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Part 3—Transfer of proceedings

Part 3 Transfer of proceedings

   

34   Discretionary transfer of proceedings to the Federal Circuit and Family Court of Australia (Division 2)

             (1)  If a proceeding is pending in the Federal Circuit and Family Court of Australia (Division 1), the Court may, by order, transfer the proceeding from the Court to the Federal Circuit and Family Court of Australia (Division 2).

             (2)  The Federal Circuit and Family Court of Australia (Division 1) may transfer a proceeding:

                     (a)  on the application of a party to the proceeding; or

                     (b)  on its own initiative.

             (3)  In deciding whether to transfer a proceeding to the Federal Circuit and Family Court of Australia (Division 2), the Federal Circuit and Family Court of Australia (Division 1) must have regard to:

                     (a)  any Rules of Court made for the purposes of subsection 35(2); and

                     (b)  whether proceedings in respect of an associated matter are pending in the Federal Circuit and Family Court of Australia (Division 2); and

                     (c)  whether the resources of the Federal Circuit and Family Court of Australia (Division 1) are sufficient to hear and determine the proceeding; and

                     (d)  the interests of the administration of justice.

             (4)  If an order is made under subsection (1), the order takes effect on the day that the order is approved by the Chief Judge of the Federal Circuit and Family Court of Australia (Division 2) under subsection (5).

             (5)  The Chief Judge of the Federal Circuit and Family Court of Australia (Division 2) may approve, in writing, an order made under subsection (1). In deciding whether to approve the order, the Chief Judge must have regard to any Rules of Court made for the purposes of subsection 35(2).

             (6)  The Federal Circuit and Family Court of Australia (Division 1) may make such orders as it considers necessary pending written approval being given by the Chief Judge of the Federal Circuit and Family Court of Australia (Division 2).

             (7)  An appeal does not lie from a decision of the Federal Circuit and Family Court of Australia (Division 1) in relation to the transfer of a proceeding under this section.

             (8)  The following provisions have effect in relation to a decision by the Chief Judge of the Federal Circuit and Family Court of Australia (Division 2) to give, or refuse to give, an approval under subsection (5):

                     (a)  the Administrative Decisions (Judicial Review) Act 1977 does not apply to the decision;

                     (b)  despite section 39B of the Judiciary Act 1903 , the Federal Court does not have jurisdiction with respect to a matter relating to the decision.

             (9)  An approval given under subsection (5)is not a legislative instrument.

           (10)  This section does not apply to proceedings of a kind specified in the regulations.

35   Rules of Court

             (1)  The Rules of Court may make provision in relation to transfers of proceedings to the Federal Circuit and Family Court of Australia (Division 2) under subsection 34(1), including in relation to the scale of costs that applies to any order made in respect of proceedings that are transferred.

             (2)  In particular, the Rules of Court may specify matters to which the Federal Circuit and Family Court of Australia (Division 1) must have regard in deciding whether to transfer a proceeding to the Federal Circuit and Family Court of Australia (Division 2) under subsection 34(1).

             (3)  Before Rules of Court are made for the purposes of this section, the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) must consult the Chief Judge of the Federal Circuit and Family Court of Australia (Division 2).

36   Delegation

                   The Chief Justice may, in writing, delegate the Chief Justice’s power under subsection 117(5) to any one or more of the Judges.

Note:          Section 117 allows the Federal Circuit and Family Court of Australia (Division 2) to order the transfer of proceedings to the Federal Circuit and Family Court of Australia (Division 1), subject to the approval of the Chief Justice.