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Part 2—Jurisdiction

Part 2 Jurisdiction

Division 1 Original jurisdiction

99   Original jurisdiction—general

             (1)  The Federal Circuit and Family Court of Australia (Division 2) has such original jurisdiction as is vested in it:

                     (a)  by laws made by the Parliament:

                              (i)  by express provision; or

                             (ii)  by the application of section 15C of the Acts Interpretation Act 1901 to a provision that, whether expressly or by implication, authorises a civil proceeding to be instituted in the Federal Circuit and Family Court of Australia (Division 2) in relation to a matter; or

                     (b)  by a legislative instrument made under section 101.

             (2)  The original jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) includes any jurisdiction vested in it to hear and determine appeals from decisions of persons, authorities or tribunals other than courts.

             (3)  The process of the Federal Circuit and Family Court of Australia (Division 2) runs, and the judgments of the Federal Circuit and Family Court of Australia (Division 2) have effect and may be executed, throughout Australia.

100   Original jurisdiction—family law or child support matters

             (1)  The Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction:

                     (a)  with respect to matters in respect of which proceedings may be instituted under the Family Law Act 1975 ; or

                     (b)  with respect to matters arising under the Marriage Act 1961 in respect of which proceedings (other than proceedings under Part VII of that Act) are instituted under that Act; or

                     (c)  with respect to matters arising under a law of a Territory (other than the Northern Territory) concerning:

                              (i)  the adoption of children; or

                             (ii)  the property of the parties to a marriage or either of them, being matters between those parties referred to in the definition of matrimonial cause in the Family Law Act 1975 ; or

                            (iii)  the rights and status of a person who is an ex-nuptial child, and the relationship of such a person to the person’s parents; or

                     (d)  as is conferred on the Court, or in respect of which proceedings may be instituted in the Court, by any other Act.

             (2)  Subject to such restrictions and conditions (if any) in:

                     (a)  section 111AA of the Family Law Act 1975 ; or

                     (b)  regulations made under that Act; or

                     (c)  the related Federal Circuit and Family Court of Australia (Division 2) Rules, as defined by that Act;

the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) may be exercised in relation to persons or things outside Australia.

Note:          Division 4 of Part XIIIAA of the Family Law Act 1975 (international protection of children) may affect the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2).

101   Original jurisdiction—Commonwealth tenancy disputes

             (1)  The Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction to hear and determine a Commonwealth tenancy dispute between the parties to a lease, licence or other arrangement in which:

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

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

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

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

                     (b)  a person other than:

                              (i)  the Commonwealth; or

                             (ii)  a person suing or being sued on behalf of the Commonwealth; or

                            (iii)  a Commonwealth officer or employee;

                            is:

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

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

                            (vi)  the grantee of the right or permission.

             (2)  The Minister may, by legislative instrument, confer jurisdiction on the Federal Circuit and Family Court of Australia (Division 2) in respect of any other specified Commonwealth tenancy dispute.

Note:          For specification by class, see subsection 13(3) of the Legislation Act 2003 .

             (3)  The Minister may, by legislative instrument, make provision for and in relation to all or any of the following matters in respect of a Commonwealth tenancy dispute:

                     (a)  the rights of the parties to the Commonwealth tenancy dispute;

                     (b)  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 );

                     (c)  any modifications of the applicable law that are to apply in relation to the Commonwealth tenancy dispute;

                     (d)  the powers that the Federal Circuit and Family Court of Australia (Division 2) may exercise under the applicable law;

                     (e)  if the Federal Circuit and Family Court of Australia (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.

Division 2 Appellate jurisdiction

102   Appeals from courts of summary jurisdiction in relation to family law or child support matters

             (1)  The Federal Circuit and Family Court of Australia (Division 2) has jurisdiction to hear and determine appeals from:

                     (a)  a judgment of a court of summary jurisdiction of a State or Territory exercising jurisdiction under the Family Law Act 1975 ; or

                     (b)  a judgment of a court of summary jurisdiction of a State or Territory exercising jurisdiction under the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988 .

Note 1:       For the definition of court of summary jurisdiction , see section 2B of the Acts Interpretation Act 1901 .

Note 2:       See section 47A of the Family Law Act 1975 .

             (2)  For the purposes of subsection (1), a Family Court of a State is not a court of summary jurisdiction.

Division 3 Associated matters

103   Jurisdiction in associated matters

                   To the extent that the Constitution permits, jurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 2) in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) is invoked.

Division 4 Exercise of jurisdiction

104   General and Fair Work Divisions of the Federal Circuit and Family Court of Australia (Division 2)

             (1)  For the purpose of the organisation and conduct of the business of the Federal Circuit and Family Court of Australia (Division 2), the Court comprises the following Divisions:

                     (a)  the General Division;

                     (b)  the Fair Work Division.

             (2)  Every proceeding in the Federal Circuit and Family Court of Australia (Division 2) must be instituted, heard and determined in a Division mentioned in subsection (1).

Fair Work Division

             (3)  The following jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) is to be exercised in the Fair Work Division:

                     (a)  jurisdiction that is required by any other Act to be exercised in the Fair Work Division;

                     (b)  jurisdiction that is incidental to such jurisdiction.

Note:          Under section 567 of the Fair Work Act 2009 , jurisdiction is required to be exercised in the Fair Work Division of the Federal Circuit and Family Court of Australia (Division 2) in relation to matters arising under that Act.

General Division

             (4)  The following jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) is to be exercised in the General Division:

                     (a)  jurisdiction that is not required by any other Act to be exercised in the Fair Work Division;

                     (b)  jurisdiction that is incidental to such jurisdiction (including jurisdiction that is required by any other Act to be exercised in the Fair Work Division).

Jurisdiction that is required to be exercised in both Divisions

             (5)  If the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) is required to be exercised in both the General Division and the Fair Work Division in relation to particular proceedings or proceedings of a particular kind, the Chief Judge may, at any time (whether before or after the proceedings are instituted), give a direction about the allocation to the General Division or the Fair Work Division of those proceedings or proceedings of that kind.

105   Exercise of jurisdiction—open court or in Chambers

             (1)  This section does not apply to family law or child support proceedings.

Note:          See section 97 of the Family Law Act 1975 .

Open court

             (2)  The jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) must be exercised in open court. However, this rule does not apply where, as authorised by this Chapter or another law of the Commonwealth, the jurisdiction of the Court is exercised by a Judge of that Court sitting in Chambers.

Judge sitting in Chambers

             (3)  The jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) may be exercised by a Judge of the Court sitting in Chambers in:

                     (a)  a proceeding on an application relating to the conduct of a proceeding; and

                     (b)  a proceeding on an application for orders or directions as to any matter which, by this Chapter or any other law of the Commonwealth, is made subject to the direction of a Judge of the Court sitting in Chambers; and

                     (c)  a proceeding on any other application authorised by the Rules of Court to be made to a Judge of the Court sitting in Chambers.

             (4)  The jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) is to be exercised by a Judge of the Court sitting in Chambers in a proceeding where:

                     (a)  under the Rules of Court, the Court is authorised to make a decision relating to the proceeding without an oral hearing; and

                     (b)  the parties to the proceeding have consented to the Court making a decision in relation to the proceeding without an oral hearing.

Proceeding in Chambers may be adjourned into court

             (5)  A Judge of the Federal Circuit and Family Court of Australia (Division 2) may order a proceeding in Chambers to be adjourned into the Court.

Proceeding in open court may be adjourned into Chambers

             (6)  The Federal Circuit and Family Court of Australia (Division 2) may order a proceeding in open court to be adjourned into Chambers if, apart from this subsection, the jurisdiction of the Court may be exercised by a Judge of the Court sitting in Chambers in that proceeding.

Closed court etc.

             (7)  The Federal Circuit and Family Court of Australia (Division 2) may order the exclusion of the public or of persons specified by the Court from a sitting of the Court if the Court is satisfied that the presence of the public or of those persons, as the case may be, would be:

                     (a)  contrary to the interests of justice; or

                     (b)  prejudicial to the security of the Commonwealth.

106   Exercise of jurisdiction

             (1)  The jurisdiction of the Federal Circuit and Family Court of Australia (Division 2), including its appellate jurisdiction, is to be exercised by the Court constituted by a single Judge.

             (2)  In a matter before, or coming before, the Federal Circuit and Family Court of Australia (Division 2), a Judge may give directions under subsection 159(1).

107   Determination of matter completely and finally

                   In every matter before the Federal Circuit and Family Court of Australia (Division 2), the Court must grant, either:

                     (a)  absolutely; or

                     (b)  on such terms and conditions as the Court thinks just;

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:

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

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

Division 5 Certain powers relating to matters of jurisdiction

108   Making of orders and issue of writs

                   The Federal Circuit and Family Court of Australia (Division 2) has power, in relation to matters in which it has jurisdiction, to:

                     (a)  make orders of such kinds, including interlocutory orders, as the Court considers appropriate; and

                     (b)  issue, or direct the issue of, writs of such kinds as the Court considers appropriate.

109   Declarations of right

             (1)  The Federal Circuit and Family Court of Australia (Division 2) may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.

             (2)  A proceeding is not open to objection on the ground that a declaratory order only is sought.

110   Contempt of court

             (1)  The Federal Circuit and Family Court of Australia (Division 2) has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.

             (2)  The jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) to punish a contempt of the Court committed in the face or hearing of the Court may be exercised by the Court as constituted at the time of the contempt.

Note:          See also section 112AP of the Family Law Act 1975 , which deals with family law or child support proceedings.

111   Summary judgment

             (1)  The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:

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

                     (b)  the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

             (2)  The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:

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

                     (b)  the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

             (3)  For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

                     (a)  hopeless; or

                     (b)  bound to fail;

for it to have no reasonable prospect of success.

             (4)  This section does not limit any powers that the Federal Circuit and Family Court of Australia (Division 2) has apart from this section.

Division 6 Administration

112   Arrangement of business

             (1)  The Chief Judge is responsible for ensuring the effective, orderly and expeditious discharge of the business of the Federal Circuit and Family Court of Australia (Division 2).

             (2)  In discharging the Chief Judge’s responsibility, the Chief Judge:

                     (a)  must promote the objects of this Act; and

                     (b)  may, subject to this Chapter and to such consultation with Judges of the Federal Circuit and Family Court of Australia (Division 2) as is appropriate and practicable, do all or any of the following:

                              (i)  make arrangements as to the Judge who is to constitute the Court in particular matters or classes of matters;

                             (ii)  without limiting the generality of subparagraph (i)—assign particular caseloads, classes of cases or functions to particular Judges;

                            (iii)  temporarily restrict a Judge to non-sitting duties; and

                     (c)  must ensure that arrangements are in place to provide Judges with appropriate access to (or reimbursement for the cost of):

                              (i)  annual health assessments; and

                             (ii)  short-term counselling services; and

                            (iii)  judicial education; and

                     (d)  may deal, as set out in section 113, with a complaint about the performance by another Judge of the Judge’s judicial or official duties; and

                     (e)  may take any measures that the Chief Judge believes are reasonably necessary to maintain public confidence in the Federal Circuit and Family Court of Australia (Division 2), including, but not limited to, temporarily restricting another Judge to non-sitting duties.

             (3)  The Deputy Chief Judge is to assist the Chief Judge in the exercise of the functions conferred on the Chief Judge by this section (other than paragraph (2)(d) or (e)).

113   Complaints

             (1)  The Chief Judge may, if a complaint is made about another Judge of the Federal Circuit and Family Court of Australia (Division 2), deal with the complaint by doing either or both of the following in respect of the complaint:

                     (a)  deciding whether or not to handle the complaint and then doing one of the following:

                              (i)  dismissing the complaint;

                             (ii)  handling the complaint if the Chief Judge has a relevant belief in relation to the complaint about the other Judge;

                            (iii)  arranging for any other complaint handlers to assist the Chief Judge to handle the complaint if the Chief Judge has a relevant belief in relation to the complaint about the other Judge;

                     (b)  arranging for any other complaint handlers to decide whether or not to handle the complaint and then to do one of the following:

                              (i)  dismiss the complaint;

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

Note:          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 paragraph (a) or (b) in respect of the complaint.

             (2)  The Chief Judge may authorise, in writing, a person or a body to do one or more of the following:

                     (a)  assist the Chief Judge to handle complaints or a specified complaint;

                     (b)  decide whether or not to handle complaints or a specified complaint;

                     (c)  dismiss complaints or a specified complaint;

                     (d)  handle complaints or a specified complaint.

             (3)  To avoid doubt, the Chief Judge may authorise under subsection (2):

                     (a)  the Deputy Chief Judge; or

                     (b)  a body that includes the Deputy Chief Judge.

             (4)  In this section:

relevant belief : a person has a relevant belief in relation to a complaint about a Judge if:

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

                     (b)  the person believes that one or more of the circumstances that gave rise to the complaint may, if substantiated:

                              (i)  adversely affect, or have adversely affected, the performance of judicial or official duties by the Judge; or

                             (ii)  have the capacity to adversely affect, or have adversely affected, the reputation of the Federal Circuit and Family Court of Australia (Division 2).

114   Exercise of powers of General and Fair Work Divisions of the Federal Circuit and Family Court of Australia (Division 2)

             (1)  A Judge who is assigned to a Division of the Federal Circuit and Family Court of Australia (Division 2) must exercise, or participate in exercising, the powers of the Court only in that Division, except as set out in subsection (2).

             (2)  The Chief Judge may arrange for a Judge who is assigned to a particular Division of the Federal Circuit and Family Court of Australia (Division 2) to exercise, or participate in exercising, the powers of the Court in the other Division if the Chief Judge considers that circumstances make it desirable to do so.

             (3)  To avoid doubt, a Judge who is not assigned to either Division of the Federal Circuit and Family Court of Australia (Division 2) may exercise, or participate in exercising, the powers of the Court in either Division.

             (4)  Subsection (1) does not affect the validity of any exercise of powers by the Federal Circuit and Family Court of Australia (Division 2) otherwise than in accordance with that subsection.

115   Assignment of Judges to locations or registries

             (1)  The Chief Judge may, by written instrument, assign a particular Judge to a particular location or registry.

             (2)  An instrument under subsection (1) has no effect unless it is approved, in writing, by the Minister.

             (3)  Subsection (1) 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).

116   Protection for the Chief Judge and Deputy Chief Judge

             (1)  In exercising the functions or powers mentioned in paragraph 112(2)(b) or subsection 115(1), the Chief Judge has the same protection and immunity as if the Chief Judge were exercising those functions or powers as, or as a member of, the Federal Circuit and Family Court of Australia (Division 2).

Note:          See also section 243.

             (2)  In assisting in the exercise of the functions or powers mentioned in paragraph 112(2)(b), the Deputy Chief Judge has the same protection and immunity as if the Deputy Chief Judge were exercising those functions or powers as, or as a member of, the Federal Circuit and Family Court of Australia (Division 2).

Note:          See also section 243.

             (3)  Despite section 39B of the Judiciary Act 1903 , the Federal Court does not have jurisdiction with respect to a matter relating to:

                     (a)  the exercise by the Chief Judge of the functions or powers mentioned in subsection 112(2), section 113 or subsection 115(1); or

                     (b)  the assisting in the exercise by the Deputy Chief Judge of the functions or powers mentioned in subsection 112(2) or section 113.

Functions and powers of the Chief Judge

             (4)  In addition to the functions and powers conferred on the Chief Judge by this Chapter, the Chief Judge has such other functions and powers in relation to the Federal Circuit and Family Court of Australia (Division 2) as are specified in the regulations.