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

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2008-2009-2010

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

ACCESS TO JUSTICE (FAMILY COURT RESTRUCTURE AND OTHER MEASURES) BILL 20 10

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Robert McClelland MP)



Abbreviations used in the Explanatory Memorandum

 

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

 

Family Law Act                               Family Law Act 1975

 

Federal Court Act                            Federal Court of Australia Act 1976

 

Federal Magistrates Act                   Federal Magistrates Act 1999

 

Family Law Rules                            Family Law Rules 2004



ACCESS TO JUSTICE (FAMILY COURT RESTRUCTURE AND OTHER MEASURES) BILL 2010

 

OUTLINE

 

This Bill restructures the Family Court of Australia by creating a new Division of the Court, to which Federal Magistrates exercising family law jurisdiction will be offered new commissions.  The family law jurisdiction of the Federal Magistrates Court will be removed so that it becomes a court exercising general federal law jurisdiction.

 

The restructure of the Family Court will provide a simplified system for people involved in family law litigation, consistent with the Government’s commitment to eliminating confusion for litigants and reducing inefficiencies and administrative duplication in the Family Court and Federal Magistrates Court.  It does this by amending the Family Law Act 1975 , the Federal Magistrates Act 1999 and by making consequential amendments to the Child Support (Registration and Collection) Act 1988 and the Child Support (Assessment) Act 1989 , as well as other Acts.

 

The restructure reflects the recommendations relating to family law jurisdiction of the Report, Future Governance Options for Federal Family Law Courts in Australia - Striking the Right Balance .  The Bill is also consistent with the findings of the Australian Institute of Family Studies’ Evaluation of the 2006 Family Law Reforms .

 

The Bill also amends the Administrative Appeals Tribunal Act 1975 to authorise the making of regulations which permit the Tribunal to charge fees at any stage in proceedings, not only at the application stage.  This will allow for the implementation of a new fee in the Tribunal for Government agencies where the Tribunal makes a determination after a full hearing that is not favourable to an agency.

 

 

Amendments to the Family Law Act 1975

 

The Bill will make the Family Court the single court dealing with all family law matters.  The restructured Court will have two Divisions — an Appellate and Superior Division and a General Division:

·            The Appellate and Superior Division will hear complex first instance family law and child support cases, as well as appeals.  It will comprise existing Family Court judges.  Judges of the current Appeal Division will become Appellate Judges in the new Appellate and Superior Division.

·            The General Division will hear the majority of family law cases (as the Federal Magistrates Court do prior to this Bill) and will be subject to certain jurisdictional limitations which currently exist.  It will comprise those Federal Magistrates who undertake mainly family law work and who accept commissions to the new Division as Judges.  Judges of the General Division will be appointed on the same terms and conditions as Federal Magistrates.

·            Matters will be able to be transferred between the two Divisions where appropriate.

 



The Chief Judge and Deputy Chief Judge will be retitled the Chief Justice and the Deputy Chief Justice respectively.  Two new positions of Administrative Judge (Appellate and Superior Division) and Administrative Judge (General Division) will be created to assist the Chief Justice in managing the business of the Court.

 

 

 

 

 

 

 

 

 

 

 

 

 

 



Family Court of Australia

 

The Family Court will continue to be a superior court of record.  However, for the purposes of remuneration and exercising persona designata functions, Judges of the General Division are not to be taken to be Judges of a superior court.

 

Amendments to the Federal Magistrates Act 1999

 

The Bill removes the Federal Magistrates Court’s family law jurisdiction, but retains the Court to hear general federal law matters.  The only family law matters heard in the Court will be matters commenced in the Court prior to the restructure and matters associated with these proceedings, as well as matters referred to the Court by the Family Court.

 

The Federal Magistrates Court will be administered by the Federal Court.  All officers of the Federal Magistrates Court will be officers already holding positions in the Federal Court and, in the limited circumstances where the Federal Magistrates Court continues to hear family law matters, administrative support will be provided by the Family Court.  This will ensure that efficiencies are achieved and that a holistic approach to service delivery is taken.

 

Other amendments

 

Schedule 3 to the Bill makes amendments to a number of other Acts.  Amendments made in Schedule 3 which relate to the restructure of the Family Court include:

·          amendments to remove jurisdiction from the Federal Magistrates Court with respect to family law and child support matters under the Child Support (Assessment) Act 1989 , the Child Support (Registration and Collection) Act 1988 and the Marriage Act 1961 , and

·          consequential amendments of other legislation (including the Judiciary Act 1903 and the Jurisdiction of Courts (Cross-vesting) Act 1987 ).

 

Schedule 3 also amends the Administrative Appeals Tribunal Act 1975 to expand the regulation-making power in the Act to allow fees to be imposed at any stage in proceedings. Currently fees can only be imposed at the application stage.  This will allow the making of regulations which give the Administrative Appeals Tribunal the discretion to impose a fee of $2500 on decision-making agencies where the Tribunal makes a determination which is not in their favour after a full hearing.

 

Schedule 4 to the Bill contains various saving and transitional provisions to support a smooth transition to the new arrangements.  The provisions include:

·          preserving the appointment and entitlements of existing Family Court Judges, Judicial Registrars and Federal Magistrates, and

·          facilitating the transfer of family law and child support matters between the Federal Magistrates Court and the Family Court where the substantive hearing has not commenced.

 

 

FINANCIAL IMPACT

 

The restructure of the Family Court and the administration of the Federal Magistrates Court by the Federal Court will create savings of approximately $6.3 million over 4 years from 2009-10.  These savings are a result of the joint administration of family law jurisdiction and the administration of the Federal Magistrates Court’s administrative and registry functions by the Federal Court and the corresponding reduction in administrative duplication achieved.

 

The Administrative Appeals Tribunal Act amendment will result in the collection of an additional $0.5m in fees per year from 2010-11.

NOTES ON CLAUSES

 

Clause 1 - Short title

 

1.              This clause is a formal provision specifying the short title of the Bill.

 

Clause 2 - Commencement

2.              This clause provides for the commencement of the measures in the Bill.  Most of the measures will commence on Royal Assent.  Part 1 of Schedule 1 will commence on Proclamation.

3.              The commencement of some items in the Bill is subject to the commencement of the Trans-Tasman Proceedings (Transitional and Consequential Provisions) Act 2010 , the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010 and the Personal Property Securities Act 2009 .

 

Clause 3 - Schedule(s)

4.              This clause is a formal provision to ensure that the Schedules to the Bill will amend the Acts as specified in those Schedules.

 

 

SCHEDULE 1 - Amendment of the Family Law Act 1975

Part 1 - Main amendments

Item 1 - Subsection 4(1)

5.              Item 1 inserts a definition for a new office of ‘Administrative Judge (Appellate and Superior Division)’ in the definitions section of the Family Law Act, section 4(1).  The office is the administrative head of the newly created ‘Appellate and Superior Division’ of the Family Court, whose role will be to assist the Chief Justice in managing the business of the Court.

Item 2 - Subsection 4(1)

6.              Item 2 inserts a definition for a new office of ‘Administrative Judge (General Division)’ in the definitions section of the Family Law Act, section 4(1).  The office is the administrative head of the newly created ‘General Division’ of the Family Court, whose role will be to assist the Chief Justice in managing the business of the Court.

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

7.              Item 3 removes the definition of ‘Appeal Division’ from the definitions section of the Family Law Act, section 4(1).  This definition will no longer be required as the functions of the Appeal Division will be performed by Appellate Judges in the Appellate and Superior Division of the Family Court.

Item 4 - Subsection 4(1)

8.              Item 4 inserts a new definition of ‘Appellate and Superior Division’ in the definitions section of the Family Law Act, section 4(1).  This definition is required to reflect the renaming of the existing Divisions, the ‘General Division’ and the ‘Appeal Division’, to the ‘General Division’ and ‘Appellate and Superior Division’. 

9.              A transitional provision, Item 6(2) of Schedule 4, will deem existing Judges of the General Division of the Family Court to be assigned to the Appellate and Superior Division (but not as Appellate Judges).

Item 5 - Subsection 4(1)

10.          Item 5 inserts a new definition of ‘Appellate Judge’ in the definitions section of the Family Law Act, section 4(1).  This definition is required as a result of the incorporation of the former Appeal Division into the Appellate and Superior Division. 

11.          Appellate Judges will perform the functions of Judges of the former Appeal Division and will be assigned to hear appeal matters.  A transitional provision, Item 6(1) of Schedule 4, will deem existing Judges in the Appeal Division to be assigned to the Appellate and Superior Division as Appellate Judges.

Item 6 - Subsection 4(1)

12.          Items 6, 7, 8 and 11 are definitions which were previously located in section 20 of the Family Law Act which are being moved to section 4(1) where other definitions are located.  This will improve clarity in the Act. 

13.          Item 6 inserts a new definition of ‘Chief Justice’.  Currently under the Family Law Act the title of this office is ‘Chief Judge’.  This amendment will ensure the Chief Justices of both the Federal Court and Family Court have the same formal title, that of Chief Justice.  Consequential amendments are made to a number of other Acts to reflect this change.

14.          To avoid any doubt, a transitional provision, Item 3 of Schedule 4, provides that the office of Chief Judge of the Family Court is the same office as the office of Chief Justice.  Transitional provisions 4(1) and 5(1) of Schedule 4 ensure that references to the Chief Judge and Chief Justice are taken to be references to the same office.

Item 7 - Subsection 4(1)

15.          Item 7 inserts a new definition of ‘Court’ in the definitions section of the Family Law Act to clarify that reference to ‘Court’ in the Act means the Family Court of Australia.  This definition was previously located in section 20 of the Act.

Item 8 - Subsection 4(1)

16.          Item 8 inserts a new definition of ‘Deputy Chief Justice’ in the definitions section of the Family Law Act, section 4(1).  Currently, under section 20 of the Family Law Act, the title of this office is Deputy Chief Judge.  This amendment is consistent with Item 6.  Consequential amendments are made to a number of other Acts to reflect this change.

17.          To avoid doubt a transitional provision, Item 3 of Schedule 4, provides that the office of Deputy Chief Judge of the Family Court is the same office as the office of Deputy Chief Justice.  Transitional provisions 4(2) and 5(2) of Schedule 4 ensure that references to the Deputy Chief Judge and Deputy Chief Justice are taken to be references to the same office. 

Item 9 - Subsection 4(1)

18.          Item 9 inserts a new definition of ‘Division’ in the definitions section of the Family Law Act to reflect the renaming of the existing Divisions.

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

19.          Item 10 inserts a new definition of ‘Full Court’ in the definitions section of the Family Law Act, section 4(1).  As a result of the restructure the Full Court will no longer be constituted by members of the ‘Appeal Division’, but by ‘Appellate Judges’ and ‘Judges of the Appellate and Superior Division.’

Item 11 - Subsection 4(1)

20.          Item 11 inserts a new definition of ‘Judge’ in the definitions section of the Family Law Act, section 4(1).  The definition will include the newly created offices of ‘Administrative Judge (Appellate and Superior Division)’ and ‘Administrative Judge (General Division)’.  The definition has also been amended to avoid any confusion that a reference to ‘Judge’ in the Act includes a Judge of the Family Court and is a consequence of the removal of current definitions by Item 21.

Item 12 - Subsection 4(1)

21.          Item 12 inserts a new definition of ‘Judge of the Appellate and Superior Division’ in the definitions section of the Family Law Act, section 4(1).  This definition clarifies that the Chief Justice, Deputy Chief Justice, Administrative Judge (Appellate and Superior Division) and any other Judges assigned to the Division under section 22A constitute the Division.

22.          Section 22(2AA), which sets out the constitution of the current Appeal Division, is repealed in Item 29. 

Item 13 - Subsection 4(1)

23.          Item 13 inserts a new definition of ‘Judge of the General Division’ in the definitions section of the Family Law Act, section 4(1).  This definition clarifies that the Administrative Judge (General Division) and any other Judges assigned to the Division under section 22A constitute the Division.

Items 14, 15, 16 and 17 - Paragraphs 10C(1)(d) and 10G(1)(d), 11B(b), 11B(note) and subparagraph 11E(1)(e)(i)

24.          Items 14, 15, 16 and 17 remove the ability of the Federal Magistrates Court to authorise ‘family counsellors’ and ‘family dispute resolution practitioners ’ from acting under the Federal Magistrates Act.  These officers will be authorised by the Chief Executive Officer of the Family Court who will make services available to Federal Magistrates who remain in the Federal Magistrates Court and who hear any family law matters transferred from the Family Court. 

25.          There will no longer be a need for the Federal Magistrates Court to appoint their own family counsellors and family dispute resolution practitioners because it is expected the vast majority of family law work will be undertaken in the restructured Family Court.  These amendments complement amendments to the Federal Magistrates Act made in Schedule 2 of the Bill.

26.          Item 14 repeals paragraphs 10C(1)(d) and 10G(1)(d) which enable ‘family counsellors’ and ‘family dispute resolution practitioners’ to be authorised to act under section 93D of the Federal Magistrates Act, or engaged under s 115(1A) of that Act.

27.          Item 15 repeals paragraph 11B(b) which defines a family consultant to include one appointed under the Federal Magistrates Act.

28.          Item 16 amends the note in section 11B which refers to the Chief Executive Officer of the Federal Magistrates Court having the ability to direct the performance of consultants.  This note is amended to provide that only the Chief Executive Officer of the Family Court has these functions.

29.          Item 17 repeals the words ‘of that court’ from subparagraph 11E(1)(e)(i) which is consistent with ensuring that the Federal Magistrates Court does not appoint family consultants.

Item 18 - After subsection 13G(2)

30.          Item 18 inserts a new provision which ensures that the only questions of law which can be referred to the Federal Magistrates Court by an arbitrator conducting arbitration under the Family Law Act are those where the Federal Magistrates Court has either ordered the arbitration, or made orders facilitating the arbitration.

31.          Prior to these amendments, an arbitrator could refer a question of law to the Federal Magistrates Court where the Court had not ordered or facilitated the arbitration. 

32.          This provision will ensure that after the commencement date, parties who have chosen to resolve their matters by arbitration will still be able to access the Federal Magistrates Court in order to finalise their matter where the arbitration occurred as the result of an order from the Federal Magistrates Court.

Item 19 - After subsection 13J(1)

33.          Item 19 inserts a new provision which enables the Federal Magistrates Court to review registered arbitration awards on a question of law only where it has ordered the arbitration, or made orders facilitating the arbitration.

34.          This provision will ensure that after the commencement date, parties who have chosen to resolve their matters by arbitration will still be able to access the Federal Magistrates Court to finalise their matter by determining all questions of law relating to the arbitration or making such decrees as the Court thinks are appropriate.

Item 20 - Subsection 13K(1)

35.          Item 20 corrects a drafting omission in subsection 13K(1) which currently refers to the court in which an arbitration ‘award’ is registered.  It is amended to also include reference to an arbitration ‘agreement’.

Item 21 - Division 1 of Part IV

36.          Item 21 repeals Division 1 Part IV (section 20) of the Family Law Act which deals with the interpretation of certain terms in Part IV.  For simplicity, definitions for these terms have now been incorporated in the general definitions section, section 4(1) of the Family Law Act, in Items 6, 7, 8 and 11.

Item 22 - Division 2 of Part IV (heading)

37.          Item 22 amends the title of Division 2 to indicate that the Division deals with the creation of the Family Court among other things.

Item 23 - Subsections 21(3) and (4)

38.          Item 23 repeals subsections (3) and (4) of section 21 and provides a new subsection (3) which outlines the judicial offices that the Family Court will comprise.  It includes two new offices, those of ‘Administrative Judge (Appellate and Superior Division)’ and ‘Administrative Judge (General Division),’ and removes references to the positions of ‘Judge Administrators’ and ‘Senior Judges’, which will no longer exist.

39.          It is intended new regulations will be made under subsection (4) to increase the number of Judges prescribed to the Family Court under the Act.  This will take account of the movement of existing Federal Magistrates into the Family Court as Judges of the General Division.

Item 24 - Section 21A

40.          Item 24 is a technical amendment to reflect the renaming of the Divisions of the court - the Appellate and Superior Division and the General Division.  The Appellate and Superior Division will handle appeals and the most complex matters and the less complex matters will be handled by the General Division.

Item 25 - Section 21B(1)

41.          Section 21B sets out how the Family Court’s business will be arranged.  Item 25 amends this section to provide that the Chief Justice is responsible for the discharge of business of the Court as a whole, and for both the Appellate and Superior Division and the General Division, including the allocation of resources between the Divisions.

Item 26 - Section 21B(1A)

42.          Item 26 replaces the title ‘Chief Judge’ with ‘Chief Justice’ and is a consequence of changes in Item 6.

Item 27 - Subsections 21B(2) to (5)

43.          Item 27 repeals subsections 21B(2) to (5) and introduces new provisions which further outline the arrangement of business in the Family Court.  These provisions ensure that while the Family Court comprises two distinct Divisions, the Court is to operate as a whole. 

44.          The Deputy Chief Justice’s role in assisting the Chief Justice is preserved, while changes in nomenclature are consistent with Item 8.  These provisions set out that the role of the Administrative Judge (Appellate and Superior Division) and Administrative Judge (General Division) is to assist the Chief Justice in discharging his or her responsibility for the arrangement of business in the Court.  It also ensures that in assisting the Chief Justice, Administrative Judges have the same protection and immunity as they would as members of the Court performing judicial functions. 

45.          The office of Administrative Judge is similar to that of a current Judge Administrator under the Family Law Act whose role is to assist the Chief Justice and Deputy Chief Justice administer the Family Court in the location assigned to them by the Chief Justice. 

46.          Rather than administer locations, the role of Administrative Judges provided under this Bill is to assist the Chief Justice administer the two Divisions of the Court.

47.          Subsection 21B(6) provides that the Federal Court does not have jurisdiction under the Judiciary Act 1903 to review the exercise of the functions or powers of the Chief Justice, Deputy Chief Justice or Administrative Judges by an officer of the Court.

Item 28 - Before section 22

48.          Item 28 inserts a new heading of ‘Appointment, seniority, remuneration etc’ which more clearly outlines the provisions dealt with in the subdivision.

Item 29 - Subsections 22(2AAA) to (2AFA)

49.          Item 29 repeals subsections 22(2AAA) through to (2AFA).  Other provisions, including subsection 22(2AA), (2AB) and (2AC) relating to the Appeal Division, have been moved to the new section 22A at Item 37, which deals with the appointment and assignment of Appellate Judges, members of the Appellate and Superior Division and the General Division.

Item 30, 31, 32, 33, 34 and 35 - Subsections 22(AG), 22(2AH), 22(2A), 22(2B) and subsections 22(3) to (4)

50.          These are technical amendments that are a consequence of changes made to streamline and reorder sections relating to appointment, removal, remuneration and seniority in the Family Law Act.

Item 36 - At the end of section 22

51.          Item 36 introduces a new subsection (7) to section 22 which provides that in relation to subsections (3), (5) or (6), a reference to a ‘Judge of the Court’ or a ‘Judge of the Family Court of Australia’ refers only to a Judge of the Appellate and Superior Division.

52.          This amendment will retain the current ability of existing Judges in the Family Court and in the new Appellate and Superior Division to hold office as judges of other prescribed courts, including superior courts of record and the office of Judge of a Family Court of a State.

53.          Federal Magistrates do not currently have the ability to hold more than one office at one time and these provisions ensure that the status quo is preserved for the judicial officers in the General Division of the Family Court.  This will enable Judges of the General Division to focus solely on family law matters filed in the Family Court.

54.          Item 36 also retains the current ability of Federal Magistrates to be appointed on a part-time basis by providing in new subsection (8) that Judges assigned to the General Division may hold office on a part-time basis.  A commission of assignment to the Appellate or Superior Division cannot be held part-time.  While currently there are no part-time Federal Magistrates, this provides flexibility for the future.



Item 37 - After section 22

Assignment

55.          Item 37 creates a new section, section 22A, which provides for commissions of assignment of Judges to a Division of the Family Court.  This section includes provisions similar to those repealed by Item 29 and provides that when appointing a Judge to the Court, the Governor-General must assign the Judge to a Division. 

56.          Subsections 22A(2) and (3) provide for the commissions of assignment of particular office holders.   Higher office holders must be assigned to the appropriate Divisions if not already assigned to those Divisions by the Governor-General.  This means that the Chief Justice, Deputy Chief Justice and the Administrative Judge (Appellate and Superior Division) will be assigned to the Appellate and Superior Division as Appellate Judges.  The Administrative Judge (General Division) will be assigned to the General Division.  A transitional provision, Item 6(1) of Schedule 4, ensures that the existing Chief Judge and Deputy Chief Judge are taken to have been assigned (under section 22A) to the Appellate and Superior Division as Appellate Judges.

57.          Subsections 22A(4) and (5) enable a Judge to be assigned to a Division during a term of appointment in certain circumstances with their consent.   A Judge of the Appellate and Superior Division can be assigned as an Appellate Judge, and a Judge of the General Division can be assigned to the Appellate and Superior Division, including as an Appellate Judge during the term of their appointment.  This ensures that Federal Magistrates who accept commissions of assignment to the General Division of the Family Court could later be appointed to the Appellate and Superior Division as either Judges or as Appellate Judges.

58.          The limit on the number of Judges who may be Appellate Judges, formerly Judges of the Appeal Division, is retained by subsection (6).  The arrangements for the assignment of Judges to particular locations are retained and included in new section 22B.

Resignation

59.          Item 37 creates a new section, section 22C, which brings together provisions relating to resignation previously found in subsections 22(2AFA), (3) and (3A) with a new heading ‘Resignation’.  This provides for Judges to resign in writing to the Governor-General and the resignation takes effect on the day on which it is resigned by the Governor-General or on a later day as specified in the document.

Effect of appointment to, and resignation from, certain offices

60.          Item 37 creates a new section, 22D, which is based on existing subsection 22(2AFA).  This new section broadens the class of judicial officer who can resign from their position while remaining Judges of the Court by including the positions of Administrative Judge (Appellate and Superior Division) and Administrative Judge (General Division).  This could only occur consistently with the requirement in section 72 of the Constitution that a Judge’s remuneration shall not be diminished during their continuance in office.  It also removes references to ‘Senior Judges’ and ‘Judge Administrators’, consistent with amendments in Item 23. 

Style

61.          Item 37 also introduces a new section, section 22E, which includes former subsection 22(4) and a new subsection 22E(2).  It provides that Judges or former Judges of the Appellate and Superior Division will be entitled to be styled “The Honourable.”  An Appellate Judge will be entitled to include the letters “JA” after his or her name, and any other Judge of the Appellate and Superior Division will be entitled to include the letters “SJ” (Senior Judge) after his or her name.  A saving provision, Item 8 of Schedule 4, will save the operation of existing subsection 22(4) for those Judges who are currently ‘former Judges’ of the Family Court.

Item 38 and 39 - Subsection 23(1) and (2)

62.          Items 38 and 39 replace references to ‘Chief Judge’ with ‘Chief Justice’ and are a consequence of changes in Item 6.

Item 40 - Subsections 23(3) and (4)

63.          Item 40 repeals provisions regarding the seniority of current ‘Judge Administrators’ and Judges assigned to the Appeal Division, and inserts provisions which establish the seniority of the ‘Administrative Judge (Appellate and Superior Division)’ and ‘Appellate Judges’ created by the Bill. 

64.          The Administrative Judge (Appellate and Superior Division) will have seniority to all other Judges of the Court, except the Chief Justice and Deputy Chief Justice.  Appellate Judges will have seniority to all other Judges of the Court, except the Chief Justice, Deputy Chief Justice and the Administrative Judge (Appellate and Superior Division) according to the days on which their assignments as Appellate Judge take effect. 

65.          Transitional provisions in Item 9 of Schedule 4 will preserve seniority for Judges of the Appeal Division who will be titled ‘Appellate Judges’.

Item 41 - Subsections 23(5)

66.          Item 41 substitutes reference to the ‘appointments as Judge Administrator and assignments to the Appeal Division’ with ‘assignments to the Appellate and Superior Division as an Appellate Judge’ in the seniority provisions.  This amendment is a consequence of the renaming of the ‘Appeal Division’ as the ‘Appellate and Superior Division’ and the creation of the office of ‘Appellate Judges’.

Item 42 - Subsections 23(6) to (11)

67.          Item 42 repeals subsections 23(6) to (11) which provide for the seniority of ‘Senior Judges’ and replaces them with seniority provisions for Judges of the Appellate and Superior Division (other than Appellate Judges).  Judges of the Appellate and Superior Division are senior to all other Judges of the Court except the Chief Justice, Deputy Chief Justice, the Administrative Judge (Appellate and Superior Division) and Appellate Judges.  They have seniority according to the days on which their assignments to the Appellate and Superior Division take effect. 

68.          Subsections (8) and (9) operate to preserve seniority if, after the Bill commences, a Judge’s assignment to the Appellate and Superior Division is terminated and a new assignment of the same kind immediately takes effect for that Judge.

69.          Transitional provisions in Item 9 of Schedule 4 preserve seniority for existing Appeal Division and other Family Court Judges.

70.          There are not any seniority provisions in the General Division.  This reflects the current position in the Federal Magistrates Court, where Federal Magistrates (other than the Chief Federal Magistrate) do not have seniority. 

Item 43 - Subsection 24(1)

71.          Item 43 amends provisions relating to the absence and illness of the Chief Justice.  They provide that when the Chief Justice is absent from Australia or from duty, the Deputy Chief Justice will perform the functions of the Chief Justice.  In the case where the Deputy Chief Justice is not able to perform these functions, the next most senior Judge of the Appellate and Superior Division who is available in Australia and willing to do so will perform the duties and exercise powers of the Chief Justice.  These provisions are similar to provisions for the Federal Court in the Federal Court Act.

Item 44 - Subsection 24(2)                                                                                                     

72.          Item 44 replaces the title ‘Chief Judge’ with ‘Chief Justice’ and is a consequence of changes in Item 6.

Item 45 - Sections 25 and 26

73.          Item 45 confirms in new section 24A that the expressions ‘Judge of a superior court’ and ‘Judges of a superior court’, in any other law of the Commonwealth, do not include a Judge of the General Division of the Family Court (which is a superior court of record).  Section 48C of the Australian Capital Territory (Self-Government) Act 1988 is an example of where this expression occurs.

 

74.          Similarly subclause (2) confirms that references, in any other law of the Commonwealth, to a period during which a person served as a Judge in a superior court do not include references to a period during which the person served as a Judge of the General Division of the Family Court.  Section 34B of the Australian Security Intelligence Organisation Act 1979 and section 105.2 of the Criminal Code Act 1995 are examples of where this expression occurs.

 

75.          This provision will clarify, for the avoidance of doubt, the application of such other laws of the Commonwealth to persons who are serving or have served as a Judge of the General Division of the Family Court.  The Family Court is a superior court of record.  However, where a Judge of the General Division consents to exercise non-judicial functions and powers in their personal capacity under other Commonwealth laws, they are not to be taken to be a Judge of a superior court for that purpose. 

 

76.          Item 45 also amends provisions relating to salary and allowances to reflect the position where the Remuneration Tribunal, subject to disallowance, makes determinations for the remuneration of all judges of federal courts.  Subclause (1) provides that 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.  This is subject to the Remuneration Tribunal Act.  

 

77.          These provisions are consistent with clause 5 of Schedule 1 to the Federal Magistrates Act.  While different provisions are established under section 26J of the Family Law Act, the enactment of that section pre-dates the creation of the Remuneration Tribunal.  In practice, these provisions are implemented so that remuneration for Judges of the Family Court is determined under the Remuneration Tribunal Act.  Similar provisions are also found in the Military Court of Australia Bill 2010.

 

78.          Subclause (3) reflects former subsection 25(2) to ensure that the salary and annual allowances of Judges of the Appellate and Superior Division accrue daily and are payable monthly.

 

79.          Subclause (4) provides that Judges of the General Division are to be treated as Justices of a court of record for the purpose of determining their remuneration and other terms and conditions.  This is consistent with the position of Federal Magistrates in the Federal Magistrates Court, which is a court of record.

 

80.          Subclause (5) provides that the remuneration of a Family Court Judge is not to be diminished during his or her continuance in office.  This is consistent with the requirement in section 72 of the Constitution that a Judge’s remuneration shall not be diminished during their continuance in office.

 

81.          These provisions ensure that provisions dealing with remuneration for all judges in the Family Court are located together.  A transitional provision, Item 12(2) of Schedule 4, will provide that a determination applies to Judges of the General Division in the same way as Federal Magistrates.

 

82.          Item 46 amends sections relating to the making of an oath or affirmation of allegiance and office .  The new provisions in section 26 include references to the offices which are created by other amendments in the Bill including Administrative Judge (Appellate and Superior Division) and Administrative Judge (General Division) and removes offices of ‘Judge Administrator’ and ‘Senior Judge’.

 

83.          The new provisions enable all Judges of the Family Court to take their oath before the Governor-General, which is a practice that already exists for Judges of the Federal Court and Federal Magistrates in the Federal Magistrates Court.  The provisions also broaden the offices before which an oath or affirmation of allegiance and office can be taken, consistent with other amendments in this Bill.  These provisions include the term ‘must’ as opposed to ‘shall’ which is found in the Family Law Act and the Federal Court Act, to reflect the requirement currently in the Federal Magistrates Act.  Similar provisions are also found in the Military Court of Australia Bill.

Item 46 - At the end of Division 3 of Part IV

84.          Item 46 inserts a new Subdivision B which includes provisions relating to the terms and conditions that apply to Judges of the General Division.  In the Federal Magistrates Court, Federal Magistrates have certain conditions.  These terms and conditions will be preserved and are brought across from Schedule 1 to the Federal Magistrates Act into the Family Law Act in the Bill.  They ensure that Federal Magistrates who choose to accept new commissions to the Family Court will do so on the same terms and conditions as they have in the Federal Magistrates Court.  These provisions do not apply to Judges of the Appellate and Superior Division nor change the terms of their appointment.  

85.          Transitional provisions in Item 12 of Schedule 4 will save existing entitlements made under clause 6 of Schedule 1 to the Federal Magistrates Act and determinations made under subsection 8(1) of Schedule 1 to the Federal Magistrates Act.

86.          Section 26B inserts a number of new definitions to apply to the terms and conditions of Judges of the General Division.  The title ‘Judge’ is specifically defined to mean ‘a Judge of the General Division’.

87.          As in the Federal Magistrates Act, the term ‘Commonwealth superannuation contribution’ is defined as being the Commonwealth’s contribution to a complying superannuation fund or retirement savings account, whichever is nominated by a Judge or retired disabled Judge of the General Division.  This definition is also relevant to the entitlement created by the new section 26H for superannuation paid for retired disabled Judges.  This section replicates Clause 9C of Schedule 1 to the Federal Magistrates Act.

88.          The term ‘prior judicial service’ will include earlier service as a Federal Magistrate of the Federal Magistrates Court as well as service as a federal Judge, a State or Territory Judge or a State or Territory Magistrate.  The pension payable to a retired disabled Judge of the General Division under new section 26G may be reduced where pension or retiring allowance is payable in respect of such service.  These provisions replicate Clause 9B of Schedule 1 to the Federal Magistrates Act.

89.          The term ‘retired disabled Judge’ is defined as a person certified as such under new section 26F of the Family Law Act.  These provisions replicate Clause 9A of Schedule 1 to the Federal Magistrates Act.

90.          The term ‘retires’ is defined to mean where a Judge of the General Division ceases, otherwise than by death, to hold office.  This covers both resignation and removal by the Parliament under section 72 of the Constitution.

91.          A number of other terms are defined by reference to definitions in other new sections added by this Schedule.   Those definitions are each dealt with below under the relevant new provision.

92.          Section 26C brings across Clause 4 of Schedule 1 to the Federal Magistrates Act.  This section provides that Judges of the General Division must not engage in remunerated work inconsistent with the holding of judicial office.

93.          Section 26D brings across Clause 6 of Schedule 1 to the Federal Magistrates Act.  It provides that the Remuneration Tribunal will determine recreation leave entitlements for a Judge of the General Division.

94.          Section 26E brings across Clause 8 of Schedule 1 to the Federal Magistrates Act which enables the Governor-General to determine other terms and conditions for Judges of the General Division not specified in the Act.  Determinations made by the Governor-General are legislative instruments which must be tabled in Parliament and may be disallowed within 15 sitting days after the determination is tabled.  This disallowance mechanism is based on a similar mechanism in section 7 of the Remuneration Tribunal Act.

95.          Section 26F brings across Clause 9A of Schedule 1 to the Federal Magistrates Act and allows the Minister to certify that a Judge of the General Division who retires before attaining age 70 is a retired disabled Judge.  The Minister can only do so following a request, and if he or she is satisfied that the retirement was due to permanent disability or infirmity.  Where a retired disabled Judge was incapacitated to the extent that he or she is unable to make such a request, the request may be made by another person. 

96.          The Administrative Appeals Tribunal has jurisdiction to review a decision by the Minister to refuse to certify that a person is a retired disabled Judge of the General Division.

97.          Section 26G brings across Clause 9B of Schedule 1 to the Federal Magistrates Act and provides that a retired disabled Judge of the General Division is entitled to a pension until he or she attains age 70 or dies, whichever happens first. 

98.          Section 26G(2) provides that the pension received by a retired disabled Judge is 60 per cent of the salary the person would have received if he or she had not retired.  The salary on which the pension is based is defined to be the annual rate of remuneration (i.e. salary and allowances) set by the Remuneration Tribunal but excluding any allowances that can be taken in lieu of other entitlements, such as for vehicle entitlements.  Any allowances are not pensionable.

99.          Section 26G(3) provides that the pension is reduced by the amount of any pension or retiring allowance payable to the retired disabled Judge out of money provided (in full or in part) by the Commonwealth, a State or a Territory and which was payable by reason of prior judicial service.

100.      Section 26G(4) provides that the rate of pension is not reduced if the person draws on his or her Commonwealth contributed superannuation while the pension is being paid.  This is consistent with the objective of paying the disability pension to age 70 and providing Commonwealth superannuation support for the person as if he or she had worked to age 65.  The fact that superannuation is drawn down would merely reflect a decision by the person to access his or her superannuation sooner rather than later.

101.      Section 26G(6) deems that a pension payable to a retired disabled Judge of the General Division is a pension payable under a superannuation scheme for the purposes of Division 3 of Part II of the Safety, Rehabilitation and Compensation Act 1988 .  That Division provides for workers’ compensation payments for injuries resulting in incapacity for work.  Any such payments are reduced by pension payments from a Commonwealth superannuation scheme.

102.      Section 26H brings across Clause 9C of Schedule 1 to the Federal Magistrates Act .  It provides that a retired disabled Judge of the General Division is also entitled to Commonwealth superannuation contributions until he or she attains age 65 or dies, whichever happens first.  Any such contributions would be payable as if the person had not retired.

103.      Section 26J brings across Clause 9D of Schedule 1 to the Federal Magistrates Act.  It provides for the payment of death benefits in respect of a Judge of the General Division, or a retired disabled Judge of the General Division, who dies before attaining age 65 where the person leaves one or more eligible spouses or eligible children.  Where there is more than one beneficiary, the Minister is to apportion the death benefit having regard to the respective circumstances of each beneficiary.

104.      Subsections 26J(2) and (3) provide that the amount of a death benefit payable in respect of a Judge or a retired disabled Judge is equivalent to the amount of superannuation the Commonwealth would have contributed for the person to age 65 if the person had neither died nor retired before attaining that age.  This amount is calculated from the date of death and on the basis of the amount of superannuation contributions payable for the person at that date.

105.      Subsections 26J(7) through to (9) provide that where a payment is payable to an eligible child, the Minister can be requested to direct that some or all of the payment be paid to a specified person for the benefit of the child.  This would allow, for example, the Minister to direct that an amount payable to an eligible child be paid to the deceased Judge’s former spouse, with whom the eligible child lives, for the benefit of the child.  The Minister can alternatively direct that the payment be spent in a specified manner for the benefit of the child.

106.      The Administrative Appeals Tribunal has jurisdiction to review specified decisions by the Minister under new section 26J.  These include decisions apportioning a death benefit payment where there is more than one beneficiary, and directing that a death benefit be paid instead to a specified person, or be spent in a specified manner, for the child’s benefit.

107.      Subsection 26K defines certain relationships for the purpose of establishing status as a beneficiary for a death benefit payment under section 26J for the purposes of Federal Magistrates’ entitlements only.  It provides the same relationship definitions as those found in clause 9E of Schedule 1 to the Federal Magistrates Act.  These definitions, and those in section 26L, are generally consistent with the definitions used in legislation establishing Commonwealth superannuation and pension schemes, such as the Parliamentary Contributory Superannuation Act 1948 .

108.      Subsection (1) provides that a person is an ‘eligible spouse’ of a Judge of the General Division, or a retired disabled Judge of the General Division, who dies if particular circumstances apply.

109.      Subsection (5) provides that a person has a ‘marital relationship’ with another person at a particular time if they have been living as husband and wife if particular circumstances apply.  It also specifies the relevant evidence the Minister can consider in making a decision whether a person ordinarily lived with another person as husband and wife on a permanent and bona fide domestic basis at a particular time.

110.      Subsection 26K(9) provides that the Administrative Appeals Tribunal has jurisdiction to review specified decisions by the Minister under new section 26K.  This includes a decision as to whether a person was wholly or substantially dependent on a Judge, and whether a Judge and another person ordinarily lived with each other as husband and wife on a permanent and bona fide domestic basis at a particular time.

111.      Section 26L brings across Clause 9F of Schedule 1 to the Federal Magistrates Act.  This section defines the circumstances in which a person is an ‘eligible child’ for the purpose of establishing status as a beneficiary for a death benefit payment. 

112.      The Administrative Appeals Tribunal has jurisdiction to review a decision by the Minister as to whether a person was or would have been wholly or substantially dependent on the Judge.

113.      Section 26M establishes a special appropriation, similar to that in Clause 9G of Schedule 1 of the Federal Magistrates Act for:

·       pensions payable to retired disabled Judges of the General Division under      section 26G

·       superannuation contributions payable for retired disabled Judges under section 26H, and

·       death benefits payable under section 26J.

114.      This ensures that entitlements for judicial officers are able to be paid when they arise.  The Attorney-General’s Department and the Department of Finance and Deregulation oversee the payment of federal judicial officers and accountability for such payments.

Item 47 - Division 4 of Part IV

115.      Item 47 repeals Division 4 of Part IV (sections 26A through to 26N) which relate to Judicial Registrars in the Family Law Act.  There are two remaining Judicial Registrars in the Family Court.  However no further Judicial Registrars will be appointed, and the office of Judicial Registrar will be abolished.  Sections 26A through to 26N and any other provisions applying to Judicial Registrars will be preserved by way of transitional provisions in Item 13 of Schedule 4 .

Item 48 - Subsection 27(2)

116.      Item 48 amends subsection 27(2) to provide that two or more Judges of the Appellate and Superior Division can form a split court.

Item 49 - Subsection 27(2) (note)

117.      Item 49 replaces the title ‘Chief Judge’ with ‘Chief Justice’ and is a consequence of changes in Item 6.

Item 50 - Subsections 28(1) to (3)

118.      Item 50 amends provisions relating to the exercise of jurisdiction by Judges of the Family Court.  Subsections 28(1) and (3) outline when and in what circumstances the jurisdiction of the court can be exercised by Judges of the Appellate and Superior Division.

119.      Subsection (1) enables the original jurisdiction of the Court to be exercised by one or more Judges of the Appellate and Superior Division.  

120.      Currently the jurisdiction of the Family Court can be exercised by one or more Judges of the Court, and the Full Court can be constituted by both Judges of the Appeal Division and of the General Division.  After the commencement of the Bill Federal Magistrates who choose to accept commissions to the General Division and new appointees to the General Division will not be able to sit with other Judges to exercise the jurisdiction of the Family Court or constitute a Full Court.

121.      Subsections (2) and (3) set out how the Court is to be constituted in appeals from a court of summary jurisdiction and from a Judge of the Supreme Court of a State or Territory.  An appeal from a court of summary jurisdiction is to be heard by a single Judge of the Appellate and Superior Division.  This maintains current practice whereby these matters are dealt with by a single Judge of the Family Court.  An appeal from a Judge of the Supreme Court of a State or Territory is to be heard by a Full Court, subject to provisions in section 94AAA (which deals with the exercise of the jurisdiction of the Court in other appeals).

122.      Subsection (2A) provides that an Appellate Judge can exercise the jurisdiction of the Court which could also otherwise be exercised by one or more Judges of the Appellate Division.

Item 51 - Paragraphs 28(4)(a) and (b)

123.      Item 51 repeals references to the Judges of the Appeal Division and replaces them with references to Appellate Judges.  This amendment is a consequence of other changes being made to the Division by Items 4 and 5.

Item 52 - Subsection 28(6)

124.      Item 52 repeals subsection 28(6) which is reinserted into new section 29A by Item 53.

Item 53 - After section 28

125.      Item 53 creates a new section 29 which specifies certain jurisdiction a Judge of the General Division cannot exercise.  The provisions of the Acts specified in section 29 do not currently confer jurisdiction on the Federal Magistrates Court and are generally complex matters intended to be heard by superior courts.  This section is intended to maintain this status quo and ensure that Judges of the General Division will continue to exercise the same jurisdiction as Federal Magistrates can currently exercise.  It operates notwithstanding provisions regarding jurisdiction of courts in section 15C of the Acts Interpretation Act 1901 .

126.      Subsection 29(1) provides that the original jurisdiction of the Family Court may be exercised by one Judge of the General Division.

127.      Subsection 29(2) provides that a Judge of the General Division is not to exercise the original jurisdiction of the Court with respect to a proceeding of any of the types listed in the table under subsection (2).  Proceedings under the provisions of the Acts listed in the table in section 29(2) are expressly excluded from being heard the General Division as they do not currently confer jurisdiction on the Federal Magistrates Court. 

128.      Subsection 29(3) provides for other jurisdiction which a Judge of the General Division generally cannot exercise.  However, Judges of the General Division may exercise this jurisdiction if directed to do so by the Chief Justice, if associated with a matter that has arisen in a proceeding before the Judge, or if a proceeding is referred to the Judge under new section 33AA inserted by Item 55.  

129.      Subsection 29(4) prevents the General Division from exercising the original jurisdiction of the Court unless express provision is made for it to do so by the Family Law Act or any other law of the Commonwealth.

130.      Item 53 also creates a new section 29A which allows for the jurisdiction of the Court to be exercised by one or more Judges at the same time.  This provision replicates current section 28(6) repealed by Item 52.

Item 54 - Subsection 30(b)

131.      Item 54 replaces the title ‘Chief Judge’ with ‘Chief Justice’ and is a consequence of changes in Item 6.

Item 55 - After section 33

132.      Item 55 creates a new section 33AA which sets out the circumstances in which a Judge of one Division can refer a matter to a Judge of the other Division.  The circumstances in which referrals can be made and whether or not such decisions can be appealed are similar to those which currently apply to the transfer of proceedings between the Family Court and the Federal Magistrates Court.

133.      Referrals can occur either on application of a party or on the initiative of the Judge or Judges dealing with the matter.  This provision will ensure that matters are heard at the lowest appropriate level and are heard before judicial officers best placed to hear particular types of matters.

134.      Subsections (3) and (4) provide that the Rules of Court may make provision for the referrals of proceedings to provide additional guidance to Judges.  In deciding to make a referral, subsection (5) requires a Judge to have regard to whether the referral will facilitate the resolution of the dispute as quickly, inexpensively and efficiently as possible.  Subsection (6) allows the Judge or Judges who refer a proceeding under this section to make such orders as they consider necessary.

135.      The new section 33A also provides that a decision whether or not to refer a matter cannot be appealed. 

Item 56 - Subsection 33A(1)

136.      Item 56 repeals subsection 33A(1) and replaces it with a new provision which provides a prohibition on instituting proceedings in the Family Court if an associated matter is before the Federal Magistrates Court.  This subsection will prevent parties instituting proceedings in two courts at the same time. 

137.      After commencement of this Bill the Federal Magistrates Court will only have limited jurisdiction in matters that were already before that Court at the date of commencement, matters transferred to the Federal Magistrates Court, and matters in which the Federal Magistrates Court has made orders - such as referring matters to arbitration with the consent of the parties.

Items 57, 58, 59 and 60 - Subsection 33B(2), 33B(8A), 33B(10) and 33C

138.      Items 57 through to 60 amend certain provisions which currently deal with the transfer of proceedings between the Family Court and the Federal Magistrates Court in sections 33B and 33C.  It is anticipated that the courts will establish a formal process for the transfer of matters from the Family Court to the Federal Magistrates Court only where there are still Federal Magistrates holding commissions to that Court available to hear family law matters.  This transfer power is included to provide flexibility in the management of workloads.  Provisions regarding the jurisdiction of the Federal Magistrates Court are in Item 3 of Schedule 2 to the Bill.

139.      Item 57 repeals subsection 33B(2) primarily to prevent a party seeking a transfer to the Federal Magistrates Court from the Family Court.

140.      Item 58 amends subsection 33B(8A) to give the Federal Magistrates Court jurisdiction in matters transferred to that Court by the Family Court.  Transferred proceedings are to be treated as though they were initially instituted in the Federal Magistrates Court for the purposes of Acts like the Child Support (Registration and Collection) Act.

141.      Item 59 repeals subsection 33B(10) which provides that certain matters cannot be transferred to the Federal Magistrates Court if they are specified in the Regulations.  It is no longer needed as the limited circumstances in which matters may be transferred to the Federal Magistrates Court will be provided for in section 33B as amended.

142.      Item 60 repeals section 33C.  It provides that it is mandatory to transfer certain matters filed in the Family Court if they are of a type specified in the Regulations.    It is no longer needed as the limited circumstances in which matters may be transferred to the Federal Magistrates Court will be provided for in section 33B.

Item 61 - Section 34

143.      Item 61 is a technical amendment.  It omits subsection (1) because there are no other parts to this provision.

Item 62 - Subsection 37(1) and (2)

144.      Item 62 replaces the title ‘Chief Judge’ with ‘Chief Justice’ and is a consequence of changes in Item 6.

Item 63 - Subsection 37A(1)

145.      Item 63 removes the requirement for the Rules of Court delegating powers to Registrars to be made by a majority of Judges.  Instead it will require them to be made in accordance with the new section 124 in Item 146.

Item 64 - Subsections 37A(3) and (4)

146.      Item 64 omits the term ‘applicable’ from subsections (3) and (4) so the section only refers to standard Rules of Court.  ‘Standard Rules of Court’ are those made by Judges of the Family Court under the Act.  ‘Applicable Rules of Court’ are a broader class of rules, defined in section 3 of the Act to include related Federal Magistrates Rules and the standard rules of any other Court.

147.      Reference to Rules of Court in this section is intended to mean the standard Rules of Court made by Judges of the Family Court rather than the wider class of rules.

Item 65 - Subsection 37A(9)

148.      Item 65 amends subsection 37A(9) and is a consequence of the amendment to subsection 37A(1) in Item 63.

Item 66 - Paragraph 37A(14)(b)

149.      Item 66 replaces the title ‘Chief Judge’ with ‘Chief Justice’ and is a consequence of changes in Item 6.

Item 67 - Subsection 37A(15) (note)

150.      Item 67 omits reference to ‘26B’ which deals with the powers of Judicial Registrars in the note to subsection 37A(15).  This section will be repealed by Item 47.

Item 68 - Subsections 37B(1) to (4)

151.      Item 68 replaces the title ‘Chief Judge’ with ‘Chief Justice’ and is a consequence of changes in Item 6.

Item 69 - Subsection 37B(5)

152.      Item 69 amends subsection 37B(5) to define the two types of Registrars - the ‘Principal Registrar of the Court’ and ‘Registrars’.  This change is a consequence of the amendments made by Item 21 which removes the definition of Registrar from section 20 of the Act.

Items 70 and 71 - Section 37C

153.      Item 70 replaces the word ‘shall’ with ‘must’ to be consistent with similar provisions in the Federal Magistrates Act and to clarify that it is mandatory for an oath to be taken under section 37C.   Item 71 replaces the title ‘Chief Judge’ with ‘Chief Justice’ and is a consequence of changes in Item 6. 

Items 72 and 73 - Division 1 of Part IVA (heading) and section 38A

154.      Items 72 and 73 replace the title ‘Chief Judge’ in these provisions with ‘Chief Justice’ and are a consequence of changes in Item 6.

Items 74, 75, 76, 77, 78, 79, 80, 81, 82, 83 and 84 - Section 38 generally

155.      Items 74 to 84 replace the title ‘Chief Judge’ in these provisions with Chief Justice’ and are a consequence of changes in Item 6.

Items 85, 86, 87, 88 and 89- Subsections 39(1A), (5AA) and (5A), paragraph 39A(1)(b), and 39B generally

156.      Items 85 to 89 remove the jurisdiction of the Federal Magistrates Court to hear certain family law matters which will instead be dealt with by the General Division of the Family Court. 

157.      Item 85 amends subsections 39(1A), (5AA) and (5A) to remove the ability for parties to institute proceedings in relation to a matrimonial cause in the Federal Magistrates Court and more generally removes its jurisdiction to hear matrimonial causes (other than proceedings of a kind referred to in subparagraph (a)(ii) or paragraph (b) of the definition of ‘matrimonial cause’ in subsection 4(1)).

158.      Item 85 also removes the Federal Magistrates Court’s jurisdiction to deal with matters arising under the Act in respect of which proceedings are instituted under regulations made for the purposes of section 109, 110, 111, 111A or 111B, paragraph 125(1)(f) or section 117A.

159.      Item 3 of Schedule 2 to the Bill gives the Federal Magistrates Court original jurisdiction in family law and child support matters in limited circumstances despite the removal otherwise of its jurisdiction in these matters under the Bill.  This includes matters where the Federal Magistrates Court has commenced hearing the matter or where the matter or part of the matter has been referred to a dispute resolution process, matters transferred from the Family Court, or matters associated with a matter pending in the Federal Magistrates Court.  These provisions do not affect the Federal Magistrates Court’s ability to otherwise transfer matters under section 39 of the Federal Magistrates Act.

160.      Items 86 and 87 prevent parties from instituting de facto financial cause proceedings in the Federal Magistrates Court under the Family Law Act.  A de facto financial cause may only be instituted under the Family Law Act in the Family Court, Supreme Court of the Northern Territory of Australia or a court of summary jurisdiction of a participating jurisdiction.

161.      Items 88 and 89 are technical amendments as a consequence of Items 86 and 87.

Items 90, 91, 92, 93, 94, 95, 96, 97, and 98 - Section 46 generally

162.      Items 90 to 98 amend provisions regarding the transfer of matters from courts of summary jurisdiction to the Federal Magistrates Court for determination.  This includes in situations where the parties did not consent to the court of summary jurisdiction hearing the matter, and where the court gives leave to a party to object to the proceedings being heard by the summary court. 

163.      The amendments ensure that these matters will only be able to be transferred from a court of summary jurisdiction to the Family Court or the Supreme Court of a State or Territory.  After the commencement date, only the Family Court will be able to transfer family law matters to the Federal Magistrates Court.

164.      Items 90, 92, 94 and 96 are technical amendments as a consequence of changes in Items 91, 93, 95 and 97.

165.      Item 91 repeals subparagraph 46(1)(a)(iii) which enables courts of summary jurisdiction to transfer matters to the Federal Magistrates Court for determination.  Following the repeal of this provision, these matters will only be able to be transferred from a court of summary jurisdiction to the Family Court or the Supreme Court of a State or Territory.  After the commencement date, only the Family Court will be able to transfer family law matters to the Federal Magistrates Court.

166.      Item 93 repeals provisions in subparagraph 46(1)(b)(iii) which required courts of summary jurisdiction to transfer matters to the Federal Magistrates Court, among other courts, for determination where the parties did not consent to the court of summary jurisdiction hearing and determining the matter Following the repeal of this provision, these matters will only be able to be transferred from a court of summary jurisdiction to the Family Court or the Supreme Court of a State or Territory.  After the commencement date, only the Family Court will be able to transfer family law matters to the Federal Magistrates Court.

167.      Item 95 repeals subparagraph 46(1C)(c) which required courts of summary jurisdiction to transfer matters to among other courts, the Federal Magistrates Court, for determination where the court gives leave to a party to object to the proceedings being so heard and determined by the summary court after the party or parties gave consent to the matter being heard by a court of summary jurisdiction.  Following the repeal of this subsection, these matters will only be able to be transferred to the Family Court or the Supreme Court of a State or Territory.  After the commencement date, only the Family Court will be able to transfer family law matters to the Federal Magistrates Court.

168.      Item 97 repeals subparagraph 46(2A)(d) which requires a court of summary jurisdiction to transfer proceedings to the Federal Magistrates Court, among other courts, defended proceedings for a divorce order which are instituted in or transferred that court.  Following the repeal of this subsection, these matters will only be able to be transferred to the Family Court or the Supreme Court of a State or Territory.  After the commencement date, only the Family Court will be able to transfer family law matters to the Federal Magistrates Court.

Item 98 - Paragraph 46(3A)(c)

169.      Item 98 repeals subsection 46(3A)(c) which allows the Federal Magistrates Court, on the application of a party or its own motion, to order that a proceeding pending in a court of summary jurisdiction be removed to that Court.

Item 99 - Subsection 65D(3) (note)

170.      Item 99 removes the note to subsection 65D(3) which refers to an application to be made to the Federal Magistrates Court for a parenting order or proceeding under Subdivision E of Division 13A of Part VII.  After the commencement date, only the Family Court will hear these applications.

Item 100 - Subsection 69H(4)

171.      Item 100 repeals subsection 69H(4) which confers jurisdiction on the Federal Magistrates Court in relation to children’s matters (those filed under Part VII of the Act).  After the commencement date, these children’s matters will not be able to be filed in the Federal Magistrates Court except as provided in the transitional arrangements in Schedule 4.

Items 101, 102, 103, 104, 105, 106, 107 and 108 - Section 69N generally

172.      Items 101 to 108 amend section 69N which deals with the transfer of proceedings to the Federal Magistrates Court in certain cases.  This includes where the court has the ability to transfer on its own initiative or on consent of the parties.  After the commencement date matters will only be able to be transferred to the Family Court, a Family Court of a State or the Supreme Court of a State or Territory. 

173.      Items 101, 103, 105 and 107 are technical amendments as a consequence of Items 102, 104, 106 and 108.

174.      Item 102 repeals subparagraph 69N(2)(d), which requires courts of summary jurisdiction to inform parties that unless each of them consents to the court hearing and determining the proceedings, the summary court must transfer proceedings to the Federal Magistrates Court , among other courts.  Following the repeal of this subsection, courts of summary jurisdiction will have to inform parties that matters will only be able to be transferred to the Family Court, a Family Court of a State or the Supreme Court of a State or Territory. 

175.      Item 104 repeals subparagraph 69N(3)(d) which requires courts of summary jurisdiction to transfer proceedings for parenting orders where the respondent seeks different orders from the applicant to the Federal Magistrates Court, among other courts.  Following the repeal of this subsection, court of summary jurisdiction will only be able to be transfer these matters to the Family Court, a Family Court of a State or the Supreme Court of a State or Territory. 

176.      Item 106 repeals subparagraph 69N(5)(b)(iv) which enables courts of summary jurisdiction to transfer on their own initiative proceedings under this section to the Federal Magistrates Court, among other courts, even where the parties have consented to the court of summary jurisdiction hearing and determining the matter.  Following the repeal of this subparagraph, courts of summary jurisdiction will only be able to transfer these matters to the Family Court, a Family Court of a State or the Supreme Court of a State or Territory. 

177.      Item 108 repeals subparagraph 69N(6)(d) which enables courts of summary jurisdiction to transfer proceedings under this paragraph to the Federal Magistrates Court, among other courts, where the court gives leave to a party to object to the court of summary jurisdiction hearing and determining the proceedings after the party or parties gave consent to the matter being heard by a court of summary jurisdiction.  Following the repeal of this subparagraph, courts of summary jurisdiction will only be able to transfer these matters to the Family Court, a Family Court of a State or the Supreme Court of a State or Territory. 

Items 109 and 110 - Section 69ZO and subsection 69ZR(3)

178.      Items 109 and 110 remove references to ‘Judicial Registrars’ in these sections and is a consequence of the repeal of provisions relating to Judicial Registrars in Item 47.

Item 111 - Subparagraphs 70NFD(a) and (b)

179.      Item 111 amends paragraph 70NFD(a) and (b) to prevent the Federal Magistrates Court varying or discharging community service orders in circumstances where the orders were not originally made by that court, or where proceedings for variation and discharge are not associated with proceedings already before the Federal Magistrates Court. 

180.      If there is no associated proceeding before the Federal Magistrates Court, applications for variation and discharge will have to be made to the Family Court.  The Family Court can hear the application or transfer the matter to the Federal Magistrates Court under section 33B if there are Federal Magistrates available to hear family law matters.

Item 112 - Subparagraph 87(11)(b)

181.      Item 112 inserts the term ‘applicable’ before the term ‘Rules of Court’ in subparagraph 87(11)(b).  Unlike under section 37A, the Rules of Court for the purposes of this paragraph are intended to be the broader class of rules which include the Federal Magistrates Rules and the standard rules of any other Court.

Item 113 - Subparagraph 94(1)(a)

182.      Item 113 amends subparagraph 94(1)(a) and includes a new note referring to the heading to section 94 being amended to provide that, subject to sections 94AAA and 94AA, an appeal lies to the Full Court of the Family Court from a decree made by one or more Judges of the Appellate and Superior Division not sitting as a Full Court.

Item 114 - Subsection 94(1AA)

183.      Item 114 amends subsection 94(1AA) to provide that a decision of a Judge of the Appellate and Superior Division (exercising original or appellate jurisdiction under this Act) rejecting an application that he or she disqualify himself or herself from further hearing a matter can be appealed to a Full Court of the Family Court.  An appeal also lies to a Full Court of the Family Court where a State or Territory Family Court Judge rejects an application to disqualify him or herself.  Appeals from Judges of the General Division are dealt with in section 94AAA as amended in Items 116-118).

Item 115 - Subsections 94(2B) and (2D)

184.      Item 115 amends subsections 94(2B) and (2D) as a consequence of the change in name of the ‘Appeal Division’ to the ‘Appellate and Superior Division’ and from ‘Judge of the Appeal Division’ to ‘Appellate Judge’ in Items 4 and 5. 

185.      The provision continues to facilitate the practice where Judges deemed to be members of the General Division of the Family Court could be a member of a Full Court.  This function will now be exercisable by Judges of the Appellate and Superior Division not assigned as Appellate Judges.

Item 116 - Before subparagraph 94AAA(1)(a)

186.      Item 116 inserts subparagraph 94AAA(1)(aa) to provide that an appeal lies to the Family Court from a decree of the Family Court constituted by a Judge of the General Division, as well as from a Federal Magistrate and the Magistrates Court of Western Australia.

187.      The Item also inserts subparagraph (1)(ab) to ensure that an appeal from a Judge of the General Division will be heard in the same way as an appeal from a Federal Magistrate in the Federal Magistrates Court.

Item 117 - Subsection 94AAA(3)

188.      Item 117 replaces the title ‘Chief Judge’ with ‘Chief Justice’ and is a consequence of changes in Item 6.

Item 118 - Subsection 94AAA(13)

189.      Item 118 amends subsection 94AAA(13) a consequence of the change in the name of the ‘Appeal Division’ to the ‘Appellate and Superior Division’ and ‘Judge of the Appeal Division’ to ‘Appellate Judge’ in Items 4 and 5.  It ensures that an appeal from a Judge of the General Division may be heard by a Judge of the Appellate and Superior Division.  In accordance with subsection (3) the Chief Justice may consider it appropriate for the Family Court’s jurisdiction in relation to that appeal not be exercised by an Appellate Judge but any Judge of the Appellate and Superior Division.

Item 119 - Subsection 94AA(1) (cell at table item 1, column headed ‘Appeal from’)

190.      Item 119 amends the table in subsection 94AA(1) to provide that leave is required for an appeal to the Full Court from a prescribed decree of the Court constituted by one or more Judges of the Appellate and Superior Division not sitting as a Full Court.

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

191.      Item 120 also amends the table in subsection 94AA(1) to include a new item to provide that leave is required from the Full Court for an appeal to that Court from a prescribed decree of the Family Court constituted by a Judge of the General Division.  The appeal may be heard by either single Judge of the Appellate and Superior Division (who need not be an Appellate Judge), or a Full Court.

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

192.      Item 121 amends subsection 94AA(1) to provide that an appeal from a prescribed decree of a Federal Magistrate may be determined by either a single Judge of the Appellate and Superior Division (who need not be an Appellate Judge) or the Full Court of the Family Court.

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

193.      Item 122 amends subsection 94AA(1) to provide that an appeal from a prescribed decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate may be determined by either a single Judge of the Appellate and Superior Division (who need not be an Appellate Judge) or a Full Court of the Family Court.

Item 123 - Paragraphs 94AA(2)(b) and (c)

194.      Item 123 amends subparagraphs 94AA(2)(b) and (c) relating to consent orders disposing of applications for leave to appeal.  These amendments remove references to ‘Judge of the Appeal Division’ and replace them with references to ‘an Appellate Judge’.  Further references to ‘another Judge if there is no Judge of the Appeal Division available’ are revised to enable ‘another Judge of the Appellate and Superior Division’ to fulfil this function.  These amendments are a consequence of changes to the structure of the Family Court and will not affect the current operation of these provisions.

Item 124 - Subsection 94AA(2A)

195.      Item 124 is a technical amendment to subsection 94AA(2A) to remove any doubt that an order by consent disposing of an application under the section may also occur in the circumstances prescribed in paragraphs (a) and (b).

Item 125 - Paragraph 94AA(2A)(b)

196.      Item 125 further amends subparagraph 94AA(2A)(b) relating to consent orders disposing of applications for leave to appeal being made by the Full Court.  The amendments replace the phrase ‘a single Judge of the Family Court (who need not be a member of the Appeal Division)’ with ‘a single Judge of the Appellate and Superior Division (who need not be an Appellate Judge).’ These amendments are a consequence of changes to the structure of the Family Court and will not affect the current operation of these provisions.

Item 126 - After subsection 94A(2)

197.      Item 126 creates new subsections (2A) and (2B) which provide that questions of law referred from a Judge of the General Division to the Full Court are to be treated in a similar way to which questions of law from the Federal Magistrates Court are currently dealt with by the Family Court.  These amendments are a consequence of changes to the structure of the Family Court.

Item 127 - At the end of subsection 96(1)

198.      Item 127 adds a note at the end of subsection 96(1) which provides that the jurisdiction of the Family Court in an appeal from a court of summary jurisdiction is to be exercised by a Judge of Appellate and Superior Division (who may not be an Appellate Judge) or the Full Court in accordance with subsection 28(2).

Item 128 - At the end of section 96

199.      Item 128 adds a new subsection (7) which provides that appeals from courts of summary jurisdiction must be heard by Judges of the Appellate and Superior Division (who need not be an Appellate Judge).  This is consistent with the current approach where these matters were handled by Judges of the Family Court as opposed to Federal Magistrates in the Federal Magistrates Court.

Item 129 - Before section 97

200.      Item 129 inserts a heading for new Subdivision A.  Provisions currently in Division 1 relating to procedure and evidence will become part of this Subdivision, along with a series of provisions currently in the Federal Magistrates Act.   The provisions are intended to encourage active case management and improve access to justice.

201.      A new section 96B specifies that the subdivision applies in relation to proceedings in the Family Court or any other courts when exercising jurisdiction under the Family Law Act.

202.      A new section 96C specifies that courts exercising jurisdiction under the Family Law Act must not proceed with undue formality and must use their best efforts to ensure that proceedings are not protracted.  This provision replicates existing section 97(3) of the Family Law Act (which is repealed by Item 131) and section 42 of the Federal Magistrates Act.

Item 130 - Subsection 97(1A)

203.      Item 130 removes references to ‘Judicial Registrars’ from subsection 97(1A) consistent with other amendments being made to the Act to remove references to this office, and amends the heading to section 97.

Item 131 - Subsection 97(3)

204.      Item 131 repeals subsection 97(3) which will become new section 96C as provided for in Item 129.

Item 132 - At the end of Division 1 of Part XI

205.      Item 132 inserts a heading for a new Subdivision B and brings across a series of new provisions relating to the conduct of proceedings from the Federal Magistrates Act.  The new provisions will assist the Family Court to operate in a more informal manner and will give Judges the ability to more greatly control the conduct of proceedings which should benefit litigants in ensuring greater access to justice.  These provisions also seek to retain the Federal Magistrates Court’s current practice and procedure for which it is well regarded.

206.      New section 102BAA provides that the operation of the Subdivision will apply to the procedure in both Divisions of the Family Court, subject to any other provisions in the Family Law Act relating to the practice and procedure of the Court.  Making these provisions subject to other provisions in the Family Law Act will ensure that matters of practice and procedure and powers of the Family Court are otherwise preserved where there is any inconsistency, such as in Division 12A relating to principles for conducting child related proceedings where there are specific case management procedures relevant to those matters. 

207.      New section 102BAB will give the Family Court the ability to limit the length of documents required or permitted to be filed in the Family Court which will assist to further streamline procedures.  This power is subject to Rules of Court made by the Family Court on the length of documents made under this section as opposed to under the general rule-making power in section 123.  This section replicates section 51 of the Federal Magistrates Act and is a feature of active case management.

208.      New section 102BAC gives the Family Court the ability to limit the length of oral argument.  This section will strengthen the Family Court’s ability to control proceedings.  This power is subject to Rules of Court made by the Family Court on limits on oral argument made under this section as opposed to under the general rule-making power in section 123.  This section replicates section 55 of the Federal Magistrates Act.

209.      New section 102BAD gives the Family Court the ability to provide directions about the use and length of written submissions in proceedings.  This power will make it simpler for self-represented litigants to present their case by ensuring that written submissions will, as much as possible, focus on the most important aspects of their matter.  This power is subject to Rules of Court made by the Family Court on the use and length of written submissions made under this section as opposed to under the general rule-making power in section 123.  This section replicates section 56 of the Federal Magistrates Act.

210.      New section 102BAE enables the Family Court to make orders and commissions for the examination of witnesses in proceedings before the Family Court.  This amendment gives the Family Court broader powers in relation to ordering that a commission issue to a person outside Australia for the purposes of taking evidence.  A commission issue could enable evidence to be provided where a person is unable to attend court for a particular reason.  This section replicates section 60 of the Federal Magistrates Act.

211.      New section 102BAF explicitly enables the Family Court to place time limits on the giving of evidence in proceedings before the Family Court.  This power is subject to Rules of Court made by the Family Court on time limits for giving evidence made under this section as opposed to under the general rule-making power in section 123.  This section replicates section 62 of the Federal Magistrates Act.

212.      New section 102BAG enables the Family Court to question witnesses if the answer to the question is likely to assist in the resolution of a matter in dispute or the expeditious and efficient conduct of the proceeding.  This amendment gives the Family Court greater powers to obtain evidence where it has not been provided in another form.  It is expected to be particularly useful where a matter is being conducted by an unrepresented litigant, so that the litigant is not denied the opportunity to present a proper case by reason of his or her inexperience with court practice and procedures. 

213.      Although this provision gives a wide discretion to Judges, it must be exercised in accordance with the proper discharge of judicial power.  This power is subject to Rules of Court made by the Family Court on questioning witnesses made under this section as opposed to under the general rule-making power in section 123.  This section replicates section 63 of the Federal Magistrates Act.

214.      New section 102BAH enables the Family Court to direct that evidence be given orally or by way of affidavit.  However, there is no presumption that evidence is to be given orally before the Court.  It also provides that a person who makes or proposes to make an affidavit in proceedings may be requested to appear and be cross-examined.  This section replicates section 64 of the Federal Magistrates Act.

215.      New section 102BAI ensures that proceedings in the Family Court are not invalidated by formal defects or irregularities unless the Court considers that the defect or irregularity has caused substantial injustice which cannot be remedied by an order of the Court.  The section also enables the Family Court to make an order that a proceeding is not invalidated due to a formal defect or by way of irregularity on such condition as the Court sees fit.  This section replicates section 57 of the Federal Magistrates Act.

216.      A new Subdivision C is created which sets out the practice and procedure provisions that apply only in the General Division of the Family Court.  Bringing these provisions of the Federal Magistrates Act into the Family Law Act will ensure that the fast efficient procedures used by the Federal Magistrates Court will continue in the General Division of the Family Court.  It addresses stakeholder concerns that the case management processes for which the Federal Magistrates Court is well regarded will not occur in a restructured Family Court.

217.      New section 102BBA provides that these provisions apply only in relation to the General Division, subject to any other provision in the Act in respect of practice and procedure other than Subdivision B (which relates more generally to proceedings in the Family Court).

218.      New section 102BBB provides that the Judges of the General Division must endeavour to use streamlined procedures and encourage the use of appropriate dispute resolution procedures in facilitating the resolution of matters.  This is consistent with the object of the Federal Magistrates Act in sections 3(2)(b) and (c).

219.      New section 102BBC provides that reserved judgments can be delivered by a Judge other than the Judge who made the order.  Reasons can also be made public by another Judge on behalf of the Judge who heard the proceeding.  This will ensure that there is no delay in delivering judgments or orders if a Federal Magistrate who heard the proceedin g is unavailable.  This replicates section 75 of the Federal Magistrates Act.

Item 133 - At the end of subsection 102M(1)

220.      Item 133 creates a new note at the end of subsection 102M(1).  It refers to the power in section 27 for the Family Court, constituted by 2 or more Judges of the Appellate and Superior Division, to sit in different places at the same time.  This note clarifies that it is not possible for Judges of the General Division to sit together.

Items 134 and 135 - Paragraph 102N(1)(b) and subsection 102N(4)(paragraph (c) of the definition of communicate with )

221.      These items insert the ‘standard’ before the term ‘Rules of Court’ in paragraph 102N(1)(b) and subsection 102N(4) to clarify that this provision relates to those rules made by Judges of the Family Court and not the broader class of ‘Applicable Rules of Court’.

Items 136, 137, 138, 139, 140 and 141 - Subsections 109A(1), 109A(5) (note), 111C(7A), 121(10)(note) and 123(1)

222.      These items make technical amendments to a number of sections as a consequence of the new way in which standard Rules of Court will be made by Judges of the Family Court in Item 146.

223.      Item 141 amends subsection 123(1) to ensure that the Rules of Court made by the General Division for application in that Division do not also apply to other courts exercising jurisdiction under the Family Law Act.  Rules of Court made by the Appellate and Superior Division will apply to other courts exercising jurisdiction under the Family Law Act as is appropriate.

224.      Item 148 omits a reference to section 26B in the note to subsection 121(10) which is a consequence of the abolition of the position of Judicial Registrars in Item 47.

Items 142 and 143 - Paragraph 123(2)(b) and subsection 123(2A)

225.      Items 142 and 143 replace the titles ‘Chief Judge’ with ‘Chief Justice’ and are a consequence of changes in Item 6.

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

226.      Item 144 repeals subsection 123(3) which provided a definition of a ‘Judge’ for the purpose of that section and section 112.  This definition is no longer necessary as section 112 was repealed from the Family Law Act by the Family Law Amendment Act 2000 and Item 11 in this Bill provides for a new definition of ‘Judge’ in subsection 4(1) of the Family Law Act. 

Item 145 - Subsection 123(3) (note)

227.      Item 145 amends the note to subsection 123(3) to provide that the power to make Rules of Court under this section is extended by section 109A and subsection 111C(7A).

228.      Other Acts also currently extend the power for the Family Court to make rules, such as section 1337U of the Corporations Act 2001 and section 586-90 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006.  This Item amends the note to make this clear on the face of the legislation.

Item 146 - Section 124

229.       Item 146 repeals former section 124 which provided for the creation of a Rules Advisory Committee, appointed by the Governor-General under subsection 124(3).   This Item establishes a new way of making Rules of Court in the Family Court. 

230.      Currently Rules of Court are made by the Judges of the Court or a majority of them.  However, a new method of rule making is required to reflect the creation of new Divisions of the Family Court which will be doing different types of family law work.  Both Divisions will need the ability to make Rules that are flexible enough to complement their own discrete case management practices and procedures.  Although, wherever possible the Court is encouraged to adopt common rules for the Court as a whole.

231.      New section 124 enables Rules of Court to be made for both Divisions, for each Division separately, and for any other courts exercising jurisdiction under the Family Law Act.  The Family Law Rules may apply to other Courts exercising jurisdiction under this Act except the Rules of Court applying only to the General Division.  This is consistent with the current policy that the Federal Magistrates Rules of Court do not apply to other courts. 

232.      Rules applicable to both Divisions must be made by a majority of Judges in the Appellate and Superior Division and a majority of Judges of the General Division.  This prevents either Division making Rules for the whole Court simply by constituting a ‘majority of the Court’.

233.      Rules applicable only to the Appellate and Superior Division must be made by a majority of Judges of that Division.  Similarly Rules for the General Division must be made by a majority of Judges of that Division.  These provisions do not specify what subject matter can be dealt with in the different Rules of Court.

234.      Rules made for each Division separately must not be inconsistent with Rules of Court made by the majority of both Divisions for the whole Court. 

235.      While the practice and procedure of the Federal Magistrates Court will be retained and apply in the new General Division of the Family Court, it is not practical to have the current Federal Magistrates Court Rules apply alongside the current Family Court Rules upon commencement.  As a result, transitional provisions in Item 15 of Schedule 4 provide that the existing Family Law Rules will apply to both Divisions until such time as new Rules are developed.  This will allow the new Rules to be specifically designed to suit the restructured Family Court while maintaining the culture and practice of the Federal Magistrates Court.

Part 2-Other amendments

Family Law Act 1975

Item 147 Subsection 29(2) table item 3

236.      Item 147 repeals table item 3 in subsection 29(2) which refers to the exercise of jurisdiction by Judges of the General Division of the Family Court under section 9 of the Evidence and Procedure (New Zealand) Act 1994.  Table item 3 is inserted by Item 53 of Schedule 2 to the Bill. 

237.      The Evidence and Procedure (New Zealand) Act will be repealed by the Trans-Tasman Proceedings (Consequential and Transitional Provisions) Act 2010 which has not yet commenced.  Once the Trans-Tasman Act commences Item 147 will operate to remove reference to the Evidence and Procedure (New Zealand) Act in the table.  The commencement of Item 147 is provided for in Item 2 of Schedule 1 to the Bill.

Item 148 Subsection 29(3) table item 12

238.      Item 148 amends table item 12 in subsection 29(3) which refers to the exercise of jurisdiction by Judges of the General Division of the Family Court under section 86B of the Trade Practices Act 1974.  Table item 12 is inserted by Item 53 of Schedule 2 to the Bill.

239.      The Trade Practices Act will be amended by the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010.  The Trade Practices Act will be renamed the Competition and Consumer Act 2010.  Once the Trade Practices Amendment Act commences, Item 148 will operate to amend reference to the title of the Act in the table.  The commencement of Item 148 is provided for in Item 2 of Schedule 1 to the Bill. 

 

SCHEDULE 2 - Amendments to the Federal Magistrates Act 1999

Item 1 - Section 5

240.      Item 1 inserts a new definition of ‘ family law or child support matter ’ into the definitions section of the Federal Magistrates Act, section 5.  Item 3 removes the jurisdiction of the Federal Magistrates Court in family law or child support matters as defined by the new definition.

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

241.      Item 2 amends the current definition of ‘ Family law or child support proceedings ’ to include proceedings in the Federal Magistrates Court under the Marriage Actand to exclude proceedings under section 72Q of the Child Support (Registration and Collection) Act which relate to appeals against the making of departure prohibition orders.  This more accurately reflects the jurisdiction the Court will exercise in such proceedings. 

Item 3 - After section 10

242.      Item 3 inserts new section 10AA to remove the jurisdiction of the Federal Magistrates Court in family law or child support matters, except in certain circumstances.  These matters will otherwise be heard in the General Division of the Family Court.  

243.      In circumstances where the Federal Magistrates Court has jurisdiction with respect to a family law or child support matter, the new section 10AA provides that that jurisdiction is taken to be conferred on the Court by the relevant Act for the purpose of dealing with the matter.

244.      New section 10AA provides for the Federal Magistrates Court to continue to have jurisdiction to hear family law or child support proceedings in certain circumstances despite the removal of its jurisdiction in this area under the Bill. 

245.      The circumstances in which the Federal Magistrates Court will continue to have jurisdiction are where the Court has begun but not yet completed the final hearing of an application for final orders in the matter before commencement, or where the Court has referred any or all of the matters in dispute for an external dispute resolution process (defined in subsection (5)), or required either or both parties to attend an external dispute resolution process.  The Court will also continue to have jurisdiction where a proceeding is associated with a matter pending in the Federal Magistrates Court, is referred to the Court by the Family Court under section 33Bor where the matter is transferred from the Family Court or is an application under subsection 104(2) for the review of the exercise of power by a Registrar.

246.      While it is expected that most Federal Magistrates will accept commissions to the new General Division of the Family Court, this provision will allow a family law or child support matter instituted in the Federal Magistrates Court before commencement to continue to be heard by the same Federal Magistrate if that Magistrate does not accept such a commission.  This is intended to ensure that parties involved in proceedings before the Federal Magistrates Court are not adversely affected by the restructure in any way. 

247.      These provisions do not affect the Federal Magistrates Court’s ability to transfer matters to the Family Court under section 39 of the Federal Magistrates Act.  This transfer power could be used by the Court to ensure that when parties have returned to the Court after completing a dispute resolution process, if the Federal Magistrate who referred the matter out had accepted a new commission as a Judge of the General Division, the Court could transfer that matter to the Family Court where it may be possible to arrange for that Judge of the General Division to continue to deal with the matter.

Item 4 - Subsection 19(1)

248.      Item 4 amends subsection 19(1) to omit reference to the Family Court.  Section 19 currently requires a proceeding not to be instituted in the Federal Magistrates Court if an associated matter is already before the Family Court or Federal Court. 

249.      As the family law jurisdiction of the Federal Magistrates Court is removed by Item 3 of this Schedule it will no longer be possible to institute family law or child support proceedings in the Federal Magistrates Court.  This removes the need for section 19(1) to refer to the Family Court.

Item 5 - Subsection 19(2)

250.      Item 5 repeals subsection 19(2) as a consequence of changes in Item 4.

Item 6 - Paragraph 19(3)(b)

251.      Item 6 omits reference to the Family Court from paragraph 19(3)(b) as a consequence of changes in Item 4.

Item 7 - After section 19

252.      Item 7 inserts new section 19A to remove the power of the Federal Magistrates Court to receive applications in respect of family law or child support matters.  For transitional reasons, an exception is made for proceedings in respect of an associated already pending in the Court.  An exception is also made for the review of certain exercises of power by a Registrar, as it is not intended that such reviews should be affected by the changes to the Court’s jurisdiction.

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

253.      Item 8 replaces the reference to section 94 of the Family Law Act in paragraph (a) of the note with a direct reference to section 94AAA.  Appeals from the Federal Magistrates Court to the Family Court are provided for in section 94AAA.



Item 9 - Part 4 (heading)

254.      Item 9 amends the heading to Part 4 to indicate that the Part applies only to general federal law proceedings and not family law or child support matters. 

Item 10 - Division 1 of Part 4 (heading)

255.      Item 10 repeals the heading to Division 1 of Part 4 and is a consequence of changes in Item 9.

Item 11 - Section 20A

256.      Item 11 amends section 20A to indicate that Part 4 does not apply to family law or child support matters and is a consequence of changes in Item 9.

Item 12 - Subsection 23(2) (note)

257.      Item 12 repeals the note at the end of subsection 23(2) which refers to the Family Court as a consequence of changes in Item 9.

Item 13 - Section 31

258.      Item 13 repeals section 31 to prevent the Federal Magistrates Court from making Rules of Court regarding applications under the Family Law Act for mediation or arbitration and for orders under section 19E of that Act.  This reflects the removal of the jurisdiction of the Court in such matters and is in keeping with the requirements in Item 16 that the Rules of Court of the Family Court are to be applied in all family law or child support proceedings that are heard in the Federal Magistrates Court.

259.      The reference in section 31 to section 19E of the Family Law Act is also removed as that section was repealed by the Family Law Amendment (Shared Parental Responsibility) Act 2006.

Item 14 - Division 2 of Part 4 (heading)

260.      Item 14 repeals the heading to Division 2 Part 4 to reflect that Part 4 will have only one Division.  This is a consequence of the removal of references to family law or child support matters in Item 9.

Item 15 - Section 33

261.      Item 15 repeals section 33 regarding the scope of Division 2 as it is no longer required due to changes in Items 9 to 14.

Item 16 - Subsection 43(2)

262.      Item 16 amends subsection 43(2) to provide that the Family Law Rules and the Federal Court Rules will apply to proceedings to the extent that the Federal Magistrates Court Rules are insufficient and so far as they are capable.  The Family Court Rules will apply in family law or child support proceedings, and the Federal Court Rules will apply to all other proceedings, and are subject to any directions of the Federal Magistrates Court or a Federal Magistrate.

263.      Currently, the Federal Court Rules apply in relation to proceedings under the Marriage Act in the Federal Magistrates Court.   After commencement, the Family Law Rules will apply to these proceedings.  This is achieved by the reference to ‘family law or child support proceedings’ in amended subsection 43(2), which includes a proceeding under the Marriage Age by virtue of the amended definition in section 5 of the Act inserted by Item 2 of this Schedule.

Item 17 - At the end of subsection 50(1)

264.      Item 17 adds a note at the end of subsection 50(1) to reflect the general removal of the jurisdiction of the Federal Magistrates Court in family law or child support matters outlined in Item 3.

Item 18 - After subsection 81(1)

265.      Item 18 inserts a new subsection 81(1A).  It provides that the Federal Magistrates Court’s Rules of Court regarding practice and procedure in family law or child support matters able to be heard by that Court should be as consistent with those followed in the General Division of the Family Court as practicable. 

266.      This provision is designed to enable the greatest possible consistency between the respective Rules of Court.

Item 19 - Division 1A of Part 7

267.      Item 19 repeals Division 1A of Part 7 of the Act to remove the Chief Executive Officer of the Federal Magistrates Court’s power to appoint family consultants.  The Chief Executive Officer of the Family Court will make all future appointments of family consultants in both the Family Court and the Federal Magistrates Court under sections 38BA and 38BD of the Family Law Act.

268.      There will no longer be a need for the Federal Magistrates Court to appoint their own family counsellors and family dispute resolution practitioners because the vast majority of family law work will be undertaken in the restructured Family Court.

Item 20 - Paragraph 99(1)(e)

269.      Item 20 makes a technical amendment to punctuation in paragraph 99(1)(e) as a consequence of the change in Item 21.

Item 21 - Paragraph 99(1)(f)

270.      Item 21 repeals paragraph 99(1)(f) to remove family consultants from the list of officers of the Federal Magistrates Court.  This amendment is a consequence of the change in Item 19.

Item 22 - At the end of section 99

271.      Item 22 adds a new subparagraph 99(8) to provide that only officers of the Federal Court or the Family Court may be appointed as officers of the Federal Magistrates Court.  Consistent with a shared services model of court administration, this amendment will allow certain offices such as Marshalls and Sheriffs in the Federal Magistrates Court to be filled by corresponding officers in the other federal courts.

272.      Appointment and other provisions relating to the offices of the Court will be covered by the Federal Court Act and the Family Law Act.

Item 23 - Section 100

273.      Item 23 makes a technical amendment to the numbering of subsections in the section.

Item 24 - At the end of section 100

274.      Item 24 inserts a new subsection 100(2) to make it clear that a Chief Executive Officer of the Federal Magistrates Court may make arrangements under section 100 regarding staffing matters with the Registrar of the Federal Court, even if he or she is also the person appointed as the Registrar of the Federal Court.

275.      As a result of the changes implemented by this Bill, the Registrar of the Federal Court may be concurrently appointed as Chief Executive Officer of the Federal Magistrates Court.  This may result in a section 100 arrangement being made between the two courts even though they are represented by the same individual and subsection 100(2) has been inserted to expressly authorise this.

Item 25 - Section 101

276.      Item 25 repeals section 101 to reflect that the Registrar of the Federal Court may serve as the Registrar of the Federal Magistrates Court.  As such, the appointment of the Registrar will be covered by the Federal Court Act rather than the Public Service Act 1999 .  This relates to the amendments in Item 22.

Item 26 - Subsection 106(1)

277.      Item 26 repeals subsection 106(1) as a consequence of the change in Item 22.  Appointments to the office of Sheriff of the Federal Magistrates Court will be covered by provisions in the Federal Court Act rather than the Public Service Act. 

Item 27 - Subsection 107(1)

278.      Item 27 repeals subsection 107(1) as a consequence of the change in Item 22.  New subsection 99(8) will require that a Chief Executive Officer only appoint a Deputy Sheriff of the Federal Magistrate Court if that person is officer of the Federal Court or Family Court.

Item 28 - Subsection 107(2)

279.      Item 28 makes a technical amendment to the numbering of subsections in the section. 

Item 29 - Subsection 109(1)

280.      Item 29 repeals subsection 109(1) as a consequence of the change in Item 22.  The appointment of the Marshall of the Federal Magistrates Court will be covered by the Federal Court Act and the Family Law Act rather than the Public Service Act .

Item 30 - Subsection 110(1)

281.      Item 30 repeals subsection 110(1) as a consequence of the change in Item 22.  New subsection 99(8) will require that a Chief Executive Officer only appoint a Deputy Marshal of the Federal Magistrate Court if that person is officer of the Federal Court or Family Court.

Item 31 - Subsection 110(2)

282.      Item 31 makes a technical amendment to the numbering of subsections in the section. 

Item 32 - Section 111A

283.      Item 32 repeals section 111A to reflect that after commencement the office of family consultant will no longer exist in the Federal Magistrates Court.

Item 33 - Subsection 115(1A)

284.      Item 33 repeals subsection 115(1A) to remove the Federal Magistrates Court’s ability to authorise ‘ family counsellors’ and ‘family dispute resolution practitioners ’ from acting under the Federal Magistrates Act.  This amendment is related to the repeal of subsections 10C(1)(d) and 10G(1)(d) of the Family Law Act by Item 14 of Schedule 1 to this Bill.

285.      Family counsellors and family dispute resolution practitioners in the Federal Magistrates Court will be authorised by the Chief Executive Officer of the Family Court.

Item 34 - Subsection 115(2)

286.      Item 34 makes a technical amendment to the subsection as a consequence of changes in Item 33.

Item 35 - At the end of clause 1 of Schedule 2

287.      Item 35 inserts new subsections (3) and (4) at the end of clause 1.  This is to clarify that the Chief Executive Officer of the Federal Magistrates Court and the Registrar of the Federal Court may be the same person.  The new subsections do not provide for remuneration arrangements in the event that one person does hold both offices.  Subsection 7(12A) of the Remuneration Tribunal Act will apply if the same person is appointed to both positions on a full-time basis. 

 

SCHEDULE 3 - Amendments to other Acts

Part 1 - Amendments relating to the restructure of the Family Court

Division 1 - Attorney-General

Administrative Decisions (Judicial Review) Act 1977

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

288.      Item 1 amends the definition of “ Family Court Judge ” in subsection 3(1) to reflect changes made to judicial offices in the Family Court by Items 1, 2, 6 and 8 of Schedule 1 to this Bill.  These changes include the retitling of ‘Chief Judge’ and ‘Deputy Chief Judge’ as ‘Chief Justice’ and ‘Deputy Chief Justice’, and the creation of the new positions of ‘Administrative Judge (Appellate and Superior Division)’ and ‘Administrative Judge (General Division)’.

Items 2 and 3 - Subparagraphs (zd)(i) and (zd)(ii) of Schedule 1

289.      Items 2 and 3 amend subparagraphs (zd)(i) and (ii) to reflect the retitling of ‘Chief Judge’ and ‘Deputy Chief Judge’ of the Family Court as the ‘Chief Justice’ and ‘Deputy Chief Justice’.

Item 4 - Subparagraph (zd)(ii) of Schedule 1

290.      Item 4 also amends subparagraph (zd)(ii) to reflect the movement of provisions relating to the assignment of Judges to particular locations sitting together from subsection 22(2AAA)(a) of the Family Law Act to the new section 22B(1)(a).

Bankruptcy Act 1966

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

291.      Item 5 amends the definition of ‘ Family Court Judge ’ in subsection 5(1) to reflect changes made to judicial offices in the Family Court by Items 1, 2, 6 and 8 of Schedule 1 to this Bill.  These changes include the retitling of ‘Chief Judge’ and ‘Deputy Chief Judge’ as ‘Chief Justice’ and ‘Deputy Chief Justice’, and the creation of the new positions of ‘Administrative Judge (Appellate and Superior Division)’ and ‘Administrative Judge (General Division)’.

Federal Court of Australia Act 1976



Item 6 - Section 15A

292.      Item 6 amends section 15A to reflect the retitling of ‘Chief Judge’ as ‘Chief Justice’ in Item 6 of Schedule 1 to this Bill.  The heading to the section is also amended to reflect this change.

Federal Proceedings (Costs) Act 1981

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

293.      Item 7 amends paragraph (j) of the definition of ‘ Federal appeal ’ in subsection 3(1) by omitting the words ‘the Full Court of’.  This reflects the insertion of new subsection 28(2) into the Family Law Act by Item 50 of Schedule 1 to this Bill, which provides that appeals may be heard by a single judge of the Appellate and Superior Division, as well as the Full Court. 

Judges (Long Leave Payments) Act 1979

Item 8 - Title

294.      Item 8 amends the long title of the Act to remove ‘(other than Justices of the High Court and Federal Magistrates)’.  The current reference in the Long Title to ‘certain Judges’ is sufficient to indicate that the Act does not apply to all Judges.  

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

295.      Item 9 amends paragraph (a) of the definition of ‘Judge’ to include Judges of the General Division of the Family Court in the list of judicial officers who are not ‘Judges’ for the purpose of the Act.  High Court Judges and Federal Magistrates are not covered by the Act. 

296.      This amendment will provide that Federal Magistrates who accept commissions in the General Division of the Family Court, as well as any other judicial officers appointed to the General Division, will not be covered by the Act. 

297.      It is a consequence of changes made by Item 46 of Schedule 1 to this Bill, which applies Federal Magistrates’ terms and conditions to judicial officers appointed to the General Division of the Family Court.

Item 10 - Section 3

298.      This Item inserts a new definition of the Judge of the General Division and is a consequence of Item 9.

Judiciary Act 1903

Item 11 - Subsection 39B(2)

299.      Item 11 amends section 39B(2) to provide that references to an officer or officers of the Commonwealth in subsections 39B(1), (1B), (1C) and (1D) of the Act regarding a writ of mandamus or prohibition or an injunction include Judges of the General Division of the Family Court but not Judges of the Appellate and Superior Division.  



Jurisdiction of Courts (Cross-vesting) Act 1987

Items 12, 13 and 14 - At the end of subsection 5(1), 5(4) and 5(5)

300.      Items 12, 13 and 14 add notes to the end of subsections 5(1), (4) and (5) to refer to new subsection (5A) of the Act regarding proceedings pending in the Family Court as outlined in Item 16.

 

Item 15 - After subsection 5(5)

301.      Item 15 inserts a new subsection (5A) to provide that the only proceedings that can be transferred to or from the Family Court under the Act are those pending before one or more Judges of the Appellate and Superior Division of the Family Court and not the General Division. 

 

Item 16, 17 and 18 - Paragraphs 6A(2)(a), subparagraph 8(1)(b)(i) and paragraph 10(a)

302.      Items 16, 17 and 18 are technical amendments made as a consequence of the change in Item 16.

 

Marriage Act 1961

 

Item 19 - Subsection 92(1)

303.      Item 19 omits the Federal Magistrates Court from the list of courts which have jurisdiction to make orders under subsection 92(1) of the Act.  Such orders will be able to be made by the General Division of the Family Court, and the other courts listed in the subsection.

Personal Property Securities Act 2009

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

304.      Item 20 replaces reference to section 33C of the Family Law Act with section 33B which will deal with the transfer of proceedings between the Family Court and the Federal Magistrates Court.  This is a consequence of the change in Item 59 of Schedule 1 to the Bill which repeals section 33C.

Division 2 - Families, Housing, Community Service and Indigenous Affairs

Child Support (Assessment) Act 1989

Items 21 and 22 - Section 98X and subsection 99(1)

305.      Items 21 and 23 amend sections 98X and subsection 99(1) to remove the Federal Magistrates Court’s jurisdiction under the Act.  This is a consequence of the removal of the Court’s jurisdiction in family law and child support matters in Item 3 of Schedule 2 to this Bill.



Item 23 - Subsection 101(3)

306.      Item 23 amends subsection 101(3) to clarify that further evidence in support of an appeal given by affidavit or oral examination must be made before a Judge of the Appellate and Superior Division of the Family Court or in such other manner as the Family Court directs.

Item 24 - Paragraph 102(1)(a)

307.      Item 24 amends paragraph 102(1)(a) to clarify that an appeal lies to the Full Court of the Family Court from a decree of the Family Court constituted by one or more Judges of the Appellate and Superior Division.

Item 25 - Subsection 102(2)

308.      Item 25 amends subsection 102(2) to clarify that an appeal does not lie to the Full Court of the Family Court from a decree of a Judge of the General Division rejecting an application that he or she disqualify himself or herself under this section. 

309.      Appeals from a decree of a Judge of the General Division and Federal Magistrates are dealt with in Items 28 and 29.

Item 26 - Subsections 102(6) and (8)

310.      Item 26 replaces references in subsections 102(6) and (8) to the ‘Appeal Division’ and ‘Judges of the Appeal Division’ with references to the ‘Appellate and Superior Division’ and ‘Judges of the Appellate and Superior Division’.  This reflects the new structure of the Court and the new titles for judicial offices.

Item 27 - Before paragraph 102A(1)(a)

311.      Item 27 inserts new paragraph 102A(1)(aa) to provide that an appeal lies to the Family Court from a decree made by a Judge of the General Division or a Federal Magistrate under the Act. 

Item 28 - Paragraph 102A(1)(b)

312.      Item 28 amends paragraph 102A(1)(b) to provide that an appeal lies to the Family Court from a decree of either a Judge of the General Division or a Federal Magistrate rejecting an application that he or she disqualify himself or herself from further hearing a matter.

Item 29 - Subsection 102A(2)

313.      Item 29 replaces the title of ‘Chief Judge’ with ‘Chief Justice’ and is a consequence of changes in Item 6 of Schedule 1 to this Bill.

Item 30 - Subsection 102A(12)

314.      Item 30 amends subsection 102A(12) regarding appeals to the Family Court from the Federal Magistrates Court and the Magistrates Court of Western Australia to provide that while the single Judge referred to in subsections (2), (7) and (9) must be a Judge of the Appellate and Superior Division of the Family Court, but that Judge need not be an Appellate Judge.

Item 31 - After subsection 103(2)

315.      Item 31 inserts new subsections 103(2A) and (2B).  It provides that the Full Court of the Family Court must hear and determine questions of law which arise in proceedings where a decree to which subsection 102A(1) applies could be made.  This is only in the event that the Judge in those proceedings and at least one of the parties wish for the Full Court to consider the question.

Item 32 - At the end of subsection 105

316.      Item 32 inserts a new subsection to clarify that reference to ‘Judge’ in paragraphs 8(b) and (c) refer to a Judge of the Appellate and Superior Division of the Family Court but that Judge need not be an Appellate Judge.

Child Support (Registration and Collection) Act 1988

Item 33 - Subsection 4(1) (definition of Judge )

317.      Item 33 repeals the definition of ‘ Judge ’ in subsection 4(1) to avoid any confusion that a Judge under the Act may include a Federal Court Judge, Family Court Judge, or a Federal Magistrate.

Items 34 and 35 - Section 103ZC and subsection 104(1)

318.      Items 34 and 35 amend sections 103ZC and subsection 104(1) to remove the Federal Magistrates Court’s jurisdiction under the Act.  This is a consequence of the removal of the Court’s jurisdiction in family law and child support matters in Item 3 of Schedule 2 to this Bill.

Item 36 - Subsection 106(3)

319.      Item 36 amends subsection 106(3) to clarify that further evidence in support of an appeal given by affidavit or oral examination must be made before a Judge of the Appellate and Superior Division of the Family Court or in such other manner as the Family Court directs.

Item 37 - Paragraph 107(1)(a)

320.      Item 37 amends paragraph 107(1)(a) to clarify that an appeal lies to the Full Court of the Family Court from a decree of the Family Court constituted by one or more Judges of the Appellate and Superior Division.

Item 38 - Subsection 107(1A)

321.      Item 38 amends subsection 107(1A) to clarify that an appeal does not lie to the Full Court of the Family Court from a decree of a Judge of the General Division rejecting an application that he or she disqualify himself or herself under this section. 

322.      Appeals from a decree of a Judge of the General Division and Federal Magistrates are dealt with in Items 41 and 42.

Item 39 - Subsections 107(5) and (7)

323.      Item 39 replaces references in subsections 107(5) and (7) to the ‘Appeal Division’ and ‘Judges of the Appeal Division’ with references to the ‘Appellate and Superior Division’ and ‘Judges of the Appellate and Superior Division’.  This reflects the new structure of the Court and the new titles for judicial offices.

Item 40 - Before paragraph 107A(1)(a)

324.      Item 40 inserts new paragraph 107A(1)(aa) to provide that an appeal lies to the Family Court from a decree made by a Judge of the General Division. 

Item 41 - Paragraph 107A(1)(b)

325.      Item 41 amends paragraph 107A(1)(b) to provide that an appeal lies to the Family Court from a decree of either a Judge of the General Division or a Federal Magistrate rejecting an application that he or she disqualify himself or herself.

Item 42 - Subsection 107A(2)

326.      Item 42 amends subsection 107A(2) to reflect the retitling the ‘Chief Judge’ as the ‘Chief Justice’ by Item 6 of Schedule 1 to this Bill.

Item 43 - Subsection 107A(12)

327.      Item 43 amends subsection 107A(12) regarding appeals to the Family Court from the Federal Magistrates Court and the Magistrates Court of Western Australia to provide that while the single Judge referred to in subsections (2), (7) and (9) must be a Judge of the Appellate and Superior Division of the Family Court, that Judge need not be an Appellate Judge.

Item 44 - After subsection 108(2)

328.      Item 44 inserts new subsections 108(2A) and (2B).  It provides that the Full Court of the Family Court must hear and determine questions of law which arise in proceedings where a decree to which subsection 107A(1) applies could be made.  This is only in the event that the Judge in those proceedings and at least one of the parties wish for the Full Court to consider the question.

Item 45 - At the end of section 110

329.      Item 45 inserts a new subsection to clarify that reference to ‘Judge’ in paragraphs 8(b) and (c) refer to a Judge of the Appellate and Superior Division of the Family Court but that Judge need not be an Appellate Judge.



Division 3 - Finance and Deregulation

Judges’ Pensions Act 1968

Item 46 - Title

330.      Item 46 inserts the word ‘certain’ before ‘Judges’ in the Long Title.  The Act does not apply to all federal judicial officers and the new Long Title is intended to more accurately reflect this.

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

331.      Item 47 amends the definition in subsection 4(1) to include a reference to a new subsection 4(1)(f) created by Item 10B.

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

332.      Item 48 inserts a new subsection 4(1)(f) which ensures that for the purposes of calculating the ‘appropriate judicial salary’ for a Judge of the Family Court who retired or died prior to commencement, other than the Chief Judge or Deputy Chief Judge, the salary should be that of a Judge of the Appellate and Superior Division (not including the Chief Justice or the Deputy Chief Justice), not that of the General Division.  Judges of the General Division do not receive judicial pensions and to reference the ‘appropriate judicial salary’ against the salary of Judges of the General Division would reduce the entitlements for Judges of the Family Court covered by this Act.

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

333.      Item 49 amends paragraph (a) of the definition of ‘Judge’ in subsection 4(1) to include Judges of the General Division of the Family Court in the list of judicial officers who are not ‘Judges’ for the purpose of the Act.  Federal Magistrates are not currently covered by the Act.

334.      The amendment will provide that Federal Magistrates who accept commissions in the General Division of the Family Court, as well as any other judicial officers appointed to the General Division, will not be covered by the Act.

Items 50 and 51 - Subsection 4(1)

335.      Items 50 and 51 insert two new definitions for ‘Judge of the Appellate and Superior Division’ and ‘Judge of the General Division’ of the Family Court.  These definitions are a consequence of the change in Item 10A, and clarify the terminology in that Item.



Division 4-Treasury

Australian Securities and Investment Commission Act 2001

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

336.      Item 52 amends the definition of ‘ Family Court Judge ’ in subsection 12BA(1) to reflect changes made to the definition of Judge in the Family Law Act by Items 1, 2, 6 and 8 of Schedule 1 to this Bill.

 

Competition and Consumer Act 2010



Item 53 - Section 130 (definition of Family Court Judge )

337.      Item 53 amends the definition of ‘ Family Court Judge ’ in section 130 to reflect changes made to the definition of Judge in the Family Law Act by Items 1, 2, 6 and 8 of Schedule 1 to this Bill.  This amendment will not commence until Schedule 2 to the Trade Practices Amendment (Australian Consumer Law) Bill (No. 2) 2010 commences. 

 

Taxation Administration Act 1953



Item 54 - Section 14ZQ (definition of Family Court Judge )

338.      Item 54 amends the definition of ‘ Family Court Judge ’ in section 14ZQ to reflect changes made to the definition of Judge in the Family Law Act by Items 1, 2, 6 and 8 of Schedule 1 to this Bill.

 

Trade Practices Act 1974



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

339.      Item 55 amends the definition of ‘ Family Court Judge ’ in subsection 4(1) to reflect changes made to the definition of Judge in the Family Law Act by Items 1,2 6 and 8 of Schedule 1 to this Bill.  This amendment will not be necessary if Schedule 2 to the Trade Practices Amendment (Australian Consumer Law) Bill (No. 2) 2010 has commenced by the time Part 1 of Schedule 1 of this Bill commences.

 

Part 2 - Other amendment

 

Administrative Appeals Tribunal Act 1975

 

Item 56 - At the end of section 70

340.      Item 56 authorises the Governor-General to prescribe regulations which make provision for fees to be payable at any stage of an Administrative Appeals Tribunal proceeding and for the waiver of those fees. 

341.      Currently the Act authorises the making of regulations which prescribe fees in relation to applications. This means that fees can only be imposed at the application stage of Tribunal proceedings.  The amendment will allow fees to be imposed at any stage in proceedings. 

342.      The amendment is necessary to implement a new fee in the Tribunal which was recommended by the Access to Justice Taskforce in its report A Strategic Framework for Access to Justice in the Federal Civil Justice System .  The amendment will allow the making of regulations which give the Tribunal the discretion to impose a $2500 fee on agencies which are subject to a determination which is not in their favour after a full hearing at the Tribunal. It will mean that the costs of having a decision amended by Tribunal are not insignificant and that there is an incentive to resolve the matter earlier through other resolution methods.

 

Item 57 - Application

343.      The amendment made by Item 56 will apply to any proceedings before the Administrative Appeals Tribunal which are filed after Item 56 of Schedule 3 commences.  It will also apply to proceedings which were filed before the day Item 56 commences but which are not completed by that day.  Due to the differences in the length of time it take to resolve an Administrative Appeals Tribunal matter, this provision will ensure that all proceedings are treated consistently after the commencement of the new provision.

 

 

SCHEDULE 4 Application, saving and transitional provisions

 

Part 1 - Definitions

Item 1 - Definitions

344.      Part 1 establishes new definitions for key terms used the purposes of this Schedule, such as ‘Chief Judge’ and ‘Chief Justice’.  This ensures that the extent of the operation of the application, savings and transitional provisions are clear.

 

Part 2 - Restructure of the Family Court

Item 2 - Saving-Continuity of the Family Court

345.      Item 2 provides that the continuity of the Family Court of Australia after the commencement is not affected by the amendments in this Bill which restructures the Family Court.

 

Item 3 -Transitional-change of title of offices of Chief Judge and Deputy Chief Judge

346.      To avoid doubt, Item 3 provides that the offices of Chief Judge and Deputy Chief Judge under the Family Law Act will continue as the office as Chief Justice and Deputy Chief Justice respectively despite changes in the titles to these offices in Items 6 and 8 in Schedule 1.

 

Items 4 and 5-Transitional-references to Chief Justice and Deputy Chief Justice and Transitional-references to Chief Judge and Deputy Chief Judge

347.      Items 4 and 5 are transitional provisions to ensure that references to the ‘Chief Justice’ and ‘Deputy Chief Justice’ in other Acts or instruments include a reference to the ‘Chief Judge’ and ‘Deputy Chief Judge’ appointed prior to the commencement of this Act.  It also provides that a reference to a ‘Chief Judge’ and ‘Deputy Chief Judge’ prior to commencement includes a reference to the ‘Chief Justice’ and ‘Deputy Chief Justice’ and is a consequence of amendments made in Items 6 and 8 of Schedule 1.

 

Item 6 Transitional-assignment of Judges to new Divisions of Family Court

348.      Item 6 provides for the reassignment of Judges into the new Appellate and Superior Division of the Family Court.  As outlined in Item 3 of Schedule 1, this provision ensures that Judges who held a commission of assignment to the Appeal Division prior to this Bill commencing are taken to be assigned to the Appellate and Superior Division as an Appellate Judge.

349.      Judges who were deemed to be assigned to the General Division prior to the commencement of this Bill under subsection 22(2AF) of the Family Law Act are now deemed to be assigned to the Appellate and Superior Division.

 

Item 7 Transitional-assignment of Judges to particular locations

350.      Item 7 preserves any assignment to a location of a Judge that may have occurred under subsection 22(2AAA) as a result of changes made by Item 37 of Schedule 1.

 

Item 8 Saving-style for former Judges 

351.      Item 8 ensures that former Judges of the Family Court can continue to style themselves ‘the Honourable’ despite the repeal of subsection 22(4) in Item 37 of Schedule 1.

 

Item 9 Saving-seniority of Judges

352.      Item 9 will preserve the existing seniority of Family Court Judges despite the changes made to the structure of the Family Court as a result of changes to the seniority provisions in Items 40-42 of Schedule 1.  In particular, Appellate Judges will retain the seniority they had as members of the Appeal Division due to the changes made in Item 40.

 

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

353.      Item 10 operates to avoid any doubt that anything done by the Family Court or a Judge of the Family Court before commencement is valid and is not affected by this Bill.

 



Item 11 Transitional-remuneration etc.

354.      Item 11 operates to preserve any determinations made by the Remuneration Tribunal which apply to Judges of the Family Court before commencement.  Item 6 deems existing Family Court Judges to be Judges of the Appellate and Superior Division after commencement, and Judges of the Appeal Division to be Appellate Judges.  Any determinations which make reference to a Judge of the Family Court are taken to be references to a Judge of the Appellate and Superior Division, and references to a Judge of the Appeal Division are taken to be references to an Appellate Judge (other than the Chief Justice or Deputy Chief Justice for which separate determinations exist). 

355.      A reference to a Judge in a determination is taken not to include a Judge of the new General Division unless that reference includes a Federal Magistrate.  Any provisions in a determination that apply to a Federal Magistrate apply to a Judge of the General Division.

356.      Determinations referring to Judge Administrator and Senior Judge are taken to be omitted as these offices will no longer apply in the restructured Family Court.  Until a new determination is made by the Remuneration Tribunal with respect to the new offices of Administrative Judge (Appellate and Superior Division) and Administrative Judge (General Division), the current determination regarding Judges of the Family Court will apply. 

357.      It is anticipated that the Remuneration Tribunal may create new determinations for the offices of Administrative Judge.  The Administrative Judge (Appellate and Superior Division) is likely to be remunerated at a rate higher than a Judge of the Appellate and Superior Division, and the Administrative Judge (General Division) is likely to be remunerated at a rate higher than a Judge of the General Division but less than that of a Judge of the Appellate and Superior Division.

 

Item 12 Transitional-Judges of the new General Division

358.      Item 12 operates to preserve the terms and conditions of appointment of current Federal Magistrates under the Federal Magistrates Act who accept commissions to be Judges of the Family Court assigned to the General Division.  This includes determinations of the Remuneration Tribunal, recreation leave entitlements and other terms and conditions like personal leave or carer’s leave that applied to that person immediately before commencement.

359.      This ensures that Federal Magistrates who accept choose to accept new commissions will do so on the same terms and conditions as they had in the Federal Magistrates Court and there will be no impact on these arrangements upon transition to the restructured Court.  

 

Item 13 Saving and transitional-Judicial Registrars

360.      Item 13 will preserve provisions in the Family Law Act which relate to Judicial Registrars despite the removal of this office by Item 47 of Schedule 1.  They will apply to the two remaining Judicial Registrars of the Court until their terms expire.  

361.      Subsection 13(3) provides that no new Judicial Registrars will be appointed after commencement.

 

Item 14 Application-practice and procedure

362.      Item 14 provides that the new provisions relating to the conduct of proceedings in the Family Court, inserted by Item 132 of Schedule 1 to the Bill, will apply only to proceedings instituted in the Family Court after commencement.  The current practice and procedure of the Family Court will continue to apply to all proceedings instituted before commencement.  This will ensure that the same case management procedures apply to an entire proceeding.

 

Item 15 Transitional-Rules of Court

363.      Item 15  provides that the existing Rules of Court in force under the Family Law Act immediately before commencement are taken to be Rules which apply to both Divisions of the Family Court under new section 124(1)(a) inserted by Item 146 of Schedule 1 to the Bill.  However, this does not prevent the amendment or repeal of the existing Rules.

 

Item 16 Saving-instruments

364.      Item 16 operates to ensure that any instrument made under any law that is in force immediately before commencement is not affected by this Bill.  This may include a contract entered into by the Chief Justice of the Court or a Memorandum of Understanding made with another court.

 

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

 

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

365.      Item 17 operates to automatically transfer family law or child support proceedings instituted in the Federal Magistrates Court to the Family Court if the substantive hearing has not yet begun before commencement.  Item 1 provides that ‘family law or child support proceedings’ has the meaning given by section 5 of the Federal Magistrates Act, being a proceeding under the Family Law Act, Child Support (Assessment) Act or the Child Support (Registration and Collection) Act.

366.      If a proceeding is transferred in this way everything already done in relation to the proceeding in the Federal Magistrates Court, including the filing of documents or lodgement of money, is taken to have been done in the Family Court.  It is expected that most Federal Magistrates will accept commissions to the new General Division of the Family Court, and this transfer arrangement is intended to facilitate a streamlined transition for family law and child support matters between the two courts. 

367.      Subsection (4) provides that the proceeding will not be automatically transferred to the Family Court if, before commencement, the Federal Magistrates Court had referred any or all of the matters in dispute for a dispute resolution process, or required either or both parties to attend a dispute resolution process.

368.      Similarly, a family law or child support matter remitted by the High Court to the Federal Magistrates Court before commencement under section 44 of the Judiciary Act will not be affected by the operation of this provision.

 

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

369.      Item 18 provides that if a final hearing for final orders has not begun in the Federal Magistrates Court in a family law or child support matter remitted by the High Court to the Federal Magistrates Court under section 44 of the Judiciary Act before commencement, the Federal Magistrates Court must transfer the matter to the Family Court for hearing. 

370.      Subsection (2) confirms that family law or child support matters may not be remitted to the Federal Magistrates Court by the High Court after commencement.

 

Item 19 Re-hearings ordered by Family Court on appeal

371.      Item 19 provides that if, on appeal from the Federal Magistrates Court, the Family Court orders a re-hearing of a matter, the rehearing will occur in the General Division of the Family Court, rather than the Federal Magistrates Court.   If it would be more convenient of the re-hearing to occur before the Federal Magistrate whose decision was appealed, and that Federal Magistrate has not accepted a commission to the Family Court, the matter could be transferred to the Federal Magistrates Court under the ordinary transfer provisions.   

 

Item 20 Application-Rules of Court

372.      Item 20 provides that the new subsection 81(1A) inserted by Item 18 of Schedule 2 applies to Rules of Court made in the Federal Magistrates Court after the commencement date, rather than retrospectively.  Subsection 81(1A) requires the Federal Magistrates to ensure that, so far as practical, the Rules of the Federal Magistrates Court in relation to practice and procedure are not to be inconsistent with the Rules of Court that apply to Judges of the General Division of the Family Court.

 

Item 21 Transitional—authorisation to provide family counselling

373.      Item 21 ensures that authorisations made at commencement for officers of the Court or staff to act as a family counsellor under subsection 93D(1) of the Federal Magistrates Act has effect as though the authorisation was made by the Chief Executive Officer of the Family Court under the Family Law Act.  Subsection 93D is repealed by Item 19 of Schedule 2.

 



Item 22 Transitional—authorisation to provide family dispute resolution

374.      Item 22 ensures that authorisations made at commencement for officers of the Court or staff to provide family dispute resolution under subsection 93D(1) of the Federal Magistrates Act has effect as though the authorisation was made by the Chief Executive Officer of the Family Court under the Family Law Act.  Subsection 93D is repealed by Item 19 of Schedule 2.

 

Item 23 Transitional—family consultants

375.      Item 23 ensures that authorisations made at commencement for officers of the Court or staff to act as a family counsellor under subsection 93D(1) of the Federal Magistrates Act has effect as though the authorisation was made by the Chief Executive Officer of the Family Court under the Family Law Act.  Subsection 93D is repealed by Item 19 of Schedule 2.

 

Part 4-Regulations

 

Item 24 Regulations may deal with transitional etc. Matters

376.      Item 24 allows regulations to be made to deal with matters of a transitional, saving or application nature relating to amendments made by the Bill.  This is a cautionary provision included to allow for any arrangements inadvertently omitted in the Bill to be included by regulation if necessary to ensure the transition to the restructured Family Court operates as intended.