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Part 5—Dispute resolution for proceedings other than proceedings under the Family Law Act 1975

Part 5 Dispute resolution for proceedings other than proceedings under the Family Law Act 1975

Division 1 General

123   This Part does not apply to proceedings under the Family Law Act 1975

                   This Part applies to proceedings in the Federal Circuit Court and Family Court of Australia (Division 2) other than proceedings under the Family Law Act 1975 .

Note 1:       For proceedings under the Family Law Act 1975 , see in particular 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 Federal Circuit Court and Family Court of Australia (Division 2) in relation to proceedings under that Act.

Note 2:       This Part (other than Division 2: see section 135) applies to proceedings under the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988 .

124   Federal Circuit and Family Court of Australia (Division 2) to consider whether to advise people to use dispute resolution processes

                   The Federal Circuit and Family Court of Australia (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.

125   Federal Circuit and Family Court of Australia (Division 2) to advise people to use dispute resolution processes

             (1)  If the Federal Circuit and Family Court of Australia (Division 2) considers that a dispute resolution process may help the parties to a dispute before it to resolve that dispute, the Court must advise the parties to use that dispute resolution process.

             (2)  If the Federal Circuit and Family Court of Australia (Division 2) does so advise the parties, it may, if it considers it desirable to do so, adjourn any proceedings before it to enable attendance in connection with the dispute resolution process.

Note:          See also Part III of the Family Law Act 1975, which deals with dispute resolution in family law and child support matters.

126   Duty of legal practitioners to consider whether to advise people to use dispute resolution processes

                   A legal practitioner acting in proceedings in the Federal Circuit and Family Court of Australia (Division 2), or consulted by a person considering instituting such proceedings, must consider whether or not to advise:

                     (a)  the parties to the proceedings; or

                     (b)  the person considering instituting proceedings;

about the dispute resolution processes that could be used to resolve any matter in dispute.

127   Officers of the Federal Circuit and Family Court of Australia (Division 2) to advise people about dispute resolution processes

             (1)  A designated officer of the Federal Circuit and Family Court of Australia (Division 2) must, as far as practicable, on request by:

                     (a)  a party to proceedings in the Court; or

                     (b)  a person considering instituting proceedings in the Court;

advise the party or person about the dispute resolution processes that could be used to resolve any matter in dispute.

             (2)  For the purposes of this section, a member of the staff of the Federal Circuit and Family Court of Australia (Division 2) is taken to be an officer of the Court.

             (3)  For the purposes of this section, a designated officer of the Federal Circuit and Family Court of Australia (Division 2) is an officer of the Court specified in writing by the Chief Executive Officer for the purposes of this subsection.

128   Conciliation

             (1)  The Federal Circuit and Family Court of Australia (Division 2) may, by order, refer proceedings in the Court, or any part of them or any matter arising out of them, for conciliation in accordance with the Rules of Court.

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

             (3)  Referrals under subsection (1) to a conciliator may be made with or without the consent of the parties to the proceedings.

129   Referral of question of law—dispute resolution process (other than arbitration)

             (1)  If the Federal Circuit and Family Court of Australia (Division 2) makes an order, or gives a direction, under this Chapter or any other law of the Commonwealth:

                     (a)  referring any or all of the matters in dispute in proceedings before it for a dispute resolution process (other than arbitration); or

                     (b)  referring any proceedings before it, or any part of them or any matters arising out of them, for a dispute resolution process (other than arbitration); or

                     (c)  requiring either or both of the parties to a proceeding before it to attend a dispute resolution process (other than arbitration);

a party to the dispute resolution process may make an application to the Court for determination of a question of law arising out of the proceedings.

             (2)  An application under subsection (1) must be accompanied by a statement that:

                     (a)  is signed by the person (the eligible person ) conducting the dispute resolution process; and

                     (b)  states that the eligible person consents to the making of the application; and

                     (c)  states that the eligible person is of the opinion that the determination of the question of law by the Federal Circuit and Family Court of Australia (Division 2) is likely to assist the parties in reaching agreement about any or all of the matters in dispute in the proceedings.

             (3)  If an application is made under subsection (1), the Federal Circuit and Family Court of Australia (Division 2) may determine the question of law.

             (4)  If the Federal Circuit and Family Court of Australia (Division 2) determines a question of law under subsection (3), the determination is binding on the parties to the proceedings concerned.

130   Rules of Court about dispute resolution processes

             (1)  The Rules of Court may make provision for or in relation to dispute resolution processes carried out under an order made, or direction given, by the Federal Circuit and Family Court of Australia (Division 2) under this Chapter or another law of the Commonwealth.

             (2)  In particular, Rules of Court made for the purposes of subsection (1) may make provision for or in relation to the procedure to be followed when any dispute resolution process ends.

131   Regulations about dispute resolution processes

             (1)  The regulations may make provision for or in relation to dispute resolution processes carried out under an order made, or direction given, by the Federal Circuit and Family Court of Australia (Division 2) under this Chapter or another law of the Commonwealth.

             (2)  In particular, regulations made for the purposes of subsection (1) may make provision for or in relation to:

                     (a)  the procedures to be followed by a person conducting a dispute resolution process in carrying out that process; and

                     (b)  the attendance by persons at:

                              (i)  a dispute resolution process; or

                             (ii)  a conference conducted for the purpose of carrying out a dispute resolution process; and

                     (c)  the kinds of persons who are eligible to conduct particular kinds of dispute resolution processes.

132   Rules of Court about costs of dispute resolution processes

                   The Rules of Court may make provision for or in relation to the costs of dispute resolution processes and the assessment or taxation of those costs, where:

                     (a)  the dispute resolution process was carried out under an order made, or direction given, by the Federal Circuit and Family Court of Australia (Division 2) under this Chapter or another law of the Commonwealth; or

                     (b)  the dispute resolution process was carried out for the purpose of settling a dispute about a matter with respect to which proceedings have been instituted in the Federal Circuit and Family Court of Australia (Division 2).

133   Rules of Court about dispute resolution processes under the Family Law Act 1975

                   The Rules of Court may make provision for or in relation to the making of applications under the Family Law Act 1975 for mediation or arbitration and for orders under section 13F of that Act. Section 123 of this Act does not affect this section.

Note:          For provision about the award of costs, see Division 4 of Part 6 and paragraphs 159(4)(d) and (e).

134   Consent orders

             (1)  If the parties to proceedings in the Federal Circuit and Family Court of Australia (Division 2) have reached agreement about a matter in dispute in the proceedings, the Court or a Judge may, on application by the parties, make an order in the terms of the agreement.

             (2)  This section has effect subject to the Rules of Court.

Division 2 Proceedings other than family law or child support proceedings

135   Scope of Division

                   This Division applies to proceedings in the Federal Circuit and Family Court of Australia (Division 2) other than family law or child support proceedings.

Note:          See Part III of the Family Law Act 1975 .

136   Mediation

             (1)  The Federal Circuit and Family Court of Australia (Division 2) may, by order, refer proceedings in the Court, or any part of them or any matter arising out of them, to a mediator for mediation in accordance with the Rules of Court.

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

             (3)  Referrals under subsection (1) to a mediator may be made with or without the consent of the parties to the proceedings.

             (4)  Evidence of anything said, or of any admission made, at a conference conducted by a mediator in the course of mediating anything referred under subsection (1) is not admissible:

                     (a)  in any court (whether exercising federal jurisdiction or not); or

                     (b)  in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory, or by the consent of the parties, to hear evidence.

             (5)  A mediator has, in mediating anything referred under subsection (1), the same protection and immunity as a Judge of the Federal Circuit and Family Court of Australia (Division 2) has in performing the functions of a Judge.

137   Arbitration

             (1)  The Federal Circuit and Family Court of Australia (Division 2) may, by order, refer proceedings in the Court, or any part of them or any matter arising out of them, to an arbitrator for arbitration in accordance with the Rules of Court.

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

             (3)  Referrals under subsection (1) to an arbitrator may be made only with the consent of the parties.

             (4)  The Rules of Court may make provision for the registration of awards made in an arbitration carried out under an order made under subsection (1).

             (5)  An arbitrator has, in arbitrating anything referred under subsection (1), the same protection and immunity as a Judge of the Federal Circuit and Family Court of Australia (Division 2) has in performing the functions of a Judge.

138   Power of arbitrator to refer question of law to the Federal Circuit and Family Court of Australia (Division 2)

             (1)  If:

                     (a)  any proceedings in the Federal Circuit and Family Court of Australia (Division 2), or any part of them or any matter arising out of them, has been referred under subsection 137(1) to an arbitrator for arbitration; and

                     (b)  the arbitrator has not made an award in respect of the arbitration; and

                     (c)  a party to the arbitration has requested the arbitrator to apply to the Court for leave to refer to the Court a question of law arising in the arbitration;

the arbitrator may apply to the Court or a Judge for leave to refer the question to the Court.

             (2)  The Federal Circuit and Family Court of Australia (Division 2) or a Judge must not grant leave unless satisfied that the determination of the question of law by the Court might result in substantial savings in costs to the parties to the arbitration.

             (3)  If:

                     (a)  the Federal Circuit and Family Court of Australia (Division 2) or a Judge grants leave; and

                     (b)  the arbitrator refers the question of law to the Court;

the Court must determine the question of law.

139   Review of arbitration award on a question of law etc.

             (1)  If:

                     (a)  any proceedings in the Federal Circuit and Family Court of Australia (Division 2), or any part of them or any matter arising out of them, has been referred under subsection 137(1) to an arbitrator for arbitration; and

                     (b)  the arbitrator has made an award in respect of the arbitration; and

                     (c)  the award has been registered with the Court under the Rules of Court;

the following provisions have effect.

             (2)  A party to the award may apply to the Federal Circuit and Family Court of Australia (Division 2) for a review, on a question of law, of the award.

             (3)  On a review of an award on a question of law, the Federal Circuit and Family Court of Australia (Division 2) may:

                     (a)  determine the question of law; and

                     (b)  make such orders as it thinks appropriate, including:

                              (i)  an order affirming the award; or

                             (ii)  an order varying the award; or

                            (iii)  an order setting aside the award and remitting the award to the arbitrator for reconsideration in accordance with the directions of the Court; or

                            (iv)  an order setting aside the award and determining the matter to which the award related.

             (4)  A party to the award may apply to the Federal Circuit and Family Court of Australia (Division 2) or a Judge for an order that the costs payable by the party in respect of the arbitration be taxed in accordance with the Rules of Court.

             (5)  The person who made the application is not liable to pay, in respect of the costs of the arbitration, an amount that is more than the amount of the costs as taxed under an order made under subsection (4).

140   Arbitration awards

             (1)  The Federal Circuit and Family Court of Australia (Division 2) may, on application by a party to an award made in an arbitration (whether carried out under an order made under subsection 137(1) or otherwise) in relation to a matter in which the Court has original jurisdiction, make an order in the terms of the award.

             (2)  Subsection (1) does not apply to an award made in an arbitration carried out under an order made under subsection 137(1) unless the award has been registered with the Federal Circuit and Family Court of Australia (Division 2) under the Rules of Court.

             (3)  An order so made is enforceable in the same manner as if it had been made in an action in the Federal Circuit and Family Court of Australia (Division 2). This subsection has effect subject to subsection (4).

             (4)  A writ of attachment must not be issued to enforce payment of money under an order made in accordance with this section.