                     (d)  a reference to a Judge (other than a reference that includes a reference to a Federal Magistrate) does not include a reference to a Judge of the new General Division; and

                     (e)  the provisions that apply to a Federal Magistrate also apply to a Judge of the new General Division.

12  Transitional—Judges of the new General Division

(1)       This item applies in relation to a person if:

                     (a)  after the commencement time, the person:

                              (i)  is appointed to the office of Judge (including the office of Administrative Judge (General Division)); and

                             (ii)  is assigned to the new General Division; and

                     (b)  before the appointment took effect:

                              (i)  the person held office as a Federal Magistrate; and

                             (ii)  the person resigned that office; and

                            (iii)  the resignation took effect immediately before the person’s appointment to the office of Judge took effect.

Remuneration

(2)       The determination by the Remuneration Tribunal of the remuneration that the person was to be paid as a Federal Magistrate continues to have effect in relation to the person after the person’s appointment as a Judge takes effect, as if a reference in the determination to a Federal Magistrate included a reference to a Judge of the new General Division.

Recreation leave entitlements

(3)       The person retains any recreation leave entitlements that had accrued to the person under clause 6 of Schedule 1 to the Federal Magistrates Act 1999 immediately before the person’s appointment as a Judge took effect and, for this purpose, those entitlements are taken to have accrued to the person under section 26D of the new Family Law Act.

Other terms and conditions

(4)       A determination that was in force in relation to the person, under subclause 8(1) of Schedule 1 to the Federal Magistrates Act 1999 immediately before the time the person’s appointment as a Judge took effect, continues to have effect in relation to the person after that time as if it had been made under subsection 26E(1) of the new Family Law Act.

(5)       Any entitlements (for example to personal leave or carer’s leave) that had accrued to the person, under a determination referred to in subitem (4), immediately before the person’s appointment as a Judge took effect are taken to have accrued to the person under that determination as it continues to have effect because of subitem (4).

(6)       For the purposes of subitem (4), the determination continues to have effect in relation to the person, after the person’s appointment as a Judge takes effect, as if a reference in the determination to a Federal Magistrate were a reference to a Judge of the new General Division.

Amendment of determinations etc. not prevented

(7)       Nothing in this item prevents the amendment or repeal of a determination or other instrument covered by this item.

13  Saving and transitional—Judicial Registrars

(1)       This item applies in relation to the following provisions of the old Family Law Act:

                     (a)  Division 4 of Part IV;

                     (b)  section 69ZO;

                     (c)  subsection 69ZR(3);

                     (d)  subsection 97(1A).

(2)       Despite the repeal or amendment of those provisions by Part 1 of Schedule 1:

                     (a)  those provisions, as in force immediately before the commencement time; and

                     (b)  any Rules of Court in force under Division 4 of Part IV of the old Family Law Act immediately before the commencement time; and

                     (c)  any other instrument in force in relation to a Judicial Registrar of the Family Court immediately before the commencement time;

continue in force after the commencement time as if the repeals and amendments had not happened.

(3)       However, the Governor-General must not make any appointments under section 26A of the old Family Law Act (as it continues in force because of subitem (2)) after the commencement time.

(4)       This item ceases to have effect when there are no longer any Judicial Registrars of the Family Court.

14  Application—practice and procedure

Subdivisions B and C of Division 1 of Part XI of the new Family Law Act apply in relation to proceedings instituted in the Family Court after the commencement time.

15  Transitional—Rules of Court

(1)       Rules of Court that were in force under the old Family Law Act immediately before the commencement time are taken, after that time, to be Rules of Court covered by paragraph 124(1)(a) of the new Family Law Act.

Note:       Rules of Court covered by paragraph 124(1)(a) of the new Family Law Act relate to both the Appellate and Superior Division and the new General Division.

(2)       Subitem (1) does not prevent the amendment or repeal of Rules of Court covered by that subitem.

16  Saving—instruments

The amendments made by Part 1 of Schedule 1 do not affect the continuity of an instrument made under any law and in force immediately before the commencement time.



 

Part 3 Removal from Federal Magistrates Court of jurisdiction with respect to family law or child support matters

17  Transfer of family law or child support proceedings to Family Court

(1)       Subject to subitems (4) and (6), this item applies to family law or child support proceedings in the Federal Magistrates Court if the Federal Magistrates Court had not, before the commencement time, begun the final hearing of an application for final orders in the proceedings.

(2)       At the commencement time, the proceedings are transferred to the Family Court.

(3)       If proceedings are transferred to the Family Court under subitem (2):

                     (a)  all documents filed in the Federal Magistrates Court in relation to the proceedings are to be transmitted to the Family Court; and

                     (b)  any money lodged with the Federal Magistrates Court in relation to the proceedings is to be transferred to the Family Court and is taken to be money lodged with the Family Court in relation to the proceedings; and

                     (c)  everything done in, or in relation to, the proceedings in the Federal Magistrates Court is taken to have been done in the Family Court.

(4)       Subitem (2) does not apply to the proceedings if, before the commencement time, the Federal Magistrates Court had:

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

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

(5)       For the purposes of subitem (4), an external dispute resolution process is:

                     (a)  arbitration under Division 4 of Part II of the Family Law Act 1975 or Part 4 of the Federal Magistrates Act 1999 ; or

                     (b)  conciliation under Part 4 of the Federal Magistrates Act 1999 ; or

                     (c)  mediation under Part 4 of the Federal Magistrates Act 1999 ; 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 .

(6)       This item does not affect a family law or child support matter that was remitted by the High Court to the Federal Magistrates Court before the commencement time under section 44 of the Judiciary Act 1903 .

Note:       Subitem 18(1) applies in relation to a matter covered by subitem (6).

18  Family law or child support matters remitted under the Judiciary Act 1903

Family law or child support matters remitted to the Federal Magistrates Court before the commencement time

(1)       If:

                     (a)  a family law or child support matter had been remitted by the High Court to the Federal Magistrates Court under section 44 of the Judiciary Act 1903 before the commencement time; and

                     (b)  the Federal Magistrates Court had not, before the commencement time, begun the final hearing of an application for final orders in a proceeding with respect to the matter;

then the Federal Magistrates Court must transfer the matter to the Family Court.

Family law or child support matters remitted after the commencement time

(2)       To avoid doubt, a family law or child support matter may not be remitted, after the commencement time, by the High Court to the Federal Magistrates Court under section 44 of the Judiciary Act 1903 .

Note:       The matter may be remitted instead to the Family Court.

19  Re-hearings ordered by Family Court on appeal

(1)       This item applies if, in an appeal from a decree of the Federal Magistrates Court (whether that decree was made before or after the commencement time), the Family Court orders a re-hearing under subsection 94AAA(6) of the new Family Law Act.

(2)       The re-hearing is to be dealt with in the new General Division.

20  Application—Rules of Court

Subsection 81(1A) of the Federal Magistrates Act 1999 (as in force after the commencement time) applies in relation to Rules of Court that are made under that Act after the commencement time.

21  Transitional—authorisation to provide family counselling

(1)       This item applies to an authorisation that was given to a person by the Chief Executive Officer of the Federal Magistrates Court under subsection 93D(1) of the Federal Magistrates Act 1999 (as in force before the commencement time) if the authorisation was in force immediately before that time.

(2)       The authorisation has effect after the commencement time as if it had been given to the person by the Chief Executive Officer of the Family Court under subsection 38BD(1) of the new Family Law Act.

22  Transitional—authorisation to provide family dispute resolution

(1)       This item applies to an authorisation that was given to a person by the Chief Executive Officer of the Federal Magistrates Court under subsection 93D(2) of the Federal Magistrates Act 1999 (as in force before the commencement time) if the authorisation was in force immediately before that time.

(2)       The authorisation has effect after the commencement time as if it had been given to the person by the Chief Executive Officer of the Family Court under subsection 38BD(2) of the new Family Law Act.

23  Transitional—family consultants

Appointments made under the Federal Magistrates Act 1999

(1)       Subitem (2) applies to an appointment of a person as a family consultant under paragraph 99(1)(f) of the Federal Magistrates Act 1999 (as in force before the commencement time) if the appointment was in force immediately before that time.

(2)       The appointment has effect, after the commencement time, as if it had been made under paragraph 38N(1)(d) of the new Family Law Act.

Appointments made under regulations made under the Family Law Act 1975

(3)       Subitem (4) applies to an appointment of a person as a family consultant by the Chief Executive Officer of the Federal Magistrates Court under regulations made for the purposes of paragraph 11B(c) of the old Family Law Act if the appointment was in force immediately before the commencement time.

(4)       The appointment has effect, after the commencement time, as if it had been made by the Chief Executive Officer of the Family Court under regulations made for the purposes of paragraph 11B(c) of the new Family Law Act.



 

Part 4 Regulations

24  Regulations may deal with transitional etc. matters

The Governor-General may make regulations dealing with matters of a transitional, saving or application nature relating to amendments made by this Act.