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Schedule 6—Amendments to the Federal Court Rules 2011

Schedule 6 Amendments to the Federal Court Rules 2011

   

Federal Court Rules 2011

1  Division 27.1

Repeal the Division, substitute:

Division 27.1 Federal Court of Australia

27.01   Transfer to the Court

                   A party may apply to the Court to transfer a proceeding to the Court from the Federal Circuit and Family Court of Australia (Division 2) under section 32AC of the Act.

27.02   Factors to be taken into account

                   For a transfer of a proceeding to the Court from the Federal Circuit and Family Court of Australia (Division 2) under section 32AC of the Act, the parties should address the following:

                     (a)  whether the proceeding is likely to involve questions of general importance;

                     (b)  whether it would be less expensive and more convenient to the parties if the proceeding were transferred;

                     (c)  whether a proceeding would be determined more quickly if transferred;

                     (d)  the wishes of the parties.

Note:          If the Court makes an order transferring the proceeding to the Court, a Registrar of the Federal Circuit and Family Court of Australia (Division 2) will send all documents filed and all orders made in the proceeding to the Court.

Rules 27.03-27.07 left blank

Division 27.1A Federal Circuit and Family Court of Australia (Division 1)

27.08   Transfer to Federal Circuit and Family Court of Australia (Division 1)

                   A party may apply to the Court to transfer a proceeding to the Federal Circuit and Family Court of Australia (Division 1), under any of the Administrative Decisions (Judicial Review) Act 1977 , the Australian Consumer Law, the Bankruptcy Act 1966 or the Income Tax Assessment Act 1936 .

Note:          If the Court makes an order transferring the proceeding to the Federal Circuit and Family Court of Australia (Division 1), the Registrar will send all documents filed and all orders made in the proceeding to the Federal Circuit and Family Court of Australia (Division 1).

Rules 27.09-27.10 left blank

2  Division 27.2 (heading)

Repeal the heading, substitute:

Division 27.2 Federal Circuit and Family Court of Australia (Division 2)

3  Rule 27.11 (heading)

Omit “ Federal Circuit Court of Australia ”, substitute “ Federal Circuit and Family Court of Australia (Division 2) ”.

4  Rule 27.11

Omit “Federal Circuit Court of Australia”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

5  Rule 27.12 (note)

Repeal the note, substitute:

Note:          If the Court makes an order transferring the proceeding to the Federal Circuit and Family Court of Australia (Division 2), the Registrar will send all documents filed and all orders made in the proceeding to the proper officer of the Federal Circuit and Family Court of Australia (Division 2).

6  Rule 27.13 (heading)

Omit “ Federal Circuit Court of Australia ”, substitute “ Federal Circuit and Family Court of Australia (Division 2) ”.

7  Subrule 27.13(1)

Omit “Federal Circuit Court of Australia”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

8  Subrule 27.13(1)

Omit “on the Federal Circuit Court of Australia’s own initiative”, substitute “by the Federal Circuit and Family Court of Australia (Division 2) on its own initiative”.

9  Subrule 27.13(3)

Omit “Federal Circuit Court of Australia”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

10  Subrule 35.31(4)

Omit “A party”, substitute “Unless subrule (5) applies, a party”.

11  At the end of rule 35.31

Add:

             (5)  If a notice filed under subrule (1) relates to a matter that would be heard in the Family Law Appeal Division of the Court, the party who filed the notice may be ordered to pay the costs of all other parties.

Note:          For the award of costs, see Part VB of the Act and section 117 of the Family Law Act 1975 .

             (6)  For the purposes of subrule (5), an application for costs must be filed within 28 days after the filing of the notice of withdrawal under subrule (1).

12  Subrule 35.41(2)

Omit “Federal Circuit Court of Australia”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

13  Paragraph 36.01(1)(a)

Repeal the paragraph, substitute:

                     (a)  for an appeal to the Family Law Appeal Division of the Court—Form 121A; or

                    (aa)  for an appeal from the Federal Circuit and Family Court of Australia (Division 2) not covered by paragraph (a)—Form 121B; or

14  Rule 36.01 (note 4)

Repeal the note, substitute:

Note 4:       For the appellate jurisdiction of the Court—see subsection 25(1) of the Act.

15  Paragraph 36.02(c)

Omit “Federal Circuit Court of Australia”, substitute “Federal Circuit and Family Court of Australia”.

16  At the end of rule 36.04

Add:

             (3)  For an appeal from a court exercising jurisdiction under the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988 , the appellant must give a copy of the notice of appeal to the Child Support Registrar.

17  Before paragraph 36.11(2)(a)

Insert:

                    (aa)  an extension of the time within which to apply for leave to appeal to the Family Law Appeal Division of the Court;

18  Subrule 36.11(2) (note)

Omit “Note”, substitute “Note 1”.

19  At the end of rule 36.11

Add:

Note 2:       An appeal may be dealt with in the Family Law Appeal Division of the Court without an oral hearing if the parties to the appeal consent to the appeal being dealt with in that way, see section 25A of the Act.

20  After subrule 36.21(1)

Insert:

          (1A)  An independent children’s lawyer who wants to have an order under appeal varied or set aside must file a notice of cross-appeal, in accordance with Form 123.

Note:          An order mentioned in this subrule will be under appeal to the Family Law Appeal Division of the Court.

21  Subrule 36.21(2)

Omit “The”, substitute “For the purposes of subrules (1) and (1A), the”.

22  Rule 36.22

After “respondent”, insert “or an independent children’s lawyer”.

23  Subrule 36.23(1)

After “respondent”, insert “or an independent children’s lawyer”.

24  Rule 36.24

After “respondent” (first occurring), insert “or an independent children’s lawyer”.

25  Rule 36.24

After “respondent” (second occurring), insert “or independent children’s lawyer”.

26  Rule 36.41 (note)

Omit “Note”, substitute “Note 1”.

27  At the end of rule 36.41

Add:

Note 2:       An appeal may be dealt with in the Family Law Appeal Division of the Court without an oral hearing if the parties to the appeal consent to the appeal being dealt with in that way: see section 25A of the Act.

28  Rule 36.43

After “respondent”, insert “or an independent children’s lawyer”.

29  After subrule 36.51(4)

Insert:

          (4A)  The appeal books must not mention any offer to compromise that has been made, or the terms of the offer, unless the terms of the offer are relevant to the appeal.

30  After rule 36.51

Insert:

36.51A   Preparation of appeal books

             (1)  This rule applies in relation to an appeal to be heard in the Family Law Appeal Division of the Court.

             (2)  The appellant or, if so ordered, the cross-appellant is responsible for preparing and filing the appeal books, including arranging to obtain any transcript required to be included in the appeal books.

             (3)  If the Court is satisfied that preparing the appeal books would impose exceptional hardship on the appellant, the Court may order that a respondent or Registrar prepare and file the appeal books.

Note:          If a Registrar prepares the appeal books, the appellant or cross-appellant (if so ordered) is still responsible for obtaining the transcript.

             (4)  When making an order under subrule (3), the Court may order the appellant to pay the costs of preparing the appeal books.

31  At the end of subrule 36.55(2)

Add:

                   ; (d)  for any independent children’s lawyer—not later than 5 business days before the hearing of the appeal.

32  After paragraph 36.55(3)(b)

Insert:

                   ; (c)  for any independent children’s lawyer—not later than 4 business days before the hearing of the appeal.

33  After rule 36.57

Insert:

36.58   Subpoenas

             (1)  This rule applies in relation to an appeal to be heard by the Family Law Appeal Division of the Court.

             (2)  A subpoena may be issued in such an appeal only if leave to issue the subpoena has been given by the Family Law Appeal Division of the Court.

             (3)  A document produced in compliance with a subpoena issued in accordance with subrule (2) may be inspected only with the leave of the Family Law Appeal Division of the Court.

34  Division 36.5

Omit:

Rules 36.58-36.70 left blank

substitute:

Rules 36.59-36.70 left blank

35  Subrules 36.72(1) and (3)

After “respondent”, insert “or an independent children’s lawyer”.

36  Subrule 36.72(4)

After “respondent” (first occurring), insert “or an independent children’s lawyer”.

37  Subrule 36.72(4)

After “respondent” (second occurring), insert “or independent children’s lawyer”.

38  Subrule 36.73(4)

Omit “An appellant”, substitute “Unless subrule (5) applies, an appellant”.

39  At the end of rule 36.73

Add:

             (5)  If a notice filed under subrule (1) relates to a matter that would be heard in the Family Law Appeal Division of the Court, the appellant who files the notice may be ordered to pay the costs of each respondent.

Note:          For the award of costs, see Part VB of the Act and section 117 of the Family Law Act 1975 .

             (6)  An application for costs must be filed within 28 days after the filing of the notice of discontinuance of the appeal under subrule (1).

40  Before rule 40.01

Insert:

Note:       For provisions about the award of costs in relation to family law matters, see also section 117 of the Family Law Act 1975 .

41  Subrules 40.43(2) and (3)

Omit “Federal Circuit Court of Australia”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

42  In the appropriate position in Part 43

Insert:

Division 43.1 Transitional provisions relating to Schedule 6 to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2018

43.01   Application

                   The amendments of the Rules made by Schedule 6 to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2018 apply in relation to a proceeding commenced before, on or after 1 January 2019.

43.02   Expiry of this Division

                   This Division is repealed at the start of 1 January 2021.

43  Schedule 1

Insert:

Child Support Registrar means the Child Support Registrar under section 10 of the Child Support (Registration and Collection) Act 1988 .

Federal Circuit and Family Court of Australia means:

                     (a)  the Federal Circuit and Family Court of Australia (Division 1); or

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

independent children’s lawyer has the same meaning as in subsection 4(1) of the Family Law Act 1975 .

44  Part 3.3 of Schedule 2 (table items 23 and 24, column headed “Description (for information only)”)

Omit “Federal Circuit Court of Australia”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.

45  Part 3.7 of Schedule 2 (after table item 212)

Insert:

212A

Rule 35.22

Power to give a direction about the management, conduct and hearing of an application to the Family Law Appeal Division of the Court

46  Part 3.7 of Schedule 2 (after table item 213)

Insert:

213A

Rule 36.51A

Power to order that a respondent or Registrar prepare and file appeal books and, if such an order is made, to also order that the appellant pay the costs of preparing the appeal books