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Part 5—Practice and procedure

Part 5 Practice and procedure

Division 1 General

38   Practice and procedure

             (1)  Subject to this Chapter and the Family Law Act 1975 , the practice and procedure of the Federal Circuit and Family Court of Australia (Division 1) is to be in accordance with:

                     (a)  regulations made under this Act and the Family Law Act 1975 ; and

                     (b)  the Rules of Court.

             (2)  To the extent that the provisions mentioned in subsection (1) are insufficient, the Rules of the High Court apply, mutatis mutandis , so far as they are capable of applying and subject to any directions of the Federal Circuit and Family Court of Australia (Division 1) or a Judge, to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 1).

             (3)  This section does not apply in relation to proceedings that are transferred to the Federal Circuit and Family Court of Australia (Division 1) from the Federal Court.

             (4)  In this section, practice and procedure includes all matters with respect to which regulations under this Act, the Family Law Act 1975 or Rules of Court may be made.

Note:          For further provisions concerning procedure and evidence, see Part XI of the Family Law Act 1975 .

39   Representation

                   A party to a proceeding before the Federal Circuit and Family Court of Australia (Division 1) is not entitled to be represented by another person unless:

                     (a)  under the Judiciary Act 1903 , the other person is entitled to practise as a barrister or solicitor, or both, in a federal court; or

                     (b)  under the regulations, the other person is taken to be an authorised representative; or

                     (c)  another law of the Commonwealth authorises the other person to represent the party.

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

40   Filing of documents in the Federal Circuit and Family Court of Australia (Division 1)

             (1)  If a document is required or permitted to be filed in the Federal Circuit and Family Court of Australia (Division 1):

                     (a)  the document is to be filed:

                              (i)  at a registry of the Court; or

                             (ii)  in accordance with an arrangement under section 58 or 59; and

                     (b)  the document is to be filed in accordance with the Rules of Court.

             (2)  The Rules of Court may provide that the requirements of subsection (1) are taken to have been met in relation to a document:

                     (a)  if the document, or its contents, are sent to the Federal Circuit and Family Court of Australia (Division 1), using the web portal of the Federal Circuit and Family Court of Australia; or

                     (b)  in other circumstances set out in the Rules of Court.

41   Seal of the Federal Circuit and Family Court of Australia (Division 1)

             (1)  The Federal Circuit and Family Court of Australia (Division 1) is to have a seal, and the design of the seal is to be determined by the Minister.

             (2)  The seal of the Federal Circuit and Family Court of Australia (Division 1) must be kept in such custody as the Chief Justice directs.

             (3)  The seal of the Federal Circuit and Family Court of Australia (Division 1) must be affixed to documents as provided by this or any other Act or by the Rules of Court.

42   Federal Circuit and Family Court of Australia (Division 1) stamps

             (1)  There are to be one or more Federal Circuit and Family Court of Australia (Division 1) stamps. For this purpose, a Federal Circuit and Family Court of Australia (Division 1) stamp is a stamp the design of which is, as nearly as practicable, the same as the design of the seal of the Federal Circuit and Family Court of Australia (Division 1).

             (2)  A document or a copy of a document marked with a Federal Circuit and Family Court of Australia (Division 1) stamp is as valid and effectual as if it had been sealed with a seal of the Federal Circuit and Family Court of Australia (Division 1).

             (3)  A Federal Circuit and Family Court of Australia (Division 1) stamp must be affixed to documents as provided by this or any other Act or by the Rules of Court.

43   Writs etc.

             (1)  All writs, commissions and process issued from the Federal Circuit and Family Court of Australia (Division 1) must be:

                     (a)  under the seal of the Court; and

                     (b)  signed (including by way of electronic signature) by:

                              (i)  a Judge; or

                             (ii)  the Chief Executive Officer; or

                            (iii)  a Registrar; or

                            (iv)  a Deputy Registrar; or

                             (v)  an officer acting with the authority of the Chief Executive Officer.

             (2)  Subsection (1) does not apply to writs, commissions and process signed and issued in accordance with an arrangement under section 58.

Note:          See paragraph 58(1)(b).

             (3)  To avoid doubt, subsection (1) does not apply to an order of the Federal Circuit and Family Court of Australia (Division 1).

44   Proceedings may be instituted by application

             (1)  Proceedings may be instituted in the Federal Circuit and Family Court of Australia (Division 1) by way of application without the need for pleadings.

             (2)  Subsection (1) has effect subject to the Rules of Court.

45   Limits on length of documents

             (1)  The Federal Circuit and Family Court of Australia (Division 1) or a Judge may give directions about limiting the length of documents required or permitted to be filed in the Court.

             (2)  Subsection (1) has effect subject to the Rules of Court.

Division 3 Conduct of proceedings

46   Place of sitting

                   Sittings of the Federal Circuit and Family Court of Australia (Division 1) must be held from time to time as required and the Court may sit at any place in Australia.

47   Change of venue

                   The Federal Circuit and Family Court of Australia (Division 1) or a Judge may, at any stage of a proceeding in the Court, order that the proceeding, or a part of the proceeding, be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Court or Judge imposes.

47A   Formal defects not to invalidate

             (1)  Proceedings in the Federal Circuit and Family Court of Australia (Division 1) are not invalidated by a formal defect or an irregularity, unless the Court is of the opinion that:

                     (a)  substantial injustice has been caused by the defect or irregularity; and

                     (b)  the injustice cannot be remedied by an order of the Court.

             (2)  The Federal Circuit and Family Court of Australia (Division 1) or a Judge may, on such conditions (if any) as the Court or Judge thinks fit, make an order declaring that the proceeding is not invalid:

                     (a)  by reason of a defect that it or the Judge considers to be formal; or

                     (b)  by reason of an irregularity.

Division 4 Case management

48   Overarching purpose of family law practice and procedure provisions

             (1)  The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:

                     (a)  according to law; and

                     (b)  as quickly, inexpensively and efficiently as possible.

Note 1:       See also paragraphs 5(a) and (b).

Note 2:       The Federal Circuit and Family Court of Australia (Division 1) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.

             (2)  Without limiting subsection (1), the overarching purpose includes the following objectives:

                     (a)  the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);

                     (b)  the efficient use of the judicial and administrative resources available for the purposes of the Court;

                     (c)  the efficient disposal of the Court’s overall caseload;

                     (d)  the disposal of all proceedings in a timely manner;

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

             (3)  The family law practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.

             (4)  The family law practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:

                     (a)  the Rules of Court;

                     (b)  any other provision made by or under this Act, or any other Act, with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 1).

49   Parties to act consistently with the overarching purpose

             (1)  The parties to a civil proceeding before the Federal Circuit and Family Court of Australia (Division 1) must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.

             (2)  A party’s lawyer must, in the conduct of a civil proceeding before the Federal Circuit and Family Court of Australia (Division 1) (including negotiations for settlement) on the party’s behalf:

                     (a)  take account of the duty imposed on the party by subsection (1); and

                     (b)  assist the party to comply with the duty.

             (3)  The Federal Circuit and Family Court of Australia (Division 1) or a Judge may, for the purpose of enabling a party to comply with the duty imposed by subsection (1), require the party’s lawyer to give the party an estimate of:

                     (a)  the likely duration of the proceeding or part of the proceeding; and

                     (b)  the likely amount of costs that the party will have to pay in connection with the proceeding or part of the proceeding, including:

                              (i)  the costs that the lawyer will charge to the party; and

                             (ii)  any other costs that the party will have to pay in the event that the party is unsuccessful in the proceeding or part of the proceeding.

Note:          Paragraph (b)—the Federal Circuit and Family Court of Australia (Division 1) may make an order as to costs under section 117 of the Family Law Act 1975 if the Court is of the opinion that there are circumstances that justify it in doing so.

             (4)  In exercising the discretion to award costs in a civil proceeding, the Federal Circuit and Family Court of Australia (Division 1) or a Judge must take account of any failure to comply with the duty imposed by subsection (1) or (2).

             (5)  Without limiting the exercise of that discretion, the Federal Circuit and Family Court of Australia (Division 1) or a Judge may order a party’s lawyer to bear costs personally.

             (6)  If the Federal Circuit and Family Court of Australia (Division 1) or a Judge orders a lawyer to bear costs personally because of a failure to comply with the duty imposed by subsection (2), the lawyer must not recover the costs from the lawyer’s client.

50   Power of the Federal Circuit and Family Court of Australia (Division 1) to give directions about practice and procedure in a civil proceeding

             (1)  The Federal Circuit and Family Court of Australia (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.

             (2)  Without limiting subsection (1), a direction may:

                     (a)  require things to be done; or

                     (b)  set time limits for the doing of anything, or the completion of any part of the proceeding; or

                     (c)  limit the number of witnesses who may be called to give evidence, or the number of documents that may be tendered in evidence; or

                     (d)  provide for submissions to be made in writing; or

                     (e)  limit the length of submissions (whether written or oral); or

                      (f)  waive or vary any provision of the Rules of Court in their application to the proceeding; or

                     (g)  revoke or vary an earlier direction.

             (3)  If a party fails to comply with a direction given by the Federal Circuit and Family Court of Australia (Division 1) or a Judge under subsection (1), the Court or Judge may make such order or direction as the Court or Judge thinks appropriate.

             (4)  In particular, the Federal Circuit and Family Court of Australia (Division 1) or Judge may do any of the following:

                     (a)  dismiss the proceeding in whole or in part;

                     (b)  strike out, amend or limit any part of a party’s claim or defence;

                     (c)  disallow or reject any evidence;

                     (d)  award costs against a party;

                     (e)  order that costs awarded against a party are to be assessed on an indemnity basis or otherwise.

             (5)  Subsections (3) and (4) do not affect any power that the Federal Circuit and Family Court of Australia (Division 1) or a Judge has apart from those subsections to deal with a party’s failure to comply with a direction.

Note:          The Federal Circuit and Family Court of Australia (Division 1) or a Judge may also make orders under the Family Law Act 1975 .

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

                   For the purposes of ensuring the efficient resolution of family law or child support proceedings, the Chief Justice must work cooperatively with the Chief Judge with the aim of ensuring common approaches to case management.

Division 5 Evidence

52   Oaths and affirmations

             (1)  A Judge may require and administer all necessary oaths and affirmations for the purposes of the Federal Circuit and Family Court of Australia (Division 1).

             (2)  A Judge may cause to be administered all necessary oaths and affirmations for the purposes of the Federal Circuit and Family Court of Australia (Division 1). For this purpose, the Court may, either orally or in writing, authorise any person (whether in or outside Australia) to administer oaths and affirmations.

             (3)  The Chief Executive Officer may, in writing, authorise:

                     (a)  a Registrar or Deputy Registrar; or

                     (b)  a staff member of the Federal Circuit and Family Court of Australia (Division 1);

to administer oaths and affirmations for the purposes of the Court.

Note:          See also paragraph 58(1)(d).

53   Swearing of affidavits etc.

             (1)  An affidavit to be used in a proceeding in the Federal Circuit and Family Court of Australia (Division 1) may be sworn or affirmed in Australia before:

                     (a)  a Judge; or

                     (b)  the Chief Executive Officer; or

                     (c)  a Registrar; or

                     (d)  a Deputy Registrar; or

                     (e)  a justice of the peace; or

                      (f)  a commissioner for affidavits; or

                     (g)  a commissioner for declarations; or

                     (h)  a person who is authorised to administer oaths or affirmations for the purposes of:

                              (i)  the High Court; or

                             (ii)  the Federal Court; or

                            (iii)  the Federal Circuit and Family Court of Australia; or

                            (iv)  the Supreme Court of a State or Territory; or

                      (i)  a person before whom affidavits can be sworn or affirmed under the Evidence Act 1995 .

             (2)  An affidavit to be used in a proceeding in the Federal Circuit and Family Court of Australia (Division 1) may be sworn or affirmed at a place outside Australia before:

                     (a)  a commissioner of the High Court who is authorised to administer oaths or affirmations in that place for the purposes of the High Court; or

                     (b)  an Australian Diplomatic Officer or an Australian Consular Officer, as defined by the Consular Fees Act 1955 , who is exercising the officer’s function in that place; or

                     (c)  an employee of the Commonwealth who is:

                              (i)  authorised under paragraph 3(c) of the Consular Fees Act 1955 ; and

                             (ii)  exercising the employee’s function in that place; or

                     (d)  an employee of the Australian Trade and Investment Commission who is:

                              (i)  authorised under paragraph 3(d) of the Consular Fees Act 1955 ; and

                             (ii)  exercising the employee’s function in that place; or

                     (e)  a notary public who is exercising the notary public’s function in that place; or

                      (f)  a person who is:

                              (i)  qualified to administer an oath or affirmation in that place; and

                             (ii)  certified by a person mentioned in any of paragraphs (b), (c), (d) and (e), or by the superior court of that place, to be so qualified.

             (3)  An affidavit sworn or affirmed outside Australia otherwise than before a person referred to in subsection (2) may be used in a proceeding in the Federal Circuit and Family Court of Australia (Division 1) in circumstances provided by the Rules of Court.

53A   Orders and commissions for examination of witnesses

                   The Federal Circuit and Family Court of Australia (Division 1) or a Judge may, for the purposes of any proceeding before the Court or Judge:

                     (a)  order 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; or

                     (b)  order that a commission issue to a person, either in or outside Australia, authorising the person to take the testimony on oath or affirmation of another person;

and the Court or a Judge may:

                     (c)  by the same or a subsequent order, give any necessary directions concerning the time, place and manner of the examination; and

                     (d)  empower any party to the proceeding to give in evidence in the proceeding the testimony so taken on such terms (if any) as the Court or Judge directs.

Division 6 Judgments

54   Reserved judgments etc.

             (1)  If:

                     (a)  the Federal Circuit and Family Court of Australia (Division 1) reserves judgment in a proceeding; and

                     (b)  the Judge who heard the proceeding prepares orders and reasons;

those orders and reasons may be made public by another Judge on behalf of the Judge who heard the proceeding or as otherwise provided for by the Rules of Court.

             (2)  If:

                     (a)  the Federal Circuit and Family Court of Australia (Division 1) reserves reasons for its decision in a proceeding; and

                     (b)  the Judge who heard the proceeding prepares reasons;

those reasons may be made public by another Judge on behalf of the Judge who heard the proceeding or as otherwise provided for by the Rules of Court.

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

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

                   For the purposes of ensuring the efficient resolution of family law or child support proceedings, the Chief Justice must work cooperatively with the Chief Judge with the aim of ensuring:

                     (a)  common rules of court and forms; and

                     (b)  common practices and procedures.

Division 8 Rules of Court

56   Rules of Court

             (1)  The Chief Justice may make Rules of Court:

                     (a)  providing for, or in relation to, the practice and procedure to be followed in the Federal Circuit and Family Court of Australia (Division 1) (including the practice and procedure to be followed in Registries of the Court); or

                     (b)  providing for, or in relation to, all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the Federal Circuit and Family Court of Australia (Division 1); or

                     (c)  providing for, or in relation to, any matter or thing in respect of which Rules of Court may be made under the Family Law Act 1975 for the purposes of their application to the Federal Circuit and Family Court of Australia (Division 1); or

                     (d)  providing for, or in relation to, proceedings transferred to the Federal Circuit and Family Court of Australia (Division 1) under section 35A of the Bankruptcy Act 1966 ; or

                     (e)  providing for, or in relation to, the time and manner of institution of appeals in and to the Federal Circuit and Family Court of Australia (Division 1); or

                      (f)  prescribing the duties of officers of the Federal Circuit and Family Court of Australia (Division 1); or

                     (g)  prescribing penalties, not exceeding 50 penalty units, for offences against the Rules of Court; or

                     (h)  prescribing matters required or permitted by:

                              (i)  any other provision of this Chapter; or

                             (ii)  any other law of the Commonwealth;

                            to be prescribed by the Rules of Court.

             (2)  The Rules of Court may make provision for:

                     (a)  the amendment of a document in a proceeding; or

                     (b)  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 in respect of a legal or equitable claim that would have been barred because of the expiry of a period of limitation if the remedy had originally been sought at the time of the amendment.

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

             (4)  The Legislation Act 2003 (other than sections 8, 9, 10 and 16 of that Act) applies in relation to Rules of Court made by the Chief Justice under this Chapter or another Act (other than the Family Law Act 1975 ):

                     (a)  as if a reference to a legislative instrument were a reference to a Rule of Court; and

                     (b)  subject to such further modifications or adaptations as are provided for in regulations made under section 249 of this Act.

             (5)  Despite the fact that section 16 of the Legislation Act 2003 does not apply to Rules of Court made by the Chief Justice under this Chapter or another Act, the Office of Parliamentary Counsel (established by subsection 2(1) of the Parliamentary Counsel Act 1970 ) may provide assistance in the drafting of any of those Rules if the Chief Justice so desires.