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Part 6—Practice and procedure

Part 6 Practice and procedure

Division 1 General

141   Practice and procedure

             (1)  The practice and procedure of the Federal Circuit and Family Court of Australia (Division 2) is to be in accordance with:

                     (a)  the Rules of Court; and

                     (b)  the regulations.

However, this subsection is subject to any provision made by or under this or any other Act with respect to practice and procedure of the Court.

Note:          Rules of Court are made under section 184 and regulations are made under section 249.

             (2)  To the extent that the provisions mentioned in subsection (1) are insufficient:

                     (a)  in relation to the jurisdiction of the Court in a family law or child support proceeding—the Rules of Court made under Chapter 3 apply, with necessary modifications, so far as they are capable of application and subject to any directions of the Federal Circuit and Family Court of Australia (Division 2) or a Judge, to the practice and procedure of the Court; and

                     (b)  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 of Australia Act 1976 apply, with necessary modifications, so far as they are capable of application and subject to any directions of the Federal Circuit and Family Court of Australia (Division 2) or a Judge, to the practice and procedure of the Court.

             (3)  In this section:

practice and procedure includes all matters in relation to which:

                     (a)  Rules of Court may be made; and

                     (b)  regulations may be made.

142   Representation

                   A party to a proceeding before the Federal Circuit and Family Court of Australia (Division 2) 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.

143   Interrogatories and discovery

             (1)  Interrogatories and discovery are allowed in relation to family law and child support proceedings in the Federal Circuit and Family Court of Australia (Division 2).

             (2)  However, interrogatories and discovery are not allowed in relation to any other proceedings in the Federal Circuit and Family Court of Australia (Division 2), unless the Court or a Judge declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.

             (3)  In deciding whether to make a declaration under subsection (2), the Federal Circuit and Family Court of Australia (Division 2) or a Judge must have regard to:

                     (a)  whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and

                     (b)  such other matters (if any) as the Court or the Judge considers relevant.

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

144   Filing of documents in the Federal Circuit and Family Court of Australia (Division 2)

             (1)  If a document is required or permitted to be filed in the Federal Circuit and Family Court of Australia (Division 2):

                     (a)  the document is to be filed:

                              (i)  at a registry of the Court; or

                             (ii)  in accordance with an arrangement under section 212 or 213; 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 2), 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.

145   Seal of the Federal Circuit and Family Court of Australia (Division 2)

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

             (3)  The seal of the Federal Circuit and Family Court of Australia (Division 2) must be affixed to documents as provided by this or any other Act or by the Rules of Court.

146   Federal Circuit and Family Court of Australia (Division 2) stamps

             (1)  There are to be one or more Federal Circuit and Family Court of Australia (Division 2) stamps. For this purpose, a Federal Circuit and Family Court of Australia (Division 2) 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 2).

             (2)  A document or a copy of a document marked with a Federal Circuit and Family Court of Australia (Division 2) 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 2).

             (3)  A Federal Circuit and Family Court of Australia (Division 2) stamp must be affixed to documents as provided by this or any other Act or by the Rules of Court.

147   Writs etc.

             (1)  All writs, commissions and process issued from the Federal Circuit and Family Court of Australia (Division 2) 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)  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 212.

Note:          See paragraph 212(1)(b).

             (3)  To avoid doubt, subsection (1) does not apply to an order of the Federal Circuit and Family Court of Australia (Division 2).

Note:          For orders, see section 176.

148   Proceedings may be instituted by application

             (1)  Proceedings may be instituted in the Federal Circuit and Family Court of Australia (Division 2) by way of application without the need for pleadings.

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

149   Limits on length of documents

             (1)  The Federal Circuit and Family Court of Australia (Division 2) 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

150   Place of sitting

                   Sittings of the Federal Circuit and Family Court of Australia (Division 2) must be held from time to time as required and the Court may sit at any place in Australia.

151   Change of venue

                   The Federal Circuit and Family Court of Australia (Division 2) or a Judge may, at any stage of a proceeding in the Court, order that:

                     (a)  the proceeding; or

                     (b)  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.

152   Determination of proceedings without a jury

                   A civil proceeding between parties in the Federal Circuit and Family Court of Australia (Division 2) is to be determined without a jury.

153   Decisions without oral hearing

                   The Rules of Court may authorise the Federal Circuit and Family Court of Australia (Division 2) or a Judge to make decisions in proceedings without an oral hearing if the parties to the proceedings have consented to the making of such decisions without an oral hearing.

154   Limits on the length of oral argument

             (1)  The Federal Circuit and Family Court of Australia (Division 2) or a Judge may give directions about limiting the time for oral argument in proceedings before the Court.

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

155   Written submissions

             (1)  The Federal Circuit and Family Court of Australia (Division 2) or a Judge may give directions about the use of written submissions in proceedings before the Court.

             (2)  The Federal Circuit and Family Court of Australia (Division 2) or a Judge may give directions limiting the length of written submissions in proceedings before the Court.

             (3)  Subsections (1) and (2) have effect subject to the Rules of Court.

156   Formal defects not to invalidate

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

157   Overarching purpose of civil practice and procedure provisions

             (1)  The overarching purpose of the civil 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 2) 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 2);

                     (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 civil 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 civil 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 2).

158   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 2) 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 such a proceeding before the Federal Circuit and Family Court of Australia (Division 2) (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 2) 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)—in relation to a family law or child support proceeding, the Federal Circuit and Family Court of Australia (Division 2) 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 2) 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 2) or a Judge may order a party’s lawyer to bear costs personally.

             (6)  If the Federal Circuit and Family Court of Australia (Division 2) 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.

159   Power of the Federal Circuit and Family Court of Australia (Division 2) to give directions about practice and procedure in a civil proceeding

             (1)  The Federal Circuit and Family Court of Australia (Division 2) or a Judge may give directions about the practice and procedure to be followed in relation to a civil proceeding, or any part of such a 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 2) 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 2) 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 2) 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 2) or a Judge may also make orders under the Family Law Act 1975 .

160   Chief Judge to achieve common approaches to case management with the Federal Circuit and Family Court of Australia (Division 1)

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

Division 5 Evidence

161   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 2).

             (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 2). 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, by written instrument, authorise:

                     (a)  a Registrar; or

                     (b)  a staff member of the Federal Circuit and Family Court of Australia (Division 2);

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

Note:          See also paragraph 212(1)(d).

162   Swearing of affidavits etc.

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

                     (a)  a Judge; or

                     (b)  the Chief Executive Officer; or

                     (c)  a Registrar; or

                     (d)  a justice of the peace; or

                     (e)  a commissioner for affidavits; or

                      (f)  a commissioner for declarations; or

                     (g)  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

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

Note:          See also paragraph 212(1)(d).

             (2)  An affidavit to be used in a proceeding in the Federal Circuit and Family Court of Australia (Division 2) 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 the 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 2) in circumstances provided by the Rules of Court.

163   Orders and commissions for examination of witnesses

                   The Federal Circuit and Family Court of Australia (Division 2) 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.

164   Time limits on giving of testimony

             (1)  The Federal Circuit and Family Court of Australia (Division 2) or a Judge may give directions about limiting the time for the giving of testimony in proceedings before the Court.

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

165   Federal Circuit and Family Court of Australia (Division 2) may question witnesses

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

                     (a)  put a question to a person giving testimony in a proceeding if, in the opinion of the Court, the question is likely to assist in:

                              (i)  the resolution of a matter in dispute in the proceeding; or

                             (ii)  the expeditious and efficient conduct of the proceeding; and

                     (b)  require the person to answer the question.

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

             (3)  This section has effect in addition to, and not instead of, any other powers that the Federal Circuit and Family Court of Australia (Division 2) may have to ask questions.

166   Evidence may be given orally or by affidavit

             (1)  Testimony in a proceeding in the Federal Circuit and Family Court of Australia (Division 2) is to be given orally or by affidavit.

             (2)  However, the Federal Circuit and Family Court of Australia (Division 2) or a Judge may:

                     (a)  direct that particular testimony is to be given orally; or

                     (b)  direct that particular testimony is to be given by affidavit.

             (3)  Subsections (1) and (2) have effect subject to:

                     (a)  any other provision of this Chapter; and

                     (b)  the Rules of Court; and

                     (c)  any other law of the Commonwealth.

Cross-examination of person who makes an affidavit

             (4)  If:

                     (a)  a person makes an affidavit; and

                     (b)  a party to a proceeding in the Federal Circuit and Family Court of Australia (Division 2) adduces, or proposes to adduce, evidence by the affidavit;

a party to the proceeding may request the person to appear as a witness to be cross-examined with respect to the matters in the affidavit.

             (5)  Subsection (4) has effect subject to the Rules of Court.

             (6)  If:

                     (a)  a request under subsection (4) is given to a person who has made an affidavit; and

                     (b)  the person does not appear as a witness to be cross-examined with respect to the matters in the affidavit;

the Federal Circuit and Family Court of Australia (Division 2) is to give the matters in the affidavit such weight as the Court thinks fit in the circumstances.

167   Offences by witness

             (1)  A person commits an offence if:

                     (a)  the person has been duly served with a subpoena or summons to appear as a witness before the Federal Circuit and Family Court of Australia (Division 2); and

                     (b)  the person:

                              (i)  fails to attend as required by the subpoena or summons; or

                             (ii)  fails to appear and report from day to day unless excused, or released from further attendance, by the Court.

Penalty:  Imprisonment for 6 months.

             (2)  A person commits an offence if the person, while appearing as a witness before the Federal Circuit and Family Court of Australia (Division 2):

                     (a)  refuses or fails to be sworn or to make an affirmation; or

                     (b)  refuses or fails to answer a question that the person is required by the Court to answer; or

                     (c)  refuses or fails to produce a document that the person is required by the Court or by a subpoena or summons issued from the Court to produce.

Penalty:  Imprisonment for 6 months.

             (3)  This section does not limit the power of the Federal Circuit and Family Court of Australia (Division 2) to punish persons for contempt of the Court, but a person must not be punished under this section and for contempt of the Court in respect of the same act or omission.

Note:          See also Division 13A of Part VII, and Parts XIII and XIIIA, of the Family Law Act 1975 in relation to family law or child support proceedings.

             (4)  Chapter 2 of the Criminal Code applies to all offences against this section.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Division 6 Use of video links or audio links

168   Testimony by video link or audio link

             (1)  The Federal Circuit and Family Court of Australia (Division 2) or a Judge may, for the purposes of any proceeding, direct or allow testimony to be given by video link or audio link.

Note:          See also section 171.

             (2)  The testimony must be given on oath or affirmation unless:

                     (a)  the person giving the testimony is in a foreign country; and

                     (b)  either:

                              (i)  the law in force in that country does not permit the person to give testimony on oath or affirmation for the purposes of the proceeding; or

                             (ii)  the law in force in that country would make it inconvenient for the person to give testimony on oath or affirmation for the purposes of the proceeding; and

                     (c)  the Federal Circuit and Family Court of Australia (Division 2) or a Judge is satisfied that it is appropriate for the testimony to be given otherwise than on oath or affirmation.

             (3)  If the testimony is given otherwise than on oath or affirmation, the Federal Circuit and Family Court of Australia (Division 2) or the Judge is to give the testimony such weight as the Court or the Judge thinks fit in the circumstances.

             (4)  The power conferred on the Federal Circuit and Family Court of Australia (Division 2) or a Judge by subsection (1) may be exercised:

                     (a)  on the application of a party to the proceedings concerned; or

                     (b)  on the Court’s own initiative or on the Judge’s own initiative, as the case may be.

             (5)  This section applies whether the person giving testimony is in or outside Australia, but does not apply if the person giving testimony is in New Zealand.

Note:          See Part 6 of the Trans-Tasman Proceedings Act 2010 .

169   Appearance of persons by video link or audio link

             (1)  The Federal Circuit and Family Court of Australia (Division 2) or a Judge may, for the purposes of any proceeding, direct or allow a person to appear before the Court or the Judge by way of video link or audio link.

Note:          See also section 171.

             (2)  The power conferred on the Federal Circuit and Family Court of Australia (Division 2) or a Judge by subsection (1) may be exercised:

                     (a)  on the application of a party to the proceedings concerned; or

                     (b)  on the Court’s own initiative or on the Judge’s own initiative, as the case may be.

             (3)  This section applies whether the person appearing is in or outside Australia, but does not apply if the person appearing is in New Zealand.

Note:          See Part 6 of the Trans-Tasman Proceedings Act 2010 .

170   Making of submissions by video link or audio link

             (1)  The Federal Circuit and Family Court of Australia (Division 2) or a Judge may, for the purposes of any proceeding, direct or allow a person to make a submission to the Court or the Judge by way of video link or audio link.

Note:          See also section 171.

             (2)  The power conferred on the Federal Circuit and Family Court of Australia (Division 2) or a Judge by subsection (1) may be exercised:

                     (a)  on the application of a party to the proceedings concerned; or

                     (b)  on the Court’s own initiative or on the Judge’s own initiative, as the case may be.

             (3)  This section applies whether the person making the submission is in or outside Australia, but does not apply if the person making the submission is in New Zealand.

Note:          See Part 6 of the Trans-Tasman Proceedings Act 2010 .

171   Conditions for use of video links and audio links

Video link

             (1)  The Federal Circuit and Family Court of Australia (Division 2) or a Judge must not exercise the power conferred by subsection 168(1), 169(1) or 170(1) in relation to a video link unless the Court or the Judge is satisfied that the following conditions are met in relation to the video link:

                     (a)  the courtroom or other place where the Court or the Judge is sitting is equipped with facilities (for example, television monitors) that enable all eligible persons present in that courtroom or place to see and hear the person (the remote person ) who is:

                              (i)  giving the testimony; or

                             (ii)  appearing; or

                            (iii)  making the submission;

                            as the case may be, by way of the video link;

                     (b)  the place at which the remote person is located is equipped with facilities (for example, television monitors) that enable all eligible persons present in that place to see and hear each eligible person who is present in the courtroom or other place where the Court or the Judge is sitting;

                     (c)  such other conditions (if any) as are prescribed by the Rules of Court in relation to the video link;

                     (d)  such other conditions (if any) as are imposed by the Court or the Judge.

             (2)  The conditions that may be prescribed by the Rules of Court in accordance with paragraph (1)(c) include conditions relating to:

                     (a)  the form of the video link; and

                     (b)  the equipment, or class of equipment, used to establish the link; and

                     (c)  the layout of cameras; and

                     (d)  the standard of transmission; and

                     (e)  the speed of transmission; and

                      (f)  the quality of communication.

Audio link

             (3)  The Federal Circuit and Family Court of Australia (Division 2) or a Judge must not exercise the power conferred by subsection 168(1), 169(1) or 170(1) in relation to an audio link unless the Court or the Judge is satisfied that the following conditions are met in relation to the audio link:

                     (a)  the courtroom or other place where the Court or the Judge is sitting is equipped with facilities (for example, loudspeakers) that enable all eligible persons present in that courtroom or place to hear the person (the remote person ) who is:

                              (i)  giving the testimony; or

                             (ii)  appearing; or

                            (iii)  making the submission;

                            as the case may be, by way of the audio link;

                     (b)  the place at which the remote person is located is equipped with facilities (for example, loudspeakers) that enable all eligible persons present in that place to hear each eligible person who is present in the courtroom or other place where the Court or the Judge is sitting;

                     (c)  such other conditions (if any) as are prescribed by the Rules of Court in relation to the audio link;

                     (d)  such other conditions (if any) as are imposed by the Court or the Judge.

             (4)  The conditions that may be prescribed by the Rules of Court in accordance with paragraph (3)(c) include conditions relating to:

                     (a)  the form of the audio link; and

                     (b)  the equipment, or class of equipment, used to establish the audio link; and

                     (c)  the standard of transmission; and

                     (d)  the speed of transmission; and

                     (e)  the quality of communication.

Eligible persons

             (5)  For the purposes of the application of this section to a particular proceeding, eligible persons are such persons as the Federal Circuit and Family Court of Australia (Division 2) or a Judge considers should be treated as eligible persons for the purposes of the proceeding.

172   Putting documents to a person by video link or audio link

                   If, in the course of an examination or appearance of a person by video link or audio link in accordance with this Division, it is necessary to put a document to the person, the Federal Circuit and Family Court of Australia (Division 2) or a Judge may direct or allow the document to be put to the person:

                     (a)  if the document is physically present in the courtroom or other place where the Court or the Judge is sitting:

                              (i)  by causing a copy of the document to be transmitted to the place where the person is located; and

                             (ii)  by causing the transmitted copy to be put to the person; or

                     (b)  if the document is physically present in the place where the person is located:

                              (i)  by causing the document to be put to the person; and

                             (ii)  by causing a copy of the document to be transmitted to the courtroom or other place where the Court or the Judge is sitting.

173   Administration of oaths and affirmations

                   An oath to be sworn, or an affirmation to be made, by a person (the remote person ) who is to give testimony by video link or audio link in accordance with this Division may be administered:

                     (a)  by means of the video link or audio link, as the case may be, in a way that, as nearly as practicable, corresponds to the way in which the oath or affirmation would be administered if the remote person were to give testimony in the courtroom or other place where the Federal Circuit and Family Court of Australia (Division 2) or the Judge is sitting; or

                     (b)  if the Federal Circuit and Family Court of Australia (Division 2) or the Judge allows another person who is present at the place where the remote person is located to administer the oath or affirmation—by that other person.

174   Expenses

             (1)  The Federal Circuit and Family Court of Australia (Division 2) or a Judge may make such orders as the Court or the Judge thinks just for the payment of expenses incurred in connection with:

                     (a)  the giving of testimony by video link or audio link in accordance with this Division; or

                     (b)  the appearance of a person by video link or audio link in accordance with this Division; or

                     (c)  the making of submissions by video link or audio link in accordance with this Division.

             (2)  Subsection (1) has effect subject to the regulations.

175   New Zealand proceedings

                   This Division does not affect the operation of the Trans-Tasman Proceedings Act 2010 .

Division 7 Orders and judgments

176   Orders

             (1)  An order of the Federal Circuit and Family Court of Australia (Division 2) must:

                     (a)  be in writing; or

                     (b)  be reduced to writing as soon as practicable.

             (2)  An order of the Federal Circuit and Family Court of Australia (Division 2) may be authenticated in a manner specified in the Rules of Court.

177   Reserved judgments etc.

             (1)  If:

                     (a)  the Federal Circuit and Family Court of Australia (Division 2) 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 2) 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.

178   Interest up to judgment

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

Note:          See section 117B of the Family Law Act 1975 in relation to family law or child support proceedings.

Application for interest order

             (2)  A party to proceedings that are:

                     (a)  in the Federal Circuit and Family Court of Australia (Division 2); and

                     (b)  for the recovery of any money (including any debt or damages or the value of any goods) in respect of a particular cause of action;

may apply to the Court or a Judge for an order under subsection (3).

Interest order

             (3)  If:

                     (a)  an application is made under subsection (2); and

                     (b)  the Federal Circuit and Family Court of Australia (Division 2) or the Judge is not satisfied that good cause has been shown for not making an order under this subsection;

the Court or the Judge must either:

                     (c)  order that there be included in the sum for which judgment is given interest at such rate as the Court or the Judge thinks fit on the whole or any part of the money for the whole or any part of the period between:

                              (i)  the date when the cause of action arose; and

                             (ii)  the date as of which judgment is entered; or

                     (d)  without proceeding to calculate interest in accordance with paragraph (c), order that there be included in the sum for which judgment is given a lump sum in lieu of any such interest.

Exceptions

             (4)  Subsection (3) does not:

                     (a)  authorise the giving of interest upon interest or of a sum in lieu of such interest; or

                     (b)  apply in relation to any debt upon which interest is payable as of right, whether by virtue of an agreement or otherwise; or

                     (c)  affect the damages recoverable for the dishonour of a bill of exchange; or

                     (d)  limit the operation of any enactment or rule of law which, apart from this section, provides for the award of interest; or

                     (e)  authorise the giving of interest, or a sum in lieu of interest, otherwise than by consent, upon any sum for which judgment is given by consent.

             (5)  If:

                     (a)  the sum for which judgment is given (the relevant sum ) includes; or

                     (b)  the Federal Circuit and Family Court of Australia (Division 2) in its absolute discretion, or a Judge in that Judge’s absolute discretion, determines that the relevant sum includes;

any amount for:

                     (c)  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; or

                     (d)  compensation for loss or damage to be incurred or suffered after the date on which judgment is given; or

                     (e)  exemplary or punitive damages;

interest, or a sum in lieu of interest, must not be given under subsection (3) in respect of:

                      (f)  any such amount; or

                     (g)  so much of the relevant sum as, in the opinion of the Court or the Judge, represents any such amount.

             (6)  Subsection (5) does not preclude:

                     (a)  interest; or

                     (b)  a sum in lieu of interest;

being given, under this section, upon compensation in respect of a liability of the kind referred to in paragraph (5)(c), where that liability has been met by the applicant, as from the date upon which that liability was so met.

179   Interest on judgment

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

Note:          See section 117B of the Family Law Act 1975 in relation to family law or child support proceedings.

             (2)  A judgment debt under a judgment of the Federal Circuit and Family Court of Australia (Division 2) carries interest from the date as of which the judgment is entered.

             (3)  Interest is payable:

                     (a)  at such rate as is fixed by the Rules of Court; or

                     (b)  if the Federal Circuit and Family Court of Australia (Division 2), in a particular case, thinks that justice so requires—at such lower rate as the Court determines.

180   Enforcement of judgment

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

Note:          See Division 13A of Part VII, and Parts XIII and XIIIA, of the Family Law Act 1975 in relation to family law or child support proceedings.

             (2)  A person in whose favour a judgment of the Federal Circuit and Family Court of Australia (Division 2) 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 to persons in whose favour a judgment of the Supreme Court of that State or Territory is given.

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

             (4)  This section does not affect the operation of any provision made by or under any other Act, or by the Rules of Court, for the execution and enforcement of judgments of the Federal Circuit and Family Court of Australia (Division 2).

Division 8 Costs

181   Costs

             (1)  This section does not apply to:

                     (a)  family law or child support proceedings; or

                     (b)  proceedings in relation to a matter arising under:

                              (i)  the Fair Work Act 2009 ; or

                             (ii)  section 14, 15 or 16 of the Public Interest Disclosure Act 2013 .

Note 1:       Paragraph (a)—see section 117 of the Family Law Act 1975 in relation to family law or child support proceedings.

Note 2:       Subparagraph (b)(i)—see section 570 of the Fair Work Act 2009 for proceedings in relation to matters arising under that Act.

Note 3:       Subparagraph (b)(ii)—see 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.

             (2)  The Federal Circuit and Family Court of Australia (Division 2) or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.

             (3)  Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Circuit and Family Court of Australia (Division 2) or Judge.

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

182   Security for costs

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

Note:          See section 117 of the Family Law Act 1975 in relation to family law or child support proceedings.

             (2)  The Federal Circuit and Family Court of Australia (Division 2) or a Judge may order an applicant in a proceeding in the Court to give security for the payment of costs that may be awarded against the applicant.

             (3)  The security is to be of such amount, and given at such time and in such manner and form, as the Federal Circuit and Family Court of Australia (Division 2) or Judge directs.

             (4)  The Federal Circuit and Family Court of Australia (Division 2) or a Judge may:

                     (a)  reduce or increase the amount of security ordered to be given; and

                     (b)  vary the time at which, or manner or form in which, the security is to be given.

             (5)  If security, or further security, is not given in accordance with an order under this section, the Federal Circuit and Family Court of Australia (Division 2) or a Judge may order that the proceeding be:

                     (a)  dismissed; or

                     (b)  stayed until security or further security is given in accordance with the first-mentioned order.

             (6)  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 giving of security.

Division 9 Common approaches with the Federal Circuit and Family Court of Australia (Division 1)

183   Chief Judge to achieve common approaches with the Federal Circuit and Family Court of Australia (Division 1)

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

                     (a)  common rules of court and forms; and

                     (b)  common practices and procedures.

Division 10 Rules of Court

184   Rules of Court

             (1)  The Chief Judge 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 2) (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 2); or

                     (c)  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 2); or

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

                     (e)  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)  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 of the Federal Circuit and Family Court of Australia (Division 2) in particular matters.

             (3)  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 Judge under this Chapter or another Act:

                     (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.

             (4)  Despite the fact that section 16 of the Legislation Act 2003 does not apply to Rules of Court made by the Chief Judge 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 Judge so desires.

185   Documents

             (1)  The Rules of Court may make provision for or in relation to:

                     (a)  pleading; and

                     (b)  appearance under protest; and

                     (c)  interrogatories; and

                     (d)  discovery, production and inspection of documents; and

                     (e)  the making of applications for dissolution of marriage jointly by both parties to the marriage; and

                      (f)  the forms to be used for the purposes of proceedings in the Federal Circuit and Family Court of Australia (Division 2).

             (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.

186   Service

                   The Rules of Court may make provision for or in relation to:

                     (a)  the service and execution of the process of the Federal Circuit and Family Court of Australia (Division 2), including:

                              (i)  the manner in which and the extent to which the process of the Court, or notice of any such process, may be served out of the jurisdiction of the Court; and

                             (ii)  dispensing with service; and

                     (b)  the issue by the Court of letters of request for the service in another country of any process of the Court; and

                     (c)  the service by officers of the Court, in Australia, of the process of a court of another country or of a part of another country, in accordance with:

                              (i)  a request of that court or of an authority of that country or of that part of that country; or

                             (ii)  an arrangement in force between Australia and the government of that other country or of that part of that other country.

187   Evidence

                   The Rules of Court may make provision for or in relation to:

                     (a)  subpoenas; and

                     (b)  summonses; and

                     (c)  the attendance of witnesses; and

                     (d)  the administration of oaths and affirmations; and

                     (e)  the means by which particular facts may be proved and the mode in which evidence of particular facts may be given; and

                      (f)  the reception from New Zealand of copies of documents sent by fax; and

                     (g)  the reception from New Zealand of evidence or submissions by video link or audio link; and

                     (h)  issuing subpoenas for service in New Zealand and the service of such subpoenas; and

                      (i)  the form to accompany a subpoena for service in New Zealand.

188   Orders and judgments

                   The Rules of Court may make provision for or in relation to:

                     (a)  the enforcement and execution of judgments of the Federal Circuit and Family Court of Australia (Division 2); and

                     (b)  the stay of proceedings in, or under judgments of, the Federal Circuit and Family Court of Australia (Division 2) or another court; and

                     (c)  the stay of proceedings in, or under decisions of, tribunals; and

                     (d)  the procedure of the Federal Circuit and Family Court of Australia (Division 2) exercising its powers (whether under section 112AP of the Family Law Act 1975 or otherwise) to deal with a person for contempt of the Court; and

                     (e)  the form in which the Federal Circuit and Family Court of Australia (Division 2) or a Judge is to give reasons for decisions.

189   Costs

                   The Rules of Court may make provision for or in relation to:

                     (a)  the giving of security; and

                     (b)  the costs of proceedings in the Federal Circuit and Family Court of Australia (Division 2); and

                     (c)  the fees to be charged by practitioners practising in the Federal Circuit and Family Court of Australia (Division 2) for the work done by them in relation to proceedings in the Court and the taxation of their bills of costs, either as between party and party or as between solicitor and client; and

                     (d)  the kinds of proceedings or circumstances in which each party is required to bear the party’s own costs.

190   General

             (1)  The Rules of Court may make provision for or in relation to:

                     (a)  the power, under subsection 158(3), to require a party’s lawyer to give the party an estimate of:

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

                             (ii)  the likely amount of costs that the party will have to pay in connection with the proceeding or part of the proceeding; and

                     (b)  the power, under subsection 159(1), to give directions about the practice and procedure to be followed in relation to a proceeding or part of a proceeding; and

                     (c)  the power, under subsection 159(3), to make such order or direction as is appropriate when 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; and

                     (d)  trial management; and

                     (e)  the custody of convicted persons; and

                      (f)  the prevention or termination of vexatious proceedings; and

                     (g)  the summary disposal of proceedings; and

                     (h)  authorising the Federal Circuit and Family Court of Australia (Division 2) to refer to an officer of the Court, for investigation, report and recommendation:

                              (i)  claims for, or relating to, any matters before the Court; or

                             (ii)  applications for, or relating to, any matters before the Court; and

                      (i)  authorising an officer making an investigation mentioned in paragraph (h) to:

                              (i)  take evidence on oath or affirmation; and

                             (ii)  receive in evidence a report from a family consultant under section 55A or 62G of the Family Law Act 1975 ; and

                            (iii)  receive in evidence a report from a person who has had dealings with a party to a matter under investigation under section 65F, 65L, 65LA, 70NEB or 70NEG of the Family Law Act 1975 ; and

                      (j)  enabling the summoning of witnesses before an officer making an investigation mentioned in paragraph (h) for the purposes of giving evidence or producing books or documents; and

                     (k)  the procedure of the Federal Circuit and Family Court of Australia (Division 2) on receiving a report of an officer who has made an investigation referred to in paragraph (h); and

                      (l)  the appointment, by the Minister, of a guardian ad litem for a party in proceedings; and

                    (m)  both:

                              (i)  the forfeiture of recognisances; and

                             (ii)  the recovery of any money that may be due to the Commonwealth under such recognisances or from any person who has become a surety; and

                     (n)  the attachment of money payable by:

                              (i)  the Commonwealth, a State, a Territory or the Government of a Territory; or

                             (ii)  an authority of the Commonwealth, of a State or of a Territory; and

                     (o)  the death of parties; and

                     (p)  the duties of officers of the Federal Circuit and Family Court of Australia (Division 2).

             (2)  The Rules of Court may make provision for or in relation to:

                     (a)  attendance at family counselling by parties to proceedings under the Family Law Act 1975 ; and

                     (b)  attendance at family dispute resolution by parties to proceedings under the Family Law Act 1975 ; and

                     (c)  the giving of advice and assistance by family consultants to people involved in proceedings under the Family Law Act 1975 ; and

                     (d)  the participation by parties to proceedings under the Family Law Act 1975 in courses, programs and other services that the parties are ordered by the court to participate in; and

                     (e)  the use, for the purposes of proceedings under the Family Law Act 1975 , by the Federal Circuit and Family Court of Australia (Division 2) and officers of the Court in family law or child support proceedings, of reports about the future conduct of the proceedings that have been prepared by persons who dealt with the parties in accordance with Rules of Court made under paragraph (a), (b), (c) or (d).

191   Incidental matters

                   The Rules of Court may prescribe matters incidental to the matters that, under:

                     (a)  any other provision of this Chapter; or

                     (b)  any other law of the Commonwealth;

are required or permitted to be prescribed by the Rules of Court.