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Federal Circuit and Family Court of Australia Bill 2019

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2019

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

Federal Circuit and Family court of australia bill 2019

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Attorney-General, the Honourable Christian Porter MP)

 

 

 



 

Federal Circuit and Family court of australia bill 2019

 

General Outline

1.                 Family law is a key element of the federal civil justice system and, as such, a major area of focus for the Australian Government. The Government has committed to structural reform of the federal family courts as a targeted measure to assist those families whose matters are not able to be resolved before entering the family court system. The Government is confident that its proposed court reform will increase efficiencies and reduce delays which will lead to a quicker resolution of matters before the family courts for the benefit of Australian families.

2.                 In recognition of the pressures on the civil justice system, the performance, funding and operation of the federal courts have been considered in many reviews and reports over the last decade. Most recently, PricewaterhouseCoopers completed a 2018 report into the efficiencies of the operation of the federal courts in respect of family law. These reviews and reports establish a clear and persuasive case for reform that the Government must address in order to ensure that the family law system meets the contemporary needs of families.

3.                 The Government introduced the Federal Circuit and Family Court of Australia Bill 2018 and the accompanying Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 to Parliament on 23 August 2018 (the 2018 Bills). The 2018 Bills lapsed when the Parliament was prorogued on 11 April 2019. Since then, the Government has worked to strengthen and improve the suite of measures to respond to the key issues raised regarding the 2018 Bills, particularly in the context of the Senate Legal and Constitutional Affairs Legislation Committee Inquiry, while still fundamentally delivering important structural reform of the federal family law courts. These changes are captured in the Bill and its companion, the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019.

4.                 The Federal Circuit and Family Court of Australia Bill 2019 (the Bill) would bring the Federal Circuit Court of Australia (the Federal Circuit Court) and the Family Court of Australia (the Family Court) together into an overarching, unified administrative structure to be known as the Federal Circuit and Family Court of Australia (FCFC). These structural reforms facilitated by the Bill would create a framework in the FCFC for common leadership, common management and a comprehensive and consistent internal case management approach.

5.                 To further ensure that these objects are met, the Bill provides for the making of regulations and, in particular, Rules of Court which govern the details, operations and practice and procedure of the FCFC.  This statutory framework in its entirety would underpin the court forms, practice notes, directions and a consistent case management pathway for family law matters.

6.                 The structural reform would therefore provide the impetus to: help Australian families resolve their disputes faster by improving the efficiency of the existing split family law system; provide appropriate protection for vulnerable people; and ensure the expertise of suitably qualified and experienced professionals supports those families in need.

7.                 The FCFC would comprise two divisions. The Federal Circuit and Family Court of Australia (Division 1) (FCFC (Division 1)) would be a continuation of the Family Court. The Federal Circuit and Family Court of Australia (Division 2) (FCFC (Division 2)) would be a continuation of the Federal Circuit Court.

8.                 As two divisions located in the FCFC, this structural reform of the federal courts is intended to: 

·          create a consistent pathway for Australian families in having their family law disputes dealt with in the federal courts

·          improve the efficiency of the federal court system, and

·          ensure outcomes for Australian families are resolved in the most timely, informed and cost effective manner possible.

9.                 The FCFC would provide a single point of entry into the family law jurisdiction of the federal court system. Matters would be filed in the FCFC (Division 2) and then transferred to the FCFC (Division 1) as appropriate. With consistent internal approaches to case management, practices and procedures, it is anticipated that the FCFC would significantly improve efficiency in the family law jurisdiction of the federal court system, providing additional resources that can be directed to reducing the growing backlog of pending cases in the system and reducing the average time it takes to resolve family law matters.

10.             Critically, and as provided for in the Bill, the Government intends that the FCFC would operate under the leadership of one Chief Justice, supported by one Deputy Chief Justice, with each holding a dual commission to both Division 1 and Division 2. The Deputy Chief Justice would hold a dual commission as Deputy Chief Judge (Family Law) of the FCFC (Division 1). There would also be a second Deputy Chief Judge (General and Fair Work) of the FCFC (Division 2). The Bill provides a framework that would enable the Chief Justice to ensure more stringent, early assessments of the relative complexity of matters requiring determination by the FCFC and then ensure the more effective allocation of cases between the two FCFC Divisions. This would also facilitate the ability of the FCFC to take a consistent internal case management approach, resulting in the more efficient handling of family law matters. It is also expected that one Chief Justice would ensure the issuing of common rules of courts, practice notes and directions, which would guide the Judges and Court staff of each division, legal practitioners and litigants about the way uniform procedures are expected to operate.

11.             The Bill would also ensure that the Federal Circuit Court’s existing general federal law jurisdiction and fair work jurisdiction would be preserved in FCFC (Division 2).

12.             Nothing in this Bill, or any of the amendments in the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019, of themselves, constitute a significant change in circumstances or new factor that would enable a decided family law matter to be reopened or a matter reinstituted (that is, these reforms do not of themselves meet the test of Rice and Asplund (1979) FLC 90-725). This means that if a family law matter has been decided, this Bill would not change the outcome of that decision for the parties.

13.             More specifically, the Bill would:

·          provide for the continuation of the Family Court of Australia as the FCFC (Division 1)

·          provide for the continuation of the Federal Circuit Court of Australia as the FCFC (Division 2)

·          ensure that the FCFC (Division 1) is considered a superior court of record and a court of law and equity, and the FCFC (Division 2) is considered a court of record and a court of law and equity

·          legislate a single point of entry for first instance family matters in the FCFC

·          make provision for matters to be transferred from the FCFC (Division 2) to the FCFC (Division 1) to support the effective and efficient allocation of first instance family law matters filed in the FCFC (Division 2)

·          provide that the FCFC (Division 1) has first instance jurisdiction for family law matters transferred to it

·          provide that the FCFC (Division 1) can transfer a matter from the FCFC (Division 2) to the FCFC (Division 1), and can also transfer a matter sitting in the FCFC (Division 1) to the FCFC (Division 2) if approved by the Chief Justice

·          provide that the Chief Justice of the FCFC (Division 1) may hold a dual appointment as the Chief Judge of the FCFC (Division 2)

·          provide that the Deputy Chief Justice of the FCFC (Division 1) may hold a dual appointment as the Deputy Chief Judge (Family Law) of the FCFC (Division 2)

·          create a second office of the Deputy Chief Judge in the FCFC (Division 2), so that there is a Deputy Chief Judge (Family Law) and Deputy Chief Judge (General and Fair Work)

·          maintain the Federal Circuit Court’s two divisions within the FCFC (Division 2) - a general federal law division (which would hear family law matters) and a fair work division

·          provide for the Rules of Court of the FCFC (Division 1) and the Rules of Court of the FCFC (Division 2) to be made solely by the Chief Justice and Chief Judge, respectively, rather than by a majority of Judges, for the first two years from commencement (reverting back to the Judges, or a majority of them thereafter)

·          establish additional qualifications for judicial appointments to provide further assurance that persons appointed as judges are suitable to exercise jurisdiction in the matters that would be expected to come before the person as a Judge of the relevant Division, with the necessary knowledge, skills, experience and aptitude, with a particular focus on family law matters, including matters involving family violence   

·          preserve the existing Family Court’s appellate jurisdiction in the new FCFC (Division 1)

·          remove the Appeal Division structure of the Family Court to allow all FCFC (Division 1) judges to hear family law appeals, both as individual judges and as members of a Full Court

·          retain existing parities between the Family Court of Western Australia and federal courts 

·          make provision for matters to be transferred between the FCFC (Division 1) and the FCFC (Division 2)

·          provide that the overarching purpose of practice and procedure provisions in relation to family law proceedings in both FCFC (Division 1) and FCFC (Division 2) is to facilitate the just resolution of disputes, according to law, and as quickly, inexpensively and as efficiently as possible

·          provide a Judge may order a lawyer to bear costs personally for failure to comply with the duty to facilitate the just resolution of disputes, according to law and as quickly, inexpensively and efficiently as possible, and

·          require a review of the legislation to be undertaken five years after commencement.

14.             Significantly, the Bill would provide that:

·          the Chief Justice and Chief Judge must work cooperatively to achieve a common approach to case management in the FCFC, including in relation to common practices and procedures, rules of court and forms (noting the Government’s clear intention that there would be a single Chief Justice holding a dual commission to both Division 1 and Division 2)

·          the Chief Justice and Chief Judge may authorise Judges in the FCFC to manage proceedings or classes of proceedings (which would enable specialist management of proceedings), and

·          a single Chief Executive Officer, the Chief Executive Officer of the Federal Circuit and Family Court of the FCFC (Division 1), is to assist the Chief Justice and the Chief Judge in the administrative affairs of the FCFC (Division 1) and FCFC (Division 2).

15.             The Bill therefore would provide a framework to, over time and through a standardised set of Rules, realise:

·          a single set of forms for court users

·          a common scale of costs

·          uniform procedures, and

·          a cultural change in the conduct of litigation, encouraged by the FCFC’s new case management provisions, so that the Court and the parties are focussed on resolving disputes as quickly, inexpensively and efficiently as possible.

FINANCIAL IMPACT

16.             As part of the 2018-19 Budget, $4.0 million was allocated to assist with the implementation costs of the structural reform of the federal courts.

17.             A further $3.7 million has been provided over the forward estimates for an additional judge to hear family law appeals as part of the 2018-19 Mid-Year Economic and Fiscal Outlook.

 



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Federal Circuit and Family Court of Australia Bill 2019

18.             This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

19.             The Federal Circuit and Family Court of Australia Bill 2019 (the Bill) brings together the Family Court of Australia (Family Court) and the Federal Circuit Court of Australia (FCC) to be known as the Federal Circuit and Family Court of Australia (FCFC).

20.             The bringing together of the courts is intended to provide Australian families with a quicker dispute resolution mechanism, as well as greater certainty and consistency. This intention will be achieved by improved shared case management practices so that information will be readily available about what to expect and when, thereby standardising the experience of litigants, and providing an early sense of the likely cost implications of lodging a family law application in the federal family law court system.

21.             The FCFC (Division 1) would be a continuation of the Family Court, and the FCFC (Division 2) would be a continuation of the FCC. The Bills provide that the FCFC (Division 2) would be a single point of entry into the family law jurisdiction of the federal family law court system for Australian families in the first instance, as all first instance family law or child support applications will be made by applicants to the FCFC (Division 2). The Bill contains a statutory bar on the commencement of family law and child support proceedings in the FCFC (Division 1), and the FCFC (Division 1) would have original jurisdiction for those proceedings only where the proceedings have either been transferred or removed from the FCFC (Division 2) into the FCFC (Division 1). The FCFC (Division 2) would have the ability to transfer a proceeding to the FCFC (Division 1), and the FCFC (Division 1) would retain the ability to remove a proceeding from the FCFC (Division 2) to be heard in the FCFC (Division 1). Parties would also be able to apply to have their matter transferred to the FCFC (Division 1). The original jurisdiction currently conferred on the Family Court by other Acts would be conferred on the FCFC (Division 1) and not be affected.

22.             It is anticipated that these reforms would make it easier for the public to understand court practices and improve access to justice. By creating a single point of entry to the family law courts, standardised rules and procedures, the FCFC would be simpler to use and more efficient. The FCC is currently comprised of a General Division and a Fair Work Division, and these continue in the new FCFC (Division 2). Family law matters would continue to form part of the FCFC (Division 2)’s General Division.

23.             The FCFC (Division 1), as a continuation of the Family Court, would retain family law appellate jurisdiction. All judges of the FCFC (Division 1) would be able to hear appeals, either as a single judge or as a member of a Full Court. Appeals from a decision of the FCFC (Division 2), or the Magistrates Court of Western Australia constituted by a Family Law Magistrate, would be heard by a single judge of the FCFC (Division 1) unless the Chief Justice decides it appropriate for the matter to be heard by a Full Court of the FCFC (Division 1). Appeals from a first instance judgment of the FCFC (Division 1) would be heard by the Full Court of the FCFC (Division 1). Appeals from a decision of a State or Territory court of summary jurisdiction, aside from decisions of West Australian Family Law Magistrates, would be heard de novo by a single judge of the FCFC (Division 1). Further appeals from those decisions would be heard by the Full Court of the FCFC (Division 1) and then by the High Court of Australia if special leave to appeal is granted. In all other circumstances, appellate judgments of the FCFC (Division 1), whether heard by a single judge or the Full Court, would be appealable to the High Court of Australia if special leave to appeal is granted. By allowing any judge of the FCFC (Division 1) to hear appeals, both as a single judge and as a member of a Full Court, there would be greater flexibility in the management of the appellate caseload. Additionally, it is anticipated that having most appeals from decisions of the FCFC (Division 2) being heard by a single judge of the FCFC (Division 1) instead of by a Full Court would free up considerable judicial resources to work on first instance family law matters, helping to reduce delays and the backlog of cases in the family law system.

24.             This Bill deliberately replicates existing provisions in the Federal Circuit Court of Australia Act 1999 (Federal Circuit Court Act), together with some existing provisions from the Family Law Act 1975 (Family Law Act). For each of the rights engaged, the bringing together of the Family Court and the FCC would create a framework to consolidate the procedures, management and administration of the two courts in their current iterations. This would be achieved by providing the practical capacity for a dual commissioned head of jurisdiction and deputy head of jurisdiction, and by having a new position of the Chief Executive Officer of the FCFC (Division 1) also fulfil that role in the FCFC (Division 2). This consolidation would allow for litigants to access a streamlined procedure, especially in family law matters, instead of navigating two sets of procedures for different courts.

Human rights implications

25.             The Bill engages the following human rights:

·          right to a fair and public hearing: Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR);

·          right to an effective remedy: Article 2(3) of the ICCPR;

·          elimination of discrimination against women: Articles 2 and 26 of the ICCPR, and Articles 2, 3 and 5 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW);

·          best interests of the child: Article 3(1) of the Convention on the Rights of the Child (CRC), and in relation to children with disabilities Article 7(2) of the Convention on the Rights of Persons with Disabilities (CRPD);

·          protection from exploitation, violence and abuse: Article 20(2) of the ICCPR; in relation to children Articles 19(1) and 34 of the CRC, and Article 24(1) of the ICCPR; and in relation to persons with disabilities Article 16(1) of the CRPD;

·          protection against unlawful and arbitrary interference with privacy: Article 17 of the ICCPR; and

·          right to security of the person and freedom from arbitrary detention: Article 9 of the ICCPR.

26.             As most of the provisions in the Bill replicate or are drawn from existing provisions of the Federal Circuit Court Act or the Family Law Act, there is little change in the treatment of most of the rights mentioned above. As such, while the Bill promotes human rights by increasing access to justice, the limitations it imposes on human rights largely maintain existing limitations. The Bill does not substantially alter the substantive powers of the judiciary or the rights of parties to have a matter heard by the courts.

Right to a fair and public hearing, and to an effective remedy - Article 14(1) and 2(3) of the ICCPR

27.             Article 14(1) of the ICCPR enshrines the right of a person to have a fair and public hearing by a competent, independent and impartial tribunal established by law. As noted in the UN Human Rights Committee’s General Comment No 32, an important aspect of the fairness of a hearing is its expeditiousness. [1] This right is engaged through the limiting of appeals from certain decisions through the imposition of requirements to seek leave to appeal or preventing appeals against certain procedural or interlocutory decisions, creating the capacity for appellate jurisdiction to be exercised by a single Judge. Article 2(3) requires States to ensure that any person whose rights and freedoms as stipulated in the ICCPR are violated, that person shall have an effective remedy, which is to be determined by a competent judicial authority. The Bill predominately engages these rights through the provisions relating to the ability of both divisions of the FCFC to ‘go on circuit’, the use of audio or video link, vexatious litigants, suppression and non-publication orders, closed-court requirements, and case management provisions.

Single point of entry into the federal family law court system and transfer between divisions

28.             Clauses 25, 50, 51, 52, 132, 150, and 151 of the Bill promote the right to a fair and public hearing by a competent, independent and impartial tribunal established by law under Article 14 of the ICCPR through facilitating a single point of entry into the federal family law court system supported by an ability to transfer matters between Divisions. Clause 132 provides that the FCFC (Division 2) has original jurisdiction in family law and child support matters. Clause 50 provides that first instance matters must not be instituted in the FCFC (Division 1), but if they are, the proceedings are transferred to the FCFC (Division 2) and taken to be valid. This will ensure that every applicant will have access to a competent, independent and impartial tribunal even if they mistakenly institute proceedings in the FCFC (Division 1). Clause 25 provides that the FCFC (Division 1) has original jurisdiction once proceedings are transferred to it under subclause 51 or clause 151, thereby allowing the FCFC (Division 1) to hear first instance family law or child support matters. Clauses 51, 52, 150 and 151 provide for transfer of matters between the divisions. This supports the single point of entry by ensuring matters are heard by judges with appropriate expertise and, in conjunction with the case management provisions as discussed below, will provide Australian families with a greater certainty and consistency in their family law proceedings. Together, these factors will increase every Australian’s access to justice and promote the right to a fair and public hearing by a competent, independent and impartial tribunal and the right to an effective remedy .

Leave to appeal from certain decisions

29.             Clauses 26(2), 28, 55 and 155 of the Bill promote the right to a fair hearing under Article 14 of the ICCPR by facilitating the expeditiousness of the appeal system, and thus ensuring the right to a fair hearing when seeking review of a decision. These items provide circumstances in which an appeal must not be brought, and circumstances in which an appeal can only be brought with leave of the Court. Clauses 26(2) and 55 relate to interlocutory decisions, which are not determinative of a litigant’s final rights. Similarly, clause 28 limits a litigant’s ability to appeal interlocutory decisions that do not relate to child welfare matters. By circumscribing a litigant’s ability to appeal [2] an interlocutory decision, unnecessary appeals will not be filed with the FCFC (Division 1). These items allow court resources to be better allocated to litigants who need to access their right to a fair hearing and have their final rights determined. As such, clauses 26, 28 55 and 15 promote the right to a fair hearing under Article 14 of the ICCPR.

Capacity for appellate jurisdiction to be exercised by a single Judge

30.             Clause 32 of the Bill provides for the exercise of appellate jurisdiction of the FCFC (Division 1), in relation to a decision by the FCFC (Division 2) or the Magistrates Court of Western Australia, to be by a single Judge or, if the Chief Justice considers it appropriate for a Full Court to consider the matter, a Full Court. In relation to a judgment of any other court, a Full Court will hear the appeal. This is a change from the current situation provided by section 94AAA(3) of the Family Law Act, which provides that in an appeal from a decision of the FCC to the Family Court, the appellate jurisdiction is to be exercised by a Full Court, unless the Chief Justice considers it appropriate for the appellate jurisdiction of the Court to be exercised by a single Judge. This amendment engages with the right to a fair hearing by remedy under Article 14 of the ICCPR, by increasing the number of judicial resources available to hear both appellate and first instance matters, and thus increasing the capacity of the Court to resolve disputes expeditiously, for the ultimate benefit of litigants. [3]

Place of sitting

31.             Clauses 64 and 183 provide that sittings of the FCFC (Division 1) and FCFC (Division 2), respectively, ‘must be held from time to time as required and the Court may sit at any place in Australia’. Currently the FCC is a circuit court; that is, Judges from the Family Court or the FCC are able to conduct proceedings in various cities around Australia, including regional areas. It will be open to both the FCFC (Division 1) and FCFC (Division 2) to operate anywhere in Australia pursuant to clauses 64 and 183.  Having the ability for the courts to sit outside of major Australian cities particularly engages and promotes the right to an effective remedy as it facilitates access to the courts for Australians in non-metropolitan areas. Further, clauses 65 and 184 allow either division of the FCFC to change the venue of the court to continue a proceeding, or part of a proceeding at any stage of the proceedings. These provisions ensure the court can flexibly adapt the nature of the proceedings and any unforeseen circumstances that may arise for the users of the court. 

Use of audio or video link

32.             Division 6 of Part 6 of Chapter 4 provides for the FCFC (Division 2) to allow applicants to use audio or video link for a variety of purposes, including allowing a person to give evidence, make appearances or submissions. Similar provisions are made in Division 2 of Part XI of the Family Law Act for the FCFC (Division 1). These provisions promote the right to a fair hearing and the right to an effective remedy by allowing the court to use technology to respond flexibly to the needs of its users. This may include circumstances where users of the court are unable to travel to the court, or in sensitive circumstances where attending court in person is unsafe or may traumatise a person. This provision ensures that in such circumstances, access to the courts is not denied, and thus the right to a fair hearing and the right to an effective remedy are promoted.

Vexatious litigants

33.             Clauses 239-244 engage with the right to a fair hearing and the right to an effective remedy by allowing the FCFC (Division 2) to make an order that prevents litigants considered vexatious from instituting proceedings without a grant of leave. The definition of ‘vexatious proceeding’ is provided in clause 7 of the Bill, and clause 239(1) limits the circumstances in which the FCFC (Division 2) can make the vexatious proceedings order to circumstances where a person, or a person has acted in concert with a person who, has frequently instituted or conducted proceedings considered vexatious in Australian courts or tribunals. The Bill defines this order as a ‘vexatious proceedings order’.

34.             These proposed clauses promote the right to a fair hearing and the rights to an effective remedy by ensuring the courts are not misused for an improper purpose. However, the provisions may also be viewed as limiting the use of the courts for those litigants subject to the order. In circumstances where a litigant is limited from their right to an fair hearing and their right to an effective remedy, the legitimate objective of the power to make vexatious proceedings orders is to prevent the abuse of process, or the use of the court to annoy, harass, cause delay or detriment, or for another wrongful purpose. There is a rational connection between clauses 239-244 and this objective, as these clauses enable the FCFC (Division 2) to make an order that a litigant is vexatious, provides the circumstances in which such an order can be made, and outline the effect of the order.

35.             These clauses are considered reasonable and necessary to protect the integrity of the court system, to protect applicants who may be adversely affected by vexatious litigants and accordingly improve access to justice for non-vexatious litigants, and ensure that court resources are allocated usefully and efficiently. Moreover, clauses 239-244 replicate the current ability of the FCC to make the same order.  Similar provisions relating to vexatious proceedings are made in Part XIB of the Family Law Act for the FCFC (Division 1).  The limitation is proportionate as the term ‘vexatious’ is discretely defined in clause 7, and clause 239(1) limits the circumstances under which the FCFC (Division 2) can make the vexatious proceedings order. Therefore, to the extent that the provisions relating to vexatious proceedings orders can be considered a limitation on articles 2(3) and 14 of the ICCPR, the limitation is permissible.

Suppression and non-publication orders and circumstances in which proceedings may not be public

36.             Clause 136(7) engages with the right to a fair and public hearing, and the right to an effective remedy, by providing circumstances under which the FCFC (Division 2) can make an order for a matter to be conducted in closed court, such that the order may exclude the public or specific people from sitting in court during a matter. Not only does this clause engage the right to a public hearing, by restricting the attendance of the public from the court, but the circumstances in which the order can be made are for the purposes of promoting the right to a fair hearing and the right to an effective remedy. Clause 229 provides the FCFC (Division 2) the power to make suppression and non-publication orders such that certain matters will not be made public. In making a suppression order, the FCFC (Division 2) is required to ‘take into account that a primary objective of the administration of justice is to safeguard the public interest in justice’. The power to make suppression or non-publication orders is further limited by clause 231 which set out grounds for making the order.

37.             The legitimate objective of both powers under clauses 136 and 229 is to facilitate the administration of justice, on the basis that the presence of the public or certain people, or the publication and disclosure of certain information, is not conducive to a fair hearing or the administration of justice in all events. Suppression and non-publication orders operate to protect vulnerable people, including children during a hearing and in its aftermath.

38.             The circumstances in which a closed court may be preferable are set out in clause 136(7) (specifically, that the presence of the public or persons specified by the Court for a sitting of the Court would be contrary to the interests of justice, or prejudicial to the security of the Commonwealth). The circumstances in which non-publication and non-disclosure are in fact preferable are set out in clause 231, and include safety of a person, avoiding the cause of undue distress and embarrassment to a party or witness in a criminal proceeding involving an offence of a sexual nature, and to prevent prejudice to the interests of the Commonwealth or a state or territory in relation to national or international security. There is a rational connection between the provisions and the objective, as clauses 136(7) and 231 give the court the power to make the order.

39.             The provisions can be considered reasonable and necessary as they operate in the pursuit of the administration of justice, and progress the right to a fair hearing and an effective remedy in circumstances in which an open hearing compromises justice to the most vulnerable parties to a court proceeding. The provision is proportionate to the legitimate objective, as it is limited by the specific grounds which are required for either order to be made. Moreover, these orders can be appealed, which allows a relevant party with sufficient interest to apply to the court to consider the appropriateness and scope of the order. This ensures that the limitation on articles 2(3) and 14 of the ICCPR is reasonable and proportionate. Therefore, to the extent that the provisions relating to suppression orders, or closed court orders, can be considered a limitation on articles 2(3) and 14 of the ICCPR, the limitation is permissible.

Case management provisions

40.             The case management provisions in the Bill promote the right to a fair and public hearing and the right to an effective remedy by creating the framework for early dispute resolution, and better allocation depending on the subject matter, complexity and urgency of the application. The case management provisions in clauses 67-69 and 190-192 stipulate that the overarching purpose of practice and procedure is to ‘facilitate the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible’ and require parties to act consistently with this overarching purpose. Similarly, clauses 70, 75, 193 and 216 require the Chief Justice and Chief Judge to work cooperatively with the aim of ensuring common approaches to case management, and common practices and procedures and common rules of court and forms. As discussed above, the operation of the Bill in the context of these objectives and requirements will provide Australian families with a quicker dispute resolution mechanism, as well as greater certainty and consistency in their family law proceedings. Together, these factors will increase every Australian’s access to justice and promote the right to a fair and public hearing and the right to an effective remedy .

Elimination of discrimination against women - Articles 2 and 26 of the ICCPR and Articles 2, 3 and 5 of the CEDAW

41.             Article 2 the ICCPR requires States to undertake to respect and ensure the rights of persons under the ICCPR, regardless of any distinction, including sex. In this respect, article 26 requires States to provide all persons effective protection against discrimination on any ground, including sex. The CEDAW builds upon articles 2 and 26 of the ICCPR, by not only creating an international bill of rights for women, but also an agenda for action for States party to CEDAW to guarantee the enjoyment of those rights. It outlines key principles of equality in relation to women’s political participation, health, education, employment, marriage, family relations and equality before the law. In particular:

·          Article 2 provides that parties agree to pursue the elimination of discrimination against women, including by introducing new laws or policies for the practical realisation of equality of men and women, and to effectively protect women against any act of discrimination through competent national tribunals;

·          Article 3 requires parties to take appropriate measures to ensure women’s full development and advancement, so that they can enjoy human rights and fundamental freedoms on the same basis as men;

·          Article 5 requires parties to take appropriate measures to modify the social and cultural patterns of conduct of men and women, to eliminate prejudices based on the idea of inferiority or superiority of either of the sexes.

42.             Discrimination against women includes gender-based violence: violence that is directed against a woman because she is a woman, or that affects women disproportionately. Although family violence is perpetrated by and against both men and women, the majority of those who experience family violence are women, and thus affect women disproportionately. It is therefore suggested that family violence amounts to discrimination against women. [4] As this Bill seeks to better protect victims of family violence, it will in turn address the impacts on women of gender-based violence, and thus promote the elimination of discrimination against women.

43.             This Bill supports articles 2, 3, 5 of the CEDAW through the case management provisions discussed above, in Division 4 of Part 6 of Chapter 3 and in Division 4 of Part 6 of Chapter 4 of the Bill. This is achieved by enhancing the ability of the FCFC to manage family violence matters and applications with allegations of sexual abuse by creating the case management framework for urgent and high risk cases to be prioritised, and for each case to be allocated to the Judge and Division with the appropriate expertise and capacity to hear the matter. The case management framework will ensure that a matter will come to the immediate attention of the court and the most suitable case management pathway can be determined to achieve a safe outcome when family violence or allegations of sexual abuse have been identified. There will be a range of court-based options available to both divisions for the effective case management of these types of matters. As such, articles 2, 3 and 5 of the CEDAW are promoted by this Bill.

Best interests of the child: Article 3 of the CRC and in relation to children with disabilities Article 7(2) of the CRPD

44.             Article 3 of the CRC, particularly article 3(1), provides that in all actions concerning children, including by courts, the best interests of the child shall be a primary consideration. Article 7(2) of the CRPD provides for this right in relation to children with disabilities. The principle applies to all actions concerning children and as required by article 3(2), state parties are required to take active measures to protect children’s rights and promote their survival, growth, and wellbeing; as well as take measures to support and assist parents and others who have day-to-day responsibility for ensuring recognition of children’s rights. It requires all legislative, administrative and judicial bodies and institutions to systematically consider how children’s rights and interests are or will be affected directly or indirectly by their decisions and actions.

45.             This Bill engages these articles largely through the case management provisions in clauses 67 and 190, discussed above. The second note to subclauses 67(1) and 190(1) provides that both divisions of the FCFC ‘must give effect to the principles in the Family Law Act 1975 when exercising the jurisdiction in relation to proceedings under that Act’. Therefore, despite one element of the overarching purpose of this Bill being the quick, inexpensive and efficient resolution of disputes, this purpose must also be exercised in accordance with principles under the Family Law Act 1975 , which include acting in the best interests of the child (including children with disabilities), as determined under section 60CC, in relation to a variety of matters; including when conducting child-related proceedings under division 12A, or making parenting orders (sections 60CA and 65AA of the Family Law Act 1975 ), location orders (section 67L of the Family Law Act 1975 ), or recovery orders (section 67V of the Family Law Act 1975 ).

46.             More generally, the Family Law Act 1975 makes clear that when exercising jurisdiction under that Act, a court must have regard to the need to protect the rights of children and to promote their welfare (section 43). This combination of efficient dispute resolution through the case management provisions, while mandating the best interests of the child as required in the Family Law Act 1975, ensures that the rights of the child are not compromised in pursuit of efficiency, and the rights under article 3(1) of the CRC and article 7(2) of the CRPD are promoted. 

Protection from exploitation, violence and abuse: Article 20(2) of the ICCPR; in relation to children, Article 19(1) and 34 of the CRC and Article 24(1) of the ICCPR; and in relation to persons with disabilities Article 16(1) of the CRPD

47.             The right to protection from exploitation, violence and abuse is contained in article 20(2) of the ICCPR. In relation to children, the right to protection from exploitation, violence and abuse is elaborated upon in article 19(1) and for protection against sexual exploitation, the right is contained in article 34 of the CRC. Article 24(1) of the ICCPR also provides for the protection of all children, without discrimination, by virtue of their status as minors. In relation to persons with disabilities, this protection is contained in article 16(1) of the CRPD. This right, as stated in article 19(1) of the CRC, provides that States are required to ‘take all appropriate legislative, administrative, social and educational measures to protect the child or people from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person’.

48.             The Bill supports the right to protection from exploitation, violence and abuse through the case management provisions in Division 4 of Part 6 of Chapter 3 and in Division 4 of Part 6 of Chapter 4 of the Bill.  As analysed above, similar to promoting the elimination of discrimination against women the Bill creates a framework that enhances the ability of the FCFC to better manage allegations of family violence and sexual abuse, by creating a system of prioritisation and allocation in accordance with factors including urgency, expertise and capacity. As such, articles 20(2) and 24(1) of the ICCPR, 19(1) and 34 of the CRC, and 16(1) of the CRPD are promoted by this Bill.

Protection against unlawful and arbitrary interference with privacy - Article 17 of the ICCPR

49.             Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy. The right in article 17 may be subject to permissible limitations, where the limitations are authorised by law and are not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the particular circumstances. The UN Human Rights Committee has interpreted the requirement of reasonableness to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.

50.             This Bill interacts with the right to privacy by allowing the disclosure of personal information, in the limited circumstances of a request being made under clause 240, and providing the court the power to make closed-court, suppression and non-publication orders, under clauses 136 and 231.

Suppression and non-publication orders, and circumstances in which proceedings may not be public

51.             As discussed above, clauses 136 and 231 empower the court to make orders requiring that proceedings be conducted in a closed court, or to make suppression, or non-publication orders. By limiting the public dissemination of certain sensitive information, in court or later through publication, the Bill protects against the arbitrary interference in a person’s private proceedings. Therefore, the right in article 17 of the ICCPR is promoted through clauses 136 and 231.

Disclosure of whether a person is subject to a vexatious proceedings order

52.             Clause 240 allows a person to request a certificate from the Chief Executive Officer of the FCFC (Division 1) stating whether another person is or has been the subject of a vexatious proceedings order. If a person is the subject of a vexatious proceedings order, the Chief Executive Officer is required to produce a certificate specifying the date of the order and any other information as prescribed by the Rules of Court, which may include personal information. This will only occur in situations where a vexatious proceedings order has been made against a person, and if there are no other restrictions on disclosure, such as another law or order, such as a suppression order.

53.             The legitimate objective of this clause is to prevent the abuse of process, or the use of the court to annoy, harass, cause delay or detriment, or for another wrongful purpose. The rational connection between clause 240 and this objective is that by allowing a person to seek information in relation to whether an order has been made against another applicant, the person seeking the information can better assist the court and prevent the abuse of process or any other wrongful purpose. The provision is reasonable and necessary as it ensures that defendants are not unnecessarily and unjustifiably forced to defend vexatious cases brought against them. It also ensures that court resources are not wasted on vexatious proceedings, ensuring that other litigation is able to be dealt with by the courts in a timelier manner and thus providing access to justice for a greater number of Australian families. The provision is proportionate to the objective as information about another person is only disclosed when the vexatious proceedings order has been made against them. Noting the discussion on closed courts and vexatious proceedings orders above, vexatious proceedings orders are made in open court in limited circumstances. Therefore, much of the personal information may be considered public; however clause 240 facilitates ease of access to the information. In the event that the information is not public due to legal prohibition, either by the effect of a law or an order, subclause 240(3) prohibits the Chief Executive Officer from disclosing the information. Therefore any limitation on article 17 of the ICCPR due to clause 240 is permissible. 

Right to liberty - Article 9 of the ICCPR

54.             Article 9 of the ICCPR provides that everyone has the right to liberty and security of the person and that no one shall be subjected to arbitrary arrest or detention. It also provides for further protections in the course of arrest, including to be informed of the reason for arrest, to be brought promptly before a Judge, to habeas corpus, and to take proceedings before a court.

55.             The Bill interacts with the right to liberty as clause 271 provides for the Sheriff or a Deputy Sheriff of the FCFC (Division 2), a Sheriff or Deputy Sheriff of a court of a State or Territory, or a police officer (the arrester) who is authorised by this Act or the Rules of Court, to arrest another person (the arrestee).

56.             The legitimate objective of this clause is to ensure that Court Officers have the powers they require to enforce orders of the FCFC and maintain effective justice. Clause 271 is reasonable and necessary as it ensures the powers of Court Officers to arrest a person are to only be executed with legislative authority, and can therefore not be considered arbitrary or as otherwise contravening article 9 of the ICCPR. Court Officers’ powers are also subject to appropriate qualifications and safeguards to ensure that any force, indignity or potential harm caused to an arrestee is reasonably proportionate to the risk of escape or harm to the Officer or another person. Further, subclause 271(4) provides limitation on the arrester power to use force, ensuring the limitation on the right of liberty is reasonable and proportionate. The arrester must not use more force, or subject the arrestee to greater indignity, than is necessary and reasonable to make the arrest or prevent escape; nor do anything that is likely to cause the death of, or grievous bodily harm to, the arrestee, unless the arrester reasonably believes that doing so is necessary to protect the life or prevent serious injury to another person (including the arrester). In addition, the arrester must inform the arrestee of the substance of grounds of the arrest (unless the arrestee should, in the circumstances, know the substance of the grounds for the arrest, or if the arrestee’s actions make it impracticable to do so). Furthermore, an arrestee is to be informed of the grounds for their arrest, which assists in preventing any arrest that is arbitrary in nature. In light of these qualifications and safeguards, to the extent that subclause 271 may be considered a limitation on article 9 of the ICCPR, the limitation is permissible. 

Conclusion

57.             The Bill is compatible with human rights because it promotes the protection of human rights and t o the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate to achieve the legitimate objectives of the Bill.

 



Summary of the Bill

Policy background

58.             The volume of family law litigation before the federal family courts creates a significant pressure on the civil justice system. Targeted structural reform of the federal courts (excluding the High Court of Australia) would increase efficiencies, reduce delays, and lead to better outcomes in the family law jurisdiction of the federal court system, particularly for those families interacting with the courts during stressful and difficult periods in their lives. Structural reform would support the long term financial sustainability of the federal court system, building upon court reform work undertaken in the context of the 2015-16 Budget and aligning with ongoing efficiency work of the federal courts.

59.             Some Australian families are waiting for up to three years to have their family law disputes resolved, protracting highly stressful proceedings and exacerbating conflict. This results in poor outcomes for some children and families.

60.             Separating families primarily rely on the federal court system through the two courts responsible for family law - the Family Court and the Federal Circuit Court, noting the Family Court of Western Australia and some state courts also exercise federal family law jurisdiction. In practice, the Federal Circuit Court finalises over 87 per cent of final order family law matters in the federal court system and 90 per cent of the Federal Circuit Court’s caseload consists of family law matters.

61.             Currently, the Family Court and the Federal Circuit Court maintain virtually parallel jurisdiction in family law. However, the family law application process varies significantly between the Family Court and the Federal Circuit Court. This is the result of variations in the courts’ legislative frameworks (including their respective Acts, Regulations and Rules) and operational and cultural practices that have evolved over time. Most significantly, differences exist between the two courts in the case management process between filing and trial. This can lead to confusion, delays, additional costs and unequal experiences for many applicants.

Major features of the Bill

62.             Structural reform would significantly improve the efficiency of the family law system, reduce the backlog of the family law courts, and drive faster and cheaper resolution of matters for parties to proceedings.

63.             For constitutional reasons, the FCFC would be established as two courts, brought together in practice under a single, overarching, unified administrative structure. This would nonetheless allow for the continuation of the Family Court and the Federal Circuit Court with the collective personnel (other than Judges) of the existing Courts being brought together under the unified administrative structure of the new Court entity. It in no way would constitute either court absorbing the other, or either court being disbanded. The FCFC would become the single point of entry into the family law jurisdiction of the federal court system. The FCFC would comprise two divisions. FCFC (Division 1) would be a continuation of the Family Court. FCFC (Division 2) would be a continuation of the Federal Circuit Court. FCFC (Division 1) would deal only with family law matters, while FCFC (Division 2) would deal with both first instance family law and general federal law matters. The Bill would ensure that the Federal Circuit Court’s existing general federal law jurisdiction and fair work jurisdiction would be preserved in FCFC (Division 2).

64.             Crucially, the Government intends that the FCFC would operate under the leadership of one Chief Justice supported by one Deputy Chief Justice, who would each hold a dual commission to both FCFC (Division 1) and FCFC (Division 2) (Chief Judge and Deputy Chief Judge (Family Law), respectively). The appointment of a single Chief Justice/Chief Judge would ensure more effective allocation of cases between the two Divisions. It would also enable the FCFC to take consistent internal approaches to case management, practice and procedure, resulting in the more efficient handling of family law matters.

65.             There would be only one statutory Chief Executive Officer (CEO) position for the FCFC, who would be appointed to the FCFC (Division 1) and would assist the Chief Justice/Chief Judge of the FCFC in the administration of the FCFC (Division 1) and FCFC (Division 2).

66.             The Bill creates a single point of entry for first instance family law and child support proceedings in the FCFC. Original family law and child support proceedings would be filed in the FCFC (Division 2), with a bar on commencement of these proceedings in the FCFC (Division 1). The FCFC (Division 1) would have original jurisdiction in family law and child support proceedings only where these proceedings have been transferred or removed into the FCFC (Division 1). Both the FCFC (Division 1) and FCFC (Division 2) would have the ability to transfer matters to the other division, and the FCFC (Division 1) would have the ability to remove a proceeding from the FCFC (Division 2) on its own initiative or on application by a party to the matter. This would provide a significant reform that would greatly improve user-experience of the family law court system and enhance the unified identity of the FCFC. It would reduce confusion, and create a simple case flow pathway.

67.             The Bill preserves the existing Family Court’s appellate jurisdiction in the new FCFC (Division 1) while also facilitating a more flexible appellate structure.  Judges would no longer be assigned to an Appeal Division, and instead, all FCFC (Division 1) judges would hear family law appeals, both as individual judges and as members of a Full Court. This would capture the benefits of the original proposal as it would enable a greater pool of judge of the FCFC (Division 1) unless the Chief Justice decides it appropriate for the matter to be heard by a Full Court of the FCFC (Division 1). The allocation of appeals would still be a matter for the Chief Justice of the FCFC (Division 1).

68.             The Bill also includes a specific provision providing that a minimum number of FCFC (Division 1) judges can be specified in regulation. The Government’s intention is to make a Regulation that would prescribe 25 as the minimum number of judges to hold office in the FCFC (Division 1).

69.             The Bill provides that a person who is to be appointed as a Judge who would hear family law matters, including those involving family violence, is a suitable person to do so, by reason of their knowledge, skill, expertise and aptitude. This is in recognition of the importance of specialisation of Judges hearing these matters and will apply to the appointment of both FCFC (Division 1) and FCFC (Division 2) judges that are expected to hear family law matters.

 

 

 

70.             The proposed amendments would retain the existing appeal pathway for Western Australia Family Law Magistrates.  Appeals from the Family Court of Western Australia would be heard by the Full Court of the FCFC (Division 1). Appeals from Western Australian Family Law Magistrates would be heard by a single Judge of the FCFC (Division 1), unless the Chief Justice decides it appropriate for the matter to be heard by Full Court of the FCFC (Division 1), in the same way as appeals from the FCFC (Division 2).

71.             Appeals from a State or Territory court of summary jurisdiction (apart from Western Australia Family Law Magistrates) would continue to be heard de novo by a single Judge of the FCFC (Division 1). Any appeals from those decisions would be to the Full Court of the FCFC (Division 1), reflecting that a single Judge of the FCFC (Division 1) is essentially rehearing the matter.

72.             Appellate judgments of the FCFC (Division 1), whether heard by a single Judge or the Full Court, would be appellable to the High Court of Australia if special leave to appeal is granted.

73.             This Bill establishing the FCFC would complement and enhance ongoing court efficiency initiatives that commenced in the 2015-16 Budget to achieve the financial sustainability of the Courts. The establishment of a more effective federal family law court structure is a critical change to the broader family law system.

Consequential and transitional arrangements

74.             The Bill would be supported by the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019, which would make a number of consequential amendments to other Commonwealth laws. For example :

·          the Family Law Act would be amended to ensure that the Family Law Act continues to operate in the context of the new Federal Circuit and Family Court of Australia, and

·          a number of minor consequential amendments would be made to other Acts and relevant subordinate legislation.

75.             The Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 would also ensure that appropriate transitional arrangements are in place for matters before the federal courts as at the date of commencement of the Bill.

 



NOTES ON CLAUSES

List of abbreviations

Family Court                                       Family Court of Australia

Family Law Act                                  Family Law Act 1975

FCFC                                                  Federal Circuit and Family Court of Australia

FCFC (Division 1)                              Federal Circuit and Family Court of Australia (Division 1)

FCFC (Division 2)                              Federal Circuit and Family Court of Australia (Division 2)

Federal Circuit Court                          Federal Circuit Court of Australia

Federal Circuit Court Act                   Federal Circuit Court of Australia Act 1999   

Federal Court                                      Federal Court of Australia

Federal Court Act                               Federal Court of Australia Act 1976

FCFC CEO                                         Chief Executive Officer and Principal Registrar of the FCFC (Division 1)

High Court                                          High Court of Australia

Public Service Act                              Public Service Act 1999

 



 

CHAPTER 1 - INTRODUCTION

PART 1 - INTRODUCTION

Division 1 - Preliminary  

Clause 1 - Short title

1.                    Clause 1 is a formal provision specifying that the short title of the Act is the Federal Circuit and Family Court of Australia Act 2019 .

Clause 2 - Commencement

2.                    Clause 2 provides for the commencement of the whole of the Act on a single day to be fixed by Proclamation. Clause 2 also provides that if the provisions do not commence within the period of six months beginning on the day the Act receives Royal Assent, they commence on the day after the end of that period.

Clause 3 - Crown to be bound

3.                    Clause 3 provides that the Act would bind the Crown in each of its capacities but would not make the Crown liable to be prosecuted for an offence.

Clause 4 - External Territories

4.                    Clause 4 provides that the Bill would apply in every external Territory.

Division 2 - Objects of this Act

Clause 5 - Objects of this Act

5.                    Clause 5 sets out the objects of the Bill.

6.                    The reforms to be implemented by the Bill aim to improve outcomes for children and families in the family law jurisdiction of the federal court system, including through increasing efficiencies, and reducing delays. A key reason for creating the FCFC is to provide a streamlined court system that will allow Australian families to spend significantly less time in the courts to resolve their family law disputes.

7.                    Subclause 5(a) states that an object of the Bill would be to ensure that justice is delivered by federal courts effectively and efficiently.

8.                    This objective builds on reforms that were introduced by the Courts Administration Legislation Amendment Act 2016 , which streamlined the federal courts and improved their financial sustainability.

9.                    Subclause 5(b) provides that an object of the Bill would be to provide for just outcomes, in particular, in family law or child support proceedings.

10.                Subclause 5(c) provides that an object of the Bill would be to provide a framework to facilitate cooperation between the FCFC (Division 1) and the FCFC (Division 2) with the aim of ensuring: (i) common rules of court and forms; (ii) common practices and procedures; and (iii) common approaches to case management. This objective is intended to strengthen the goal of ensuring the efficient resolution of disputes.

11.                In view of the objects of the Bill, it is expected that each head of division, in practice one Chief Justice, would initially issue common rules of courts, practice notes and directions, which would guide the Judges and Court staff of each division, legal practitioners and litigants about the way uniform procedures are expected to operate.

Division 3 - Simplified outline of this Act

Clause 6 - Simplified outline of this Act

12.                Clause 6 provides a high-level overview of the Bill.

13.                Simplified outlines are included to assist readers to understand the Bill. The outline is not intended to be comprehensive. Readers should rely on the substantive provisions.

 

PART 2 - DEFINITIONS

Clause 7- Definitions

14.                Clause 7 defines key terms used in the Bill.

15.                Many of the terms defined in this clause would mirror those used in the Federal Circuit Court Act and the Family Law Act, noting that terms have been amended as necessary to give effect to changes in name and structure as required by the Bill. As the Family Law Act would continue to operate, not all definitions provided for in the Family Law Act have been incorporated in this clause. To ensure consistency, subclause 7(2) provides that an expression would have the same meaning in this Bill as it has in the Family Law Act. Subclause 7(3) provides that, to the extent of any inconsistency between the meaning of an expression defined in this Bill and the Family Law Act, the meaning of the expression in this Bill prevails.

16.                Clause 7 provides definitions for some expressions that may change depending on the Chapter of the Bill in which the expression is being used.

17.                Some expressions would be defined only by reference to FCFC (Division 2) because the equivalent Division 1 provisions and expressions are found in the Family Law Act or otherwise not required. For example:

·           ‘ Vexatious proceedings order ’ would be defined only in relation to FCFC (Division 2). This is because FCFC (Division 1) would continue to rely on the Family Law Act in relation to provisions addressing vexatious proceedings.

·          Prior judicial service ’, ‘ retired disabled Judge ’, and ‘ retires ’ would be defined only in relation to FCFC (Division 2) because there are differences in pension and superannuation arrangements between the Family Court and the Federal Circuit Court, which are being continued under the Bill.

·          ‘Division’ would be defined only in relation to FCFC (Division 2). This is because the FCFC (Division 1) does not have any Divisions and this definition is unnecessary for the purposes of the FCFC (Division 1).

 



CHAPTER 2 - FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

Clause 8 - Federal Circuit and Family Court of Australia

18.                Clause 8 provides that the Family Court of Australia and the Federal Circuit Court of Australia would continue in existence as separate courts, but renamed as the FCFC (Division 1) and FCFC (Division 2). The Bill is not intended to impermissibly abolish either court upon commencement of relevant provisions on the commencement day.

19.                Subclause 8(1) provides that the Family Court of Australia would continue in existence as the FCFC (Division 1).

20.                Subclause 8(2) provides that the Federal Circuit Court of Australia would continue in existence as the FCFC (Division 2).

Clause 9 - Federal Circuit and Family Court of Australia (Division 1)

21.                Clause 9 provides that the FCFC (Division 1) would be a superior court of record, and a court of law and equity. It would consist of a Chief Justice, a Deputy Chief Justice and such Senior Judges and other Judges as from time to time hold office in accordance with the Act.

22.                Subclause 9(1) clarifies that the FCFC (Division 1) is a court of law and equity, as well as a superior court of record (in the same way as the Federal Court of Australia). This would ensure consistency with equivalent existing provisions relating to the Federal Court of Australia and the Federal Circuit Court, both of which are explicitly created as courts of law and equity. This subclause would also reflect the longstanding view of the Court’s jurisdiction, and ensures finality of matters for parties who will be involved in proceedings before the FCFC (Division 1). This subclause would reflect subsection 21(2A) of the Family Law Act, which was inserted by Schedule 6 of the Civil Law and Justice Legislation Amendment Act 2018 to clarify that the Family Court is, and is taken always to have been, a court of law and equity.

23.                Subclause 9(3) provides that for the purposes of paragraph 9(2)(c), the regulations may prescribe a minimum number of Judges (whether appointed as Senior Judges or Judges) of the FCFC (Division 1) that are to hold office in accordance with the Act.

24.                Following passage of the Bill, the Government’s intention is to make a regulation that would prescribe 25 as the minimum number of Judges to hold office.

Clause 10 - Federal Circuit and Famil y Court of Australia (Division 2)

25.                Clause 10 provides that the FCFC (Division 2) would be a court of record and a court of law and equity. It would consist of a Chief Judge, two Deputy Chief Judges and such other Judges as from time to time hold office in accordance with the Act.

26.                Subclause 10(2) would create the positions of two Deputy Chief Judges. The Deputy Chief Judge (Family Law) would be responsible for family law matters, and the Deputy Chief Judge (General and Fair Work) would be responsible for general federal law and fair work matters. Creating the positions of two Deputy Chief Judges in the FCFC (Division 2) would ensure that matters across the general federal law, fair work and family law jurisdictions of the Court are appropriately managed.  In practice, the Deputy Chief Judge (Family Law) would have a dual appointment as the Deputy Chief Justice of the FCFC (Division 1).



CHAPTER 3 - FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

PART 1 - CONSTITUTION

Division 1 - Constitution

Clause 11 - Appointment of Judges

27.                Clause 11 provides for the appointment of Judges to the FCFC (Division 1).

28.                Subclause 11(1) provides that a Judge is to be appointed by the Governor-General by commission.

29.                Paragraph 11(2)(a) provides that a person is not to be appointed as a Judge unless the person is or has been (i) a Judge of another court created by the Parliament or of a court of a State, or (ii) enrolled as a legal practitioner of the High Court or the Supreme Court of a State or Territory for at least 5 years.

30.                In addition, paragraph 11(2)(b) provides that, by reason of knowledge, skills, experience and aptitude, the person is a suitable person to deal with matters of family law, including matters involving family violence. The paragraph is intended to ensure that a person not only has the necessary duration of experience as outlined in paragraph 11(2)(a), but also has the appropriate type of knowledge, skills, experience and aptitude to be appointed as a Judge of the FCFC (Division 1) and exercise family law jurisdiction.

31.                Subclause 11(3) provides that a person must not be appointed as a Judge if the person has attained the age of 70 years. This aligns with section 72 of the Constitution, which provides that the maximum age of Justices of a court created by Parliament is 70 years.

32.                Subclause 11(4) provides that the term of appointment of a Judge will expire upon the Judge attaining the age of 70 years. Note 1 to this subclause describes how section 72 of the Constitution sets out requirements relating to the appointment and tenure of Judges. Note 2 would direct the reader to Division 2 of this Part which deals with terms and conditions of appointment.

Clause 12 - Judges to be assigned to particular location

33.                Clause 12 provides that the commission of appointment must assign a Judge of the FCFC (Division 1) to a particular location. In accordance with subclause 12(1), a Judge must not sit at another location on a permanent basis unless the Minister and the Chief Justice consent. A Judge cannot be required to sit at another location on a permanent basis unless the Judge agrees. A Judge may sit at another location on a temporary basis.

34.                This clause replicates the effect of subsection 22(2AAA) of the Family Law Act. The policy intent of subsection 22(2AAA) remains relevant to this Bill. Clause 12 would ensure that, over time, judicial resources in a particular location would continue to be sufficient and not excessive for the workloads of that location. More specifically, clause 12 would prevent Judges moving permanently from one location to another except with the consent of the Chief Justice and the Minister.

35.                Subclause 12(2) provides that, in deciding whether to consent to a Judge sitting in another location on a permanent basis as set out in paragraph 12(1)(a), the Chief Justice would have the same protection and immunity as if the Chief Justice were making a decision as, or as a member of, the FCFC (Division 1).

36.                Subclause 12(3) provides that, despite section 39B of the Judiciary Act 1903 , the Federal Court does not have jurisdiction in respect of the exercise by the Minister or the Chief Justice of their power to consent to a Judge sitting in another location (as mentioned in paragraph 12(1)(a)).

37.                Section 39B of the Judiciary Act provides that the original jurisdiction of the Federal Court includes jurisdiction with respect to any matter in which a writ of mandamus, prohibition or an injunction is sought against an officer of the Commonwealth.

Clause 13 - Authorised Judges may manage classes of proceedings

38.                Subclause 13(1) provides that the Chief Justice may, by written instrument, authorise a Judge to manage a class or classes of proceedings as specified in the instrument or by the Rules of Court.  Such instrument would not be a legislative instrument by virtue of the operation of paragraph (c) of item 8 in the table in section 6 of the Legislation (Exemptions and Other Matters) Regulations 2015. The purpose of this clause is to enable more specialist management of particular classes of proceedings.

39.                Subclause 13(2) provides that, in managing a class or classes of proceedings, a Judge is subject to any direction from the Chief Justice.

40.                Subclause 13(3) provides that the authorisation of a Judge does not affect the rank, title, status and precedence that the Judge would otherwise have.

41.                Subclause 13(4) provides that, if the Chief Justice gives a direction under subclause 13(2) in writing that direction is not a legislative instrument.  This subclause is to assist readers, as the direction would not be a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003 .

Clause 14 - Style

42.                Clause 14 describes the formal title of the Chief Justice, Deputy Chief Justice and other Judges of the FCFC (Division 1). The formal title for Judges (and former Judges) replicates the effect of subsection 22(4) of the Family Law Act.

43.                Subclause 14(1) provides that the Chief Justice is to be styled “the Honourable Chief Justice (name) of the Federal Circuit and Family Court of Australia (Division 1)”.

44.                Subclause 14(2) provides that the Deputy Chief Justice is to be styled “the Honourable Deputy Chief Justice (name) of the Federal Circuit and Family Court of Australia (Division 1)”.

45.                Subclause 14(3) provides that a Judge is to be styled “the Honourable”.

46.                Subclause 14(4) provides that a former Judge is to be styled “the Honourable”.

Clause 15 - Seniority

47.                Clause 15 provides that the order of seniority of the Judges of the FCFC (Division 1) would be as follows: the Chief Justice, the Deputy Chief Justice, Senior Judges and Judges.  Senior Judges and Judges have seniority according to the days on which their appointments as Senior Judges or Judges took effect.

48.                Subclause 15(2) provides that, where two or more commissions of appointment as Judge took effect on the same day, those Judges have such seniority as is assigned by the Governor-General.

49.                Clause 15 is modelled on section 23 of the Family Law Act with the exception of references to the Appeal Division. This is because while the existing appellate jurisdiction of the Family Court is being retained in the FCFC (Division 1), the Appeal Division of the Family Court is not being continued in the FCFC (Division 1).

Clause 16 - Oath or affirmation of allegiance and office

50.                Clause 16 provides that a Judge of the FCFC (Division 1) must take an oath or affirmation before proceeding to discharge the duties of office.

51.                In accordance with subclause 16(1)(a), a Judge must take an oath or affirmation of allegiance in the form in the Schedule to the Constitution. In accordance with subclause 16(1)(b), a Judge must also take an oath or affirmation in accordance with the form set out in whichever of subclauses 16(3) or (4) is applicable. This clause replicates the effect of section 26 of the Family Law Act.

52.                The second oath or affirmation required by subclause 16(1)(b) is necessary as it is specific to serving as a Judge of the FCFC (Division 1).

53.                Subclause 16(2) provides that the oaths or affirmations must be taken before: the Chief Justice, or a Justice of the High Court, or another Judge of the FCFC (Division 1), or a Judge of another court created by the Parliament.

54.                Subclause 16(3) provides the form of the oath for the purposes of paragraph 16(1)(b).

55.                Subclause 16(4) provides the form of the affirmation for the purposes of paragraph 16(1)(b).

Clause 17 - Constitution of a Full Court

56.                Clause 17 provides for the constitution of a Full Court of the FCFC (Division 1).

57.                Subclause 17(1) provides that a Full Court of the FCFC (Division 1) consists of three or more Judges sitting together or, to the extent allowed by subclause 17(2), of two Judges sitting together. It replicates the effect of subsection 14(2) of the Federal Court Act.

58.                Subclause 17(2) provides that if one of the Judges constituting a Full Court dies, resigns from Office or otherwise becomes unable to continue as a member of the Full Court for the purposes of a proceeding, the proceeding may be completed by a Full Court constituted by the remaining Judges if at least three Judges remain, or two Judges remain and the parties consent.

59.                Subclause 17(2) replicates the effect of section 14(3) of the Federal Court Act. It would ensure that an approach will be taken to the constitution of a Full Court in the FCFC (Division 1) which will be consistent with that taken for the Federal Court.

60.                Subclause 17(3) provides that a Full Court of the FCFC (Division 1) constituted in accordance with subclause 17(2) may have regard to any evidence given or received, and arguments adduced, by or before the Full Court as previously constituted. Subclause 17(3) replicates the effect of subsection 14(5) of the Federal Court Act. 

Division 2 - Terms and conditions of Judges

Clause 18 - Remuneration

61.                Clause 18 is not intended to alter arrangements for the remuneration of Judges. It replicates section 25 of the Family Law Act.

62.                Subclause 18(1) provides that a Judge is to receive salary, annual allowances and travelling allowances at rates fixed from time to time by the Parliament.

63.                Subclause 18(2) provides that salaries and annual allowances of judges accrue from day to day and are payable monthly.

64.                Subclause 18(3) provides that the Consolidated Revenue Fund is appropriated to the extent necessary for payment of these salaries and allowances.

65.                Note 1 directs the reader to the requirement under the Constitution that a Judge’s remuneration may not be diminished during the Judge’s continuance in office. Note 2 describes how, under subsection 7(4) of the Remuneration Tribunal Act 1973 , the Remuneration Tribunal may determine any matter significantly related to the remuneration of Judges.

Clause 19 - Resignation from office

66.                Clause 19 provides for the way in which a Judge of the FCFC (Division 1) may resign office. It replicates the effect of current subsections 22(3) and (3A) of the Family Law Act.

67.                Subclause 19(1) provides that a Judge may resign office by delivering a written resignation to the Governor-General. Subclause 19(2) provides that the resignation would take effect on the day it is received by the Governor-General or on a later day if so specified in the resignation.

Clause 20 - Removal from office

68.                Clause 20 provides for the way in which a Judge may be removed from office. It replicates current paragraph 22(1)(b) of the Family Law Act.

69.                Clause 20 reflects section 72(ii) of the Constitution which provides that Justices ‘shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity’.

Division 3 - Judges of 2 or more courts

Clause 21 - Dual appointments

70.                Clause 21 provides for the possibility of dual appointments of the Chief Justice and Deputy Chief Justice. Clause 21 underpins the Government’s intention of enabling a common case management approach and effective allocation of cases between FCFC (Division 1) and FCFC (Division 2).

71.                By providing scope for the Chief Justice of FCFC (Division 1) to also occupy the office of the Chief Judge of FCFC (Division 2), a dual appointment of the Chief Justice as the Chief Judge can ensure that management decisions are, as much as possible, consistent across the FCFC. This is further supported by providing scope for the Deputy Chief Justice of the FCFC (Division 1) to also occupy the office of the Deputy Chief Judge (Family Law) of the FCFC (Division 2).

72.                Clause 21 would, in conjunction with clauses 76 and 217, enable each head of division, in practice one Chief Justice, to issue common rules of courts, practice notes and directions, which would guide the Judges and Court staff of each division, legal practitioners and litigants about the way uniform procedures are expected to operate. This would provide a streamlined court system that would allow Australian families to spend significantly less time in the courts to resolve their family law disputes.

73.                Subclause 21(1) provides that nothing in the Bill would prevent the Chief Justice of the FCFC (Division 1) from being appointed to, and holding at the same time, the office of Chief Judge of the FCFC (Division 2).

74.                Subclause 21(2) provides that nothing in the Bill would prevent the Deputy Chief Justice of the FCFC (Division 1) from being appointed to, and holding at the same time, the office of the Deputy Chief Judge (Family Law) of the FCFC (Division 2).

Clause 22 - Judge also holding office of a prescribed court

75.                Subclause 22(1) provides that a Judge of the FCFC (Division 1) may hold office as a Judge of a prescribed court or of two or more prescribed courts. Allowing Judges to hold office of two or more courts may be appropriate in certain circumstances, for example, for case management purposes, for a Judge of the FCFC (Division 1) to also hold office as a Judge of the FCFC (Division 2).

76.                Subclause 22(2) provides that a ‘prescribed court’ would mean the Supreme Court of the Northern Territory, or a court other than the FCFC (Division 1) created by the Parliament. Clause 22 replicates the effect of the existing subsections 22(2AG) and (2AH) of the Family Law Act.

Clause 23 - Judge also holding office of a State Family Court

77.                In the event that a person who holds office as a Judge of the FCFC (Division 1) is appointed or serves as a Judge of a Family Court of a State, clause 23 provides that the appointment or service would not affect:

·          the person’s tenure of office of Judge of the FCFC (Division 1); or

·          the person’s rank, title, status, precedence, salary or annual allowance, or other rights or privileges, as the holder of the office of Judge of the FCFC (Division 1).

78.                Subclause 23 further provides that, for all purposes, the person’s service as a Judge of the Family Court of that State would be taken to be service as holder of the office of Judge of the FCFC (Division 1).

Division 4 - Acting Chief Justice

Clause 24 - Acting Chief Justice

79.                Clause 24 provides for acting arrangements during a vacancy in the office of the Chief Justice or when the Chief Justice is absent from duty or from Australia, or unable to perform the duties of the Office.

80.                Subclause 24(1) provides that the Deputy Chief Justice may act as Chief Justice.

81.                Subclause 24(2) provides that, during a vacancy in the offices of Chief Justice and Deputy Chief Justice, or when both are unavailable, the Minister may appoint a Judge to act as the Chief Justice. This situation may arise, for example, when both the Chief Justice and Deputy Chief Justice are attending an international judicial conference. This clause is modelled on Schedule 1, clause 10 of the Federal Circuit Court Act.

82.                Subclause 24(3) provides that a person who is acting as Chief Justice would be called Acting Chief Justice of the Federal Circuit and Family Court of Australia (Division 1).

 

PART 2 - JURISDICTION

Division 1 - Original jurisdiction

Clause 25 - Original jurisdiction

83.                Subclause 25(1) provides that the FCFC (Division 1) would have original jurisdiction in family law or child support matters transferred to the Court by the Court under clause 51 or by the FCFC (Division 2) under clause 149, as set out in paragraphs 132(1)(a)-(d). Paragraphs 132(1)(a)-(d) set out the FCFC (Division 2)’s original jurisdiction in family law or child support matters. The reference to these paragraphs ensures that the original jurisdiction conferred on the FCFC (Division 1) under paragraphs 25(1)(a) and 25(1)(b) is the same as the original jurisdiction conferred on the FCFC (Division 2) under paragraphs 132(1)(a)-(d).

84.                Limiting the FCFC (Division 1)’s original jurisdiction in family law or child support matters to those transferred to it facilitates the creation of a single point of entry to the federal family law courts, as court-users would need to file family law or child support matters in the FCFC (Division 2) at first instance. Achieving a single point of entry for these matters is further supported by clause 7 defining the term ‘family law or child support proceeding’, which is a term key to the interpretation of clause 25, by reference to the FCFC (Division 2)’s original jurisdiction in family law or child support matters under clause 132.

85.                Subclause 25(1) also provides that the FCFC (Di v ision 1) has original jurisdiction as is conferred on the court by any other Act, or in respect of which proceedings may be instituted by any other Act.

86.                In practice, it is intended that the FCFC (Division 1) will deal with the same types of first instance matters as the Family Court currently does. The change in conferral of jurisdiction is to create an effective single point of entry in the FCFC (Division 2).

87.                Subclause 25(2) provides that, subject to any restrictions and conditions listed in (i) section 111AA of the Family Law Act (which relates to  the Agreement between the Government of Australia and the Government of New Zealand on Child and Spousal Maintenance), (ii) regulations made under the Family Law Act, or (iii) the Rules of Court made under this Chapter of the Bill, the FCFC (Division 1) would be able to exercise its jurisdiction in relation to persons or things outside Australia. 

Division 2 - Appellate jurisdiction

Clause 26 - Appeals

88.                Subclause 26(1) provides that subject to clause 28, the FCFC (Division 1) would have jurisdiction to hear and determine appeals from:

·          a judgment of a single Judge of the FCFC (Division 1) exercising appellate jurisdiction in relation to a judgment of a court of summary jurisdiction of a State or Territory (other than the Magistrates Court of Western Australia) exercising original jurisdiction under either the Family Law Act, or the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988 (paragraph 26(1)(a))

·          a judgment of the FCFC (Division 1) exercising original jurisdiction (paragraph 26(1)(b))

·          a judgment of the FCFC (Division 2) exercising the original jurisdiction mentioned in clause 132 of the Bill (which currently provides for the jurisdiction that the FCFC (Division 2) would have in respect of family law matters) (paragraph 26(1)(c))

·          a judgment of (i) a Family Court of a State, or (ii) a Supreme Court of a State or Territory constituted by a single Judge, exercising original or appellate jurisdiction under either the Family Law Act, or the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988 (paragraph 26(1)(d))

·          a judgment of a court of summary jurisdiction of a State or Territory (other than the Magistrates Court of Western Australia) exercising original jurisdiction under either the Family Law Act, or the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988 (paragraph 26(1)(e))

·          a judgment of the Magistrates Court of Western Australia exercising original jurisdiction under either the Family Law Act, or the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988 (paragraph 26(1)(f)), and

·          a judgment or decision of a Judge or Magistrate exercising jurisdiction, as mentioned in new paragraphs 26(1)(a),(b), (c), (d) or (f) above, rejecting an application that the Judge or Magistrate disqualify himself or herself from further hearing a matter (paragraph 26(1)(g)).

89.                This clause reflects the retention of the existing Family Court’s appellate jurisdiction in the FCFC (Division 1).

90.                Subclause 26(2) provides that certain kinds of appeal are prohibited:

·          paragraph 26(2)(a) provides that an appeal must not be brought from a judgment referred to in subclause 26(1) if the judgment is a determination of an application (i) for leave or special leave to institute proceedings in the FCFC (Division 1), (ii) for an extension of time within which to institute proceedings in the FCFC (Division 1), or (iii) for leave to amend the grounds of an application or appeal to the FCFC (Division 1).

·          paragraph 26(2)(b) provides that an appeal must not be brought from a judgment referred to in new subclause 26(1) if the judgment is a decision to do, or not to do, any of the following: (i) join or remove a party, (ii) adjourn or expedite a hearing, or (iii) vacate a hearing date.

 

Clause 27 - Family law regulations to be sole source of certain appellate jurisdiction

91.                Further to the jurisdiction to hear and determine appeals as outlined in clause 26, clause 27 provides that the FCFC (Division 1) has appellate jurisdiction in relation to a matter arising under regulations made for the purposes of section 111C of the Family Law Act (which relates to international agreements about adoption) only as provided by those regulations.

92.                Section 111C of the Family Law Act currently provides that regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption signed at The Hague on 29 May 1993.

Clause 28 - Leave to appeal needed for some family law or child support proceedings  

93.                Clause 28 sets out the circumstances in which leave to appeal is needed for some family law or child support proceedings.

94.                Subclause 28(1) provides that the leave of the FCFC (Division 1) is required to appeal to the Court from:

·          a judgment of the FCFC (Division 2) or the Magistrates Court of Western Australia exercising original jurisdiction under (i) the Child Support (Assessment) Act 1989 , or (ii) the Child Support (Registration and Collection) Act 1988 (paragraph 28(1)(a))

·          a prescribed judgment of the FCFC (Division 2) or the Magistrates Court of Western Australia (paragraph 28(1)(b)), or

·          a judgment or decision of a Judge or Magistrate exercising jurisdiction, as mentioned in paragraph 28(1)(a), rejecting an application that the Judge or Magistrate disqualify himself or herself from further hearing a matter (paragraph 28(1)(c)).

95.                Subclause 28(2) provides that an application for leave of the FCFC (Division 1) under subclause 28(1) is to be heard and determined by a single Judge unless the Chief Justice directs that the application be heard and determined by a Full Court.

96.                Subclause 28(3) provides that the leave of a Full Court of the FCFC (Division 1) is required to appeal to the Court in relation to the judgments of particular courts, as listed in paragraphs 28(3)(a)-(f).

97.                Subclause 28(4) provides that the Rules of Court may make provision (and set conditions) for enabling applications for leave to be dealt with without an oral hearing.

Division 3 - Associated matters

Clause 29 - Jurisdiction in associated matters

98.                Clause 29 provides that jurisdiction would be conferred on the FCFC (Division 1) in respect of matters not otherwise within its jurisdiction but which are associated with matters in which the jurisdiction of the FCFC (Division 1) is invoked. Clause 29 continues the effect of existing section 33 of the Family Law Act.

Division 4 - Exercise of jurisdiction

Subdivision A - Original jurisdiction

Clause 30 - Exercise of original jurisdiction

99.                Subclause 30(1) provides that the jurisdiction of the FCFC (Division 1) is to be exercised by the Court constituted by a single Judge. This largely reflects current practice, as most first instance family law matters in the Family Court are typically dealt with by a single Judge.

100.            Subclause 30(2) provides that, in matters before, or coming before, the FCFC (Division 1), a Judge would be able to give directions under subclause 69(1) of this Bill. Subclause 69(1) provides that a Judge may give directions about the practice and procedure to be followed in relation to a civil proceeding before the Court.

Subdivision B - Appellate jurisdiction (other than relating to courts of summary jurisdiction)

Clause 31 - Application

101.            Subclause 31(1) provides that new Subdivision B applies to the appellate jurisdiction of the FCFC (Division 1) in relation to a judgment of a court other than a court of summary jurisdiction of a State or Territory, and includes a note to indicate that new Subdivision C deals with the exercise of the appellate jurisdiction of the FCFC (Division 1) in relation to a court of summary jurisdiction.

102.            Subclause 31(2) provides that the Family Court of a State and the Magistrates Court of Western Australia (which, in accordance with the definition in clause 7, would be read as the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia) are not courts of summary jurisdiction for the purposes of subclause 31(1).

Clause 32 - Exercise of appellate jurisdiction

103.            Clause 32 provides for the exercise of the appellate jurisdiction of the FCFC (Division 1). For consistency with the Federal Court, this provision is modelled on section 25 of the Federal Court Act, and broadly reflects the continuation of the Family Court’s appellate jurisdiction within the FCFC (Division 1).

104.            Subclause 32(1)(a) provides that appeals from judgments of the FCFC (Division 2), or from judgments of the Magistrates Court of Western Australia (which, in accordance with the definition in clause 7, would be read as the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia), are to be heard by a single Judge of the FCFC (Division 1) (subparagraph 32(1)(a)(i)). Subparagraph 32(1)(a)(ii) provides that if the Chief Justice of the FCFC (Division 1) considers it appropriate, appeals from these judgments be heard by a Full Court of the FCFC (Division 1). Paragraph 32(1)(b) provides that appeals from judgments of any other court will also be heard by a Full Court of the FCFC (Division 1).  This will include appeals from judgments of the Family Court of Western Australia. 

105.            Subclause 32(2) provides a list of categories of applications etc. that would generally be heard by a single Judge of the FCFC (Division 1).

106.            Subclause 32(3) provides what a single Judge (sitting in Chambers or in open court) or a Full Court of the FCFC (Division 1) may do in relation to the exercise of the appellate jurisdiction of the FCFC (Division 1).

107.            Subclause 32(3) includes a note directing the reader to subclause 32(8), which provides that no appeal lies from an order or direction from a single Judge of the FCFC (Division 1) of a kind mentioned in paragraphs 32(3)(d) and 32(3)(i).

108.            Subclause 32(4) provides that a reference to an appeal in subclause 32(3) includes a reference to an application of the kind mentioned in subsection 32(2).

109.            Subclause 32(5) provides that an exercise of a power listed under subclause 32(3) must be heard and determined by a single Judge unless the Chief Justice directs that the application be heard and determined by a Full Court (paragraph 32(5)(a)), or where the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it appropriate to hear and determine the application.

110.            Subclause 32(6) relates to cases stated and questions reserved and provides that a single Judge of the FCFC (Division 1) may state any case or reserve any question concerning a matter (whether or not an appeal would lie from a judgment of the Judge to a Full Court of the Court on the matter) for the consideration of a Full Court and the Full Court has jurisdiction to hear and determine the case or question.

111.            Subclause 32(7) relates to Rules of Court and provides that the Rules of Court may make provision enabling matters of the kind mentioned in subsections (2) and (3) to be dealt with, subject to conditions agreed by the Rules, without an oral hearing either with or without the consent of the parties.

112.            Subclause 32(8) provides that no appeal lies from an order or direction from a single Judge of the FCFC (Division 1) of a kind mentioned in paragraphs 32(3)(d) and 32(3)(i).

Clause 33 - Appeal may be determined without an oral hearing

113.            Subclause 33(1) provides that an appeal under subclause 26(1) may be dealt with by the Federal Circuit and Family Court of Australia (Division 1) without an oral hearing if the parties to the appeal consent to the appeal being dealt with in that way. Subclause 26(1) relates to the FCFC (Division 1)’s exercise of its appellate jurisdiction with respect to family law and child support matters. Subclause 33(2) provides that a consent given in relation to an appeal, as mentioned in subclause 33(1), may only be withdrawn with the leave of the FCFC (Division 1).

Clause 34 - Cases stated and questions reserved

114.            Clause 34 relates to cases stated and questions reserved. Paragraph 34(1)(a) provides that a court from which appeals lie to the FCFC (Division 1) may state any case or reserve any question concerning a matter with respect to which such an appeal would lie from a judgment of the first-mentioned court for the consideration of the FCFC (Division 1). For consistency, this is based on section 26 of the Federal Court Act. Paragraph 34(1)(b) makes clear that the FCFC (Division 1) has jurisdiction to hear and determine the case in question.

115.            Paragraph 34(2)(a) provides that the Full Court of the FCFC (Division 1) must exercise jurisdiction if the court stating the case or reserving the question is not the FCFC (Division 2) or the Magistrates Court of Western Australia (which, in accordance with the definition in clause 7, would be read as the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia). Subparagraph 34(2)(b)(i) provides that a single Judge must exercise this jurisdiction for cases stated or questions reserved by the FCFC (Division 2) or the Magistrates Court of Western Australia, unless the Chief Justice considers it appropriate that the Full Court of the FCFC (Division 1) exercise its jurisdiction in relation to these matters (subparagraph 34(2)(b)(ii)). This reflects the retention of the Family Court’s appellate jurisdiction in its continuation as the FCFC (Division 1).

116.            Subclause 34(3) provides that, subject to any other Act, the FCFC (Division 1) may draw from the facts and the documents any inference, whether of fact or of law, which could have been drawn from them by the court stating the case or reserving the question.

117.            Subclause 34(4) provides that a court referred to in subsection 34(1) must not state a case or reserve a question concerning a matter referred to in that subsection to a court other than the FCFC (Division 1).

Clause 35 - Evidence on appeal

118.            Clause 35 deals with evidence on appeal and for consistency, is largely based on section 27 of the Federal Court Act. Paragraph 35(a) provides that the FCFC (Division 1) must have regard to the evidence given in the proceedings out of which the appeal arose, and has the power to draw inferences of fact and, in its discretion, to receive further evidence. Subparagraphs 35(b)(i), (ii) and (iii) outline how further evidence may be given.

Clause 36 - Form of judgment on appeal

119.            Clause 36 deals with the form of judgment on appeal. Paragraphs 36(1)(a)-(d) stipulate what actions the FCFC (Division 1) may take in the exercise of its appellate jurisdiction. Subject to any other Act, it may:

·          affirm, reverse or vary the judgment appealed from (paragraph 36(1)(a))

·          give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order (paragraph 36(1)(b))

·          set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit (paragraph 36(1)(c))

·          award execution from the Court or, in the case of an appeal from another court, award execution from the Court or remit the cause to that other court, or to a court from which a previous appeal was brought, for the execution of the judgment of the Court (paragraph 36(1)(d)).

120.            Subclause 36(2) provides that the FCFC (Division 1) may give reasons for its decision in short form where, in dismissing an appeal under subsection 26(1), the FCFC (Division 1) is of the opinion that the appeal does not raise any question of general principle. This mirrors section 94 of the Family Law Act.

121.            Subclause 36(3) provides it is the duty of a court to which a cause is remitted in accordance with paragraph (1)(d) to execute the judgment of the FCFC (Division 1) in the same manner as if it were its own judgment. This mirrors subsection 28(2) of the Federal Court Act.

122.            Subclause 36(4) provides that the powers specified in subsection (1) may be exercised by the FCFC (Division 1) even if the notice of appeal asks that part only of the decision may be reversed or varied, and may be exercised in favour of all or any of the respondents or parties, including respondents or parties who have not appealed from or complained of the decision.

123.            Subclause 36(5) provides that an interlocutory judgment or order from which there has been no appeal does not operate to prevent the FCFC (Division 1), upon hearing an appeal, from giving such decision upon the appeal as is just.

Clause 37 - Court divided in opinion

124.            Clause 37 prescribes how an appeal judgment is to be pronounced where Judges constituting a Full Court of the FCFC (Division 1) for the purposes of any proceeding are divided in opinion. This subclause is based on section 16 of the Federal Court Act.

Clause 38 - Stay of proceedings and suspension of orders

125.            Clause 38 deals with stay of proceedings and suspension of orders, and is based on section 29 of the Federal Court Act.

126.            If an appeal to the FCFC (Division 1) from another court has been instituted, subparagraph 38(1)(a) provides that either the FCFC (Division 1) or a Judge of the FCFC (Division 1), or that other court or a Judge of that other court (not being the FCFC (Division 2) or the Magistrates Court of Western Australia), may order, on such conditions (if any) as it or he or she thinks fit, a stay of all or any proceedings under the judgment appealed from.

127.            Subparagraph 38(1)(b) provides the FCFC (Division 1) or a Judge may, by order, on such conditions (if any) as it or he or she thinks fit, suspend the operation of an injunction or other order to which the appeal, in whole or in part, relates.

128.            Subclause 38(2) stipulates that this section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for or in relation to the stay of proceedings.

Clause 39 - Appeals relating to court security orders

129.            Clause 39 deals with the application of Subdivision B to the making, variation or revocation of a court security order under Part 4 of the Court Security Act 2013 by a member of the FCFC (paragraph 17J(1)(a)) or by a member of the Family Court of Western Australia (paragraph 27J(1)(b)). This subclause is modelled on section 94AB of the Family Law Act.

Clause 40 - Exercise of certain appellate jurisdiction under family law regulations

130.            Clause 40 stipulates that despite the provisions of Subdivision B, the exercise of the appellate jurisdiction of the FCFC (Division 1) in relation to a matter arising under regulations made for the purposes of section 111C of the Family Law Act is as provided by those regulations. Section 111C of the Family Law Act deals with international agreements about adoption. This amendment reflects the retention of the Family Court’s appellate jurisdiction in its continuation as the FCFC (Division 1).

Subdivision C - Appellate jurisdiction relating to courts of summary jurisdiction

Clause 41 - Application

131.            Clause 41 deals with the application of Subdivision C—Appellate jurisdiction relating to courts of summary jurisdiction.

132.            Subclause 41(1) provides that Subdivision C applies to the appellate jurisdiction of the FCFC (Division 1) in relation to a judgment of a court of summary jurisdiction of a State or Territory. It contains a note which directs the reader to section 2B of the Acts Interpretation Act 1901 for the applicable definition of ‘court of summary jurisdiction’, and a further note to direct the reader to section 47A of the Family Law Act. Section 47A of the Family Law Act provides that courts having jurisdiction under the Family Law Act shall severally act in aid of and be auxiliary to each other in all matters under the Family Law Act.

133.            Subclause 41(2) provides that the Family Court of a State and the Magistrates Court of Western Australia (which, in accordance with the definition in clause 7, would be read as the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia) are not courts of summary jurisdiction for the purposes of subsection (1).

Clause 42 - Exercise of appellate jurisdiction

134.            Subclause 42(1) provides that the appellate jurisdiction of the FCFC (Division 1) in relation to appeals from courts of summary jurisdiction is to be exercised by the Court constituted by a single Judge. This reflects the retention of the Family Court’s appellate jurisdiction in the FCFC (Division 1).

135.            Subclause 42(2) provides that, in a matter before, or coming before, the FCFC (Division 1), a Judge may give directions under subsection 69(1) of the current Act. Subsection 69(1) provides that the FCFC (Division 1) or a Judge may give directions about the practice and procedure to be followed in relation to a civil proceeding, or any part of a civil proceeding, before the Court.

Subdivision D - Miscellaneous 

Clause 43 - Determination of matter completely and finally

136.            Clause 43 provides that, in every matter before the FCFC (Division 1), the Court must grant either absolutely (paragraph 43(a)) or on such terms and conditions as the Court thinks just (paragraph 43(b)) all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by a party in the matter, so that, as far as possible:

·          all matters in controversy between the parties may be completely and finally determined (paragraph 43(c)); and

·          all multiplicity of proceedings concerning any of those matters may be avoided (paragraph 43(d)).

137.            This clause reflects the retention of the Family Court’s appellate jurisdiction in its continuation as the FCFC (Division 1).

Division 5 - Certain powers relating to matters of jurisdiction

Clause 44 - Making of orders and issuing writs

138.            Clause 44 provides that the FCFC (Division 1) would have power to make orders as it considers appropriate, or issue, or direct the issue of, writs as it considers appropriate. This power relates to matters in which it has jurisdiction. This clause has been modelled on section 34 of the Family Law Act.

Clause 45 - Contempt of court

139.            Clause 45 provides that the FCFC (Division 1) would have the same power to punish contempt as is possessed by the High Court. It is consistent with existing contempt powers of the Federal and Family Courts. It also mirrors clause 142 in the Bill which provides the same contempt power to the FCFC (Division 2).

140.            Subclause 45(2) provides that this jurisdiction to punish a contempt of the Court may be exercised by the Court as constituted at the time of the contempt.

141.            Section 112AP of the Family Law Act would also apply to a contempt of the FCFC (Division 1) in proceedings under that Act.

Clause 46 - Summary judgment

142.            Clause 45 provides that the FCFC (Division 1) would be able to give summary judgment where it is satisfied that a proceeding, or part of a proceeding, or a defence to a proceeding or to part of a proceeding, has no reasonable prospect of success. This largely replicates section 31A of the Federal Court Act.

143.            Subclauses 46(1) and 46(2) provide that the FCFC (Division 1) may give judgment for one party against another in relation to the whole or any part of a proceeding if:

·          the first party is prosecuting (or defending) the proceeding or that part of the proceeding; and

·          the court is satisfied that the other party has no reasonable prospect of defending (or prosecuting) the proceeding or that part of the proceeding.

144.            Subclause 46(3) provides that, for the purposes of giving summary judgment, a proceeding or part of a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success.

145.            Subclause 46(4) provides that clause 46 does not limit any of the other powers of the FCFC (Division 1).

Division 6 - Administration

Clause 47 - Arrangement of business

146.            Clause 47 generally continues the effect of subsections 21B(1) and (1A) of the Family Law Act.

147.            Subclause 47(1) provides that the Chief Justice would be responsible for ensuring the effective, orderly and expeditious discharge of the business of the FCFC (Division 1). 

148.            Subclause 47(2) provides that, in discharging the Chief Justice’s responsibility, the Chief Justice must:

·          promote the objects of the Act, and

·          ensure that arrangements are in place to provide Judges with appropriate access to (or reimbursement for the cost of) annual health assessment, counselling and judicial education.

149.            Subclause 47(2) provides that, in discharging the Chief Justice’s responsibility, the Chief Justice may:

·          make arrangements as to the Judge who is to constitute the Court in particular matters or classes of matters, including assigning particular caseloads, classes of cases or functions to particular Judges (which would ensure equity in the workload of Judges)

·          temporarily restrict a Judge to non-sitting duties

·          deal with a complaint about the performance of another Judge’s judicial or official duties;

·          take any measures reasonably necessary to maintain public confidence in the FCFC (Division 1) including, but not limited to, temporarily restricting another Judge to non-sitting duties.

150.            Subclause 47(3) provides that the Deputy Chief Justice is to assist the Chief Justice in the exercise of functions conferred on the Chief Justice by clause 47, other than in relation to paragraph 47(2)(d) (which relates to a complaint about the performance of another Judge’s judicial or official duties) and paragraph 47(2)(e) (which relates to taking measures reasonably necessary to maintain public confidence in the FCFC (Division 1).

151.            Paragraph 47(2)(d) provides that the Chief Justice’s powers include a power to deal with a complaint about the performance by another Judge of his or her judicial or official duties, as set out in clause 48. 

152.            As noted in the explanatory memorandum to the Courts Legislation Amendment (Judicial Complaints) Bill 2012, a complaint about performance by another Judge of his or her judicial or official duties will not include complaints about matters in cases that are capable of being raised in an appeal.  Such complaints are properly matters for judicial determination.  It may be necessary for the Chief Justice or other complaint handler to consider whether the complaint relates to a matter capable of being raised on appeal.

153.            The performance of official duties would extend the circumstances in which a complaint may be dealt with.  An example would include where a Judge is representing the Court in an official capacity or where the Judge is undertaking certain official functions in their personal capacity.

154.            Paragraph 47(2)(e) gives the Chief Justice power to take any measures that he or she believes are reasonably necessary to maintain public confidence in the Court. This includes the ability to temporarily restrict another Judge to non-sitting duties.  This power operates whether or not there has been a complaint about the Judge. 

155.            As noted in the explanatory memorandum to the Courts Legislation Amendment (Judicial Complaints) Bill 2012, paragraph 47(2)(e) would enable a Chief Justice to take timely action that the Chief Justice believes is reasonably necessary to maintain public confidence in the Court.  The Chief Justice would need to establish a clear basis for his or her belief that measures are reasonably necessary.  Measures are characterised in terms of facilitating the smooth operation of the Court, rather than disciplinary action directed at a Judge.  The type of measure that might be taken would be consistent with the Chief Justice’s responsibilities for ensuring the effective discharge of the business of the Court.

156.            Paragraphs 47(2)(d) and (e) do not limit action that the Chief Justice may take in discharging his or her general obligation to ensure the effective, orderly and expeditious discharge of the business of the Court.  The paragraphs provide an express mechanism by which complaints or issues that may affect public confidence in the Court may be addressed.

Clause 48 - Complaints

157.            Clause 48 provides for the process to be followed by the Chief Justice in dealing with a complaint made about another Judge of the FCFC (Division 1). Clause 48 replicates the process outlined in subsections 21B(1B) - (3B) of the Family Law Act.

158.            Subclause 48(1) provides that the Chief Justice may do either or both of the options under paragraphs 48(1)(a) and (b).

159.            Under paragraph 48(1)(a), the Chief Justice may decide whether or not to handle the complaint. The Chief Justice may then take one of the following actions:

·          dismiss the complaint (subparagraph 48(1)(a)(i))

·          handle the complaint if the Chief Justice has a relevant belief in relation to the complaint about the other Judge (subparagraph 48(1)(a)(ii)) - the definition for ‘relevant belief’ is located in Clause 48(4); the definition for ‘handle a complaint’ is located in Clause 7 of the Bill, or

·          arrange for any other complaint handlers to assist in handling the complaint if the Chief Justice has a relevant belief in relation to the complaint about the other Judge (subparagraph 48(1)(a)(iii)).

160.            Under paragraph 48(1)(b), the Chief Justice may arrange for any other complaint handlers to decide whether or not to handle the complaint, and then take one of the following actions:

·          dismiss the complaint (subparagraph 48(1)(b)(i)), or

·          handle the complaint if each of the complaint handlers has a relevant belief in relation to the complaint about the other Judge (subparagraph 48(1)(b)(ii)).

161.            The powers of another complaint handler under paragraph 48(1)(b) are similar to those of the Chief Justice under paragraph 48(1)(a).  This subclause would enable a Chief Justice to arrange for a complaint handler to deal with a complaint without needing to conduct preliminary investigations about a complaint.

162.            The note to subclause 48(1) clarifies that a complaint handler (other than the Chief Justice) may handle a complaint by referring it to the Chief Justice.  The Chief Justice may then do either or both of the things referred to in paragraphs 48(1)(a) or (b) in respect of the complaint.

163.            As noted in the explanatory memorandum to the Courts Legislation Amendment (Judicial Complaints) Bill 2012, a complaint about performance by another Judge of his or her judicial or official duties will not include complaints about matters in cases that are capable of being raised in an appeal.  Such complaints are properly matters for judicial determination.  It may be necessary for the Chief Justice or other complaint handler to consider whether the complaint relates to a matter capable of being raised on appeal.

164.            The powers provided for in clause 48 do not limit the ability of a Chief Justice to refer a matter to the Parliament for consideration of removal of a Judge under paragraph 72(ii) of the Constitution. 

165.            The ability of the Chief Justice or a complaint handler to dismiss a complaint summarily under paragraphs 48(1)(a)(i) and 48(1)(b)(i) does not affect the ability of a person handling a complaint to dispose of a complaint by dismissing it where the person considers this to be appropriate in the circumstances, including where the complaint has not been substantiated on further investigation of the complaint.

166.            Subclause 48(2) would enable the Chief Justice to authorise a person or body to assist the Chief Justice to handle complaints, decide whether or not to handle complaints, dismiss complaints or handle complaints. Authorisations may be made either generally or in relation to a specified complaint. An authorisation must be in writing.

167.            Subclause 48(2) gives discretion to the Chief Justice as to the categories of person or body which may be authorised to handle a complaint.  This is necessary to ensure a high degree of flexibility for the Chief Justice in complaints handling processes, which may involve a wide variety of circumstances. 

168.            Subclause 48(3) is inserted to avoid doubt and clarifies that a Chief Justice may authorise under subclause 48(3) the Deputy Chief Justice or a body that includes the Deputy Chief Justice.  This confirms the discretion of the Chief Justice to authorise the Deputy Chief Justice to undertake functions relating to complaints handling. 

169.            The Federal Court, the Family Court and the Federal Circuit Court all employ a consistent practice in relation to the authorisation of persons or bodies to handle complaints. In each Court, the respective Chief Justice or Chief Judge has authorised the Deputy Principal Registrar of that Court to assist with the handling of complaints against Judges of that Court. In the Family Court, the Chief Justice has also authorised the Deputy Chief Justice to assist with the handling of complaints. The Deputy Principal Registrars are legally qualified, experienced and occupy Senior Executive positions. Each Court has complaint handling strategies, which include the escalation of complaints to the Chief Justice or Deputy Chief Justice, as appropriate.

170.            It is anticipated that the persons authorised to handle complaints would continue to be limited to the Deputy Principal Registrars and the Deputy Chief Justice of the FCFC (Division 1). However, as stated above, giving the Chief Justice broad delegation power in subclause 48(2) will allow the necessary and appropriate flexibility in the complaint handling process.

171.            Subclause 48(4) provides the meaning of ‘relevant belief’ for the purposes of clause 32. The meaning applies where a person has a relevant belief in relation to a complaint about a Judge. A person has such a belief if:

·          the person believes that circumstances giving rise to a complaint may, if substantiated, justify consideration of the removal of the Judge in accordance with paragraph 72(ii) of the Constitution, or

·          the person believes that circumstances giving rise to a complaint may, if substantiated, (i) adversely affect the performance of judicial or official duties by the Judge, or (ii) have the capacity to adversely affect the reputation of the FCFC (Division 1).

172.            Having a relevant belief enables the Chief Justice or complaint handler to take certain actions, such as handling the complaint (see paragraphs 48(1)(a)(ii) and 48(1)(b)(ii) of the Bill).

Clause 49 - Protection for the Chief Justice and Deputy Chief Justice

173.            Clause 49 affords certain protection and immunity to the Chief Justice and the Deputy Chief Justice in the exercise, or assisting in the exercise of, the functions or powers mentioned in clause 47(2)(b). It replicates the effect of subsections 21B(4) and (5) of the Family Law Act.

174.            Subclauses 49(1) and (2) provide that, in exercising the functions or powers pursuant to paragraph 47(2)(b) of this Bill, the Chief Justice and the Deputy Chief Justice have the same protection and immunity as if they were exercising those functions or powers as, or as a member of, the FCFC (Division 1). The notes to subclauses 49(1) and (2) refer the reader to clause 110, which provides for the protection of persons involved in the handling of complaints.

175.            Subclause 49(3) provides that, despite section 39B of the Judiciary Act 1903 , the Federal Court of Australia would not have jurisdiction with respect to a matter relating to the exercise by the Chief Justice, or the assisting in the exercise by the Deputy Chief Justice, of the functions or powers mentioned in subclause 47(2) or clause 48 of the Bill.

176.            Subclause 49(4) provides that, in addition to the powers and functions conferred on the Chief Justice by this Chapter of the Bill, the Chief Justice has such other functions and powers as are specified in the regulations.

PART 3 - CERTAIN PROCEEDINGS NOT TO BE INSTITUTED IN FEDERAL CIRCUIT COURT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

Clause 50 - Prohibition on instituting first instance family law or child support proceedings

177.            Clause 50 provides a statutory bar to initiating first instance family law or child support proceedings in the FCFC (Division 1). This is part of achieving a single point of entry for first instance family law matters, as these matters will need to be initiated in the FCFC (Division 2) and can be transferred to the FCFC (Division 1) in accordance with clauses 51 and 149, and consistent with case management processes.

178.            Subclause 50(1) restricts people from instituting family law or child support proceedings in the FCFC (Division 1). The term ‘family law or child support proceedings’is defined in clause 7 of the Bill as proceedings in respect of which the FCFC (Division 2) has original jurisdiction under clause 132. The statutory bar in clause 50(1) does not apply to other types of proceedings such as appeals. The note under subclause 50(1) refers the reader to clause 62 for the institution of proceedings other than family law or child support proceedings.

179.            Subclause 50(2) provides that where proceedings are filed in the FCFC (Division 1) in contravention of subclause 40(1), then unless the proceedings are transferred to the Federal Court, the proceedings are to be transferred to the FCFC (Division 2), and those proceedings are still to be considered valid as if there was no statutory bar imposed by subclause 50(1). This subclause ensures that proceedings that are incorrectly filed will end up in the correct place and ensures the validity of those proceedings.

PART 4 - TRANSFER OF PROCEEDINGS

180.            A key concern with current transfer arrangements between the Family Court and the Federal Circuit Court is the time lost due to transfers of matters between the two courts. Typically, once a decision is made to transfer a matter, the parties would have to commence proceedings afresh using the procedures of the receiving court. Part 4 of Chapter 3, in conjunction with Part 3 of Chapter 4, will ensure smoother transfer of proceedings between the FCFC (Division 1) and FCFC (Division 2). These two Parts will also implement the Government’s policy of a single point of entry for family law or child support proceedings in the FCFC (Division 2), with matters being transferred, as appropriate, between the two Divisions consistent with efficient and effective case management processes.

Clause 51 - Discretionary transfer of proceedings from the Federal Circuit and Family Court of Australia (Division 2)

181.            In conjunction with clause 149, clause 51 is one of the key transfer provisions for the Government’s single point of entry and case management proposal. The FCFC (Division 1)’s original jurisdiction is a direct result of these provisions, since the FCFC (Division 1)’s original family law jurisdiction, as provided by clause 25, is family law or child support proceedings transferred to the FCFC (Division 1) either by the FCFC (Division 1) under clause 51 or by the FCFC (Division 2) under clause 149.

182.            The Chief Justice would transfer matters to the FCFC (Division 1) in accordance with case management processes to ensure the effective and efficient allocation of family law and child support matters in the FCFC.

183.            Clause 51 provides a mechanism that would enable the discretionary transfer of proceedings from the FCFC (Division 2) to the FCFC (Division 1) by the Chief Justice. This ensures that the FCFC (Division 1) is not wholly dependent on the FCFC (Division 2) for its original jurisdiction, as it would have the power to uplift matters on its own initiative as well as on the application of a party to the proceeding.

184.            Subclause 51(1) provides that when a family law or child support proceeding is pending in the FCFC (Division 2), the Chief Justice can order the transfer of that proceeding from the FCFC (Division 2) to the FCFC (Division 1). Such a transfer may be appropriate where there is a related matter before the FCFC (Division 1).

185.            Subclause 51(2) provides that the Chief Justice may transfer a proceeding from the FCFC (Division 2) to the FCFC (Division 1) on the application of a party to a proceeding or on his or her own initiative.

186.            Subclause 51(3) provides considerations that the Chief Justice must have regard to when deciding whether to transfer a proceeding from the FCFC (Division 2) to the FCFC (Division 1). These considerations are: relevant Rules of Court; whether there are proceedings regarding an associated matter that are pending in the FCFC (Division 1); the ability of the FCFC (Division 1), by virtue of court resources, to hear and determine the proceedings; and the interests of the administration of justice.

187.            These factors are designed to ensure that the Chief Justice has the ability to transfer cases from the FCFC (Division 2) having regard to both efficiency and resource considerations.

188.            Subclause 51(4) provides that an appeal does not lie from a decision of the Chief Justice to transfer a proceeding under this clause. This approach is consistent with similar legislation, such as the Jurisdiction of Courts (Cross-vesting) Act 1987 . It is designed to prevent time-wasting appeals on procedural matters which do not affect the substantive rights of the parties.

189.            Subclause 51(5) provides that clause 51 will not apply to kinds of proceedings specified in the regulations.

Clause 52 - Discretionary transfer of proceedings to the FCFC (Division 2)

190.            Clause 52 provides a mechanism that would enable the discretionary transfer of pending proceedings from the FCFC (Division 1) to the FCFC (Division 2) by the Chief Justice. In accordance with subclauses 52(1) and (2), the Chief Justice may order the transfer of a pending family law or child support proceeding) in the FCFC (Division 1), from the FCFC (Division 1) to the FCFC (Division 2) on the application of a party to the proceeding, or on his or her own initiative.

191.            Paragraph 52(1)(b) provides that the proceeding must be a family law or child support proceeding in order for the Chief Justice to be able to order it to be transferred to the FCFC (Division 2) under this provision. The term ‘family law or child support proceedings’ is defined in clause 7 of the Bill as proceedings in respect of which the FCFC (Division 2) has original jurisdiction under clause 132. This ensures that a proceeding relating to the FCFC (Division 1)’s appellate jurisdiction is not transferred to the FCFC (Division 2).

192.            As the FCFC (Division 1)’s original jurisdiction in family law or child support proceedings are proceedings transferred to the Court under clauses 51 or 149, a transfer under clause 52 would be a return of proceedings from the FCFC (Division 1) back to the FCFC (Division 2) and would be expected to take place very rarely.  

193.            Subclause 52(3) specifies the factors to which the Chief Justice must have regard in deciding whether to transfer a proceeding. These factors would be:

·          any Rules of Court made for the purposes of subclause 52(2)

·          whether proceedings in respect of an associated matter are pending in the FCFC (Division 2)

·          whether the resources of the FCFC (Division 1) are sufficient to hear and determine the proceeding, and

·          the interests of the administration of justice.

194.            These factors are designed to ensure that the Chief Justice has the ability to transfer cases to the FCFC (Division 2) having regard to both efficiency and resource considerations.

195.            It is expected that the FCFC (Division 1) and FCFC (Division 2) would have in place consistent approaches to case management that would minimise any inconvenience to parties arising from a transfer from the FCFC (Division 1) to the FCFC (Division 2).

196.            Subclause 52(4) provides that an appeal does not lie from a decision of the Chief Justice to transfer a proceeding under this clause. This approach is consistent with similar legislation, such as the Jurisdiction of Courts (Cross-vesting) Act 1987 . It is designed to prevent time-wasting appeals on minor procedural matters which do not affect the substantive rights of the parties.

197.            Subclause 52(5) provides that clause 52 will not apply to kinds of proceedings specified in the regulations.

Clause 53 - Rules of Court

198.            Subclause 53(1) provides for Rules of Court to make provision in relation to transfers of proceedings from the FCFC (Division 2) under subclause 51(1), or to the FCFC (Division 2) under subclause 52(1). Subclause 53(1) provides that the Rules of Court may include the scale of costs that applies to any order made in respect of proceedings that are transferred. For example, the Rules of Court may provide that costs to be paid to a party in the period before a transfer are to be at the FCFC (Division 2) or FCFC (Division 1) scale.

199.            Subclause 53(2) provides that the Rules of Court may specify matters to which the Chief Justice must have regard in deciding whether to transfer a proceeding from the FCFC (Division 2) to the FCFC (Division 1) under subclause 51(1), or from the FCFC (Division 1) to the FCFC (Division 2) under subclause 52(1).

200.            Subclause 53(3) provides that before any Rules of Court are made for the purposes of clause 53, the Chief Justice of the FCFC (Division 1) must consult the Chief Judge of the FCFC (Division 2). This provision is intended to ensure that in circumstances where different persons occupy the offices of the Chief Justice of the FCFC (Division 1) and the Chief Judge of the FCFC (Division 2), the Rules of Court developed across both Divisions are consistent.

201.            This clause is intended to strengthen the goal of ensuring the efficient resolution of family law disputes which underpins this structural reform of the federal courts. To that end, this clause also facilitates the objects of the Bill provided for in clause 5.

Clause 54 - Delegation

202.            Clause 54 provides that the Chief Justice may delegate the Chief Justice’s power under subclause 51 or 52 to order the transfer of a proceeding from the FCFC (Division 2) to the FCFC (Division 1) or order the transfer of a proceeding from the FCFC (Division 1) to the FCFC (Division 2) to any one or more of the Judges. This will give the necessary flexibility to achieve effective and efficient case management and transfer of proceedings. This flexibility and delegation power is particularly important given the original jurisdiction of the FCFC (Division 1) in family law or child support proceedings, as set out in clause 25, hinges on transfer of these matters from the FCFC (Division 2) under clauses 51 or 149.

PART 5 - APPEALS

Clause 55 - Appeals to the High Court

203.            Clause 55 substantially mirrors the effect of section 33 of the Federal Court Act. 

204.            Subclause 55(1) provides that an appeal must not be brought directly to the High Court from:

·          a judgment of a single Judge of the FCFC (Division 1) in the exercise of its appellate jurisdiction in relation to a judgment mentioned in paragraph 26(1)(e) (paragraph 55(1)(a)), or

·          a judgment of the FCFC (Division 1) in the exercise of its original jurisdiction (paragraph 55(1)(b)).

205.            The note to subclause 55(1) refers readers to subclause 55(6).

206.            Subclause 55(2) provides that the special leave of the High Court is required to bring an appeal directly to the High Court from a judgment of the FCFC (Division 1), whether constituted by a Full Court or a single Judge, in the exercise of its appellate jurisdiction. This subclause does not, in accordance with subclause 55(1), apply to an appellate judgment mentioned in paragraph 55(1)(a) outlined above.

207.            Interlocutory decisions of a single Judge or Full Court in the appellate jurisdiction are generally appealable to the High Court with leave. However, mirroring existing subsection 33(4B) of the Federal Court Act, subclause 55(3) sets out a limited number of interlocutory decisions in the appellate jurisdiction from which there will be no right of appeal.  These are minor procedural decisions.

208.            Subclause 55(3) will assist to reduce delays caused by appeals from these decisions.  The interlocutory decisions from which there should be no appeal are:

·          decisions under subclause 32(2) - including applications for extension of time to institute an appeal, for leave to amend the grounds of an appeal, applications to stay an order of the FCFC (Division 1) in the exercise of its appellate jurisdiction, and for security of costs in relation to an appeal; and

·          decisions under clause 38 relating to stays of proceedings and suspensions of orders; and

·          decisions to join or remove a party to an appeal

·          decisions granting or refusing leave to defend a proceeding

·          decisions to reinstate an appeal that was taken to have been abandoned or dismissed

·          decisions for an extension of time to file an application for leave to appeal, and

·          decisions to adjourn, vacate or expedite the hearing of an appeal.

209.            Subclause 55(4) provides that interlocutory decisions made in the FCFC (Division 1) may be listed as one of the grounds in an application for special leave to appeal the final decision. This mirrors subsection 33(4C) of the Federal Court Act.

210.            Subclause 55(5) mirrors existing subsection 33(6) of the Federal Court Act. It provides that the jurisdiction of the High Court to hear and determine an appeal in accordance with clause 55 shall be exercised by a Full Court of the High Court consisting of not less than 3 Justices.

211.            Subclause 55(6) provides that, notwithstanding subclause 55(6), if subclause 55(1) is inconsistent with section 73 of the Constitution (which outlines the appellate jurisdiction of the High Court), subclause 55(1) will have effect as though the words “except by special leave of the High Court” were added to the end of subclause 55(1)

PART 6 - PRACTICE AND PROCEDURE

Division 1 - General

Clause 56 - Practice and procedure

212.            Clause 56 provides for the practice and procedure of the FCFC (Division 1). Clause 56 does not apply to proceedings that are transferred from the Federal Court of Australia to the FCFC (Division 1) (subclause 56(3)). Rule 27.01 of the Federal Court Rules provides that a party may apply to the Federal Court to transfer a proceeding to the Family Court of Australia under any of the Administrative Decisions (Judicial Review) Act 1977 , the Australian Consumer Law, the Bankruptcy Act 1966 or the Income Tax Assessment Act 1936 .

213.            Subclause 56(1) provides that the practice and procedure of the FCFC (Division 1) is to be in accordance with the regulations made under this Bill, regulations made under the Family Law Act, and the Rules of Court.

214.            To the extent that the rules and regulations in subclause 56(1) are insufficient, subclause 56(2) provides that the Rules of the High Court are to apply, modified in application as required, to the practice and procedure so far as they are they are capable of applying and subject to any directions of the FCFC (Division 1) or a Judge.

215.            Subclause 56(4) provides that ‘practice and procedure’ would include all matters with respect to which regulations under this Bill, the Family Law Act, or Rules of Court may be made.

Clause 57 - Representation

216.            Clause 57 provides the circumstances under which a party to proceedings in the FCFC (Division 1) is entitled to be represented by another person. These circumstances are that the other person:

·          is entitled, under the Judiciary Act 1903 , to practice as a barrister or solicitor, or both, in a federal court

·          is taken to be an authorised representative under the regulations, or

·          is authorised to represent the party under another law of the Commonwealth.

217.            Unless these circumstances exist, a party would not be entitled to be represented by another person.

218.            This clause replicates section 44 of the Federal Circuit Court Act. It has been included in this chapter for consistency with the equivalent FCFC (Division 2) provision.

Division 2 - Documents filed in the Federal Circuit and Family Court of Australia (Division 1)

Clause 58 - Filing of documents in the Federal Circuit and Family Court of Australia (Division 1)

219.            Clause 58 provides that if a document is required or permitted to be filed in the FCFC (Division 1), it is to be filed at a registry of the Court, or in accordance with an arrangement with another court or another agency or organisation made under clauses 79 or 80, and in accordance with the Rules of Court.

220.            Subclause 58(2) provides that the Rules of Court would be able to provide that the requirements for filing a document are met if the document is sent to the FCFC (Division 1) using the web portal of the FCFC, or in other circumstances as set out in the Rules of Court.

221.            This clause replicates section 46 of the Federal Circuit Court Act. It has been included in this chapter for consistency with the equivalent FCFC (Division 2) provision.

Clause 59 - Seal of the Federal Circuit and Family Court of Australia (Division 1)

222.            Clause 59 provides for the FCFC (Division 1) to have a seal, the design of which would be determined by the Minister. The seal is to be kept in such custody as the Chief Justice directs.

223.            Subclause 59(3) provides that the seal must be affixed to documents as provided by this Act, any other Act, or the Rules of Court.

224.            This clause replicates section 47 of the Federal Circuit Court Act. It has been included in this chapter for consistency with the equivalent FCFC (Division 2) provision.

Clause 60 - Federal Circuit and Family Court of Australia (Division 1) stamps

225.            Clause 60 provides that the stamp or stamps of the FCFC (Division 1) are to be, as nearly as practicable, the same as the design of the seal of the FCFC (Division 1).

226.            Subclause 60(2) provides that a document marked with a FCFC (Division 1) stamp is as valid and effectual as if it had been sealed with a seal.

227.            Subclause 60(3) provides that a FCFC (Division 1) stamp must be affixed to documents as provided by this Act, any other Act, or the Rules of Court.

228.            This clause replicates section 48 of the Federal Circuit Court Act, with the intention being to give administrative flexibility to the Court to rely on stamped documents. It has been included in this chapter for consistency with the equivalent FCFC (Division 2) provision.

Clause 61 - Writs etc.

229.            Clause 61 provides the requirements for a writ, commission or process issued from the FCFC (Division 1).

230.            Subclause 61(1) provides that all writs, commissions and process issued must be under the seal of the Court and signed (including by electronic signature) by: a Judge, the Chief Executive Officer, a Senior Registrar, a Registrar or an officer acting with the authority of the Chief Executive Officer.

231.            Subclause 61(2) provides that subclause 61(1) does not apply to writs, commissions and process signed and issued in accordance with clause 79. Clause 79 provides that the Chief Justice may make arrangements with other courts for the performance of certain functions. For example, the FCFC (Division 1) may arrange for a registry of the Federal Court to issue writs on behalf of the FCFC (Division 1).  In those circumstances it may not be possible to satisfy the requirements of subclause 61(1).  However, it is expected that any such arrangement would include some process of authentication.

232.            Subclause 61(3) clarifies that subclause 61(1) does not apply to an order of the FCFC (Division 1). This is intended to ensure that if an urgent order is obtained from the FCFC (Division 1), for example on the weekend, the order remains valid notwithstanding that it may not be affixed with the seal of the Court.

233.            This clause replicates section 49 of the Federal Circuit Court Act. It has been included in this chapter for consistency with the equivalent FCFC (Division 2) provision.

Clause 62 - Proceedings may be instituted by application

234.            Clause 62 provides that, subject to the Rules of Court, proceedings could be instituted in FCFC (Division 1) by way of application without the need for pleadings.

235.            This clause replicates section 50 of the Federal Circuit Court Act, and would enable the Court to adopt a simple method of commencing proceedings in the Court. It has been included in this chapter for consistency with the equivalent FCFC (Division 2) provision. Section 62 of the Family Law Act and the Family Law Rules also provide that proceedings could be initiated by application. The inclusion of this clause does not create a substantive change to current practices.

Clause 63 - Limits on length of documents

236.            Clause 63 provides that, subject to the Rules of Court, the FCFC (Division 1) or a Judge would have the power to give directions about limiting the length of documents required or permitted to be filed in the Court.

237.            This clause replicates section 51 of the Federal Circuit Court Act, and would enable the Court to ensure that streamlined procedures are introduced and followed in the Court. It has been included in this chapter for consistency with the equivalent FCFC (Division 2) provision.

 

Division 3 - Conduct of proceedings

Clause 64 - Place of sitting

238.            Clause 64 provides that the FCFC (Division1) may sit at any place in Australia. Sittings of the Court must be held from time to time as required.

Clause 65 - Change of Venue

239.            Clause 65 provides that the FCFC (Division 1) or a Judge may, at any stage of a proceeding, make an order for a change of venue. This is a discretionary power as it can be used at any point during a proceeding being heard, and any such order can be made subject to any condition as determined by the Court or Judge. The Court also has the capacity to direct that only part of the proceedings be subject to a change of venue. This clause replicates section 27A of the Family Law Act.

Clause 66 - Formal defects not to invalidate

240.            Subclause 66(1) provides that formal defects or irregularities would not invalidate proceedings in the FCFC (Division 1) unless the Court considers that the defect or irregularity has caused substantial injustice which cannot be remedied by an order of the Court.

241.            Subclause 66(2) provides that the FCFC (Division 1) or a Judge would be able to make an order declaring that the proceeding is not invalid by reason of a defect (that it considers to be formal) or an irregularity. Such an order may be subject to conditions (if any) as the Court or Judge thinks fit.

242.            This clause replicates section 57 of the Federal Circuit Court Act. It has been included in this chapter for consistency with the equivalent FCFC (Division 2) provision.

Division 4 - Case management

243.            These case management provisions introduce an overarching obligation upon the Court, the parties to litigation and legal practitioners to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.  They also clarify the kinds of directions the Court can make to control the progress and conduct of proceedings. This would provide clear legislative direction and support to Judges so that they can confidently employ active case management powers which have been effective for the Federal Court.

Clause 67 - Overarching purpose of family law practice and procedure provisions

244.            Clause 67 provides the overarching purpose of the family law practice and procedure provisions. It generally mirrors section 37M of the Federal Court Act which was the centre-piece of the case management reforms of the Federal Court in 2009.

245.            Subclause 67(1) provides that that the purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:

·          according to law, and

·          as quickly, inexpensively and efficiently as possible.

246.            Note 1 directs the reader to paragraphs 5(a) and (b) of the Bill, which state that the objects of the Act include to ensure that justice is delivered by the federal courts effectively and efficiently, and to provide for just outcomes, in particular, in family law or child support proceedings. Note 2 clarifies that the FCFC (Division 1) must give effect to principles in the Family Law Act when exercising jurisdiction in relation to proceedings under that Act.

247.            Clause 67 will apply to both the Court and parties to the proceedings in recognition of the fact that it would not be possible for either the Court or the parties to achieve the overarching purpose without the assistance of the other.

248.            Subclause 67(2) elaborates on the objectives of the overarching purpose. These are:

·          the just determination of all proceedings before the FCFC (Division 1)

·          the efficient use of the judicial and administrative resources available for the purposes of the Court

·          the efficient disposal of the Court’s overall caseload

·          the disposal of all proceedings in a timely manner, and

·          the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

249.            This provision is intended to be a reminder to litigants that costs should be proportionate to the matter in dispute.  It is not only the cost to the parties that is relevant. The efficient use of the Court’s resources needs to be taken into account.  However, at the same time, due process would be observed so that justice may be done in the individual case. These objectives will support the intention that both the Court’s and the litigant’s resources are spent efficiently. 

250.            Subclause 67(3) provides that the family law practice and procedure provisions, and any power conferred or duty imposed by them, must be exercised in the way that best promotes the overarching purpose.

251.            Subclause 67(4) provides that the family law practice and procedure provisions are the Rules of Court and any other provision made by or under the Act or any other Act with respect to the practice and procedure of the FCFC (Division 1).

Clause 68 - Parties to act consistently with the overarching purpose

252.            Subclause 68(1) would impose a duty on parties to a civil proceeding before FCFC (Division 1) to conduct the entire proceeding, including settlement negotiations, consistently with the overarching purpose. Clause 68 generally mirrors section 37N of the Federal Court Act.

253.            Subclause 68(2) would require a party’s lawyer to take into account the duty imposed on the party by subclause 68(1). It also requires the party’s lawyer to assist the party to comply with the duty.  In practice, this would require a lawyer to conduct a case taking into account the duty on the party, and advise their client if certain actions are consistent with the overarching purpose.

254.            If, for example, a party wishes to prolong the litigation as a strategy to increase the costs of the other party, their lawyer would be obliged to explain that this behaviour is contrary to the overarching purpose and may have adverse cost consequences.  Also, if a party is refusing to accept a reasonable offer of settlement, a lawyer would have to explain that it is in their interest to accept the offer and that failing to do so may be regarded by the Court as acting inconsistently with the overarching purpose.

255.            Subclause 68(3) is intended to assist parties to comply with their duty by making informed decisions about the progress of their matter.  The Court may order a party’s lawyer to give the party an estimate of the likely duration of the proceedings and the likely amount of costs the party will have to pay in connection with the proceeding.  This may have the effect of assisting the party to prioritise the issues in dispute, or re-consider the resources they wish to allocate to the litigation.  The note below subclause 68(3) refers the reader to section 117 of the Family Law Act which provides that parties to proceedings under that Act bear their own costs, unless the court is of the opinion that there are circumstances that justify an order as to costs and security for costs, and a range of factors that the court shall have regard to in considering whether to make such an order.

256.            Subclause 68(4) would require a Judge to take into account, in awarding costs in a civil proceeding, any failure to comply with subclauses 68(1) or 68(2). This clause makes it clear that the court can order costs, in a  way that departs from the general principle in the Family Law Act that each party to proceedings shall bear his or her own costs

257.            Subclause 68(5) provides that the Court or a Judge may order a party’s lawyer to bear costs personally.

258.            Subclause 68(6) provides that a Judge would be able to order a lawyer to bear costs personally for a failure to comply with the duty imposed by subclause 68(2). Subclause 68(6) ensures that the lawyer cannot pass such costs on to their client contractually or in any other way. This subclause ensures that lawyers take responsibility for their own failure to comply with their duty under subclause 68(2).  

259.            The intention of clause 68 is to support a culture in the conduct of litigation where the Court and the parties are focussed on resolving disputes as quickly and cheaply as possible in accordance with the law.  Parties who act consistently with this duty will be able to avoid cost orders being made against them and, overall, their litigation costs should be reduced.

Clause 69 - Power of the FCFC (Division 1) to give directions about practice and procedure in a civil proceeding

260.            Subclause 69(1) provides that the FCFC (Division 1) or a Judge would be able to give directions about the practice and procedure to be followed in a civil proceeding before the Court. Such directions can be made at any stage of a proceeding, including at any time during or after the trial. Clause 69 generally mirrors section 37P of the Federal Court Act.

261.            Subclause 69(2) provides examples of the types of directions a Court would be able to make. These include setting time limits and limiting the length of submissions.  These examples are not intended to limit the powers of the Court to manage proceedings on a case-by-case basis.  They are intended to assist with the practical implementation of the overarching purpose.

262.            Subclause 69(3) provides that, if a party fails to comply with a direction, the FCFC (Division 1) or a Judge would be able to make any order or direction the Court or Judge thinks appropriate.

263.            Subclause 69(4) provides that the FCFC (Division 1) or a Judge may dismiss the proceeding in whole or in part, strike out, amend or limit any part of a party’s claim or defence, disallow or reject any evidence; or award costs against a party.  Paragraph 69(4)(e) makes it clear that such costs may be awarded on an indemnity basis.

264.            Subclauses 69(3) and (4) do not affect any other power of the Court or of a Judge to deal with a party’s failure to comply with a direction (subclause 69(5)).

Clause 70 - Chief Justice to achieve common approaches to case management with the Federal Circuit and Family Court of Australia (Division 2)

265.            Clause 70 provides that the Chief Justice must work cooperatively with the Chief Judge of the FCFC (Division 2) with the aim of ensuring common approaches to case management. This clause is intended to strengthen the goal of ensuring the efficient resolution of family law and child support proceedings which underpins this structural reform of the federal courts. To that end, clause 70 also facilitates the objects of the Bill provided for in clause 5. 

266.            Clause 70 ensures that regardless of whether one person holds office as both the Chief Justice and Chief Judge at any point in time, there is a consistent approach to case management across the FCFC.

Division 5 - Evidence

Clause 71 - Oaths and affirmations

267.            Clause 71 provides for the administration of oaths and affirmations in the FCFC (Division 1). Clause 71 is based on section 98AA of the Family Law Act.

268.            Subclause 71(1) provides a Judge the power to require and administer all necessary oaths and affirmations.

269.            Subclause 71(2) provides that a Judge would be able to authorise, either orally or in writing, any person (whether they are in or outside Australia) to administer oaths and affirmations for the purposes of the Court.

270.            Subclause 71(3) provides that the Chief Executive Officer would be able to authorise a Senior Registrar or Registrar of the FCFC (Division 1), or a staff member of the FCFC (Division 1) to administer oaths and affirmation for the purposes of the Court. The authorisation must be in writing. The note beneath subclause 71(3) directs the reader to paragraph 79(1)(d) of the Bill, which provides that the administration of oaths and affirmations may be the subject of an arrangement with another Australian court to perform that function on behalf of the FCFC (Division 1).

Clause 72 - Swearing of affidavits etc.

271.            An affidavit is a written statement of evidence.  As it is a document containing evidence, the affidavit must be sworn or affirmed. Clause 72 provides for the swearing or affirmation of affidavits in proceedings in the FCFC (Division 1), and is based on section 98AB of the Family Law Act.

272.            Subclause 72(1) provides an exhaustive list of people or offices before which an affidavit may be sworn or affirmed in Australia.

273.            Subclause 72(2) provides an exhaustive list of people or offices before which an affidavit may be sworn or affirmed at a place outside Australia.

274.            Subclause 72(3) provides that the Rules of Court would be able to stipulate circumstances in which an affidavit sworn or affirmed outside Australia before a person not referred to in subclause 72(2) may be used in a proceeding in the FCFC (Division 1).

Clause 73 - Orders and commissions for examination of witnesses

275.            Clause 73 provides that the FCFC (Division 1) or a Judge would be able to order the examination of a person at any place within Australia. It also provides that the Court would be able to order that a commission be issued to a person either within or outside Australia for the purpose of taking the testimony of another person. This clause replicates section 60 of the Federal Circuit Court Act.

276.            Subclause 73(a) provides that the FCFC (Division 1) would be able to order, for the purposes of any proceeding in the FCFC (Division 1), the examination of a person upon oath or affirmation before the Court, a Judge, an officer of the Court or other person at any place within Australia.

277.            Subclause 73(b) provides that the FCFC (Division 1) would be able to order, for the purposes of any proceeding in the FCFC (Division 1), that a commission be issued to a person, either in or outside Australia, authorising the person to take the testimony on oath or affirmation of another person. An examination of a person could be ordered, for example, where the person was unable to attend court because they were in hospital.

278.            Subclauses 73(c) and 73(d) provide that the FCFC (Division 1) or a Judge would be able to, by the same or subsequent order, give any necessary directions concerning the time, place or manner of the examination, and empower any party to the proceeding to give in evidence the testimony so taken on such terms as the Court directs.

Division 6- Judgments

Clause 74 - Reserved Judgments etc.

279.            Clause 74 provides for the publication of orders and reasons where a judgment or reasons for the Court’s decision is reserved in a proceeding. Orders or reasons prepared by a Judge who heard the proceeding, whether as a single Judge or as a member of a Full Court, may be made public by another Judge on behalf of the Judge who heard the proceeding or otherwise as provided for by the Rules of Court. This is intended to ensure that there is no delay in delivering orders or reasons if a Judge who heard the proceeding is unavailable to deliver orders and reasons that have been prepared. 

280.            Paragraphs 74(1)(b) and 74(2)(b) ensure that this is the case regardless of whether the Judge who prepared the orders or reasons heard the proceedings as a single Judge or a member of a Full Court.  This clarification is necessary because the FCFC (Division 1) will be able to be constituted as a Full Court.

Division 7 - Common approaches with the Federal Circuit and Family Court of Australia (Division 2)

Clause 75 - Chief Justice to achieve common approaches with the Federal Circuit and Family Court of Australia (Division 2)

281.            Clause 75 provides that the Chief Justice must work cooperatively with the Chief Judge with the aim of ensuring common rules of court and forms and common practices and procedures. This clause is intended to strengthen the goal of ensuring the efficient resolution of family law and child support proceedings which underpins this structural reform of the federal courts. To that end, clause 75 also facilitates the objects of the Bill provided for in clause 5.

Division 8 - Rules of Court

Clause 76 - Rules of Court

282.            Clause 76 provides that the Chief Justice may make Rules of Court:

·          providing for the practice and procedure to be followed in the FCFC (Division 1), including in Registries of the Court

·          providing for all matters and things incidental to the practice and procedure in the FCFC (Division 1)

·          providing for any matter or thing in respect of which Rules of Court may be made under the Family Law Act for the purposes of their application to the FCFC (Division 1)

·          providing for proceedings transferred to the FCFC (Division 1) under section 35A of the Bankruptcy Act 1966

·          providing for the time and manner of institution of appeals in and to the FCFC (Division 1)

·          prescribing the duties of officers of the FCFC (Division 1)

·          prescribing penalties (not exceeding 50 penalty units) for offences against the Rules of Court

·          prescribing matters as required or permitted by (i) this Chapter of the Bill, or (ii) any other law of the Commonwealth.

283.            Providing that Rules of Court can be made by the Chief Justice is intended, in circumstances where the Chief Justice is also the Chief Judge of the FCFC (Division 2), to enable consistency between the Rules of Court that apply in the FCFC (Division 1) and FCFC (Division 2).

284.            The note after subclause 76(1) directs the reader to amendments made by Part 4 of Schedule 1 of the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2019 that are to commence two years after the commencement of the section.  These amendments will provide that Rules of Court for the FCFC (Division 1) will be made by FCFC (Division 1) Judges or a majority of them, two years after commencement of this clause.

285.            Subclause 76(2) provides that the Rules of Court may make provision for the amendment of, or leave to amend, a document in a proceeding even if the effect of the amendment would be to allow a person to seek a remedy that would have been barred by the expiry of a period of limitation at the time of the amendment. This subclause replicates subsection 82(2) of the Federal Circuit Court Act and has been included for consistency with the equivalent FCFC (Division 2) provision.

286.            Subclause 76(3) provides that the Rules of Court would have effect subject to any provision made in another Act, or by rules and regulations under another Act, with respect to the practice and procedure in particular matters.

287.            Subclause 76(4) provides that the Legislation Act 2003 (other than sections 8, 9, 10 and 16, and Part 4 of Chapter 3) would apply in relation to Rules of Court made by the Chief Justice as if a reference to a legislative instrument were a reference to a Rule of Court, and subject to modifications or adaptations made by regulations in accordance with subclause 284(3) of this Bill.

288.            Subclause 76(5) provides that the Office of Parliamentary Counsel may provide assistance in the drafting of any of the Rules of Court, if the Chief Justice so desires.

Clause 77 - Consultation

289.            Clause 77 relates to consultation on the Rules of Court.

290.            Subclause 77(1) provides that, before making Rules of Court, the Chief Justice must be satisfied that there has been appropriate consultation with other Judges.

291.            Subclause 77(2) provides that the validity or enforceability of a Rule of Court is not affected by the fact that consultation does not occur.

292.            Clause 77(3) provides that, to avoid doubt, clause 77 does not limit section 17 of the Legislation Act 2003 . Section 17 of the Legislation Act 2003 relates to rule-makers consulting before making legislative instruments.

 

 

 

PART 7 - MANAGEMENT AND ADMINISTRATION

Division 1 - Management responsibilities of the Chief Justice

Clause 78 - Management of administrative affairs of the FCFC (Division 1)

293.            Clause 78 outlines the management of the administrative affairs of the FCFC (Division 1). Clause 78 also defines corporate services and provides that they are excluded from administrative affairs.

294.            Subclause 78(1) provides that the Chief Justice would be responsible for managing the administrative affairs of the FCFC (Division 1). This would appropriately ensure the independence of the FCFC (Division 1) by placing responsibility for the management of the court with the head of jurisdiction.

295.            Subclause 78(2) provides that the administrative affairs of the FCFC (Division 1) do not include corporate services of the Court. This is consistent with the current arrangement for the federal courts (excluding the High Court) of sharing corporate services. While the Chief Executive Officer of the FCFC (Division 1), as established by clause 83 of the Bill, is to assist the Chief Justice in managing the administrative affairs of the FCFC (Division 1), the Chief Executive Officer of the Federal Court would be responsible for providing the corporate services of the FCFC (Division 1) in accordance with section 18Z of the Federal Court Act, which would be amended by the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019.

296.            Subclause 78(3) provides for the matters that are the corporate services of the FCFC (Division 1):

·          communications, which would include managing information and publications (online and in print), and managing internal and external communications, but exclude media officers, who would remain within the administrative affairs of the courts and report directly to the respective heads of jurisdiction

·          finance, which would include asset management, finance systems administration, accounts receivable, accounts payable, credit card processing, travel management, financial controls, tax management, balance sheet management, internal and external budgeting, and finance governance

·          human resources (HR), which would include workforce planning, recruitment, managing payroll, HR systems administration, HR administration and HR initiatives and project delivery

·          information technology (IT), which would include IT service desk, applications development and support, network support, general IT management, IT security and records management

·          libraries, which would include library services

·          records management, which would include the management of online and paper based records

·          administrative matters relating to judgments to the extent that such matters do not involve the exercise of judicial power, which would include developing the templates for judgments and uploading the judgments to the website

·          procurement and contract management, which would include procurement management, contract management (including the management of external security contracts), and fleet vehicle management

·          property, which would include managing national property and accommodation initiatives, outsourced property contracts, building fit outs, and environmental management

·          risk oversight and management, which would include internal audit and risk management

·          court security, which would include providing for the security of the courts

·          statistics, which would include assisting each court with the collection, extraction, archiving and reporting of court related data, managing collection methodology and quality controls, and providing analysis to support research projects. Each court would continue to own data relevant to its own performance, and to have ultimate responsibility for the analysis and dissemination of such data.

·          any other matter prescribed by a determination under subclause 78(7).

297.            The meaning of corporate services would now explicitly include records management, administrative matters relating to judgments and court security. The Chief Executive Officer of the Federal Court already takes responsibility for these matters. These updates are therefore intended to clarify the delineation of matters as between administrative affairs and corporate services.

298.            Records management includes the development of record keeping and management policies and practices, management of Records Authorities agreed with the National Archives of Australia, management on behalf of the Courts and the National Native Title Tribunal of digital and physical case and administrative files. It also includes transferring digital and physical files required for retention to the National Archives of Australia, management of records contracts (for example with offsite storage providers) and support for information governance.

299.            Administrative matters relating to judgments, to the extent that such matters do not involve the exercise of judicial power,  includes development of judgment templates, style guides, systems and applications, redaction of personal and other identifying information from judgments where appropriate or required at law or by order. It also includes electronic publication of judgments on court websites and intranets, the distribution of all judgments as appropriate to legal publishers, and provision of training in the use of templates and systems.

300.            Court security includes the development of policies, procedures and practices for the security of the courts, Judges and other court personnel as well as for court premises. It also includes the development of policies, procedures and practices for emergency and threat management, management of the acquisition, maintenance and replacement of security equipment and apparatus (for example for monitoring appropriate areas of premises, screening of persons, bags and mail on entry, controlling and monitoring access to the premises and parts of premises as appropriate), management of security contracts (for example for guarding), compliance with all external regulatory and similar requirements regarding court security, and security training for Judges and court personnel.

301.            Subclause 78(4) provides that, for the purposes of subclause 78(1), the Chief Justice would have the power to do all things that are necessary or convenient to be done, including entering into contracts on behalf of the Commonwealth. Subclause 78(4) recognises the delineation between the management of administrative affairs in subclause 78(1) and the management of those matters defined as corporate services in subclause 78(3), which would be the responsibility of the Chief Executive Officer of the Federal Court.

302.            Subclause 78(5) provides that the powers given to the Chief Justice by subclause 77(4) are in addition to other powers provided by the Act or by any other Act.

303.            Subclause 78(6) provides that the Chief Justice may only enter into contracts on behalf of the Commonwealth for amounts exceeding $1 million, or a higher amount if prescribed, with the approval of the Minister.

304.            Subclause 78(7) provides that the Minister would be able to, by legislative instrument, determine matters that are the corporate services of the court. This would provide flexibility for the Minister to determine the inclusion of further matters in the definition of corporate services in the future, should further matters be identified.

305.            Subclause 78 includes the following notes for clarification:

·          Note 1 would clarify that Part IIB of the Federal Court Act contains provisions relating to the corporate services of the courts

·          Note 2 would clarify that the officers and staff of the FCFC (Division 1) are officials of the listed entity for the purposes of the finance law referred to in new section 18ZB of the Federal Court Act, and

·          Note 3 would clarify that the APS employees of the FCFC are part of the statutory agency for the purposes of the Public Service Act referred to in section 18ZE of the Federal Court Act.

Clause 79 - Arrangements with other courts

306.            Clause 79 provides that the Chief Justice of the FCFC (Division 1) would be able to arrange with the chief judicial officer of another court for an officer or officers of that court to perform certain functions on the behalf of the FCFC (Division 1). This clause replicates section 38BAA of the Family Law Act.

307.            Subclause 79(1) sets out the functions that may be performed.

308.            Subclause 79(2) provides that if an arrangement is in place, the officer would be able to perform the function despite any other provision of this Chapter of the Bill or any other Commonwealth law. Subclause 79(3) provides that a function performed on behalf of the FCFC (Division 1) would have effect as if the function had been performed by the Court.

309.            Subclause 79(4) provides that copies of any arrangements under subclause 58(1) would be available for inspection by the public.

310.            Subclause 79(5) provides that, for the purposes of clause 79, a member of the staff of an Australian court is taken to be an officer of that court.

311.            In circumstances where the FCFC (Division 1) does not have appropriate court facilities or services in a particular location, this clause would enable the FCFC (Division 1) to make arrangements with another court for the provision of services on behalf of the FCFC (Division 1).

Clause 80 - Arrangements with agencies or organisations

312.            Clause 80 provides that the Chief Justice of the FCFC (Division 1) would be able to arrange with the chief executive officer of another agency of the Commonwealth, a State or a Territory, or with another organisation, for an employee of that organisation or agency to receive documents or perform non-judicial functions on behalf of the FCFC (Division 1). This clause replicates section 38BAB of the Family Law Act.

313.            Subclause 80(2) provides that, if such an arrangement is in place, the employee would be able to perform the function despite any other provision of this Chapter of the Bill or any other Commonwealth law.

314.            Subclause 80(3) provides that a function performed on behalf of the FCFC (Division 1) would have effect as if the function had been performed by the Court.

315.            Subclause 80(4) provides that copies of any such arrangements would be available for inspection by the public.

316.            In circumstances where there are no appropriate court facilities or services in a particular location, this clause would enable the FCFC (Division 1) to make arrangements with another agency or organisation for the provision of services on behalf of the FCFC (Division 1).

Clause 81 - Arrangements for sharing courtrooms and other facilities

317.            Clause 81 provides that the Chief Justice would be able to make arrangements with another Australian court for the FCFC (Division 1) to sit in rooms of the other court and to share registry facilities and other facilities with the other court.

318.            This clause replicates section 92 of the Federal Circuit Court Act. It has been included in this chapter for consistency with the equivalent FCFC (Division 2) provision.

Clause 82 - Advisory committees

319.            Clause 82 enables the FCFC (Division 1) or the Chief Justice to appoint an advisory committee, consisting of Judges, or of Judges and other persons, for a number of purposes. The clause is based on section 93 of the Federal Circuit Court Act.

320.            Subclause 82(1) provides that the FCFC (Division 1) would be able to appoint committees to advise the FCFC (Division 1) on the exercise of powers of the Court under Chapter 3 of this Bill.

321.            Subclause 82(2) provides that the Chief Justice would be able to appoint committees to advise the Chief Justice on the making of the Rules of Court, or on managing the administrative affairs of the FCFC (Division 1).

322.            The use of committees provides an opportunity for the Court to share the management tasks among the Judges and other persons and gives an opportunity for participation in making the Rules of Court and the administrative affairs of the Court. 

Division 2 - Chief Executive Officer

Subdivision A - Functions and powers

Clause 83 - Chief Executive Officer

323.            Clause 83 creates the position of Chief Executive Officer and Principal Registrar of the FCFC (Division 1). In effect, the Chief Executive Officer of the FCFC (Division 1) will be the Chief Executive Officer for the FCFC, as he or she also has a role in assisting the Chief Judge in managing the administrative affairs of the FCFC (Division 2). It is appropriate for the FCFC to have its own Chief Executive Officer to support the Chief Justice of the FCFC (Division 1) and Chief Judge of the FCFC (Division 2) in managing the administrative affairs of their respective courts.

Clause 84 - Function of Chief Executive Officer

324.             Clause 84 provides that the FCFC CEO’s function is to assist the Chief Justice in managing the administrative affairs of the FCFC (Division 1).  

325.            The note under clause 84 directs the reader to clause 250 with regards to the FCFC (Division 2). This is because the FCFC CEO also has the function of assisting the Chief Judge in managing the administrative affairs of the FCFC (Division 2).

Clause 85 - Powers of Chief Executive Officer

326.            Clause 85 provides for the powers of the FCFC CEO. It replicates section 38D of the Family Law Act.

327.            Subclause 85(1) provides that the FCFC CEO would have the power to do all things necessary or convenient for the purposes of assisting the Chief Justice in managing the administrative affairs of the FCFC (Division 1) (see clause 84).

328.            Subclause 85(2) provides that the FCFC CEO would be able to act on behalf of the Chief Justice in relation to the administrative affairs of the FCFC (Division 1).

329.            Subclause 85(3) provides that the Chief Justice may give the FCFC CEO directions regarding the exercise of the CEO’s powers under Chapter 3 or Chapter 5, to the extent that the provisions of Chapter 5 apply to the FCFC (Division 1).

330.            The note under subclause 85(3) directs the reader to clause 217 with regards to the FCFC (Division 2). This is because the FCFC CEO is also to assist the Chief Judge in managing the administrative affairs of the FCFC (Division 2), and clause 251 sets out the powers of the FCFC CEO in doing so.  

Subdivision B - Terms and conditions of appointment

Clause 86 - Appointment

331.            Clause 86 provides for the appointment of the FCFC CEO. The FCFC CEO will be appointed, on a full-time basis, by the Governor-General by written instrument on the nomination of the Chief Justice. Clause 86 is similar to subsection 18C(2) of the Federal Court Act.

332.            The note under clause 86 provides that the FCFC CEO may be reappointed once their appointment term ends.

Clause 87 - Term of appointment

333.            Clause 87 provides that the FCFC CEO will hold office for the period specified in the instrument of appointment. The FCFC CEO cannot be appointed for more than five years, but may be reappointed once their term ends. This is consistent with the term of appointment of the Chief Executive Officer of the Federal Court, as provided in subsection 18F(1) of the Federal Court Act.

334.            Limitations on appointments are common in similar legislation to ensure that there is appropriate retention of personnel and that the independence of the position is maintained.

Clause 88 - Remuneration and allowances

335.            Subclause 88(1) provides that the FCFC CEO’s pay is to be determined by the Remuneration Tribunal. Where no relevant Tribunal determination is in effect, the FCFC CEO is to be paid an amount prescribed by regulations. Subclause 88(1) is similar to subsections 18E(1) and 18E(2) of the Federal Court Act.

336.            Subclause 88(2) provides that the FCFC CEO is also entitled to allowances prescribed by the regulations. This is based on subsection 18E(3) of the Federal Court Act.

337.            Subclause 88(3) provides that clause 88 has effect subject to the Remuneration Tribunal Act 1973.

338.            It is standard practice for remuneration of certain Commonwealth officers to be determined by the Remuneration Tribunal. It is the Tribunal’s role to determine, report on or provide advice about remuneration, including allowances and entitlements.

Clause 89 - Leave of absence

339.            Clause 89 relates to the FCFC CEO’s entitlements to recreational leave and other leaves of absence, and is the same as section 18G of the Federal Court Act.

340.            Subclause 89(1) provides that the FCFC CEO’s recreational leave entitlements are to be determined by the Remuneration Tribunal.

341.            Subclause 89(2) provides that the Chief Justice may grant the FCFC CEO a leave of absence other than recreational leave. The Chief Justice is to determine, with Minister’s approval, the terms and conditions of the leave of absence, including remuneration.

Clause 90 - Outside employment

342.            Clause 90 precludes the FCFC CEO from engaging in other paid employment (except in the Defence Force) without approval, and is based on section 18J of the Federal Court Act.  This is to manage any conflicts of interest that may arise in relation to the outside interests and the FCFC CEO’s functions.

343.            Where the FCFC CEO engages in paid employment without the approval of the Chief Justice’s approval, the Governor-General must terminate the FCFC CEO’s appointment in accordance with paragraph 94(2)(c) of the Bill.

344.            Subclause 90(1) provides that the FCFC CEO cannot engage in paid employment outside his or her role as Chief Executive Officer, without consent of the Chief Justice.

345.            Subclause 90(2) provides that service in the Australian Defence Force does not constitute paid employment for the purposes of subclause 90(1). 

Clause 91 - Disclosure of interests

346.            Subclauses 91(1) and (2) require the FCFC CEO to give written notice to the Chief Justice of:

·          all direct or indirect pecuniary interests that the Chief Executive Officer has or acquires in any business or body corporate carrying on a business; and

·          all material personal interests that the Chief Executive Officer has regarding the affairs of the FCFC (Division 1).

347.            Subclauses 91(1) and 91(2) are based on subsections 18L(1) and 18L(2) of the Federal Court Act.

348.            Subclause 92(3) provides that as well as subclauses 91(1) and 91(2), section 29 of the Public Governance, Performance and Accountability Act 2013, which imposes a duty on an official of a Commonwealth entity to disclose any material personal interest relating to the affairs of the entity, applies to the FCFC CEO.

Clause 92 - Other terms and conditions

349.            Clause 92 enables the Chief Justice to determine, in writing, other terms and conditions for the FCFC CEO that are not otherwise covered by the Bill. Clause 92 is similar to subsection 18F(4) of the Federal Court Act. These terms may, for example, specify the availability of secretariat and support staff.

Clause 93 - Resignation

350.            Clause 93 relates to resignation by the FCFC CEO.

351.            Subclause 93(1) provides that the FCFC CEO can resign by giving a signed notice of resignation to the Governor-General.

352.            Subclause 93(2) provides that a resignation by the FCFC CEO would take effect on the day the notice of resignation is given to the Governor-General, or a later day if specified in the notice.

Clause 94 - Termination of appointment

353.            Clause 94 provides the grounds on which the Governor-General may terminate the appointment of the FCFC CEO, and is similar to section 18K of the Federal Court Act. This clause is a standard termination provision for full-time statutory office holders. It is crucial that the Governor-General is able to terminate the appointment of a FCFC CEO who is not, or cannot, properly perform his or her duties.

354.            Subclauses 94(1) provides that the Governor-General has discretion to terminate the FCFC CEO’s appointment for misbehaviour or physical or mental incapacity.

355.            Subclause 94(2) outlines circumstances in which the Governor-General is required to terminate the FCFC CEO’s appointment. These are where the Chief Executive Officer:

·          becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors, or makes an assignment of remuneration for their benefit;

·          is absent from duty, except on leave of absence, for 14 consecutive days or 28 days in one year;

·          engages in paid employment without the Chief Justice’s approval in accordance with clause 90;

·          fails, without reasonable excuse, to disclose direct or indirect pecuniary interests and all material personal interests, in breach of clause 91;

·          fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2019 or the rules made for section 29.

356.            Subclause 94(3) provides that the Governor-General, with the FCFC CEO’s consent, and if the Chief Executive Officer is an eligible employee for the purposes of the Superannuation Act 1976, a member of the superannuation scheme established under the Superannuation Act 1990, or an ordinary employer-sponsored member of a PSSAP, retire the Chief Executive Officer on the ground of incapacity.

357.            Subclause 94(4) provides that where the FCFC CEO is an eligible employee under the Superannuation Act 1976 and has not reached his or her maximum retiring age under that Act, he or she cannot be retired from office on the ground of invalidity unless the CSC has given a certificate for the purposes of section 54C of that Act. Section 54C of the Superannuation Act 1976 provides that an eligible employee is not to be retired on the ground of invalidity unless CSC certifies that he or she will be entitled to receive invalidity benefits.

358.            Subclause 94(5) provides that where the FCFC CEO is a member of the superannuation scheme established under the Superannuation Act 1990 and is under 60 years old, he or she cannot be retired from office on the ground of invalidity unless the CSC has given a certificate for the purposes of section 13 of that Act. Section 13 of the Superannuation Act 1990 provides that a member who is under 60 years old is not to be retired on the ground of invalidity unless CSC certifies that he or she will be entitled to receive invalidity benefits.

359.            Subclause 94(6) provides that where the FCFC CEO is an ordinary employer-sponsored member of PSSAP within the meaning of the Superannuation Act 2005 and is under 60 years old, he or she cannot be retired from office on the ground of invalidity unless the CSC has given an approval and certificate for the purposes of section 43 of that Act. Section 43 of the Superannuation Act 2005 provides that a member who is under 60 years old is not to be retired on the ground of invalidity unless CSC approves and certifies that he or she will be entitled to receive invalidity benefits under PSSAP.

Clause 95 - Acting Chief Executive Officer

360.            Clause 95 will enable the Chief Justice to appoint, by written instrument, a person to act as the Chief Executive Officer during a vacancy in the office of the FCFC CEO  (whether or not an appointment has also enable a person to be appointed to act as the Chief Executive Officer during any, or all periods when the Chief Executive Officer is:

·         absent from duty;

·         absent from Australia; or

·         is unable, for any reason, to perform the duties of the office.

361.            A note following clause 95 refers the reader to sections 33AB and 33A of the Acts Interpretation Act 1901 in relation to rules that apply to acting appointments.

362.            Clause 95 is similar to section 18M of the Federal Court Act.

Division 3 - Registries and registrars

Clause 96 - Registries

363.            Clause 96 provides that the Minister must ensure that Registries of the FCFC (Division 1) are established as the Minister sees fit. This clause mirrors section 98 of the Federal Circuit Court Act. It is expected that the Minister would establish such registries as are required according to workload and regional needs.

Clause 97 - Senior Registrars and Registrars

364.            Clause 65 provides that the FCFC (Division 1) is to have Senior Registrars and Registrars. This reflects current local operational titles.

Clause 98 - Delegation

365.            Subclause 98(1) provides that the Chief Justice may make Rules of Court delegating any of the powers of the FCFC (Division 1) to a delegate or prescribed class of delegate.

366.            Subclause 98(2) provides a non-exhaustive list of powers that may be delegated by the Rules of Court. Subclause 98(2) includes the following powers:

·          the power to require a party’s lawyer, under subclause 68(3), to give the party an estimate of the duration of a proceeding and the likely costs

·          the power to give directions, under subclause 69(1), about the practice and procedure to be followed in relation to a proceeding

·          the power to make such order or direction as is appropriate under subclause 69(3) when a party fails to comply with a direction

·          the power to dispense with the service of any process of the Court

·          the power to make orders in relation to substituted service

·          the power to make orders in relation to discovery, inspection and production of documents in the possession, power or custody of a party to proceedings or of any other person

·          the power to make orders regarding interrogatories

·          the power to make an order adjourning the hearing of proceedings in the FCFC (Division 1)

367.            Subclause 98(3) provides a list of powers that the Rules of Court may not delegate. These are:

·          the power to make a divorce order in proceedings that are defended

·          the power to make a decree of nullity of marriage

·          the power to make a declaration as to the validity of a marriage, divorce, or annulment of marriage

·          the power to make an excluded child order, and

·          the power to make an order setting aside a registered award under section 13K of the Family Law Act

368.            Subclause 98(4) provides that a power delegated by the Rules of Court, when exercised by a delegate, is taken to have been exercised by the FCFC (Division 1) or a Judge of the FCFC (Division 1). This ensures the delegate has the same protection and immunity as a Judge of the Court has in performing the functions of a Judge. 

369.            Subclause 98(5) provides that the delegation of a power by the Rules of Court would not prevent the exercise of that power by the FCFC (Division 1) or a Judge.

370.            Subclause 98(6) provides that, despite the Rules of Court, if the power to make an order as to costs (see paragraph 98(2)(i)) is delegated by the Rules of Court, a delegate must not exercise it except in relation to costs of, or in connection with, an application heard by the delegate.

371.            Subclause 98(7) provides that a delegate must not exercise the power (referred to in paragraph 98(2)(p)) to make an order under section 66Q, 67E, 77 or 90SG of the Family Law Act or an order for the payment of maintenance pending the disposal of proceedings on application by a party to proceedings under the Family Law Act. That is, unless (a) the other party to the proceedings appears at the hearing of the application, or (b) the delegate is satisfied that notice of the intention of the party making the application has been served on the other party.

372.            Subclause 98(8) provides that the Rules of Court may limit or specify the circumstances in which the power delegated by the Rules of Court may be exercised by a delegate.

373.            Subclause 98(9) would ensure that provisions that relate to the exercise by the FCFC (Division 1) of a power would apply in relation to the exercise of that power by a delegate that is exercisable by the delegate because of the Rules of Court.

Clause 99 - Independence of delegates

374.            Clause 99 provides that, despite any other provision of this Chapter and any provision of the Public Service Act or of any other law, a delegate is not subject to the direction or control of any person or body in relation to the way in which the delegate exercises powers under a delegation under clause 98. This clause is drawn from subsection 37A(8) and section 37B of the Family Law Act.

Clause 100 - Review of power exercised by delegate

375.            Subclause 100(1) provides that a party to proceedings in which a delegate has exercised any powers of the FCFC (Division 1) under a delegation under clause 98 would be able to apply to the Court for review of that exercise of power. A timeframe for making such an application may be specified in the Rules of Court.

376.            Subclause 100(2) provides that the FCFC (Division 1) would be able to, of its own initiative or on application under subclause 100(1), review the exercise of power by a delegate under a delegation under clause 98. The FCFC (Division 1) would be able to make any order(s) it thinks fit in relation to the matter.

377.            Subclause 100(3) provides that if, during the course of exercising a power referred to under a delegation under clause 98, a delegate considers that it is not appropriate for the application to be determined by a delegate acting under clause 98, the delegate must not hear (or continue to hear) the application, and must make appropriate arrangements for it to be heard by a Judge.

378.            This clause is drawn from subsections 37A(9), 37A(10) and 37A(11) of the Family Law Act.

 

 

Clause 101 - Protection for Registrars  

379.            Clause 101 ensures immunity of the FCFC CEO, a Senior Registrar or a Registrar of the FCFC (Division 1) in conducting conferences with parties to a property settlement proceeding and in exercising a power of the FCFC (Division 1) referred to in clause 98. The clause would confer the same protection and immunity that a Judge of the Court has in performing the functions of a Judge.

380.            For avoidance of doubt, subclause 101(2) provides that the clause is not intended to limit any other immunity or protection enjoyed by the Chief Executive Officer, Senior Registrar or Registrar of the FCFC (Division 1).

Clause 102 - Oath or affirmation of office

381.            Clause 102 provides for an oath or affirmation of office for Senior Registrars and Registrars.

382.            Subclause 102(1) provides that a Senior Registrar or Registrar must take an oath or affirmation before discharging the duties of office.

383.            Subclause 102(2) provides that the oath or affirmation must be taken before the Chief Justice or another Judge of the FCFC (Division 1).

384.            Subclause 102(3) sets out the form of the oath.

385.            Subclause 102(4) sets out the form of the affirmation.

Division 4 - Other officers and staff

Clause 103 - Officers of the FCFC (Division 1)

386.            Clause 103 provides that, in addition to the Chief Executive Officer, there are to be the following officers of the of the FCFC (Division 1):

·          the Senior Registrars and Registrars

·          such Registry Managers as are necessary

·          the Marshal

·          such Deputy Marshals as are necessary, and

·          such family consultants as are necessary.

387.            Subclause 103(2) provides that the officers of the Court, other than the Chief Executive Officer, have such duties, powers and functions as given to them by or under Chapter 3 or Chapter 5 of this Bill, the Family Law Act, the Rules of Court, or by the Chief Justice or the Court.

388.            Subclause 103(3) provides that officers of the FCFC (Division 1), other than the Chief Executive Officer and the Deputy Marshals, are to be engaged under the Public Service Act.

389.            Subclause 103(4) provides that the Deputy Marshals may be engaged under the Public Service Act.

390.            Subclause 103(5) provides that the Chief Executive Officer, on behalf of the Chief Justice, would be able to arrange with an agency head, or with an authority of the Commonwealth, for the services of offices or employees of the agency or authority to be made available for the purposes of the administrative affairs of the FCFC (Division 1).

391.            Subclause 103(6) provides that there are to be such staff of the Registries as are necessary.

392.            Subclause 103(7) provides that the staff of the Registries are to consist of persons engaged under the Public Service Act.

393.            This clause mirrors section 38N of the Family Law Act and is largely consistent with section 18N of the Federal Court Act, ensuring consistency across the federal courts.  

Clause 104 - Marshal

394.            Clause 104 is modelled on section 38P of the Family Law Act.

395.            Subclause 104(1) provides that the Marshal of the FCFC (Division 1) would be responsible for the service and execution of all process of the Court directed to the Marshal.

396.            Subclause 104(2) provides that the Marshal would also be responsible for:

·          dealing with the Australian Federal Police and the police forces of the States and Territories in relation to the service and execution of process of the Court

·          the security of the FCFC (Division 1)

·          the personal security of Judges, officers and staff of the Court

·          detaining all persons committed to the Marshal’s custody by the FCFC (Division 1), and

·          discharging persons when directed by the FCFC (Division 1) or when required by law.

397.            Subclause 104(3) provides that a Deputy Marshal would be able to perform any of the powers and functions of the Marshal, subject to any directions of the Marshal.

398.            Subclauses 104(4) and (5) provide that the Marshal and the Deputy Marshal would be able to authorise persons to assist in exercising powers or performing functions in their respective roles.

399.            Subclauses 104(4) and (5), which allow the Marshal and Deputy Marshal of the FCFC (Division 1) to authorise any person to assist in exercising powers or performing functions, is consistent with subsection 38P(4) of the Family Law Act, subsection 18P(4) of the Federal Court of Australia Act, and section 111 of the Federal Circuit Court Act. Those persons currently authorised to provide assistance are State and Territory Sheriff’s officers. These officers execute the Courts’ orders in relation to civil enforcement matters. As such, they execute civil enforcement warrants to seize and sell property or take vacant possession of property in strict accordance with the order issued by the respective Court. State and Territory Sheriff’s officers perform the same duties in relation to enforcement orders issued by State and Territory Courts, are trained in accordance with State and Territory requirements and are generally uniformed and carry photo identity cards. Where violence is anticipated, authorised officers seek assistance of local police and do not arrest people in connection with this type of process.

400.            As stated, this retains the existing approach provided for legislation, and it continues to be essential that there is provision for such authorisation. State and Territory Sheriff’s officers assist the federal courts, which do not have personnel with the necessary training and powers to undertake such duties.  The persons authorised under this Bill would continue to be limited to State and Territory Sheriff’s officers.

Clause 105 - Delegation by Registry Managers

401.            Clause 105 provides that a Registry Manager of the FCFC (Division 1) may delegate all or any of their functions or powers under the Family Law Act to a person considered by the Registry Manager to be an appropriate officer or staff member of the Court. In performing a delegated function, subclause 105(2) provides that the person must comply with any written directions of the relevant Registry Manager.

402.            This provision will enable greater efficiency and accountability in the performance of the functions of the Registry Manager, including but not limited to, providing notifications to a prescribed child welfare authority pursuant to section 67Z of the Family Law Act.

Division 5 - Miscellaneous administrative matters

Clause 106 - Procedural information to be given to unrepresented parties

403.            Clause 106 provides that the Chief Executive Officer would be able to give directions and issue guidelines in relation to procedural information for staff of the FCFC (Division 1) to give to parties to enable them to formulate and present their cases. This clause replicates section 116 of the Federal Circuit Court Act. It has been included in this chapter for consistency with the equivalent FCFC (Division 2) provision.

404.            Procedural information is information about the processes involved in the Court and information about the progress of the matter before the FCFC (Division 1).  FCFC (Division 1) staff will not provide legal advice to parties.

Clause 107 - Annual report

405.            Clause 107 sets out the mechanism for ensuring that the administration and finances of the FCFC (Division 1) are accountable to the Minister and Parliament. It replicates section 38S of the Family Law Act.

406.            Subclause 107(1) provides that the Chief Justice must prepare a report, as soon as practicable after 30 June each financial year, on the management of the administrative affairs of the FCFC (Division 1) during the financial year.

407.            Subclause 107(2) provides that the report, prepared after 30 June in a year, must be given to the Minister by 15 October of that year.

408.            Subclause 107(2) provides that the Minister must cause a copy of the report to be tabled in Parliament.

409.            Subclause 107(4) provides that a report prepared under clause 107 may be included in a report prepared and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 in relation to the listed entity referred to in section 18ZB of the Federal Court Act .  

Clause 108 - Delegation of administrative powers of Chief Justice

410.            Clause 108 provides that the Chief Judge may delegate any or all of his or her powers under clause 78 to any one or more of the Judges of the FCFC (Division 1). The delegation must be in writing. This replicates section 38W of the Family Law Act, and is also consistent with section 18W of the Federal Court of Australia Act.

Clause 109 - Proceedings arising out of administration of the Federal Circuit and Family Court of Australia (Division 1)

411.            Clause 109 provides that any judicial or other proceeding relating to a matter arising out of the management of the administrative affairs of the FCFC (Division 1) under this Part, including in relation to actions of the Chief Executive Officer, may be instituted by or against the Commonwealth. This replicates section 38X of the Family Law Act, and is also consistent with section 18X of the Federal Court of Australia Act.

Clause 110 - Protection of persons involved in handling etc. complaints

412.            Clause 110 affords certain protections to persons involved in considering or handling complaints about Judges. The protections are in addition to existing protections and immunities of the Chief Justice and Deputy Chief Justice. Clause 78 replicates section 38Y of the Family Law Act, and is also consistent with section 18XA of the Federal Court of Australia Act.

413.            Subclause 110(1) provides that, in exercising powers in this Bill under paragraph 47(2)(d) (which provides for the Chief Justice to make arrangements about which Judges will sit on particular courts, classes of cases, or functions; or to temporarily restrict a Judge to non-sitting duties ) and paragraph 48(1) (which provides for the Chief Justice to decide if and how to handle complaints, including for other complaint handlers to do so), a complaint handler would have the same protection and immunity as a Justice of the High Court.      

414.            Subclause 110(2) provides that the Chief Justice, in authorising a person or body to assist the Chief Judge in handling a complaint, would have the same protection and immunity as a Justice of the High Court.

415.            Subclause 110(3) provides that a witness appearing before a complaint handler handling a complaint would be subject to the same liabilities in a proceeding as a witness in a case before the High Court.

416.             Subclause 110(4) provides that a lawyer assisting (or appearing on behalf of a person before) a complaint handler handling a complaint would have the same protection and immunity as a barrister would have in appearing for a party in High Court proceedings.



CHAPTER 4 - FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

PART 1 - CONSTITUTION

Division 1 - Constitution

Clause 111 - Appointment of Judges

417.            Clause 111 provides for the appointment of Judges to the FCFC (Division 2).

418.            Subclause 111(1) provides that a Judge is to be appointed by the Governor-General by commission.

419.            Paragraph 111(2)(a) provides that a person is not to be appointed as a Judge unless the person has been enrolled as a legal practitioner of the High Court or the Supreme Court of a State or Territory for at least 5 years. This criterion is provided to ensure that a person has the appropriate duration of experience in the legal profession to be appointed as Judge of the FCFC (Division 2).

420.            In addition, paragraph 111(2)(b) provides that a person must not be appointed as a Judge unless the person is a suitable person, by reason of knowledge, skills, experience and aptitude, to deal with the kinds of matters that may be expected to come before the person as a Judge of the FCFC (Division 2). This is to ensure that not only does a person need to have the necessary duration of experience as outlined in paragraph 111(2)(a), but also the appropriate types of knowledge, skills, experience and aptitude to hear matters that would be expected to come before them if they were appointed as a Judge to the Court.

421.            Paragraph 111(2)(b) is drafted in broad terms in recognition that, unlike the FCFC (Division 1), the FCFC (Division 2) will have jurisdiction over general federal law and fair work matters in addition to family law matters. Paragraph 111(2)(b) would enable a person suitable to exercise that general federal law or fair work jurisdiction to be appointed  as Judge of the FCFC (Division 2). At the same time, paragraph 111(2)(b), in conjunction with subclause 111(3), will ensure that a person being appointed as a Judge expected to hear family law matters, including matters involving family violence, has the requisite qualifications to have been appointed as a Judge of the FCFC (Division 2).

422.            Subclause 111(3) provides that, for the avoidance of doubt, for the purposes of paragraph 111(2)(b), if family law matters are expected to come before the person as a Judge of the FCFC (Division 2), that person must be suitable to deal with family law matters, including matters involving family violence, by reason of their knowledge, skills, experience and aptitude. This aligns the appointment qualifications of FCFC (Division 2) Judges expected to hear family law matters with those of the FCFC (Division 1).

423.            Subclause 111(4) provides that a person must not be appointed as a Judge if the person has attained the age of 70 years. This aligns with section 72 of the Constitution, which provides that the maximum age of Justices of a court created by Parliament is 70 years.

424.            Subclause 111(5) provides that the term of appointment of a Judge will expire upon the Judge attaining the age of 70 years. Note 1 to this subclause describes how section 72 of the Constitution sets out requirements relating to the appointment and tenure of Judges. Note 2 would direct the reader to Division 2 of this Part which deals with terms and conditions of appointment.

Clause 112 - Assignment of Judges to Divisions

425.            Clause 112 provides that the Governor-General may assign Judges to Divisions. In accordance with clause 135, the FCFC (Division 2) would comprise two Divisions: the General Division (which would hear family law matters) and the Fair Work Division. The General Division and the Fair Work Division are existing divisions within the Federal Circuit Court.

426.            Subclause 112(a) provides that the Governor-General may assign a Judge (other than the Chief Judge and a Deputy Chief Judge) to one of the Divisions of the FCFC (Division 2) in the commission of appointment of the Judge, or at a later time with the consent of the Judge.

427.            Subclause 112(b) provides that the Governor-General may vary any such assignment with the consent of the Judge.

428.            The note under subclause 112(b) provides that a Judge (including the Chief Judge and a Deputy Chief Judge) who is not assigned to a specific Division of the FCFC (Division 2) may exercise the powers of the Court in any Division, and directs the reader to subclause 146(3), which provides as such.

Clause 113 - Authorised Judges may manage classes of proceedings

429.            Subclause 113(1) provides that the Chief Judge may, by written instrument, authorise a Judge to manage a class or classes of proceedings as specified in the instrument or by the Rules of Court.  Such instrument would not be a legislative instrument by virtue of the operation of paragraph (c) of item 8 in the table in section 6 of the Legislation (Exemptions and Other Matters) Regulations 2015. The purpose of this clause is to enable more specialist management of particular classes of proceedings.

430.            Subclause 113(2) provides that, in managing a class or classes of proceedings, a Judge is subject to any direction from the Chief Judge.

431.            Subclause 113(3) provides that the authorisation of a Judge does not affect the rank, title, status and precedence that the Judge would otherwise have.

432.            Subclause 113(4) provides that, if the Chief Judge gives a direction under subclause 81(2) in writing, that direction is not a legislative instrument.  This subclause is to assist readers, as the direction would not be a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003 .

Clause 114 - Style

433.            Clause 114 describes the formal title of the Chief Judge, Deputy Chief Judge and other Judges of the FCFC (Division 2). This clause is modelled on Schedule 1, clause 2 of the Federal Circuit Court Act.

434.            Subclause 114(1) provides that the Chief Judge is to be styled “His Honour Chief Judge (name) of the Federal Circuit and Family Court of Australia (Division 2)” or “Her Honour Chief Judge (name) of the Federal Circuit and Family Court of Australia (Division 2)”.

435.            Subclause 114(2) provides that the Deputy Chief Judge (Family Law) is to be styled “His Honour Deputy Chief Judge (Family Law) (name) of the Federal Circuit and Family Court of Australia (Division 2)” or “Her Honour Deputy Chief Judge (Family Law) (name) of the Federal Circuit and Family Court of Australia (Division 2)”.

436.            Subclause 114(3) provides that the Deputy Chief Judge (General and Fair Work) is to be styled “His Honour Deputy Chief Judge (General and Fair Work) (name) of the Federal Circuit and Family Court of Australia (Division 2)” or “Her Honour Deputy Chief Judge (General and Fair Work) (name) of the Federal Circuit and Family Court of Australia (Division 2)”.

437.            Subclause 114(4) provides that a Judge of the FCFC (Division 2) (other than the Chief Judge and a Deputy Chief Judge) is to be styled “His Honour Judge (name) ” or “Her Honour Judge (name) ”.

Clause 115 - Oath or affirmation of office

438.            Clause 115 provides that a Judge of the FCFC (Division 2) must take an oath or affirmation prior to discharging the duties of office.

439.            In accordance with subclause 115(1), a Judge must take an oath or affirmation in accordance with the form set out in whichever of subclauses 115(3) or (4) is applicable.

440.            Subclause 115(2) provides that the oath or affirmation must be taken before the Governor-General, or a Justice of the High Court, or a Judge of the Federal Court, or a Judge of the FCFC (Division 1), or another Judge of the FCFC (Division 2).

441.            Subclause 115(3) provides the form of the oath for the purposes of subclause 115(1).

442.            Subclause 115(4) provides the form of the affirmation for the purposes of subclause 115(1).

Division 2 - Terms and conditions of serving Judges

Clause 116 - Remuneration

443.            Clause 116 provides for the remuneration of a Judge. It would replicate Schedule 1, clause 5 of the Federal Circuit Court Act.

444.            Subclause 116(1) provides that a Judge of the FCFC (Division 2) is to be paid such remuneration as determined by the Remuneration Tribunal.

445.            Subclause 116(2) provides that subclause 84(1) would have effect subject to the Remuneration Tribunal Act 1973 .

446.            Subclause 116(3) provides that ‘remuneration’ would have the same meaning as in Part II of the Remuneration Tribunal Act 1973 . Note 1 clarifies that a Judge’s remuneration may not be diminished during the Judge’s continuance in office. Note 2 describes how subsection 3(2) of the Remuneration Tribunal Act 1973 provides that a reference in Part II of the Act is to be read as a reference to annual allowance. Note 3 describes how, under subsection 7(4) of the Remuneration Tribunal Act 1973 , the Remuneration Tribunal may determine any matter significantly related to the remuneration of Judges.

Clause 117 - Leave

447.            Clause 117 provides that a Judge would have the recreation leave entitlements that are determined by the Remuneration Tribunal. This clause replicates Schedule 1, clause 6 of the Federal Circuit Court Act. Other leave entitlements will be on such terms and conditions as the Governor-General determines (see clause 119).

Clause 118 - Outside work

448.            Clause 118 provides that a Judge must not engage in remunerated work which is incompatible with the holding of judicial office. This clause replicates Schedule 1, clause 4 of the Federal Circuit Court Act.

449.            Subclause 118(1) provides that a Judge must not engage in paid work outside the duties of the Judge’s office if that work is incompatible with the holding of a judicial office under Chapter III of the Constitution.

450.            Subclause 118(2) provides that a Judge must not engage in work as a legal practitioner or engage in work as an employee of, or consultant to, a legal practice.

451.            Subclause 118(3) provides that this clause does not, by implication, limit the application to a Judge of any doctrine of constitutional incompatibility. For example, in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 138 ALR 220, the High Court held that there were certain functions that could not be conferred on a federal judicial officer.  This would be the case if the function were incompatible with the judicial officer’s performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power.

452.            Subclause 118(4) provides that paid work means work for financial gain or reward (whether as an employee, a self-employed person or otherwise).

Clause 119 - Other terms and conditions

453.            Clause 119 provides for the Governor-General to determine other terms and conditions not specified in the Bill upon which a Judge of the FCFC (Division 2) holds office. This clause replicates Schedule 1, clause 8 of the Federal Circuit Court Act.

454.            Subclause 119(1) provides that the Governor-General may make a written determination specifying terms and conditions in relation to matters not covered by the Bill.

455.            Subclause 119(2) provides that the Minister must cause a copy of a determination made under subclause 119(1) to be tabled in each House of the Parliament.

456.            Subclause 119(3) provides that either House of the Parliament may, following a motion upon notice, pass a resolution disallowing the determination. The resolution must be passed within 15 sitting days of the House after the determination is tabled in the House.

457.            Subclause 119(4) provides that if no resolution disallowing the determination is passed in either House of the Parliament, the determination would take effect immediately after the last day upon which such a resolution could have been passed.

Clause 120 - Resignation from office

458.            Clause 120 provides that a Judge of the FCFC (Division 2) may resign from office. It replicates Schedule 1, clause 7 of the Federal Circuit Court Act.

459.            Subclause 120(1) provides that a Judge may resign office by delivering a written resignation to the Governor-General. Subclause 120(2) provides that the resignation would take effect on the day it is received by the Governor-General, or on a later day as specified in the resignation.

Clause 121 - Removal from office

460.            Clause 121 provides for the way in which a Judge of the FCFC (Division 2) may be removed from office. It replicates Schedule 1, clause 9 of the Federal Circuit Court Act.

461.            Clause 121 reflects section 72(ii) of the Constitution which provides that Justices ‘shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity’.

Division 3 - Disability and death benefits

Clause 122 - Certification of retired disabled Judges

462.            Clause 12 provides that the Minister may be requested to certify that a Judge of the FCFC (Division 2) who retires before attaining age 70 is a retired disabled Judge. This replicates Schedule 1, clause 9A of the Federal Circuit Court Act.

463.            Subclause 122(2) provides that the Minister can only certify that a Judge is a retired disabled Judge following a request to do so and if the Minister is satisfied that the retirement was due to permanent disability or infirmity. Otherwise, the Minister must refuse to so certify. Where a retired disabled Judge was incapacitated to the extent that he or she was unable to make such a request, the request could be made by another person.

464.            Subclause 122(3) provides that applications could be made to the Administrative Appeals Tribunal for review of a decision by the Minister to refuse to certify that a person is a retired disabled Judge.

Clause 123 - Pensions for retired disabled Judges

465.            Clause 123 provides that a retired disabled Judge of the FCFC (Division 2) is entitled to a pension until that Judge attains 70 years of age or dies, whichever happens first. This clause replicates Schedule 1, clause 9B of the Federal Circuit Court Act.

466.            Subclause 123(2) provides that the pension is 60 per cent of the salary the Judge would have received if the Judge had not retired.

467.            Subclause 123(3) provides that the rate of the pension must be 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, or prior judicial service and any other service.

468.            Subclause 123(4) provides that the salary on which the pension is based is defined to be the annual rate of remuneration (ie. 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. This ensures any such allowances are not pensionable.

469.            Subclause 123(5) provides that the pension is due daily but is payable on the days on which salary payments are made to Judges.

470.            Subclause 123(6) deems a pension payable to a retired disabled Judge to be a pension payable to the Judge 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.

Clause 124 - Superannuation for retired disabled Judges

471.            Clause 124 provides that a retired disabled Judge of the FCFC (Division 2) would also be entitled to Commonwealth superannuation contributions until the Judge attains the age of 65 years or dies, whichever happens first. This clause replicates Schedule 1, clause 9C of the Federal Circuit Court Act.

472.            Subclause 124(2) provides that the contributions would be payable as if the Judge had not retired.

473.            Subclause 124(3) provides that the contribution is to be made by payments on the days on which salary payments are made to Judges.

Clause 125 - Death benefits

474.            Clause 125 provides for death benefits in respect of a Judge, or a retired disabled Judge, of the FCFC (Division 2) who dies before attaining the age of 65 years where the Judge leaves one or more eligible spouses or eligible children. This clause replicates Schedule 1, clause 9D of the Federal Circuit Court Act.

475.            Subclauses 125(2) and (3) provide that the amount of death benefit payable is equivalent to the amount of Commonwealth superannuation the Judge would have been entitled to for the period up to the age of 65 years if the Judge had neither died nor retired before attaining that age, calculated from the day the Judge died and on the basis of the amount of superannuation contributions payable for the Judge as at that date.

476.            Subclause 125(4) defines the beneficiaries in respect of the payment as being each eligible spouse and eligible child the Judge leaves. Payments to eligible children are further addressed in subclauses 125(7) to (9).

477.            Subclause 125(5) provides that if there is only one beneficiary, the payment is payable to the beneficiary.

478.            Subclause 125(6) provides that if there is more than one beneficiary, the payment is payable to the beneficiaries in proportions considered appropriate by the Minister. When considering proportions, the Minister must have regard to the respective circumstances of each beneficiary.

479.            Subclause 125(7) provides that, where a payment is payable to an eligible child, the Minister may 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. The direction under subclause 125(7) must be in writing.

480.            Subclause 125(8) provides that a request may be made to the Minister to give a direction under subclause 125(7) in respect of an eligible child. Subclause 125(9) provides that, on receiving an application, the Minister must only give such a direction if the Minister is satisfied that the Minister should make a direction in respect of the child. If the Minister is not so satisfied, the Minister must refuse to give such a direction.

481.            Subclause 125(10) provides that applications could be made to the Administrative Appeals Tribunal for review of the following decisions of the Minister:

·          a decision determining the proportions of payment under subclause 125(6)

·          a decision directing that a death benefit payment payable to an eligible child be paid instead to a specified person, or be spent in a specified manner, for the child’s benefit under subclause 125(7), and

·          a decision to refuse to give a direction under paragraph 125(9)(b).

Clause 126 - Relationship definitions

482.            Clause 126 defines certain relationships for the purpose of establishing status as a beneficiary for a death benefit payment. These definitions, and the definition of ‘eligible child’ included in clause 127, are generally consistent with the definitions used in legislation establishing Commonwealth superannuation and pension schemes, including those contained in the Judges’ Pensions Act 1968 . Clause 126 replicates Schedule 1, clause 9E of the Federal Circuit Court Act.

483.            In accordance with subclauses 126(2), (3) and (4), a person is an ‘eligible spouse’ of a Judge of the FCFC (Division 2), or a retired disabled Judge of the FCFC (Division 2), who dies, if any of the following circumstances apply:

·          The person had a marital or couple relationship with the Judge at the time of the Judge’s death.

·          The person had a marital or couple relationship with the retired disabled Judge at the time of the Judge’s death, and that relationship began before (i) the Judge retired or (ii) attained age 60.

·          The person had previously had a marital or couple relationship with the Judge or the retired disabled Judge and did not, at the time of the Judge’s death, have such a relationship with the Judge but was legally married to the Judge, and was, in the Minister’s opinion, wholly or substantially dependent upon the Judge. Where the marital or couple relationship began after the Judge had retired, the relationship has to have begun before the Judge attached age 60.

484.            Subclause 126(5) provides that a person had a ‘marital or couple relationship’ with another person at a particular time if the person had been living with the other person as the other person’s husband, wife, spouse or partner:

·          for a continuous period of at least three years up to that time, or

·          for a continuous period of less than three years up to that time, and the Minister, in having regard to any relevant evidence, is of the opinion that the person ordinarily lived with the other person as the other person’s husband, wife, spouse or partner on a permanent and bona fide domestic basis at that time,

whether or not they are legally married.

485.            Subclause 126(6) provides that a ‘marital or couple relationship’ is taken to have begun at the beginning of the continuous period referred to in subclause 126(5).

486.            Subclause 126(7) provides that relevant evidence for the Minister to have regard to in making a decision about whether a person ordinarily lived with another person as the other person’s husband, wife, spouse or partner on a permanent and bona fide domestic basis at a particular time would include evidence:

·          That the person was wholly or substantially dependent on the other person at the time.

·          That they were legally married to each other at the time.

·          That their relationship was registered under a law of a State or Territory.

·          That they had a child or had adopted a child during their relationship.

·          That they jointly owned a home which was their usual residence.

487.            Subclause 126(8) provides that a person is taken to be ‘living with’ another person if the Minister is satisfied that the person would have been living with that other person except for a period of temporary absence or absence because of special circumstances.

488.            Subclause 126(9) provides that applications could be made to the Administrative Appeals Tribunal for review of a decision by the Minister that:

·          a person was wholly or substantially dependent upon the Judge at the time of the Judge’s death (see subparagraph 126(4)(c))

·          the person ordinarily lived with the other person as the other person’s husband, wife, spouse or partner on a permanent and bona fide domestic basis at that time (see subparagraph 126(5)(b)(ii)), or

·          a person is taken to be living with another person (see subclause 126(8)).

Clause 127 - Meaning of eligible child

489.            Clause 127 defines ‘eligible child’ for the purpose of establishing status as a beneficiary for a death benefit payment. This clause replicates Schedule 1, clause 9F of the Federal Circuit Court Act.

490.            Subclause 127(1) provides that a person is an ‘eligible child’ of a Judge of the FCFC (Division 2), or a retired disabled Judge of the FCFC (Division 2), who dies if the person:

·          is under 16 years of age, or under 25 years of age and is receiving full-time education, and

·          is a child or adopted child of the Judge, or a child of the Judge within the meaning of the Family Law Act, or in the Minister’s opinion was or would have been wholly or substantially dependent on the Judge at the time of the Judge’s death, or in the Minister’s opinion was or would have been wholly or substantially dependent on the Judge.

491.            Paragraph 127(1)(a) will be amended by the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2019 (on 1 January 2020 or the commencement of this Bill, whichever is later) to change the meaning of ‘eligible child’ to a person under 18 years old, or between 18 and 25 years old and receiving full-time education. This will reflect the change to the meaning of ‘eligible child’ in the Judges’ Pension Act 1968 and Federal Circuit Court Act made by the Public Sector Superannuation Legislation Amendment Act 2018, with the relevant amendments commencing on 1 January 2020.

492.            Subclause 127(2) provides that applications could be made to the Administrative Appeals Tribunal for review of a decision by the Minister that the person was or would have been wholly or substantially dependent on the Judge under either subparagraph 127(1)(b)(iii) or subparagraph 127(1)(b)(iv).

Clause 128 - Appropriation

493.            Clause 128 would establish a special appropriation for:

·          Pensions payable to retired disabled Judges of the FCFC (Division 2) under clause 123.

·          Superannuation contributions payable for retired disabled Judges of the FCFC (Division 2) under clause 124.

·          Death benefits payable under clause 125.

494.            The establishment of a special appropriation is necessary as it is not possible to predict when such benefits will need to be paid. Clause 128 replicates Schedule 1, clause 9G of the Federal Circuit Court Act.

Division 4 - Judges of 2 or more courts

Clause 129 - Dual appointments

495.            Clause 129 provides for the possibility of dual appointments of the Chief Judge and Deputy Chief Judge (Family Law). Together with clause 21 of the Bill, clause 129 underpins the Government’s intention of enabling a common case management approach and effective allocation of cases between FCFC (Division 1) and FCFC (Division 2).

496.            By providing scope for the Chief Judge of the FCFC (Division 2) to also occupy the office of the Chief Justice of the FCFC (Division 1), a potential dual appointment of the Chief Judge can ensure that management decisions are, as much as possible, consistent across the FCFC.

497.            Clause 129 would also enable, in conjunction with clauses 76 and 217, a Chief Judge who was also the Chief Justice of FCFC (Division 1), to make Rules of Court that are consistent for both FCFC (Division 1) and FCFC (Division 2).

498.            Subclause 129(1) provides that nothing in the Bill would prevent the Chief Judge of the FCFC (Division 2) from being appointed to, and holding at the same time, the office of Chief Justice of the FCFC (Division 1).

499.            Subclause 129(2) provides that nothing in the Bill would prevent the Deputy Chief Judge (Family Law) of the FCFC (Division 2) from being appointed to, and holding at the same time, the office of Deputy Chief Justice of the FCFC (Division 1).

Division 5 - Acting Chief Judge

Clause 130 - Acting Chief Judge

500.            Clause 130 provides for acting arrangements during a vacancy in the office of the Chief Judge, or when the Chief Judge is absent from duty or from Australia, or unable to perform the duties of the Office. This clause is modelled on Schedule 1, clause 10 of the Federal Circuit Court Act.

501.            Subclause 130(1) provides that the Deputy Chief Judge (Family Law) may act as Chief Judge during a vacancy in the office of the Chief Judge, or when the Chief Judge is absent from duty or from Australia, or unable to perform the duties of the Office.

502.            Subclause 130(2) provides circumstances in which the Deputy Chief Judge (General and Fair Work) may act as Chief Judge:

·          during a vacancy in the offices of both the Chief Judge and Deputy Chief Judge (Family Law)

·          when the Chief Judge and Deputy Chief Judge (Family Law) are both absent from duty or from Australia, or unable to perform the duties of the Office

·          when the Chief Judge is absent from duty or from Australia, or unable to perform the duties of the Office, and there is a vacancy in the office of Deputy Chief Judge (Family Law)

·          when the Deputy Chief Judge (Family Law) is absent from duty or from Australia, or unable to perform the duties of the Office, and there is a vacancy in the office of Chief Judge

503.            Subclause 130(3) provides that, during a vacancy in the offices of Chief Judge, Deputy Chief Judge (Family Law) and Deputy Chief Judge (General and Fair Work), or when all are unavailable because they are absent from duty or Australia or unable to perform the duties of their office, the Minister may appoint a Judge to act as Chief Judge. This situation may arise, for example, when the Chief Judge, Deputy Chief Judge (Family Law) and Deputy Chief Judge (General and Fair Work) are attending an international judicial conference.

504.            Subclause 130(4) provides that a person who is acting as Chief Judge would be called Acting Chief Judge of the Federal Circuit and Family Court of Australia (Division 2).

505.            Subclause 130(5) provides that a person acting as Chief Judge is taken not to be assigned to a Division of the Federal Circuit and Family Court of Australia (Division 2). The note to subclause 130(5) clarifies that a Judge who is not assigned to a Division of the FCFC (Division 2) (that is, the General Division or the Fair Work Division) may exercise the powers of the Court in any Division.

 

PART 2 - JURISDICTION

Division 1 - Original Jurisdiction

Clause 131 - Original jurisdiction - general

506.            Clause 131 provides detail on how some original jurisdiction is vested in FCFC (Division 2). It replicates section 10 of the Federal Circuit Court Act.

507.            Subclause 131(1) provides that the FCFC (Division 2) would have such original jurisdiction as is vested in it by other legislation (expressly, or by operation of section 15C of the Acts Interpretation Act 1901 ) or by a legislative instrument under clause 133 of this Bill (which relates to jurisdiction over Commonwealth tenancy disputes). 

508.            Subclause 131(2) provides that the FCFC (Division 2) would also have jurisdiction to hear and determine appeals from decisions of persons, authorities or tribunals other than courts. 

509.            Subclause 131(3) would ensure that the process of the FCFC (Division 2) runs throughout Australia. It also ensures that the judgments of the FCFC (Division 2) would have effect and may be executed throughout Australia.

Clause 132 - Original jurisdiction - family law or child support matters

510.            Clause 132 provides for the jurisdiction that the FCFC (Division 2) would have in respect of family law or child support matters. Subclause 132(1) provides that the FCFC (Division 2) would have original jurisdiction with respect to matters under the Family Law Act in respect of which proceedings may be instituted under that Act. It also provides that the FCFC (Division 2) would have original jurisdiction with respect to matters arising under the Marriage Act 1961 (other than proceedings arising under Part VII of that Act). It further provides that the FCFC (Division 2) would have original jurisdiction with respect to matters arising under a law of a Territory (other than the Northern Territory) concerning the adoption of children, the property of the parties to a marriage, or the rights and status of an ex-nuptial child and that child’s relationship with their parents.  It further provides that the FCFC (Division 2) has original jurisdiction as is conferred on the court by the Child Support (Assessment) Act 1989 , or the Child Support (Registration and Collection) Act 1988 , or in respect of which proceedings may be instituted in the Court by either of those two Acts.

511.            Subclause 132(2) provides that, subject to any restrictions and conditions listed in section 111AA of the Family Law Act (which relates to the Agreement between the Government of Australia and the Government of New Zealand on Child and Spousal Maintenance), regulations made under the Family Law Act, or the Rules of Court made under that Act, the FCFC (Division 2) would be able to exercise its jurisdiction in relation to persons or things outside Australia. 

512.            The term ‘family law or child support proceedings’ is defined in clause 7 as proceedings in respect of which the FCFC (Division 2) has original jurisdiction under clause 132. This term is used throughout the Bill, including with regards to transfer of matters between Divisions, as well as to define the FCFC (Division 1)’s original jurisdiction, making clause 132 significant to interpretation.

Clause 133 - Original jurisdiction - Commonwealth tenancy disputes

513.            Clause 133 would confer jurisdiction on the FCFC (Division 2) in particular circumstances. Clause 133 replicates section 10AA of the Federal Circuit Court Act.

514.            Subclause 133(1) provides that the FCFC (Division 2) would have jurisdiction to hear and determine a Commonwealth tenancy dispute between the parties to a lease, licence or other arrangement, in which the Commonwealth (or a person suing or being sued on behalf of the Commonwealth) is:

·          the lessor (other than as a sublessor); or

·          the licensor (other than as a sublicensor); or

·          the grantor of a right or permission to possess, occupy or use land owned by the Commonwealth; and

a person other than the Commonwealth (or a person suing or being sued on behalf of the Commonwealth, or a Commonwealth employee or officer) is:

·          the lessee (other than as a sublessee); or

·          the licensee (other than as a sublicensee); or

·          the grantee of the right or permission.

515.            Subclause 133(2) provides that the Minister would be able to confer, by legislative instrument, jurisdiction on the FCFC (Division 2) in respect of any other specified Commonwealth tenancy dispute.

516.            This subclause aims to reduce the burden of making future legislative amendments if it is considered appropriate for the FCFC (Division 2) to have jurisdiction to determine additional Commonwealth tenancy disputes, such as those in which the Commonwealth is a sublessor or a sublicensor, or a lessee.

517.            Subclause 133(3) provides that the Minister may, by legislative instrument, make provision for and in relation to the matters listed in respect of a Commonwealth tenancy dispute:

·          the rights of the parties to the Commonwealth tenancy dispute

·          the law (whether a law of the Commonwealth or a law of a State or Territory) to be applied in determining the Commonwealth tenancy dispute (the applicable law)

·          any modifications of the applicable law that are to apply in relation to the Commonwealth tenancy dispute

·          the powers that the FCFC (Division 2) may exercise under the applicable law, and

·          if the FCFC (Division 2) makes an order when exercising jurisdiction over the Commonwealth tenancy dispute—the powers that may be exercised when executing the order or a class of orders.

518.            As noted in the explanatory memorandum to the Federal Courts Legislation Amendment Bill 2014, this provision aims to ensure, as far as possible, that the rights of the parties to the Commonwealth tenancy dispute are not substantially different from the rights of parties to tenancy disputes. This provision would enable the Minister to flexibly respond to particular issues in relation to particular state or territory regimes which might arise in the context of conferral of jurisdiction on a federal court, such as:

·          omitting or modifying provisions to ensure the vested jurisdiction is suitable for a court, and

·          ensuring that there are clear and valid enforcement mechanisms available.

519.            Legislative instruments conferring additional jurisdiction or making provision for issues that arise in the context of conferral of jurisdiction on a federal court would remain subject to parliamentary scrutiny, consistent with the requirements of the Legislation Act 2003 .

 

 

Division 2 - Associated matters

Clause 134 - Jurisdiction in associated matters

520.            Clause 134 provides that jurisdiction would be conferred on the FCFC (Division 2) in respect of matters not otherwise within its jurisdiction but which are associated with matters in which the jurisdiction of the FCFC (Division 2) is invoked the court.  This clause replicates section 18 of the Federal Circuit Court Act. This clause is intended to avoid multiple proceedings by enabling the Court to dispose of associated matters otherwise outside its jurisdiction so that the matter before the Court may be completely and finally determined. 

Division 3- Exercise of jurisdiction

Clause 135 - General and Fair Work Divisions of the Federal Circuit and Family Court of Australia (Division 2)

521.            Clause 135 provides that the FCFC (Division 2) is to comprise two Divisions: a General Division and a Fair Work Division. This maintains the current Divisions in the Federal Circuit Court As provided in clause 112, a Judge may be assigned to a Division by the Governor-General as part of their initial appointment, or at a later date with the consent of the Judge concerned.

522.            Subclause 135(1) provides that the FCFC (Division 2) would comprise a General Division and a Fair Work Division.

523.            Subclause 135(2) provides that proceedings in the FCFC (Division 2) must be instituted, heard and determined in one of these two Divisions.

524.            Subclauses 135(3) and 135(4) set out the jurisdiction of the Fair Work and General Divisions.

525.            The Fair Work Division would hear and determine matters that are required by another Act to be heard and determined in the Fair Work Division. The Fair Work Division would also be able to exercise jurisdiction that is incidental to jurisdiction required to be exercised in the Fair Work Division. The note to subclause 135(4) clarifies that, under section 567 of the Fair Work Act 2009 , jurisdiction is required to be exercised in the Fair Work Division of the FCFC (Division 2) in relation to matters arising under that Act.

526.            The General Division would hear and determine all matters not required by another Act to be exercised in the Fair Work Division, and any jurisdiction that is incidental to that jurisdiction. This would include family law and child support matters.

527.            A single proceeding may give rise to various issues, some of which are required to be dealt with in the more than one Division.  Subclause 135(6) gives the Chief Judge of the FCFC (Division 2) the discretion to determine in which Division of the Court the proceeding will be instituted, heard and determined.  The Chief Judge may issue a direction at any time during the proceeding.

 

 

Clause 136 - Exercise of jurisdiction - open court or in Chambers

528.            Clause 136 provides that the jurisdiction of the FCFC (Division 2) must be exercised in open court. This clause replicates section 13 of the Federal Circuit Court Act.

529.            Subclause 136(1) provides that this clause does not apply to family law and child support proceedings.  The note to subclause 136(1) clarifies that section 97 of the Family Law Act applies to courts exercising jurisdiction in family law and child support proceedings.  Section 97 provides when such proceedings may be heard in open court or in Chambers. 

530.            Subclause 136(2) provides that the jurisdiction of the FCFC (Division 2) must be exercised in open court. This rule does not apply where, as authorised by this Chapter of the Bill or another law of the Commonwealth, the jurisdiction of the Court is exercised by a Judge sitting in Chambers. Unless otherwise ordered, open court means that there is no restriction on members of the public attending proceedings in the Court.  Sitting in Chambers means that the matter is heard in private before the Judge, usually in a separate room from the courtroom.

531.            Subclause 136(3) provides that the jurisdiction of the FCFC (Division 2) may be exercised by a Judge of the Court sitting in Chambers in a proceeding:

·          on an application relating to the conduct of a proceeding, and

·          on an application for orders or directions as to any matter which is made subject to the direction of a Judge sitting in Chambers, and

·          on any other application authorised by the Rules of Court to be made to a Judge sitting in Chambers.

532.            Subclause 136(4) provides that the jurisdiction of the FCFC (Division 2) is to be exercised by a Judge sitting in Chambers in a proceeding where, under the Rules of Court, the Court is authorised to make a decision relating to the proceeding without an oral hearing, and the parties have consented to a decision being made without an oral hearing.  This subclause is designed to allow matters to be decided without a hearing in appropriate cases.

533.            Subclause 136(5) provides that a Judge may order a proceeding in Chambers to be adjourned into the Court. Subclause 136(6) provides that the FCFC (Division 2) may order a proceeding in open court to be adjourned into Chambers if the jurisdiction of the Court may be exercised by a Judge sitting in Chambers in that proceeding.

534.            Subclause 136(7) provides that the Court may order the exclusion of the public or specified persons if their presence in court would be contrary to the interest of justice or prejudicial to the security of the Commonwealth. 

Clause 137 - Exercise of jurisdiction

535.            Clause 137 provides that the jurisdiction of the FCFC (Division 2) is to be exercised by the Court constituted by a single Judge. This replicates section 11 of the Federal Circuit Court Act. Subclause 137(1) will operate so that all matters in the FCFC (Division 2) must be heard by a single Judge.

536.            Subclause 137(2) provides that a Judge may give directions under subclause 192(1) of this Bill, which relates to the power of the FCFC (Division 2) to give directions about practice and procedure in a civil proceeding before the court.     

Clause 138 - Decisions to be final

537.            Clause 138 provides that a prospective judgment or decision in the FCFC (Division 2) is valid and binding until set aside, even if it is made in excess of the FCFC (Division 2)’s jurisdiction.

538.            Under clause 10, the FCFC (Division 2) is a court of record. This is consistent with the Federal Circuit Court’s status as a court of record under section 8 of the Federal Circuit Court Act. The designation of the FCFC (Division 2) as a “court of record” rather than a “superior court of record” (as the FCFC (Division 1) is under clause 9), may lead to orders made by the FCFC (Division 2) being regarded as having the status of orders made by an inferior court, and as such, when made in jurisdictional error, would be void ab initio. In Janssen and Janssen, the Full Court of the Family Court stated that the significance of not designating a Court to be a superior court of record is that “unless [the Act] or another legislative provision provides that an order of that court made in excess of jurisdiction until it is set aside, the order is a nullity”. [5]

539.            This may be a particular issue in the context of enforcement of financial orders and obligations in family law and child support proceedings. Clause 138 makes clear that the legislative intention is for prospective orders made by the FCFC (Division 2), even if tainted by jurisdictional error, to not be void ab initio, and instead be valid and binding until set aside. 

Division 4 - Certain powers relating to matters of jurisdiction

Clause 140 - Making of orders and issue of writs

540.            Clause 140 provides that the FCFC (Division 2) would have power to make orders and issue writs, as it considers appropriate. This power relates to matters in which it has jurisdiction. It replicates section 15 of the Federal Circuit Court Act. 

Clause 141 - Declarations of right

541.            Clause 141 provides that the FCFC (Division 2) would be able to make binding declarations of right, even if no other relief is available to a party. This replicates section 16 of the Federal Circuit Court Act.

542.            Subclause 141(2) provides that proceedings may not be challenged on the ground that only a declaration is sought.

Clause 142 - Contempt of court

543.            Clause 142 provides that the FCFC (Division 2) would have the same power to punish as is possessed by the High Court. This clause replicates section 17 of the Federal Circuit Court Act. It mirrors clause 30 of in the Bill which provides the same contempt power to the FCFC (Division 1).

544.            Subclause 142(2) provides that this jurisdiction to punish a contempt of the Court may be exercised by the Court as constituted at the time of the contempt.

545.            The note to subclause 142(2) clarifies that section 112AP of the Family Law Act would also apply to a contempt of the FCFC (Division 2) in family law or child support proceedings.

Clause 143 - Summary judgment

546.            Clause 143 provides that the FCFC (Division 2) would be able to give summary judgment where it is satisfied that a proceeding, or part of a proceeding, or a defence to part of a proceeding, has no reasonable prospect of success. This largely replicates section 17A of the Federal Circuit Court Act.

547.            Subclauses 143(1) and 143(2) provide that the FCFC (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:

·          The first party is prosecuting (or defending) the proceeding or that part of the proceeding; and

·          The court is satisfied that the other party has no reasonable prospect of defending (or prosecuting) the proceeding or that part of the proceeding.

548.            Subclause 143(3) provides that, for the purposes of giving summary judgment, a proceeding or part of a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success.

549.            Subclause 143(4) provides that clause 143 does not limit any of the other powers of the FCFC (Division 2).

550.            Subclause 143(5) provides that clause 143 does not apply if the FCFC (Division 2) is exercising jurisdiction under the Family Law Act. This is because summary judgments for proceedings under the Family Law Act are dealt with in that Act.

551.            The note to subclause 143(5) refers the reader to section 45A of the Family Law Act for the power of the FCFC (Division 2) to summarily dismiss unmeritorious applications if the Court is exercising jurisdiction under that Act.

Division 5 - Administration

Clause 144 - Arrangement of Business

552.            Clause 144 generally continues the effect of subsections 12(1)-(3) of the Federal Circuit Court Act.

553.            Subclause 144(1) provides that the Chief Judge would be responsible for ensuring the effective, orderly and expeditious discharge of the business of the FCFC (Division 2). 

554.            Subclause 144(2) provides that, in discharging the Chief Judge’s responsibility, the Chief Judge must:

·          promote the objects of the Act, and

·          ensure that arrangements are in place to provide Judges with appropriate access to (or reimbursement for the cost of) annual health assessment, counselling and judicial education. 

555.            Subclause 144(2) also provides that, in discharging the Chief Judge’s responsibility, the Chief Judge may:

·          make arrangements as to the Judge who is to constitute the Court in particular matters or classes of matters, including assigning particular caseloads, classes of cases or functions to particular Judges

·           temporarily restrict a Judge to non-sitting duties

·          deal with a complaint about the performance of another Judge’s judicial or official duties, and

·          take any measures reasonably necessary to maintain public confidence in the FCFC (Division 1) including, but not limited to, temporarily restricting another Judge to non-sitting duties.

556.             Subclause 144(3) provides that either Deputy Chief Judge may assist the Chief Judge in the exercise of functions conferred on the Chief Judge by clause 144, other than in relation to paragraph 144(2)(d) (which relates to a complaint about the performance of another Judge’s judicial or official duties) and paragraph 144(2)(e) (which relates to taking measures reasonably necessary to maintain public confidence in the FCFC (Division 2).

557.            As noted in the explanatory memorandum to the Courts Legislation Amendment (Judicial Complaints) Bill 2012, a complaint about performance by another judge of his or her judicial or official duties will not include complaints about matters in cases that are capable of being raised in an appeal.  Such complaints are properly matters for judicial determination.  It may be necessary for the Chief Judge or other complaint handler to consider whether the complaint relates to a matter capable of being raised on appeal.

558.            The performance of official duties would extend the circumstances in which a complaint may be dealt with.  An example would include where a judge is representing the Court in an official capacity or where the judge is undertaking certain official functions in their personal capacity.

559.            Proposed paragraph 144(2)(e) gives the Chief Judge power to take any measures that he or she believes are reasonably necessary to maintain public confidence in the Court. This includes the ability to temporarily restrict another judge to non-sitting duties.  This power operates whether or not there has been a complaint about the Judge. 

560.            As noted in the explanatory memorandum to the Courts Legislation Amendment (Judicial Complaints) Bill 2012, paragraph 144(2)(e) would enable a Chief Judge to take timely action that the Chief Judge believes is reasonably necessary to maintain public confidence in the Court.  The Chief Judge would need to establish a clear basis for his or her belief that measures are reasonably necessary.  Measures are characterised in terms of facilitating the smooth operation of the Court, rather than disciplinary action directed at a judge.  The type of measure that might be taken would be consistent with the Chief Judge’s responsibilities for ensuring the effective discharge of the business of the Court.

561.            Paragraphs 144(2)(d) and (e) do not limit action that the Chief Judge may take in discharging his or her general obligation to ensure the effective, orderly and expeditious discharge of the business of the Court.  The paragraphs provide an express mechanism by which complaints arising in a wide variety of circumstances may be addressed.

Clause 145 - Complaints

562.            Clause 145 provides for the process to be followed by the Chief Judge in dealing with a complaint made about another Judge of the FCFC (Division 2). Clause 145 replicates the process outlined in subsections 12(3AA) - (3AB) of the Federal Circuit Court Act.

563.            Subclause 145(1) provides that the Chief Judge may do either or both of the options under paragraphs 145(1)(a) and (b).

564.            Under paragraph 145(1)(a), the Chief Judge may decide whether or not to handle the complaint. The Chief Judge may then take one of the following actions:

·          dismiss the complaint (subparagraph 145(1)(a)(i))

·          handle the complaint if the Chief Judge has a relevant belief in relation to the complaint about the other Judge (subparagraph 145(1)(a)(ii)) - the definition for ‘relevant belief’ is located in clause 145(4); the definition for ‘handle a complaint’ is located in clause 7 of the Bill, or

·          arrange for any other complaint handlers to assist in handling the complaint if the Chief Judge has a relevant belief in relation to the complaint about the other Judge (subparagraph 145(1)(a)(iii)).

565.            Under subparagraph 145(1)(b), the Chief Judge may arrange for any other complaint handlers to decide whether or not to handle the complaint, and then take one of the following actions:

·          dismiss the complaint (subparagraph 145(1)(b)(i)), or

·          handle the complaint if each of the complaint handlers has a relevant belief in relation to the complaint about the other Judge (subparagraph 145(1)(b)(ii)).

566.            The powers of another complaint handler under paragraph 145(1)(b) are similar to those of the Chief Judge under paragraph 145(1)(a). This subclause enables a Chief Judge to arrange with a complaint handler to deal with complaint without needing to conduct preliminary investigations about a complaint.

567.            The note to subclause 145(1) clarifies that a complaint handler (other than the Chief Judge) may handle a complaint by referring it to the Chief Judge.  The Chief Judge may then do either or both of the things referred to in paragraphs 145(1)(a) or (b) in respect of the complaint.

568.            By providing for options for a Chief Judge that are not mutually exclusive, subclause 145(1) gives the Chief Judge a high degree of flexibility to deal with complaints as appropriate, including through managing complaints on a case by case basis. Notwithstanding this intended flexibility however, it is anticipated that the persons authorised to handle complaints would in most circumstances be limited to the Deputy Principal Registrars, consistently with current practice in the FCC. Consistently with the proposed approach in the FCFC (Division 2) (item 32 above, refers), it is likely that either of the Deputy Chief Judges would also be authorised to assist the Chief Judge. Deputy Principal Registrars are legally qualified, experienced and occupy Senior Executive positions. Furthermore, the Court has complaint handling strategies, which include the escalation of complaints to the Chief Judge, as appropriate.

569.            It is anticipated that the persons authorised to handle complaints would continue to be limited to the Deputy Principal Registrars and the Deputy Chief Judge of the FCFC (Division 2). However, giving the Chief Judge broad delegation power in subclause 13(2) will allow the necessary and appropriate flexibility in the complaint handling process.

570.            As noted in the explanatory memorandum to the Courts Legislation Amendment (Judicial Complaints) Bill 2012 , a complaint about performance by another Judge of his or her judicial or official duties will not include complaints about matters in cases that are capable of being raised in an appeal.  Such complaints are properly matters for judicial determination.  It may be necessary for the Chief Judge or other complaint handler to consider whether the complaint relates to a matter capable of being raised on appeal.

571.            The powers provided for in clause 145 do not limit the ability of a Chief Judge to refer a matter to the Parliament for consideration of removal of a Judge under paragraph 72(ii) of the Constitution. 

572.            The ability of the Chief Judge or a complaint handler to dismiss a complaint summarily under paragraphs 145(1)(a)(i) and 145(1)(b)(i) does not affect the ability of a person handling a complaint to dispose of a complaint by dismissing it where the person considers this to be appropriate in the circumstances, including where the complaint has not been substantiated on further investigation of the complaint.

573.            Subclause 145(2) would enable the Chief Judge to authorise a person or body to assist the Chief Judge to handle complaints, decide whether or not to handle complaints, dismiss complaints or handle complaints. Authorisations may be made either generally or in relation to a specified complaint. An authorisation must be in writing.

574.            Subclause 1453(2) gives discretion to the Chief Judge as to the categories of person or body which may be authorised to handle a complaint.  This is necessary to ensure a sufficient degree of flexibility for the Chief Judge in complaints handling processes, which may involve a wide variety of circumstances. 

575.            Subclause 145(3) is inserted to avoid doubt and clarifies that a Chief Judge may authorise under subclause 145(3) a Deputy Chief Judge or a body that includes a Deputy Chief Judge.  This confirms the discretion of the Chief Judge to authorise a Deputy Chief Judge to undertake functions relating to complaints handling.

576.            Subclause 145(4) provides the meaning of ‘relevant belief’ for the purposes of clause 145. The meaning applies where a person has a relevant belief in relation to a complaint about a Judge. A person has such a belief if:

·          the person believes that circumstances giving rise to a complaint may, if substantiated, justify consideration of the removal of the Judge in accordance with paragraph 72(ii) of the Constitution, or

·          the person believes that circumstances giving rise to a complaint may, if substantiated, (i) adversely affect the performance of judicial or official duties by the Judge, or (ii) have the capacity to adversely affect the reputation of the FCFC (Division 2).

577.            Having a relevant belief enables the Chief Judge or complaint handler to take certain actions, such as handling the complaint.

Clause 146 - Exercise of powers of General and Fair Work Divisions of the Federal Circuit and Family Court of Australia (Division 2)

578.            Clause 146 provides that where a Judge is assigned to a particular Division, he or she can only exercise the powers of the Court in that Division. This clause replicates subsection 12(3A)-(3D) of the Federal Circuit Court Act.

579.            The Chief Judge can arrange for a Judge that is assigned to a particular Division to deal with a matter in  another Division, if he or she considers it desirable to do so, consistent with the Chief Judge’s overall responsibility for ensuring the orderly and expeditious discharge of the business of the Court.

580.            Clause 146(1) provides that a Judge assigned to a Division of the FCFC (Division 2) (that is, the General Division or the Fair Work Division) must exercise the powers of the Court only in that Division, except as otherwise provided for in subclause 146(2).

581.            Subclause 146(2) provides that the Chief Judge may arrange for a Judge who is assigned to particular Division to exercise the powers of the Court in another Division, if the Chief Judge considers that circumstance make it desirable to do so.

582.            Subclause 146(3) provides that, to avoid doubt, a Judge who is not assigned to any Division of the FCFC (Division 2) would be able to exercise the powers of the Court in both Divisions.

583.            Subclause 146(4) provides that subclause 146(1) does not affect the validity of any exercise of powers by the FCFC (Division 2). This makes it clear that an exercise of the Court’s power is not invalid, and cannot be challenged, on the ground that a proceeding was instituted, heard and determined in the wrong Division of the Court.

Clause 147 - Assignment of Judges to locations or registries

584.            Clause 147 provides that the Chief Judge would be able to assign a particular Judge to a particular location or registry. This replicates subsections 12(4)-(6) of the Federal Circuit Court Act. Clause 147 would ensure that, over time, judicial resources in a particular location would continue to be sufficient and not excessive for the workloads of that location.

585.            Subclause 147(1) provides that the assignment must be by way of written instrument.

586.            Subclause 147(2) provides that the assignment under subclause 147(1) must be approved in writing by the Minister.

587.            Subclause 147(3) provides that the assignment does not prevent a Judge from performing duties at one or more other locations or registries on a temporary basis (whether on circuit, or otherwise).

Clause 148 - Protection for Chief Judge and Deputy Chief Judge

588.            Clause 148 affords certain protection and immunity to the Chief Judge and a Deputy Chief Judge in the exercise, or assisting in the exercise of, the functions or powers exercised under paragraph 144(2)(b) or subclause 147(1) of this Bill. It replicates subsection 12(6A)-(6B) of the Federal Circuit Court Act and extends the protection of that subsection to the Deputy Chief Judges.

589.            Subclauses 148(1) and (2) provide that, in exercising the functions or powers pursuant to paragraph 144(2)(b) or subclause 147(1) of this Bill, the Chief Judge and a Deputy Chief Judge have the same protection and immunity as if they were exercising those functions or powers as, or as a member of, the FCFC (Division 2). The notes to subclauses 148(1) and (2) refer the reader to clause 277, which provides for the protection of persons involved in the handling of complaints.

590.            Subclause 148(3) provides that, despite section 39B of the Judiciary Act 1903 , the Federal Court of Australia would not have jurisdiction with respect to a matter relating to the exercise by the Chief Judge, or the assisting in the exercise by a Deputy Chief Judge, of the functions or powers mentioned in subclause 144(2) or clause 145 of the Bill.

591.            Subclause 148(4) provides that, in addition to the powers and functions conferred on the Chief Judge by this Chapter of the Bill, the Chief Judge has such other functions and powers as are specified in the regulations.

PART 3 - TRANSFER OF PROCEEDINGS

Division 1 - Transfer of proceedings to the FCFC (Division 1)

Clause 149 - Discretionary transfer of proceedings

592.            Clause 149 provides a mechanism that would enable the discretionary transfer of proceedings from the FCFC (Division 2) to the FCFC (Division 1). A similar provision, clause 52, would enable the discretionary transfer of proceedings from the FCFC (Division 1) to the FCFC (Division 2) by order of the Chief Justice. Additionally, clause 51 provides the Chief Justice of the FCFC (Division 1) with discretion to transfer proceedings from the FCFC (Division 2) to the FCFC (Division 1).

593.            In conjunction with clause 51, clause 149 is one of the key transfer provisions for the Government’s single point of entry and case management proposal. The FCFC (Division 1)’s original family law jurisdiction, as provided by clause 52, is family law or child support proceedings transferred to the FCFC (Division 1) either by the Chief Justice of the FCFC (Division 1) under clause 51 or by the FCFC (Division 2) under clause 149.

594.            The FCFC (Division 2) would transfer matters to the FCFC (Division 1) in accordance with case management processes to ensure the effective and efficient allocation of family law and child support matters in the FCFC.

595.            In accordance with subclauses 149(1) and (2), the FCFC (Division 2) may order the transfer of a family law or child support proceeding to the FCFC (Division 1) on the application of a party to the proceeding, or on its own initiative.

596.            Subclause 149(3) specifies the factors to which the FCFC (Division 1) must have regard in deciding whether to transfer a proceeding. These factors would be:

·          any Rules of Court made for the purposes of subclause 151(2)

·          whether proceedings in respect of an associated matter are pending in the FCFC (Division 1)

·          whether the resources of the FCFC (Division 1) are sufficient to hear and determine the proceeding, and

·          the interests of the administration of justice.

597.            These factors are designed to ensure that the FCFC (Division 2) has the ability to transfer cases to the FCFC (Division 1) having regard to both efficiency and resource considerations. When read with clauses 152 and 193, it is expected that the FCFC (Division 1) and FCFC (Division 2) would have in place more consistent approaches to case management that would minimise any inconvenience to parties arising from a transfer from the FCFC (Division 2) to the FCFC (Division 1).

598.            Subclause 149(4) provides that an appeal does not lie from a decision of the FCFC (Division 2) to transfer a proceeding under this clause. This approach is consistent with similar legislation, such as the Jurisdiction of Courts (Cross-vesting) Act 1987, where no appeal lies from a transfer decision. It is designed to prevent time-wasting appeals on minor procedural matters which do not affect the substantive rights of the parties.

599.            Subclause 149(5) provides that this clause would not apply to proceedings of a kind specified in the regulations.

Clause 150 - Transferred proceedings returned to the Federal Circuit and Family Court (Division 2)

600.            Subclause 150(1) provides that if a family law or child support proceeding is transferred from the FCFC (Division 2) to the FCFC (Division 1) under subclause 150(1) and is then transferred back to the FCFC (Division 2) under subclause 52, the Chief Judge may make further order under clause 150 to re-transfer the proceeding to the FCFC (Division 1) (referred to as a second order).

601.            Subclause 150(2) provides that for the purposes of subclause 150(1), clause 150 has effect as if a reference to the FCFC (Division 2) in that clause were a reference to the Chief Judge. This means that: the Chief Judge may transfer a proceeding under clause 150 on application by a party, or on his or her initiative; in deciding whether to do so the Chief Judge must have regard to the considerations set out in subclause 150(3); and an appeal does not lie from the decision of the Chief Judge in relation to the transfer of a proceeding under clause 150.

602.            Subclause 150(3) provides that clause 150 will not apply to proceedings of a kind specified in the regulations.

603.            Clause 150 will only be used in exceptional circumstances, and the Chief Judge will provide an important role in ensuring that matters are only transferred in appropriate circumstances

Clause 151 - Rules of Court

604.            Clause 151 provides for Rules of Court to make provision in relation to transfers of proceedings to the FCFC (Division 1) under subclause 149(1).  Subclause 151(1) provides that the Rules of Court may include the scale of costs that applies to any order made in respect of proceedings that are transferred. However, it is intended that the scale of costs that applies to any order made in respect of proceedings that are transferred between FCFC (Division 1) and FCFC (Division 2) would be the same.

605.            Subclause 151(2) provides that the Rules of Court would be able to specify matters to which the FCFC (Division 2) must have regard in deciding whether to transfer a proceeding to the FCFC (Division 1) under subclause 149(1).

606.            Subclause 151(3) provides that, before any Rules of Court are made for the purposes of clause 151, the Chief Judge of the FCFC (Division 2) must consult the Chief Justice of the FCFC (Division 1). Clause 151 is intended to ensure that, in circumstances where different persons occupy the offices of the Chief Justice of the FCFC (Division 1) and the Chief Judge of the FCFC (Division 2), the Rules of Court developed across both Divisions are consistent.

607.            This clause is intended to strengthen the goal of ensuring the efficient resolution of family law disputes which underpins this structural reform of the federal courts. To that end, this clause also facilitates the objects of the Bill provided for in clause 5.

Clause 152 - Delegation

608.            Clause 152 provides that the Chief Judge may delegate the Chief Judge’s power under subclause 150(1) to any one or more of the Judges. The Chief Judge’s power under subclause 150(1) is to make an order (referred to as a second order) to re-transfer a matter back to the FCFC (Division 1).  This will give the necessary flexibility to achieve effective and efficient case management and transfer of these kinds of proceedings.

Division 2 - Transfer of proceedings to the Federal Court

Clause 153 - Discretionary transfer of proceedings

609.            Clause 153 provides for the discretionary transfer of proceedings from the FCFC (Division 2) to the Federal Court. This clause is intended to ensure appropriate and efficient case management in fair work matters and general federal law matters. The transfer of proceedings pursuant to this clause does not apply to family law matters. This clause is modelled on section 39 of the Federal Circuit Court Act.

610.            Subclause 153(1) provides that the Court may, by order, transfer a proceeding pending in the FCFC (Division 2) to the Federal Court provided the proceeding is not a family law or child support proceeding.

611.            Subclause 153(2) provides that the FCFC (Division 2) would be able to order the transfer of a proceeding on the application of a party to the proceeding, or on its own initiative.

612.            Subclause 153(3) specifies the factors to which the FCFC (Division 2) must have regard in deciding whether to transfer a proceeding. These factors would be:

·           any Rules of Court made for the purposes of subclause 154(2)

·          whether proceedings in respect of an associated matter are pending in the Federal Court

·          whether the resources of the FCFC (Division 2) are sufficient to hear and determine the proceeding, and

·          the interests of the administration of justice.

613.            These factors are designed to ensure that the FCFC (Division 2) has the ability to transfer cases to the Federal Court having regard to both efficiency and resource considerations.

614.            Subclause 153(4) provides that, if an order is made to transfer a matter under subclause 153(1), the order would take effect on the day it is confirmed by the Federal Court under proposed new section 32AD of the Federal Court Act. Item 220 of Schedule 1 to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 is intended to introduce section 32AD which will permit the Federal Court discretion to confirm the transfer of the proceeding to that Court by order.

615.            Subclause 153(5) provides that the FCFC (Division 2) would retain the ability to continue to make orders in respect of the matter pending the order transferring the proceeding being confirmed by the Federal Court.

616.            Subclause 153(6) provides that an appeal does not lie from a decision of the FCFC (Division 2) to transfer a proceeding under this clause. This approach is consistent with similar legislation, such as the Jurisdiction of Courts (Cross-vesting) Act 1987 . It is designed to prevent time-wasting appeals on minor procedural matters which do not affect the substantive rights of the parties.

617.            Subclause 153(7) provides that this clause would not apply to proceedings of a kind specified in the regulations.

Clause 154 - Rules of Court

618.            Clause 154 provides for the Rules of Court to make provision in relation to transfers of proceedings to the Federal Court under subclause 153(1).

619.            Subclause 154(1) provides that the Rules of Court may include the scale of costs that applies to any order made in respect of proceedings that are transferred. For example, in the period before a transfer, the Rules of Court may provide that the costs to be paid to a party would be at the Federal Court scale.

620.            Subclause 154(2) provides that the Rules of Court may set out factors to be taken into account by the FCFC (Division 2) in deciding whether to transfer a proceeding to the Federal Court under subclause 153(1).

621.            Subclause 154(3) provides that, before any Rules of Court are made for the purposes of this section, the Chief Judge of the FCFC (Division 2) must consult the Chief Justice of the Federal Court. This provision is intended to ensure that the Rules of Court complement related processes in the Federal Court.

 

PART 4 - APPEALS

Clause 155 - Appeals to the High Court may not be brought

622.            Clause 155 provides that an appeal must not be brought directly to the High Court from a judgment of the FCFC (Division 2). This clause reflects Government’s intention that appeals from judgments of the FCFC (Division 2) would be directed to the FCFC (Division 1) or Federal Court, depending on whether or not the matter is a family law or child support proceeding.

623.            Subclause 155(2) provides that, if subclause 1555(1) is inconsistent with section 73 of the Constitution (which outlines the appellate jurisdiction of the High Court), subclause 155(1) will have effect as though the words “, except by special leave of the High Court” were added to the end of subclause 155(1).

 

PART 5 - DISPUTE RESOLUTION FOR PROCEEDINGS OTHER THAN PROCEEDINGS UNDER THE FAMILY LAW ACT 1975

Division 1 - General

Clause 156 - This Part does not apply to proceedings under the Family Law Act 1975

624.            Clause 156 provides that this Part would apply to proceedings in the FCFC (Division 2) other than proceedings under the Family Law Act . It replicates section 20A of the Federal Circuit Court Act.

625.            Note 1 to this clause clarifies that, for proceedings under the Family Law Act, the reader should see Parts II, III, IIIA and IIIB of that Act, which contain provisions dealing with family counselling, family dispute resolution and other processes that apply to the FCFC (Division 2) in relation to proceedings under that Act.

626.            Note 2 to this clause clarifies that this Part would apply to proceedings under the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988 .

Clause 157 - Federal Circuit and Family Court of Australia (Division 2) to consider whether to advise people to use dispute resolution processes

627.            Clause 157 provides that the FCFC (Division 2) must consider whether or not to advise the parties to proceedings before it about the dispute resolution processes that could be used to resolve any matter in dispute. It replicates section 22 of the Federal Circuit Court Act. 

Clause 158 - Federal Circuit and Family Court of Australia (Division 2) to advise people to use dispute resolution processes

628.            Clause 158 provides that, if the FCFC (Division 2) considers that a dispute resolution process may help the parties to resolve a dispute, the Court must advise the parties to use that dispute resolution process.  This clause replicates section 23 of the Federal Circuit Court Act. It is intended to ensure that parties are referred to appropriate dispute resolution processes.

629.            Subclause 158(2) provides that, if the FCFC (Division 2) advises the parties (as required by subclause 158(1)) to use a dispute resolution process, it may adjourn proceedings before it to enable attendance in connection with the dispute resolution process. The note to this subclause directs the reader to Part III of the Family Law Act, which deals with dispute resolution in family law and child support matters.

Clause 159 - Duty of legal practitioners to consider whether to advise people to use dispute resolution processes

630.            Clause 159 provides that a legal practitioner, acting in or consulted about proceedings in the FCFC (Division 2), must consider whether to advise the parties about dispute resolution processes that could be used to resolve matters in dispute. This clause replicates section 24 of the Federal Circuit Court Act.

Clause 160 - Officers of the Federal Circuit and Family Court of Australia (Division 2) to advise people about dispute resolution processes

631.            Clause 160 provides that a designated officer of the FCFC (Division 2) must advise parties to proceedings, or a person considering instituting proceedings in the FCFC (Division 2), about dispute resolution processes. This clause replicates section 25 of the Federal Circuit Court Act.

632.            Subclause 160(2) provides that a member of the staff of the FCFC (Division 2) is taken to be an officer of the Court.

633.            Subclause 160(3) provides that, for the purposes of clause 160, a ‘designated officer’ of the FCFC (Division 2) is an offer of the Court specified in writing by the Chief Executive Officer for the purposes of this subclause.

634.            Taken together, clauses 157-160 are intended to ensure that parties, at all stages of their dispute, are advised of the dispute resolution processes available to resolve their dispute. 

 

 

 

Clause 161 - Conciliation

635.            Clause 161 provides that the FCFC (Division 2) would be able to refer proceedings for conciliation in accordance with the Rules of Court. This clause replicates section 26 of the Federal Circuit Court Act.

636.            Clause 161(3) provides that referrals to a conciliator may be made with or without the consent of the parties to the proceedings.

Clause 162 - Referral of question of law - dispute resolution process (other than arbitration)

637.            Clause 162 provides that a party to a dispute resolution process (who has been ordered by the FCFC (Division 2) to undertake a dispute resolution process (other than arbitration) would be able to apply to the Court for determination of a question of law arising out of the proceedings. This clause replicates section 27 of the Federal Circuit Court Act.  

638.            Subclause 162(2) provides that such an application must be accompanied by a statement by the person conducting the dispute resolution process to the effect that the person consents to the making of the application and is of the opinion that the determination of the question of law would be likely to assist parties in reaching agreement about all or any matters in dispute in the proceedings.

639.            Subclause 162(3) provides that the FCFC (Division 2) must determine the question of law if an application is made under subclause 129(1).

640.            Subclause 162(4) provides that if FCFC (Division 2) determines a question of law, the determination is binding on the parties to the proceedings.

Clause 163 - Rules of Court about dispute resolution processes

641.            Clause 163 provides that Rules of Court may be made in relation to dispute resolution processes ordered by the FCFC (Division 2). This clause replicates section 28 of the Federal Circuit Court Act.

642.            Subclause 163(2) provides that Rules of Court may be made in relation to the procedure to be followed when any dispute resolution process ends.

Clause 164 - Regulations about dispute resolution processes

643.            Clause 164 provides that regulations may be made in relation to dispute resolution processes ordered by the FCFC (Division 2). This clause replicates section 29 of the Federal Circuit Court Act.

644.            Subclause 164(2) provides that the regulations would be able to address the procedures to be followed by a person conducting the dispute resolution process, the attendance of persons at the dispute resolution process, and the kinds of person who are eligible to conduct particular kinds of dispute resolution processes.

 

 

Clause 165 - Rules of Court about costs of dispute resolution processes

645.            Clause 165 provides that Rules of Court may be made about the costs of dispute resolution processes, where the dispute resolution process was ordered by the FCFC (Division 2) or was carried out for the purpose of settling a dispute about a matter before the FCFC (Division 2). This clause replicates section 30 of the Federal Circuit Court Act.

Clause 166 - Rules of Court about dispute resolution processes under the Family Law Act 1975

646.            Clause 166 provides that Rules of Court may be made in relation to applications under the Family Law Act for mediation and arbitration, and for orders under section 13F of that Act (which provides that the Court may make orders to facilitate arbitration of certain disputes). Clause 166 replicates section 31 of the Federal Circuit Court Act.

647.            Clause 166 also provides that clause 156 of this Bill would not affect clause 166. This addresses the inconsistency with clause 156, which currently provides that Part 5 (within which clause 166 is located) would not apply to proceedings under the Family Law Act.  

Clause 167 - Consent Orders

648.            Clause 167 provides that, subject to the Rules of Court, where parties have reached agreement about a matter in dispute in proceedings before the FCFC (Division 2), the Court or a Judge may make an order in the terms of the agreement on application by the parties. This clause replicates section 32 of the Federal Circuit Court Act.  

Division 2 - Proceedings other than family law or child support proceedings

649.            This Division allows the FCFC (Division 2) to refer non-family law or child support proceedings to mediation or arbitration, and contains various provisions in relation to arbitration. 

Clause 168 - Scope of Division

650.            Clause 168 explains the scope of Part 5, Division 2 of the Bill. Clause 135 provides that this division would apply to proceedings in the FCFC (Division 2) other than family law or child support proceedings. The note to clause 168 refers the reader to Part III of the Family Law Act, which relates to family consultants. This clause replicates section 33 of the Federal Circuit Court Act.

Clause 169 - Mediation

651.            Clause 169 provides that the FCFC (Division 2) would be able to order proceedings or matters to mediation in accordance with the Rules of Court. This clause replicates section 34 of the Federal Circuit Court Act.

652.            Subclause 169(2) provides that subclause 169(1) is subject to the Rules of Court.

653.            Subclause 169(3) provides that matters may be referred to a mediator with or without the consent of the parties to the proceedings.

654.            Subclause 169(4) provides that evidence of anything said, or of any admission made, at a conference conducted by a mediator under subclause 169(1) is not admissible in any court or in any proceedings.

655.            Subclause 169(5) provides that the mediator, in mediating anything referred under subclause 169(1), has the same protection and immunity as a Judge of the FCFC (Division 2).

Clause 170 - Arbitration

656.            Clause 170 provides that the FCFC (Division 2) would be able to refer proceedings or matters to arbitration in accordance with the Rules of Court. This clause replicates section 35 of the Federal Circuit Court Act.

657.            Subclause 170(2) provides that subclause 170(1) has effect subject to the Rules of Court. Subclause 170(4) provides that the Rules of Court may make provision for the registration of awards made in an arbitration carried out under an order made under this clause. 

658.            Subclause 170(3) provides that matters may only be referred with the consent of the parties. 

659.            Subclause 170(5) provides that the arbitrator, in arbitrating anything referred under subclause 170(1), has the same protection and immunity as a Judge of the FCFC (Division 2).

Clause 171 - Power of arbitrator to refer question of law to the Federal Circuit and Family Court of Australia (Division 2)

660.            Clause 171 provides that an arbitrator, to whom proceedings have been referred under subclause 171(1), would be able to apply to the FCFC (Division 2) for leave to refer a question of law to the Court.  This clause replicates section 36 of the Federal Circuit Court Act.

661.            To make such an application, subclause 171(1) provides that the arbitrator has not made an award in respect of the arbitration, and a party to the arbitration has requested the arbitrator make the application to the Court.

662.            Subclause 171(2) provides that the FCFC (Division 2) must not grant leave unless satisfied that the determination of the question of law might result in substantial savings in costs to the parties. 

663.            Subclause 171(3) provides that, if leave is granted and the question of law referred by the arbitrator, the FCFC (Division 2) must determine the question of law. 

Clause 172 - Review of arbitration award on question of law etc.

664.            Clause 172 provides for the review of an arbitration award on a question of law. This clause replicates section 37 of the Federal Circuit Court Act.

665.            In accordance with subclause 172(1), clause 172 has effect if (i) a proceeding or matter has been referred to arbitration under subclause 137(1), (ii) the arbitrator has made an award, and (iii) the award has been registered with the Court under the Rules of Court.

666.            Subclause 172(2) provides that a party to the award would be able to apply to the FCFC (Division 2) for a review, on a question of law, of the award.

667.            Subclause 172(3) provides that, on a review of an award on a question of law, the FCFC (Division 2) may determine the question of law and make such orders as it thinks appropriate, including:

·          affirming the award

·          varying the award

·          setting aside the award and remitting it to the arbitrator for reconsideration in accordance with the directions of the Court, or

·          setting aside the award and determining the matter to which the award related.

668.            Subclause 172(4) provides that a party to an arbitration award would be able to apply to the FCFC (Division 2) for an order that costs payable by a party be taxed in accordance with the Rules of Court.

669.            Subclause 172(5) provides that the person who made the application under clause 172 is not liable to pay more costs in respect of the arbitration than the amount of the costs as taxed under an order made under subclause 172(4).

Clause 173 - Arbitration awards

670.            Clause 173 provides that the FCFC (Division 2) would be able to make an order in the terms of the arbitration award. This clause replicates section 38 of the Federal Circuit Court Act.

671.            Subclause 173(1) provides that the FCFC (Division 2) would be able to make such an order in relation to a matter in which the Court has original jurisdiction upon application by a party to an award made in arbitration, whether carried out under an order made under subclause 170(1) or otherwise.

672.            Subclause 173(2) provides that, for subclause 173(1) to apply, an award made in an arbitration carried out pursuant to subclause 170(1) must be registered with the FCFC (Division 2) under the Rules of Court. 

673.            Subclause 173(3) provides that an order made under subclause 173(1) is enforceable in the same manner as if it had been made in an action in the FCFC (Division 2). This subclause has effect subject to subclause 173(4).

674.            Subclause 173(4) provides that a writ of attachment must not be issued to enforce payment of money under an order made in accordance with clause 173.

PART 6 - PRACTICE AND PROCEDURE

Division 1 - General

Clause 174 - Practice and procedure

675.            Clause 174 provides for the practice and procedure of the FCFC (Division 2). This clause is modelled on section 43 of the Federal Circuit Court Act. It is expected that each head of division, in practice one Chief Justice, would issue common rules of courts, practice notes and directions, which would guide the Judges and Court staff of each division, legal practitioners and litigants about the way uniform procedures are expected to operate. This would provide a streamlined court system that would allow Australian families to spend significantly less time in the courts to resolve their family law disputes.

676.            Subclause 174(1) provides that the practice and procedure of the FCFC (Division 2) is to be in accordance with the Rules of Court and the regulations. Subclause 174(1) is subject to any other provision in this Bill or any other Act concerning practice and procedure of the Court. The note to this subclause clarifies that the Rules of Court are made under clause 217 and the regulations are made under clause 284.

677.            To the extent that the rules and regulations in subclause 174(1) are insufficient, paragraph 174(2)(a) provides that, in relation to the jurisdiction of the Court in a family law or child support proceeding, the Rules of Court of the FCFC (Division 1) are to apply, with necessary modifications, to the practice and procedure of the FCFC (Division 2) . The Rules of Court of the FCFC (Division 1) are to apply so far as they are capable of applying, and subject to any directions of the FCFC (Division 2) or a Judge.

678.            To the extent that the rules and regulations in subclause 174(1) are insufficient, paragraph 174(2)(b) provides that, in relation to the jurisdiction of the Court in a proceeding that is not a family law or child support proceeding, the Rules of Court made under the Federal Court Act are to apply, with necessary modifications, to the practice and procedure of the FCFC (Division 2). The Rules of Court of far as they are capable of applying, and subject to any directions of the FCFC (Division 2) or a Judge.

679.            Subclause 174(3) provides that ‘practice and procedure’, for the purposes of clause 174, would mean all matters in relation to which Rules of Court may be made, and all matters in relation to which regulations may be made.

Clause 175 - Representation

680.            Clause 175 provides the circumstances under which a party to a proceedings in the FCFC (Division 2) is entitled to be represented by another person. These circumstances are that the other person:

·           is entitled, under the Judiciary Act 1903 , to practise as a barrister or solicitor, or both, in a federal court; or

·          is taken to be an authorised representative under the regulations, or

·          is authorised to represent the party under another law of the Commonwealth.

681.            Unless these circumstances exist, a party would not be entitled to be represented by another person.

682.            Clause 175 replicates section 44 of the Federal Circuit Court Act.

Clause 176 - Interrogatories and discovery

683.            Clause 176 provides that interrogatories and discovery would be allowed in relation to family law and child support proceedings in the FCFC (Division 2). However, in relation to any other proceedings in the FCFC (Division 2), interrogatories and discovery would only be permitted with the leave of the FCFC (Division 2) if it is appropriate, in the interests of the administration of justice, to allow them.  Clause 176 is intended to enable the use of these procedures in general federal law matters only where necessary.

684.            Subclause 176(1) provides that interrogatories and discovery would be allowed in relation to family law and child support proceedings in the FCFC (Division 2).

685.            Subclause 176(2) provides that interrogatories and discovery are not allowed in relation to any other proceedings in the FCFC (Division 2), unless the Court or a Judge declares otherwise.

686.            Subclause 176(3) provides that, in deciding whether to make a declaration under subclause 176(2), the FCFC (Division 2) or a Judge must have regard to:

·          whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings, and

·          such other matters as the Court or the Judge considers relevant.

Division 2—Documents filed in the Federal Circuit and Family Court of Australia (Division 2)

Clause 177 - Filing of documents in the Federal Circuit and Family Court of Australia (Division 2)

687.            Clause 177 relates to the filing of documents in the FCFC (Division 2). It replicates section 46 of the Federal Circuit Court Act.

688.            Subclause 177(1) provides that if a document is required or permitted to be filed in the FCFC (Division 2), it is to be filed at a registry of the Court, or in accordance with an arrangement made under clauses 246 or 247, and in accordance with the Rules of Court.

689.            Subclause 177(2) provides that the Rules of Court would be able to provide that the requirements for filing a document are met if the document is sent to the FCFC (Division 2) using the web portal of the FCFC, or in other circumstances as set out in the Rules of Court.

Clause 178 - Seal of the Federal Circuit and Family Court of Australia (Division 2)

690.            Clause 178 replicates section 47 of the Federal Circuit Court Act.

691.            Subclause 178(1) provides that the FCFC (Division 2) is to have a seal, the design of which would be determined by the Minister. Subclause 178(2) provides that the seal must be kept in such custody as the Chief Judge directs.

692.            Subclause 178(3) provides that the seal must be affixed to documents as provided by this or any other Act, or by the Rules of Court.

Clause 179 - Federal Circuit and Family Court of Australia (Division 2) stamps

693.            Clause 179 replicates section 48 of the Federal Circuit Court Act.

694.            Subclause 179(1) provides that the stamp or stamps of the FCFC (Division 2) are to be, as nearly as practicable, the same as the design of the seal of the FCFC (Division 2).

695.            Subclause 179(2) provides that a document marked with a FCFC (Division 2) stamp is as valid and effectual as if it had been sealed with a seal.

696.            Subclause 179(3) provides that a FCFC (Division 1) stamp must be affixed to documents as provided by this Act, any other Act, or the Rules of Court.

Clause 180 - Writs etc.

697.            Clause 180 provides the requirements for a writ, commission or process issued from the FCFC (Division 2). This clause replicates section 49 of the Federal Circuit Court Act.

698.            Clause 180(1) provides that all writs, commissions and processes issued must be under the seal of the Court and signed (including by electronic signature) by a Judge, the Chief Executive Officer, a Registrar, or an officer acting with the authority of the Chief Executive Officer.

699.            Subclause 180(2) provides that subclause 180(1) does not apply to writs, commissions and processes signed and issued in accordance with clause 246. Clause 246 provides that the Chief Judge may make arrangements with other courts for the performance of certain functions. For example, the FCFC (Division 2) may arrange for a registry of the Federal Court to issue writs on behalf of the FCFC (Division 2).  In those circumstances it may not be possible to satisfy the requirements of subclause 180(1).  However, it is expected that any such arrangement would include some process of authentication.

700.            Subclause 180(3) provides that subclause 180(1) does not apply to an order of the FCFC (Division 2).  This is intended to ensure that if an urgent order is obtained from the FCFC (Division 2), for example on the weekend, the order remains valid notwithstanding that it may not be affixed with the seal of the Court. 

Clause 181 - Proceedings may be instituted by application

701.            Clause 181 provides that, subject to the Rules of Court, proceedings could be instituted in the FCFC (Division 2) by way of application without the need for pleadings. This clause replicates section 50 of the Federal Circuit Court Act.

 

 

Clause 182 - Limits on length of documents

702.            Clause 182 provides that, subject to the Rules of Court, the FCFC (Division 2) or a Judge would have the power to give directions about limiting the length of documents required or permitted to be filed in the Court. It is important that the FCFC (Division 2) has such powers to ensure that streamlined procedures are introduced and followed in the Court. This clause replicates section 51 of the Federal Circuit Court Act.

Division 3—Conduct of proceedings

Clause 183 - Place of sitting

703.            Clause 183 provides that the FCFC (Division 2) may sit at any place in Australia. Sittings must be held from time to time as required. This clause replicates section 52 of the Federal Circuit Court Act.

704.            It is expected that the FCFC (Division 2) will travel to hear cases in locations other than those in which the Judges of the FCFC (Division 2) are permanently based, in the same manner that the Judges of the Federal Circuit Court currently travel.  This clause ensures that the FCFC (Division 2) has the ability to sit anywhere in Australia.  This need not necessarily be in a formal court room.

Clause 184 - Change of venue

705.            Clause 184 provides that the FCFC (Division 2) or a Judge may, at any stage of a proceeding, make an order for a change of venue. This is a discretionary power as it can be used at any point during a proceeding being heard, and any such order can be made subject to any condition as determined by the Court or Judge. The Court also has the capacity to direct that only part of the proceedings be subject to a change of venue.

706.            This clause was modelled on section 27A of the Family Law Act. It has been included in this chapter for consistency with the equivalent FCFC (Division 1) provision.

Clause 185 - Determination of proceedings without a jury

707.            Clause 185 provides that civil proceedings in the FCFC (Division 2) are to be determined without a jury. There is no right to a determination of proceedings by jury in civil matters.  This provision ensures that there will be no jury hearings in civil matters before the FCFC (Division 2).  It is inappropriate to provide for hearing by jury in a Court which is designed to develop simple and efficient procedures.  Jury hearings are often long and complex and would not facilitate the FCFC (Division 2) adopting streamlined and informal procedures. 

708.            This clause replicates section 53 of the Federal Circuit Court.

Clause 186 - Decisions without oral hearing

709.            Clause 186 provides that the Rules of Court would be able to authorise the FCFC (Division 2) or a Judge to make decisions in proceedings without an oral hearing, if the parties have consented. While this is a matter for the Court, it is expected that the Rules would make it clear that a decision would only be made without an oral hearing if it was clear that the issues to be decided could be adequately determined in the absence of the parties.

710.            This clause replicates section 54 of the Federal Circuit Court Act.

Clause 187 - Limits on the length of oral argument

711.            Clause 187 provides that the FCFC (Division 2) or a Judge would be able to make directions limiting the time for oral argument, subject to the Rules of Court for the FCFC (Division 2). This clause is intended to ensure that the FCFC (Division 2) has the capacity to control proceedings, by introducing time limits that are consistent with the streamlined procedures of the Court. It is a matter for the FCFC (Division 2) to determine whether it will make directions to limit oral argument.

712.            This clause replicates section 55 of the Federal Circuit Court Act.

Clause 188 - Written submissions

713.            Clause 188 allows the FCFC (Division 2) to control the use of written submissions, including the length of written submissions. This clause replicates section 56 of the Federal Circuit Court Act.

714.            Subclause 188(1) provides that the FCFC (Division 2) or a Judge would be able to make directions concerning the use of written submissions in proceedings.

715.            Subclause 188(2) provides that the FCFC (Division 2) or a Judge would be able to make directions limiting the length of written submissions in proceedings.

716.            Subclause 188(3) provides that both subclauses 188(1) and (2) are subject to the Rules of Court.

Clause 189 - Formal defects not to invalidate

717.            Subclause 189(1) provides that formal defects or irregularities would not invalidate proceedings in the FCFC (Division 2) unless the Court considers that the defect or irregularity has caused substantial injustice which cannot be remedied by an order of the Court.

718.            Subclause 189(2) provides that the FCFC (Division 2) or a Judge would be able to make an order declaring that the proceeding is not invalid by reason of a defect (that it considers to be formal) or an irregularity. Such an order may be subject to conditions (if any) as the Court or Judge thinks fit.

719.            This clause replicates section 57 of the Federal Circuit Court Act.

Division 4—Case management  

720.            These case management provisions introduce an overarching obligation upon the Court, the parties to litigation and legal practitioners to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.  They also clarify the kinds of directions the Court can make to control the progress and conduct of proceedings. This would provide clear legislative direction and support to Judges so that they can confidently employ active case management powers which have been effective for the Federal Court.

Clause 190 - Overarching purpose of civil practice and procedure provisions

721.            Clause 190 provides the overarching purpose of the civil practice and procedure provisions. It generally mirrors section 37M of the Federal Court Act which was the centre-piece of the case management reforms of the Federal Court in 2009.

722.            Subclause 190(1) provides that the overarching purpose of the civil practice and procedures provisions is to facilitate the just resolution of disputes:

·          according to law, and

·          as quickly, inexpensively and efficiently as possible.

723.            Note 1 to subclause 190(1) directs the reader to paragraphs 5(a) and (b) of the Bill, which state that the objects of the Act include to ensure that justice is delivered by the federal courts effectively and efficiently, and to provide for just outcomes, in particular, in family law or child support proceedings. Note 2 clarifies that the FCFC (Division 2) must give effect to principles in the Family Law Act when exercising jurisdiction in relation to proceedings under that Act.

724.            Clause 190 will apply to both the Court and parties to the proceedings (see clause 191) in recognition of the fact that it would not be possible for either the Court or the parties to achieve the overarching purpose without the assistance of the other.

725.            Subclause 190(2) provides that the overarching purpose includes the following objectives:

·          the just determination of all proceedings before the FCFC (Division 2)

·          the efficient use of the judicial and administrative resources available for the purposes of the Court

·          the efficient disposal of the Court’s overall caseload

·          the disposal of all proceedings in a timely manner, and

·          the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

726.            This provision is intended to be a reminder to litigants that costs should be proportionate to the matter in dispute.  It is not only the cost to the parties that is relevant. The efficient use of the Court’s resources needs to be taken into account.  However, at the same time, due process will be observed so that justice may be done in the individual case. These objectives will support the intention that both the Court’s and the litigant’s resources are spent efficiently. 

727.            Subclause 190(3) provides that the civil practice and procedure provisions, and any power conferred or duty imposed by them, must be exercised in the way that best promotes the overarching purpose.

728.            Subclause 190(4) provides that the civil practice and procedure provisions are the Rules of Court, and any other provision made by or under the Act or any other Act with respect to the practice and procedure of the FCFC (Division 2).

Clause 191 - Parties to act consistently with the overarching purpose

729.            Subclause 191(1) would impose a duty on parties to a civil proceeding before the FCFC (Division 2) to conduct the entire proceeding, including settlement negotiations, consistently with the overarching purpose. Clause 191 generally mirrors section 37N of the Federal Court Act.

730.            Subclause 191(2) would require a party’s lawyer to take into account the duty imposed on the party by subclause 191(1). It also requires the party’s lawyer to assist the party to comply with the duty. In practice, this would require a lawyer to conduct a case taking into account the duty on the party, and advise their client if certain actions are consistent with the overarching purpose.

731.            If, for example, a party wishes to prolong the litigation as a strategy to increase the costs of the other party, their lawyer would be obliged to explain that this behaviour is contrary to the overarching purpose and may have adverse cost consequences.  Also, if a party is refusing to accept a reasonable offer of settlement, a lawyer would have to explain that it is in their interest to accept the offer and that failing to do so may be regarded by the Court as acting inconsistently with the overarching purpose.

732.            Subclause 191(3) is intended to assist parties to comply with their duty by making informed decisions about the progress of their matter.  The Court may order a party’s lawyer to give the party an estimate of the likely duration of the proceedings and the likely amount of costs the party will have to pay in connection with the proceeding.  This may have the effect of assisting the party to prioritise the issues in dispute, or re-consider the resources they wish to allocate to the litigation.  The note below subclause 191(3) refers the reader to section 117 of the Family Law Act which provides that parties to proceedings under that Act bear their own costs, unless the court is of the opinion that there are circumstances that justify an order as to costs and security for costs, and a range of factors that the court shall have regard to in considering whether to make such an order.

733.            Subclause 191(4) would require a Judge to take into account, in awarding costs in a civil proceeding, any failure to comply with subclauses 191(1) or (2). This clause makes it clear that the court can order costs in a way other than costs against the unsuccessful party.

734.            Subclause 191(5) provides that the Court or a Judge may order a party’s lawyer to bear costs personally.

735.            Subclause 191(6) provides that a Judge would be able to order a lawyer to bear costs personally for a failure to comply with the duty imposed by subclause 191(2). Subclause 191(6) ensures that the lawyer cannot pass such costs on to their client contractually or in any other way. This subclause ensures that lawyers take responsibility for their own failure to comply with their duty under subclause 191(2).

736.            The intention of clause 191 is to support a culture in the conduct of litigation where the Court and the parties are focussed on resolving disputes as quickly and cheaply as possible.  Parties who act consistently with this duty will be able to avoid cost orders being made against them and, overall, their litigation costs should be reduced.

Clause 192 - Power of the Federal Circuit and Family Court of Australia (Division 2) to give directions about practice and procedure in a civil proceeding

737.            Subclause 192(1) provides that the FCFC (Division 2) or a Judge would be able to give directions about the practice and procedure to be followed in a civil proceeding before the Court. Such directions can be made at any stage of a proceeding, including at any time during or after the trial. Clause 192 generally mirrors section 37P of the Federal Court Act.

738.            Subclause 192(2) provides examples of the types of directions a Court would be able to make. These include setting time limits and limiting the length of submissions.  These examples are not intended to limit the powers of the Court to manage proceedings on a case-by-case basis.  They are intended to assist with the practical implementation of the overarching purpose.

739.            Subclause 192(3) provides that, if a party fails to comply with a direction, the FCFC (Division 2) or a Judge would be able to make any order or direction the Court or Judge thinks appropriate.

740.            Subclause 192(4) provides that the FCFC (Division 2) or a Judge may dismiss the proceeding in whole or in part, strike out, amend or limit any part of a party’s claim or defence, disallow or reject any evidence; or award costs against a party.  Paragraph 192(4)(e) makes it clear that such costs may be awarded on an indemnity basis.

741.            Subclauses 192(3)-(4) do not affect any other power of the Court or of a Judge to deal with a party’s failure to comply with a direction (subclause 192(5)).

Clause 193 - Chief Judge to achieve common approaches to case management with the Federal Circuit and Family Court of Australia (Division 1)

742.            Clause 193 provides that the Chief Judge must work cooperatively with the Chief Justice of the FCFC (Division 1) with the aim of ensuring common approaches to case management. This clause is intended to strengthen the goal of ensuring the efficient resolution of family law or child support proceedings which underpins this structural reform of the federal courts. To that end, clause 193 also facilitates the objects of the Bill provided for in clause 5. 

743.            Clause 193 ensures that regardless of whether one person holds office as both the Chief Justice and Chief Judge at any point in time, there is a consistent approach to case management across the FCFC.

Division 5—Evidence

Clause 194 - Oaths and affirmations

744.            Clause 194 provides for the administration of oaths and affirmations in the FCFC (Division 2). This clause replicates section 58 of the Federal Circuit Court Act.

745.            Subclause 194(1) provides a Judge the power to require and administer all necessary oaths and affirmations.

746.            Subclause 194(2) provides that a Judge would be able to authorise, either orally or in writing, any person (whether they are in or outside Australia) to administer oaths and affirmations for the purposes of the Court.

747.            Subclause 194(3) provides that the Chief Executive Officer would be able to authorise a Registrar or member of the staff of the FCFC (Division 2) to administer oaths and affirmations for the purposes of the Court. The authorisation must be in writing.

Clause 195 - Swearing of affidavits etc.

748.            An affidavit is a written statement of evidence.  As it is a document containing evidence, the affidavit must be sworn or affirmed. Clause 195 provides for the swearing or affirmation of affidavits in proceedings in the FCFC (Division 2). This clause replicates section 59 of the Federal Circuit Court Act.

749.            Subclause 195(1) provides an exhaustive list of people or offices before which an affidavit may be sworn or affirmed in Australia.

750.            Subclause 195(2) provides an exhaustive list of people or offices before which an affidavit may be sworn or affirmed at a place outside Australia.

751.            Subclause 195(3) provides that the Rules of Court would be able to stipulate circumstances in which an affidavit sworn or affirmed outside Australia before a person not referred to in subclause 195(2) may be used in a proceeding in the FCFC (Division 2).

Clause 196 - Orders and commissions for examination of witnesses

752.            Clause 196 provides that the FCFC (Division 2) or a Judge would be able to order the examination of a person at any place within Australia. It also provides that the Court would be able to order that a commission be issued to a person either within or outside Australia for the purpose of taking the testimony of another person. This clause replicates section 60 of the Federal Circuit Court Act.

753.            Subclause 196(a) provides that the FCFC (Division 2) would be able to order, for the purposes of any proceeding in the FCFC (Division 2), the examination of a person upon oath or affirmation before the Court, a Judge, an officer of the Court or other person at any place within Australia.

754.            Subclause 196(b) provides that the FCFC (Division 2) would be able to order, for the purposes of any proceeding in the FCFC (Division 2), that a commission be issued to a person, either in or outside Australia, authorising the person to take the testimony on oath or affirmation of another person. An examination of a person could be ordered, for example, where the person was unable to attend court because they were in hospital.

755.            Subclauses 196(c) and 196(d) provide that the FCFC (Division 2) or a Judge would be able to, by the same or subsequent order, give any necessary directions concerning the time, place or manner of the examination, and empower any party to the proceeding to give in evidence the testimony so taken on such terms as the Court directs.

Clause 197 - Time limits on giving of testimony

756.            Clause 197 provides that the FCFC (Division 2) would be able to limit the time for the giving of testimony. It replicates section 62 of the Federal Circuit Court Act.

757.            Subclause 197(1) provides that the FCFC (Division 2) or a Judge may give directions about limiting the time for the giving of testimony in proceedings. It is a matter for the Court to decide whether to limit the time for oral evidence generally, or in a particular case.

758.            Subclause 197(2) provides that the making of directions under subclause 197(1) is subject to the Rules of Court.

Clause 198 - Federal Circuit and Family Court of Australia (Division 2) may question witnesses

759.            Clause 198 provides that the FCFC (Division 2) may put a question to a witness. This clause replicates section 63 of the Federal Circuit Court Act.

760.             Paragraph 198(1)(a) provides that the FCFC (Division 2) would be able to put a question to a person giving testimony in proceedings if the question is likely to assist in the resolution of a matter in dispute or the expeditious and efficient conduct of the proceeding.

761.            Paragraph 198(1)(b) provides that the FCFC (Division 2), in putting a question to a witness in accordance with paragraph 165(1)(a), would be able to require the witness to answer the question.

762.            Subclause 198(2) provides that this clause is subject to the Rules of Court.

763.            Subclause 198(3) provides that clause 198has effect in addition to, and not instead of, any other powers that the FCFC (Division 2) may have to ask questions.

764.            It is expected that clause 198 could be used by the FCFC (Division 2) 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.  Although this clause gives a wide discretion to Judges of the Court, it must be exercised in accordance with the proper discharge of judicial power. 

Clause 199 - Evidence may be given orally or by affidavit

765.             Clause 199 provides that evidence may be given orally or by affidavit. This clause replicates section 64 of the Federal Circuit Court Act.

766.            Subclause 199(1) provides that testimony is to be given orally or by affidavit in proceedings in the FCFC (Division 2).

767.            Subclause 199(2) provides that the FCFC (Division 2) or a Judge may direct that particular evidence is to be given orally or by affidavit.

768.            Subclause 199(3) provides that subclauses 166(1) and (2) are subject to any other provision in this Chapter, the Rules of Court and any other law of the Commonwealth.

769.            Subclause 199(4) provides that, if evidence is provided by affidavit in proceedings in the FCFC (Division 2), the other party may request the person to appear as a witness to be cross-examined with respect to the matters in the affidavit. This is intended to ensure that parties’ rights to challenge such evidence are maintained.

770.            Subclause 199(5) provides that subclause 199(4) is subject to the Rules of Court.

771.            Subclause 199(6) provides that, if the person who made the affidavit does not appear as a witness to be cross-examined on the content of the affidavit, the FCFC (Division 2) may give the matters in the affidavit such weight as the Court thinks fit.

Clause 200 - Offences by witness

772.            Clause 200 provides for certain offences in relation to witnesses who fail to comply with the requirements of the FCFC (Division 2). This clause replicates section 65 of the Federal Circuit Court Act.

773.            If a person has been duly served with a subpoena or summons to appear as a witness, subclause 200(1) provides that the person commits an offence if they fail to attend as required or fail to appear and report from day to day (unless excused or released from attendance by the Court). The penalty for non-compliance is imprisonment for six months.

774.            Subclause 200(2) provides that a person commits an offence if, while appearing as a witness before the FCFC (Division 2), the person refuses or fails to:

·          be sworn or make an affirmation

·          answer a question the person is required by the Court to answer, or

·          produce a document that the person is required to produce.

775.            The penalty for non-compliance under subclause 200(2) is imprisonment for six months.

776.            Subclause 299(3) provides that this clause does not limit the power of the FCFC (Division 2) to punish persons for contempt of the Court. However, a person must not be punished under this clause and for contempt of the Court in respect of the same act or omission. The note to this subclause directs the reader to Division 13A of Part VII, and Parts XIII and XIIIA, of the Family Law Act in relation to family law or child support proceedings.

777.            Subclause 200(4) provides that Chapter 2 of the Criminal Code applies to offences under this clause. As the note to this subclause clarifies, Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Division 6—Use of video links or audio links

778.            Division 6 facilitates the use of video and audio technology for the taking of submissions and evidence.  It is common for parties to live in, or have their place of business in, different towns, states or even countries.  Use of video links will avoid parties having to travel long distances to attend directions hearings or final hearings of their cases.  This will save individuals significant time and money. This division applies to the giving of testimony, appearances and making submissions by video or audio link. Similar provisions are made in Division 2 of Part XI of the Family Law Act 1975 for application to the FCFC (Division 1) in family law proceedings.

Clause 201 - Testimony by video link or audio link

779.            Clause 201 relates to the taking of testimony by video link or audio link. This clause replicates section 66 of the Federal Circuit Court Act.

780.            Subclause 201(1) provides that the FCFC (Division 2) or a Judge would be able to direct or allow testimony to be given by video or audio link for the purposes of any proceeding. ‘Video link’ is defined in clause 7 to mean ‘facilities (for example, closed-circuit television facilities) that enable audio and visual communication between persons in different places’. ‘Audio link’ is similarly defined in clause 7 to mean ‘facilities (for example, telephone facilities) that enable audio communication between persons in different places’.

781.            Subclause 201(2) provides that any testimony must be given on oath or affidavit unless the person is in a foreign country in which the law does not permit or makes it inconvenient for the person to give an oath or affirmation, and the FCFC (Division 2) considers that it is appropriate for testimony to be given otherwise than on oath or affirmation. This exception to giving testimony on oath or affirmation exists because in some countries it is not permissible for an oath or affirmation to be administered to a witness taking part in a foreign proceeding. 

782.            Subclause 201(3) provides that, if testimony is not given on oath or affirmation, the FCFC (Division 2) or Judge would be able to give the testimony such weight as it thinks fit.

783.            Subclause 201(4) provides that the FCFC (Division 2) or a Judge would be able to direct testimony to be given by video or audio link either on the application of a party to proceedings or on the initiative of the Court or the Judge.

784.            The court may direct the giving of testimony from any place within or outside Australia under clause 201. However, subclause 201(5) provides that this clause does not apply if the person giving testimony is in New Zealand. The Trans-Tasman Proceedings Act 2010 provides arrangements for obtaining evidence for proceedings in Australia or New Zealand from witnesses in the other country, including arrangements for the use of video or audio links. 

Clause 202 - Appearance of persons by video link or audio link

785.            Clause 202 relates to the appearance of persons by video link or audio link. This clause replicates section 67 of the Federal Circuit Court Act.

786.            Subclause 202(1) provides that the FCFC (Division 2) or a Judge would be able to direct or allow a person to appear before the Court by video or audio link. The note to subclause 202(1) directs the reader to clause 204, which provides that clause 202 is subject to the conditions for use of video and audio links.

787.            Subclause 202(2) provides that the power conferred on the FCFC (Division 2) or a Judge under subclause 202(1) may be exercised on the application of a party or on the initiative of the Court or Judge.

788.            Subclause 202(3) provides that this clause applies regardless of whether the person making a submission is in or outside Australia. However, it does not apply if the person making the submission is in New Zealand. The Trans-Tasman Proceedings Act 2010 (Cth) applies if the person is in New Zealand. The note to subclause 202(3) directs the reader to Part 6 of that Act.

Clause 203 - Making of submissions by video link or audio link

789.            Clause 203 relates to the making of submissions by video link or audio link. It replicates section 68 of the Federal Circuit Court Act.

790.            Subclause 203(1) provides that the FCFC (Division 2) or a Judge may direct or allow a person to make submissions to the FCFC (Division 2) by video or audio link. Clause 203 is subject to the conditions for use of video and audio links set out in clause 204.

791.            Subclause 203(2) provides that the power conferred on the FCFC (Division 2) or a Judge under subclause 203(1) may be exercised on the application of a party, or on the initiative of the Court or Judge.

792.            Subclause 203(3) provides that this clause applies regardless of whether the person making a submission is in or outside Australia. It does not apply if the person making the submission is in New Zealand. The Trans-Tasman Proceedings Act 2010 (Cth) applies if the person is in New Zealand. The note to subclause 203(3) directs the reader to Part 6 of that Act.

Clause 204 - Conditions for use of video links and audio links

793.            Clause 204 sets out the technical requirements for the use of video and audio links in proceedings in the FCFC (Division 2). It provides that the Court or a Judge must not direct or allow the use of video or audio links unless the technical requirements specified are satisfied. This clause replicates section 69 of the Federal Circuit Court Act.

794.            Subclause 204(1) sets out the requirements for video links, providing that the Court or a Judge must not exercise the power conferred by subclauses 201(1), 202(1) or 203(1) for use of a video link unless satisfied that the conditions are met.  The conditions are that the courtroom (or other place where the Court is sitting) and the remote location are equipped with facilities that enable:

·           all eligible persons in the courtroom (or other place) to see and hear the person who is giving testimony, appearing, or making the submission

·          all eligible persons at the remote location to see and hear persons present in the courtroom (or other place). 

795.            Paragraphs 204(1)(c) and (d) allow for other conditions as prescribed by the Rules of Court and as imposed by the Court or Judge.

796.            Subclause 204(2) outlines the conditions that may be prescribed by Rules of Court in accordance with paragraph 204(1)(c).

797.            Subclause 204(3) sets out the conditions for audio links, providing that the Court or a Judge must not exercise the power conferred by subclauses 201(1), 202(1) or 203(1) unless satisfied that the conditions are met.  The conditions are that the courtroom (or other place where the Court is sitting) and the remote location are equipped with facilities that enable:

·          all eligible persons at the courtroom (or other place) to hear the person who is giving testimony, appearing or making the submission

·          all eligible persons at the remote location to hear persons present at the courtroom (or other place). 

798.            Subclauses 204(3)(c) and (d) allow for other conditions to be prescribed by the Rules of Court and imposed by the Court or Judge.

799.            Subclause 204(4) sets out the conditions that may be prescribed by the Rules of Court for audio links.

800.            Subclause 204(5) defines ‘eligible persons’ for the purposes of the application of this clause to proceedings in the FCFC (Division 2). Eligible persons would be such persons as the FCFC (Division 2) or a Judge considers should be treated as eligible persons for the purposes of the proceeding.

Clause 205 - Putting documents to a person by video link or audio link

801.            Clause 205 provides for powers of the FCFC (Division 2) or a Judge to make orders for the putting of documents to a person in the course of an examination or appearance by video or audio link. This clause replicates section 70 of the Federal Circuit Court Act.

802.            Clause 205 provides that the FCFC (Division 2) or a Judge would be able to direct or allow a document to be put to the person by causing a copy of the document to be transmitted to the court or to the remote location as appropriate. This clause is necessary because, in general, a person cannot be questioned about a document unless the person is given a copy of the document.  The process of giving a copy of the document to the person to be questioned is called putting a document to the person. 

Clause 206 - Administration of oaths and affirmations

803.            Clause 206 relates to the administration of oaths and affirmations in proceedings in the FCFC (Division 2) that involve testimony by video link or audio link. It replicates section 71 of the Federal Circuit Court Act.

804.            Subclause 206(a) provides that, when evidence is to be given by video or audio link, an oath or affirmation may be administered to a person by means of the video or audio link in a way that corresponds to the way in which it would be administered if given in the courtroom (or other place where the Court is sitting).

805.            Subclause 206(b) provides that the FCFC (Division 2) or a Judge would be able to allow another person (who is present at the place where the person giving evidence is located) to administer the oath or affirmation.

 

Clause 207 - Expenses

806.            Clause 207 provides for the payment of expenses incurred in the use of video or audio links.  Generally, the person who wishes to give evidence, appear or make a submission by video or audio link would be responsible for having all the necessary arrangements made and for meeting the costs. Clause 207 replicates section 72 of the Federal Circuit Court Act.

807.            Subclause 207(1) provides that the FCFC (Division 2) or a Judge would be able to make such orders as the Court or Judge thinks just for the payment of expenses incurred in connection with the giving of testimony, or appearance or making of submissions by video link or audio link. Subclause 207(2) provides that subclause 207(1) would have effect subject to the regulations.

Clause 208 - New Zealand proceedings

808.            Clause 208 provides that this Division of the Bill does not affect the operation of the Trans-Tasman Proceedings Act 2010 .  The Trans-Tasman Proceedings Act 2010 provides arrangements for obtaining evidence for proceedings in Australia or New Zealand from witnesses in the other country. This clause replicates section 73 of the Federal Circuit Court Act.

Division 7—Orders and judgments

Clause 209 - Orders

809.            Clause 209 provides that an order of the FCFC (Division 2) must be in writing, or be reduced to writing as soon as practicable. An order of the FCFC (Division 2) may be authenticated as provided for by the Rules of Court. This clause replicates section 74 of the Federal Circuit Court Act.

Clause 210 - Reserved judgments etc.

810.            Clause 210 provides for the publication of orders and reasons where a judgment is reserved in proceedings. Orders or reasons prepared by the Judge who heard the proceeding may be made public by another Judge on behalf of the Judge who heard the proceeding, or as otherwise as provided by the Rules of Court. This is intended to ensure that there is no delay in delivering orders or reasons if a Judge who heard the proceeding is unavailable to deliver orders and reasons that have been prepared. This clause replicates section 75 of the Federal Circuit Court Act.  

Clause 211 - Interest up to judgment

811.            Clause 211 provides that, in proceedings for the recovery of money (including a debt, damages, or the value of goods), the FCFC (Division 2) would be able to either award interest or a lump sum in lieu of interest. This clause replicates section 76 of the Federal Circuit Court Act.

812.            Subclause 211(1) provides that this clause would not apply to family law or child support proceedings.  The payment of interest on moneys ordered to be paid in those proceedings is provided for by section 117B of the Family Law Act.

813.            Subclause 211(2) provides that a party to proceedings would be able to apply to the FCFC (Division 2) or a Judge for an interest order under subclause 211(3) if the proceedings are in the FCFC (Division 2) and for the recovery of any money in respect of a particular cause of action.

814.            Subclause 211(3) provides that, if an application is made under subclause 211(2), and the FCFC (Division 2) is not satisfied that good cause has been shown for not making an interest order, then the FCFC (Division 2) must either:

·          order that interest be included in the sum for which the judgment is given, calculated at the rate the Court thinks fit on either the whole or part of the money for either the whole or part of the period between the date on which the cause of action arose and the date on which judgment is entered, or

·          without calculating interest, order a lump sum be included in the sum for which the judgment is given in lieu of such interest.

815.            Subclause 211(4) provides that subclause 211(3) would not:

·           authorise the giving of interest upon interest

·          apply to any debt upon which interest is payable as of right

·          affect the damages recoverable for the dishonour of a bill of exchange

·          limit the operation of any enactment or rule of law which provides for the award of interest, or

·          authorise the giving of interest otherwise than by consent upon any sum for which judgment is given by consent.

816.            Subclause 211(5) provides that interest would not be available on any such amount of the sum for which judgment is given which is for compensation for future loss or damage, or which is for exemplary or punitive damages.

817.            Subclause 211(6) provides that subclause 211(5) does not preclude interest or a sum in lieu of interest being given, under clause 211, upon compensation in respect of a liability of the kind described in paragraph 211(5)(c) (that is, compensation in respect of liabilities incurred which do not carry interest as against the person claiming interest or claiming a sum in lieu of interest), where that liability has been met by the applicant as from the date upon which that liability was met.

Clause 212 - Interest on judgment

818.            Clause 212 provides for the interest on a judgment debt. It replicates section 77 of the Federal Circuit Court Act.

819.            Subclause 212(1) provides that this clause would not apply to family law or child support proceedings.  The payment of interest on moneys ordered to be paid in those proceedings is provided for by section 117B of the Family Law Act .

820.            Subclause 212(2) provides that a judgment debt carries interest from the date on which the judgment is entered.

821.            Subclause 212(3) provides that the rate of interest is payable at a rate fixed by the Rules of Court, or at a lower rate in a particular case if the FCFC (Division 2) thinks that justice so requires. 

Clause 213 - Enforcement of judgment

822.            Clause 213 provides that litigants in the FCFC (Division 2) are entitled to the same remedies as are provided for under relevant state or territory legislation in relation to the enforcement of judgments, subject to the Rules of Court. This clause replicates section 78 of the Federal Circuit Court Act.

823.            Subclause 213(1) provides that this clause does not apply to family law or child support proceedings. The note to this subclause directs the reader to Division 13A of Part VII, and Parts XIII and XIIIA, of the Family Law Act in relation to family law or child support proceedings.

824.            Subclauses 213(2) and 213(3) provide that, subject to the Rules of Court, that a person in whose favour a judgment is given is entitled to the same remedies for enforcement of the judgment in a State or Territory, by execution or otherwise, as are allowed in like cases by the laws of that State or Territory.

825.            Subclause 213(4) provides that clause 213 does not affect the operation of any provision made by or under another Act, or by the Rules of Court, regarding the execution and enforcement of judgments of the FCFC (Division 2).

Division 8—Costs

Clause 214 - Costs

826.            Clause 214 provides that the FCFC (Division 2) would have jurisdiction to award costs in all proceedings unless another Act provides that costs must not be awarded. This clause replicates section 79 of the Federal Circuit Court Act.

827.            Subclause 214(1) provides that this clause would not apply to family law or child support proceedings, or proceedings in relation to a matter arising under the Fair Work Act 2009, or section 14, 15 or 16 of the Public Interest Disclosure Act 2013. The note to this subclause directs the reader: to section 117 of the Family Law Act in relation to family law or child support proceedings; to section 570 of the Fair Work Act 2009 for proceedings in relation to matters arising under that Act; and to section 18 of the Public Interest Disclosure Act 2013 for proceedings in relation to matters arising under section 14, 15 or 16 of that Act.

828.            Subclause 214(2) provides that the FCFC (Division 2) has jurisdiction to award costs in all proceedings before the Court, other than proceedings in respect of which any other Act provides that costs must not be awarded. This includes proceedings dismissed for want of jurisdiction.

829.            Subclause 214(3) provides that the award of costs would be in the discretion of the FCFC (Division 2) or Judge unless otherwise provided by the Rules of Court or any other Act. The note to this subclause also directs the reader to Division 4 of Part 6 and paragraphs 192(4)(d) and (e).

830.            Clause 215 - Security for costs

831.            Clause 215 provides that the FCFC (Division 2) would be able to order that an applicant in a proceeding give security for the payment of costs that may be awarded against the applicant. This clause replicates section 80 of the Federal Circuit Court Act.  

832.            The amount of the security, and its manner, form and timing is to be determined by the FCFC (Division 2) or Judge.  Subclause 215(5) provides that if the security is not provided then the proceedings may be dismissed or stayed until the security is provided. 

833.            Clause 215(1) provides that this clause would not apply to family law or child support proceedings. The note to this subclause directs the reader to section 117 of the Family Law Act in relation to family law or child support proceedings.

Division 9—Common approaches with the Federal Circuit and Family Court of Australia (Division 1)

Clause 216 - Chief Judge to achieve common approaches with the Federal Circuit and Family Court of Australia (Division 1)

834.            Clause 216 provides that the Chief Judge must work cooperatively with the Chief Justice with the aim of ensuring common rules of court and forms, and common practices and procedures. This clause is intended to strengthen the goal of ensuring the efficient resolution of family law or child support proceedings which underpins this structural reform of the federal courts. To that end, clause 216 also facilitates the objects of the Bill provided for in clause 5. 

Division 10—Rules of Court

Clause 217 - Rules of Court

835.            Clause 217 provides that the Chief Judge may make Rules of Court:

·          providing for the practice and procedure to be followed in the FCFC (Division 2), including in Registries of the Court

·          providing for all matters and things incidental to the practice and procedure in the FCFC (Division 2)

·          prescribing penalties (not exceeding 50 penalty units) for offences against the Rules of Court

·          prescribing matters as required or permitted by (i) this Chapter of the Bill, or (ii) any other law of the Commonwealth.

836.            Providing that Rules of Court can be made by the Chief Judge is intended, in circumstances where the Chief Judge is also the Chief Justice of the FCFC (Division 1), to enable consistency between the Rules of Court that apply in the FCFC (Division 1) and FCFC (Division 2).

837.            The note after subclause 217(1) directs the reader to amendments made by Part 4 of Schedule 1 of the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2019 that are to commence two years after the commencement of the section.  These amendments will provide that Rules of Court for the FCFC (Division 2) will be made by FCFC (Division 2) Judges or a majority of them, two years after the commencement of the clause.

838.            Subclause 217(2) provides that the Rules of Court would have effect subject to any provision made in another Act, or by rules and regulations under another Act, with respect to the practice and procedure of the FCFC (Division 2) in particular matters.

839.            Subclause 217(3) provides that the Legislation Act 2003 would apply in relation to Rules of Court made by the Chief Judge (i) as if a reference to a legislative instrument (other than in subparagraph 14(1)(a)(i) and subsection 14(3) of the Legislation Act 2003 ) were a reference to a rule of court, and (ii) subject to modifications made under clause 249 of this Bill.

840.            Subclause 217(4) provides that the Office of Parliamentary Counsel may provide assistance in the drafting of any of the Rules of Court, if the Chief Judge so desires.

Clause 218 - Consultation

841.            Clause 218 relates to consultation on the Rules of Court.

842.            Subclause 218(1) provides that, before making Rules of Court, the Chief Judge must be satisfied that there has been appropriate consultation with other Judges.

843.            Subclause 218(2) provides that the validity or enforceability of a Rule of Court is not affected by the fact that consultation does not occur.

844.            Clause 218(3) provides that, to avoid doubt, clause 184A does not limit section 17 of the Legislation Act 2003 . Section 17 of the Legislation Act 2003 relates to rule-makers consulting before making legislative instruments.

Clause 219 - Documents

845.            Clause 219 provides that the Rules of Court may make provision in relation to:

·          pleading

·          appearance under protest

·          interrogatories

·          discovery, production and inspection of documents

·          the making of applications for dissolution of marriage jointly by both parties to the marriage, and

·          the forms to be used for the purposes of proceedings in the FCFC (Division 2).

846.            Clause 219(2) provides that the Rules of Court may make provision for the amendment of, or leave to amend, a document in a proceeding even if the effect of the amendment would be to allow a person to seek a remedy that would have been barred by the expiry of a period of limitation at the time of the amendment.

847.            This clause replicates section 82 of the Federal Circuit Court Act.

Clause 220 - Service

848.            Clause 220 provides that the Rules of Court may make provision in relation to the service and execution of the process of the FCFC (Division 2). This clause replicates section 83 of the Federal Circuit Court Act.

Clause 221 - Evidence

849.            Clause 221 provides that the Rules of Court may make provision in relation to:

·          subpoenas

·          summonses

·          the attendance of witnesses

·          the administration of oaths and affirmations

·          the means by which particular facts may be proved and the mode in which evidence of particular facts may be given

·          the reception from New Zealand of copies of documents sent by fax

·          the reception from New Zealand of evidence or submissions by video link or audio link

·          issuing subpoenas for service in New Zealand and the service of such subpoenas, and

·          the form to accompany a subpoena for service in New Zealand.

850.            This clause replicates section 84 of the Federal Circuit Court Act.

Clause 222 - Orders and judgments

851.            Clause 222 provides that the Rules of Court may make provision in relation to: 

·          the enforcement and execution of judgments of the FCFC (Division 2)

·          the stay of proceedings in the FCFC (Division 2), or another court, or tribunals

·          the procedure of the FCFC (Division 2) exercising powers to deal with a person for contempt of the Court, and

·          the form in which the FCFC (Division 2) is to give reasons for decisions.

852.            This clause replicates section 85 of the Federal Circuit Court Act.

Clause 223 - Costs

853.            Clause 223 provides that the Rules of Court may make provision in relation to:

·          the giving of security

·          the costs of proceedings in the FCFC (Division 2)

·          the fees to be charged by practitioners in the FCFC (Division 2) for the work done by them in relation to proceedings in the Court and the taxation of their bills of costs, and

·          the kinds of proceedings in which each party is to bear the party’s own costs.

854.            This clause replicates section 86 of the Federal Circuit Court Act.

Clause 224 - General

855.            Clause 224 provides that the Rules of Court may make provision in relation to a number of general matters. This clause replicates the effect of section 87 of the Federal Circuit Court Act.

856.            In addition to the list of general matters replicated from section 87 of the Federal Circuit Court Act listed in subclauses 224(1) and 224(2), subclause 224(1) provides that the Rules of Court would be able to make provision in relation to:

·          the power to order a party’s lawyer to give the party an estimate of the likely duration of the proceedings and the likely amount of costs the party will have to pay in connection with the proceeding (subclause 191(3))

·          the power to give directions about the practice and procedure to be followed in a civil proceeding before the Court (subclause 192(1)), and

·          the power to make any order or direction the Court or Judge thinks appropriate if a party fails to comply with a direction about the practice and procedure to be followed in relation to a proceeding or part of a proceeding (subclause 192(3)).

Clause 225 - Incidental matters

857.            Clause 225 provides that the Rules of Court would be able to prescribe matters incidental to the matters that are required or permitted to be prescribed by the Rules of Court under any provision of this Chapter of the Bill or under any other law of the Commonwealth. This clause replicates section 88 of the Federal Circuit Court Act. 

 

PART 7—SUPPRESSION AND NON-PUBLICATION ORDERS

Division 1—Introduction

Clause 226 - Powers of Federal Circuit and Family Court of Australia (Division 2) not affected

858.            Clause 226 provides that Part 7 of the Bill would not limit or otherwise affect any powers that the FCFC (Division 2) would have (apart from this Part) to regulate its proceedings or deal with a contempt of the Court. This includes the Court’s implied powers. This clause replicates section 88B of the Federal Circuit Court Act.

Clause 227 - Other laws not affected

859.            Clause 227 provides that Part 7 would not limit or affect the operation of any provision made in another Act that prohibits, restricts or authorises a court to prohibit or restrict the publication or other disclosure of information in connection with proceedings. This means that any such restrictions in other Acts would continue to operate. The provisions in this Part of the Bill are intended to govern the granting of suppression and non-publication orders under this Bill. Clause 227 replicates section 88C of the Federal Circuit Court Act.

Clause 228 - This Part does not apply to proceedings under the Family Law Act 1975

860.            Clause 228 provides that Part 7 of this Bill applies to proceedings in the FCFC (Division 2) but not if they are proceedings under the Family Law Act . The note to this clause clarifies that Part XIA of the Family Law Act deals with suppression and non-publication orders in proceedings under that Act. This clause replicates section 88D of the Federal Circuit Court Act.

Division 2—Suppression and non-publication orders

Clause 229 - Safeguarding public interest in open justice

861.            Clause 229 provides that the FCFC (Division 2) must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice when deciding whether to make a suppression order or non-publication order. This emphasises the fundamental importance of the principle of open justice which should not be overridden lightly. This clause replicates section 88E of the Federal Circuit Court Act.

Clause 230- Power to make orders

862.            Clause 230 provides that the FCFC (Division 2) would have the power to make suppression and non-publication orders. Such orders would bind all members of the public, not just those present at the proceedings. This clause replicates section 88F of the Federal Circuit Court Act.

863.            Subclause 230(1) specifies the information which could be the subject of a suppression or non-publication order.  That information includes information tending to reveal the identity of, or otherwise concerning, a party or witness (or anybody related to or otherwise associated with that person).  The Court would also be able to make such an order in relation to evidence or information about evidence, information obtained through discovery, information produced under a subpoena or information lodged with or filed in the Court.

864.            This clause would provide the FCFC (Division 2) with flexibility to determine exactly what information should be subject to an order, and to what extent access to that information should be limited.  

865.            Subclause 230(2) provides that the FCFC (Division 2) would be able to make such orders as it thinks appropriate to give effect to an order under subclause 196(1).  This subclause would, for example, give the Court the clear power to make a ‘take down’ order.  This is an order directing a publisher to remove certain information the subject of the suppression or non-publication order, and could, for example, be directed to website publishers or individuals who had posted certain content on the internet.  

Clause 231 - Grounds for making an order

866.            Clause 231 provides that the FCFC (Division 2) would only be able to make suppression or non-publication orders if one or more of the grounds set out in this clause is satisfied. These grounds are that:

·          the order is necessary to prevent prejudice to the proper administration of justice

·          the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security

·          the order is necessary to protect the safety of any person

·          the order is necessary to avoid causing undue distress or embarrassment to a party or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency).

867.            The various grounds that can found a suppression or non-publication order under clause 231 all include the condition that such an order must be ‘necessary’, and should be read in light of the current jurisprudence about what that means in the context of such orders being made.  This reinforces again that such orders cannot be made lightly, bearing in mind the interest in open justice (as recognised by clause 195). This clause replicates section 88G of the Federal Circuit Court Act.

Clause 232 - Procedure for making an order

868.            Clause 232 would establish the procedure for the FCFC (Division 2) to make suppression or non-publication orders. This clause replicates section 88H of the Federal Circuit Court Act.

869.            Subclause 232(1) provides that the FCFC (Division 2) would be able to make such an order on its own initiative, or on the application of either a party to the proceeding or any other person whom the Court considers has a sufficient interest in the making of the order.

870.            Subclause 232(2) lists the people who would be entitled to appear and be heard when an application for such an order is being considered by the Court: the applicant for the order, a party to the proceeding, the Government (or agency of the Government) of the Commonwealth or a State or Territory, a news publisher, or any other person who the Court considers has a sufficient interest in whether the order should be made.

871.            Subclause 232(3) allows such orders to be made at any time during proceedings or after proceedings have concluded.  This clause recognises that circumstances might change during or after proceedings that might warrant a suppression or non-publication order being made at that time.

872.            Subclause 232(4) allows the FCFC (Division 2) to make a suppression or non-publication order subject to such exceptions and conditions as the Court thinks fit, and to provide such specifications in the order. This encourages the Court to carefully consider the breadth of the order, and only make the order as wide as it needs to be in the circumstances. It also requires the Court to fully set out these terms in the order.

873.            Subclause 232(5) requires the FCFC (Division 2) to specify the information to which the order applies with sufficient particularity to ensure that the order is limited to achieving the purpose for which the order is made.  This clause requires the Court to limit the breadth of the order, covering only what is required to achieve its purpose, bearing in mind the principle of open justice.

Clause 233 - Interim orders

874.            Subclause 233(1) provides that the FCFC (Division 2) would be able to make an interim suppression or non-publication order without requiring the Court to assess the merits of the substantive application, pending the substantive application being heard.

875.            Once an interim order has been made, subclause 233(2) requires the FCFC (Division 2) to determine the application as a matter of urgency.

876.            This section is intended to allow the Court to make an order for an interim period in urgent cases until the Court has had an opportunity to assess the merits of the substantive application.  It is not intended that interim orders remain in place for long periods of time.

877.            This clause replicates section 88J of the Federal Circuit Court Act.

Clause 234 - Duration of orders

878.            Clause 234 is intended to ensure that the FCFC (Division 2) considers, and clearly specifies, how long it is appropriate for orders to stay in force, so that orders are not made for durations longer than necessary to achieve their purpose.  This is intended to reinforce the principle that suppression and non-publication orders should only be as broad-reaching as is necessary to achieve their aim, consistent with the principles of open justice.

879.            Subclause 234(1) provides that a suppression or non-publication order made by FCFC (Division 2) operates for the period decided by the Court and specified in the order.

880.            Subclause 234(2) provides that the FCFC (Division 2) is to ensure that an order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.

881.            Subclause 234(3) allows the duration of the order to be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event.

882.            This clause replicates section 88K of the Federal Circuit Court Act.

Clause 235 - Exception for court officials

883.            Clause 235 provides that a suppression order does not prevent a person from disclosing information provided that the disclosure is not by publication and is in the course of performing functions or duties or exercising powers in a public official capacity. It must be either in connection with the conduct of proceedings or the recovery or enforcement of any penalty imposed in proceedings, or in compliance with any procedure adopted by the Court for informing a news publisher of the existence and content of a suppression order or non-publication order made by the Court.

145.                This provision ensures that Court officials can undertake certain specified duties without infringing a suppression or non-publication order.  In particular, Court officials must be able to notify news publishers that suppression or non-publication orders have been made so that news publishers can avoid breaching such orders.

884.            This clause replicates section 88L of the Federal Circuit Court Act.

Clause 236 - Contravention of order

885.            Subclause 236(1) provides that a person would commit an offence if a person does an act or omits to do an act that contravenes a suppression or non-publication order made under clause 230. The penalty prescribed for this offence is imprisonment for 12 months, 60 penalty units, or both.

886.            If a person’s act or omission constitutes an offence under clause 176, subclauses 202(2)-(4) provide that that person can either be punished for committing an offence under subclause 202(1) or for contempt of court, but not for both.

887.            This clause replicates section 88M of the Federal Circuit Court Act.

PART 8—VEXATIOUS PROCEEDINGS

888.            Provisions relating to vexatious proceedings are made in Part XIB of the Family Law Act 1975 for the FCFC (Division 1). The provisions relating to vexatious proceedings in that Act and in this Part are consistent.

Division 1—Introduction

Clause 237 - Meaning of a person acting in concert

889.            Clause 237 provides that, for the purposes of this Part of the Bill, ‘a person acting in concert’ with another person in instituting or conducting proceedings would not include a person acting as a legal practitioner or representative of the person. The term ‘representative’ may include, for example, the representatives of persons under a disability, deceased persons or children.

Clause 238 - Powers of the Federal Circuit and Family Court of Australia (Division 2) not affected

890.            Clause 238 clarifies that Part 8 does not limit or otherwise affect any other powers (including implied powers) that the FCFC (Division 2) has apart from that Part to deal with vexatious proceedings. This clause replicates section 88P of the Federal Circuit Court Act.

Division 2—Vexatious proceedings orders

Clause 239 - Making vexatious proceedings orders

891.            Clause 239 provides that the FCFC (Division 2) would be able to make an order to manage litigants who institute or conduct vexatious proceedings, as defined in clause 7 of the Bill. This clause replicates section 88Q of the Federal Circuit Court Act.

892.            Clause 7 provides a definition of ‘vexatious proceeding’ that is inclusive. It lists some examples of various kinds of proceedings including:

·          a proceeding that is an abuse of the process of a court or tribunal</