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Schedule 10—Transitional provisions

Schedule 10 Transitional provisions

Part 1 Introduction

1  Definitions

In this Schedule:

Family Court of a State means a court to which section 41 of the Family Law Act 1975 , as amended by this Act, applies.

Family Court of Australia means the federal court known, immediately before 1 January 2019, as the Family Court of Australia.

Federal Circuit and Family Court of Australia has the same meaning as in the new law.

Federal Circuit Court of Australia means the federal court known, immediately before 1 January 2019, as the Federal Circuit Court of Australia.

Federal Court means the Federal Court of Australia.

new law means the Federal Circuit and Family Court of Australia Act 2018 .

standard Rules of Court has the same meaning as in the Family Law Act 1975 .

Part 2 Continuity of the Family Court of Australia, and Judges and personnel of the Court

2  Change in title of judicial offices

Chief Justice

(1)       The office of Chief Justice of the Family Court of Australia under the old law is the same office as the office of Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) under the new law.

Deputy Chief Justice

(2)       The office of Deputy Chief Justice of the Family Court of Australia under the old law is the same office as the office of Deputy Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) under the new law.

Senior Judges

(3)       The office of Senior Judge of the Family Court of Australia under the old law is the same office as the office of Senior Judge of the Federal Circuit and Family Court of Australia (Division 1) under the new law.

Judges

(4)       The office of Judge (other than Senior Judge) of the Family Court of Australia under the old law is the same office as the office of Judge of the Federal Circuit and Family Court of Australia (Division 1) under the new law.

(5)       In this item:

old law means Part IV of the Family Law Act 1975 , as in force immediately before 1 January 2019.

3  Appointments to judicial offices

Chief Justice

(1)       The person holding office as the Chief Justice of the Family Court of Australia immediately before 1 January 2019 continues to hold that office under the title of Chief Justice of the Federal Circuit and Family Court of Australia (Division 1).

Deputy Chief Justice

(2)       The person holding office as the Deputy Chief Justice of the Family Court of Australia immediately before 1 January 2019 continues to hold that office under the title of Deputy Chief Justice of the Federal Circuit and Family Court of Australia (Division 1).

Senior Judges

(3)       A person holding office as a Senior Judge of the Family Court of Australia immediately before 1 January 2019 continues to hold that office under the title of Senior Judge of the Federal Circuit and Family Court of Australia (Division 1).

Judges

(4)       A person holding office as a Judge of the Family Court of Australia (other than a Senior Judge) immediately before 1 January 2019 continues to hold that office under the title of Judge of the Federal Circuit and Family Court of Australia (Division 1).

Seniority

(5)       Despite the repeal of Part IV of the Family Law Act 1975 , section 23 of that Act continues to apply to preserve the seniority of all persons who held office as a Judge (including the Chief Justice, the Deputy Chief Justice or a Senior Judge) of the Family Court of Australia immediately before 1 January 2019.

4  Officers and staff of the Family Court of Australia

(1)       A person who, immediately before 1 January 2019, was an officer of the Family Court of Australia, as mentioned in paragraph 38N(1)(b), (c) (d), (e) or (f) of the old law, continues on and after that day as an officer of the Federal Circuit and Family Court of Australia (Division 1).

(2)       A person who, immediately before 1 January 2019, was a member of the staff of the Registries of the Family Court of Australia (as mentioned in subsection 38N(7) of the old law), continues on and after that day as a member of the staff of the Registries of the Federal Circuit and Family Court of Australia (Division 1).

(3)       In this item:

old law means Part IVA of the Family Law Act 1975 , as in force immediately before 1 January 2019.

5  Application of subsection 25B(1) of the Acts Interpretation Act 1901

Subsection 25B(1) of the Acts Interpretation Act 1901 applies as if:

                     (a)  the Family Court of Australia were a body; and

                     (b)  the offices of Chief Justice, Deputy Chief Justice, Senior Judge and Judge were offices.

6  Things done by the Family Court of Australia or Judges of the Court

To avoid doubt, the amendments made by this Act do not affect the validity of anything done, before 1 January 2019, by or in relation to:

                     (a)  the Family Court of Australia; or

                     (b)  a Full Court of the Family Court of Australia; or

                     (c)  the Chief Justice, the Deputy Chief Justice, a Senior Judge or a Judge of the Family Court of Australia; or

                     (d)  a Judge of the Family Court of Australia (including the Chief Justice, the Deputy Chief Justice or a Senior Judge) when performing functions, or exercising powers, under an Act in the Judge’s personal capacity.

Note:       Paragraph (d)—if a Judge may issue a warrant under an Act and does so, the Judge issues the warrant in the Judge’s personal capacity and not as a member of a court.

7  Things done by, or in relation to, the Chief Executive Officer

(1)       If a thing was done by, or in relation to, the Chief Executive Officer of the Family Court of Australia, then the thing is taken, for the purposes of the operation of any law on and after 1 January 2019, to have been done by, or in relation to, the Chief Executive Officer of the Federal Court.

(2)       The Minister may, in writing, determine that subitem (1) does not apply in relation to a specified thing done by, or in relation to, the Chief Executive Officer of the Family Court of Australia.

(3)       To avoid doubt, doing a thing includes making an instrument.

(4)       A determination under subitem (2) is not a legislative instrument.

8  Things done by, or in relation to, a Registrar or Deputy Registrar

(1)       If a thing was done by, or in relation to, a Registrar or Deputy Registrar of the Family Court of Australia, then the thing is taken, for the purposes of the operation of any law on and after 1 January 2019, to have been done by, or in relation to, a Registrar or Deputy Registrar of the Federal Circuit and Family Court of Australia (Division 1).

(2)       The Minister may, in writing, determine that subitem (1) does not apply in relation to a specified thing done by, or in relation to, a Registrar or Deputy Registrar of the Family Court of Australia.

(3)       To avoid doubt, doing a thing includes making an instrument.

(4)       A determination under subitem (2) is not a legislative instrument.

9  Things done by, or in relation to, a Registry Manager

(1)       If a thing was done by, or in relation to, the Registry Manager of a Registry of the Family Court of Australia, then the thing is taken, for the purposes of the operation of any law on and after 1 January 2019, to have been done by, or in relation to, the Registry Manager of a Registry of the Federal Circuit and Family Court of Australia (Division 1).

(2)       The Minister may, in writing, determine that subitem (1) does not apply in relation to a specified thing done by, or in relation to, the Registry Manager of a Registry of the Family Court of Australia.

(3)       To avoid doubt, doing a thing includes making an instrument.

(4)       A determination under subitem (2) is not a legislative instrument.

10  Things done by, or in relation to, the Marshal or a Deputy Marshal

(1)       If a thing was done by, or in relation to, the Marshal or a Deputy Marshal of the Family Court of Australia, then the thing is taken, for the purposes of the operation of any law on and after 1 January 2019, to have been done by, or in relation to, the Marshal or a Deputy Marshal of the Federal Circuit and Family Court of Australia (Division 1).

(2)       The Minister may, in writing, determine that subitem (1) does not apply in relation to a specified thing done by, or in relation to, the Marshal or a Deputy Marshal of the Family Court of Australia.

(3)       To avoid doubt, doing a thing includes making an instrument.

(4)       A determination under subitem (2) is not a legislative instrument.

11  Registries

Despite the repeal of Part IV of the Family Law Act 1975 , a Registry of the Family Court of Australia, existing immediately before 1 January 2019, continues in existence on and after that day as a Registry of the Federal Circuit and Family Court of Australia (Division 1).

12  Complaints

If, in relation to a Judge of the Family Court of Australia:

                     (a)  a complaint is made, on or after 1 January 2019, about the Judge; and

                     (b)  the circumstances that gave rise to the complaint occurred before 1 January 2019;

then:

                     (c)  the Chief Justice may deal with the complaint under section 32 of the new law; and

                     (d)  for the purposes of dealing with the complaint, the reference to the Federal Circuit and Family Court of Australia (Division 1) in subparagraph (b)(ii) of the definition of relevant belief in subsection 32(4) of the new law is taken to include a reference to the Family Court of Australia.

Part 3 Continuity of the Federal Circuit Court of Australia, and Judges and personnel of the Court

13  Change in title of judicial offices

(1)       The office of Chief Judge of the Federal Circuit Court of Australia under the old law is the same office as the office of Chief Judge of the Federal Circuit and Family Court of Australia (Division 2) under the new law.

(2)       The office of Judge (other than Chief Judge) of the Federal Circuit Court of Australia under the old law is the same office as the office of Judge of the Federal Circuit and Family Court of Australia (Division 2) under the new law.

(3)       In this item:

old law means the Federal Circuit Court of Australia Act 1999 , as in force immediately before 1 January 2019.

14  Appointments to judicial offices

Chief Judge

(1)       The person holding office as the Chief Judge of the Federal Circuit Court of Australia immediately before 1 January 2019 continues to hold that office under the title of Chief Judge of the Federal Circuit and Family Court of Australia (Division 2).

Judge

(2)       A person holding office as a Judge of the Federal Circuit Court of Australia (other than the Chief Judge) immediately before 1 January 2019 continues to hold that office under the title of Judge of the Federal Circuit and Family Court of Australia (Division 2).

Assignment of Judges to locations or registries

(3)       Despite the repeal of the Federal Circuit Court of Australia Act 1999 , an instrument made under subsection 12(4) of that Act and in force immediately before 1 January 2019 continues in force (and may be dealt with) as if it had been made under subsection 115(1) of the Federal Circuit and Family Court of Australia Act 2018 .

(4)       An approval given under subsection 12(5) of the Federal Circuit Court of Australia Act 1999 in relation to an instrument mentioned in subitem (3), and in force immediately before 1 January 2019, continues in force (and may be dealt with) as if it had been given under subsection 115(2) of the Federal Circuit and Family Court of Australia Act 2018 .

15  Officers and staff of the Federal Circuit Court of Australia

(1)       A person who, immediately before 1 January 2019, was an officer of the Federal Circuit Court of Australia, as mentioned in paragraph 99(1)(a), (b), (c), (d), (e) or (f) of the old law, continues on and after that day as an officer of the Federal Circuit and Family Court of Australia (Division 2).

(2)       A person who, immediately before 1 January 2019, was a member of the staff of the Federal Circuit Court of Australia (as mentioned in section 112 of the old law), continues on and after that day as a member of the staff of the Federal Circuit and Family Court of Australia (Division 2).

(3)       In this item:

old law means the Federal Circuit Court of Australia Act 1999 , as in force immediately before 1 January 2019.

16  Application of subsection 25B(1) of the Acts Interpretation Act 1901

Subsection 25B(1) of the Acts Interpretation Act 1901 applies as if:

                     (a)  the Federal Circuit Court of Australia were a body; and

                     (b)  the offices of Chief Judge and Judge were offices.

17  Things done by, or in relation to, the Federal Circuit Court of Australia or Judges of the Court

To avoid doubt, the repeal of the Federal Circuit Court of Australia Act 1999 , and any other amendment made by this Act, does not affect the validity of anything done, before 1 January 2019, by or in relation to:

                     (a)  the Federal Circuit Court of Australia; or

                     (b)  the Chief Judge or a Judge of the Federal Circuit Court of Australia; or

                     (c)  a Judge of the Federal Circuit Court of Australia as a Federal Magistrate; or

                     (d)  a Judge of the Federal Circuit Court of Australia (including the Chief Judge) when performing functions, or exercising powers, under an Act in the Judge’s personal capacity.

Note:       Paragraph (d)—if a Judge may issue a warrant under an Act and does so, the Judge issues the warrant in the Judge’s personal capacity and not as a member of a court.

18  Things done by, or in relation to, the Chief Executive Officer

(1)       If a thing was done by, or in relation to, the Chief Executive Officer of the Federal Circuit Court of Australia, then, despite the repeal of the Federal Circuit Court of Australia Act 1999 , the thing is taken, for the purposes of the operation of any law on and after 1 January 2019, to have been done by, or in relation to, the Chief Executive Officer of the Federal Court.

(2)       The Minister may, in writing, determine that subitem (1) does not apply in relation to a specified thing done by, or in relation to, the Chief Executive Officer of the Federal Circuit Court of Australia.

(3)       To avoid doubt, doing a thing includes making an instrument.

(4)       A determination under subitem (2) is not a legislative instrument.

19  Things done by, or in relation to, a Registrar

(1)       If a thing was done by, or in relation to, a Registrar of the Federal Circuit Court of Australia, then, despite the repeal of the Federal Circuit Court of Australia Act 1999 , the thing is taken, for the purposes of the operation of any law on and after 1 January 2019, to have been done by, or in relation to, a Registrar of the Federal Circuit and Family Court of Australia (Division 2).

(2)       The Minister may, in writing, determine that subitem (1) does not apply in relation to a specified thing done by, or in relation to, a Registrar of the Federal Circuit Court of Australia.

(3)       To avoid doubt, doing a thing includes making an instrument.

(4)       A determination under subitem (2) is not a legislative instrument.

20  Things done by, or in relation to, the Sheriff or a Deputy Sheriff

(1)       If a thing was done by, or in relation to, the Sheriff or a Deputy Sheriff of the Federal Circuit Court of Australia, then, despite the repeal of the Federal Circuit Court of Australia Act 1999 , the thing is taken, for the purposes of the operation of any law on and after 1 January 2019, to have been done by, or in relation to, the Sheriff or a Deputy Sheriff of the Federal Circuit and Family Court of Australia (Division 2).

(2)       The Minister may, in writing, determine that subitem (1) does not apply in relation to a specified thing done by, or in relation to, the Sheriff or a Deputy Sheriff of the Federal Circuit Court of Australia.

(3)       To avoid doubt, doing a thing includes making an instrument.

(4)       A determination under subitem (2) is not a legislative instrument.

21  Things done by, or in relation to, the Marshal or a Deputy Marshal

(1)       If a thing was done by, or in relation to, the Marshal or a Deputy Marshal of the Federal Circuit Court of Australia, then, despite the repeal of the Federal Circuit Court of Australia Act 1999 , the thing is taken, for the purposes of the operation of any law on and after 1 January 2019, to have been done by, or in relation to, the Marshal or a Deputy Marshal of the Federal Circuit and Family Court of Australia (Division 2).

(2)       The Minister may, in writing, determine that subitem (1) does not apply in relation to a specified thing done by, or in relation to, the Marshal or a Deputy Marshal of the Federal Circuit Court of Australia.

(3)       To avoid doubt, doing a thing includes making an instrument.

(4)       A determination under subitem (2) is not a legislative instrument.

22  Registries

Despite the repeal of the Federal Circuit Court of Australia Act 1999 , a Registry of the Federal Circuit Court of Australia, existing immediately before 1 January 2019, continues in existence on and after that day as a Registry of the Federal Circuit and Family Court of Australia (Division 2).

23  Complaints

If, in relation to a Judge of the Federal Circuit Court of Australia:

                     (a)  a complaint is made, on or after 1 January 2019, about the Judge; and

                     (b)  the circumstances that gave rise to the complaint occurred before 1 January 2019;

then:

                     (c)  the Chief Judge may deal with the complaint under section 113 of the new law; and

                     (d)  for the purposes of dealing with the complaint, the reference to the Federal Circuit and Family Court of Australia (Division 2) in subparagraph (b)(ii) of the definition of relevant belief in subsection 113(4) of the new law is taken to include a reference to the Federal Circuit Court of Australia.

Part 4 Transitional arrangements for appeals

Division 1—Appeals or applications not made, but time for making appeal or application not expired

24  Appeals to the High Court

If:

                     (a)  on 31 December 2018, an application for special leave to appeal could be made under section 95 of the Family Law Act 1975 ; and

                     (b)  despite the amendments to the Family Law Act 1975 made by this Act, on 1 January 2019 the time for making the application has not ended;

then, after 1 January 2019, the application may be made to the High Court.

25  Appeals to Family Law Appeal Division of the Federal Court

(1)       If:

                     (a)  on 31 December 2018, either:

                              (i)  an appeal could be instituted under Part X (other than section 96) of the Family Law Act 1975 ; or

                             (ii)  an application for leave to appeal could be made under section 94AA of that Act; and

                     (b)  despite the amendments to the Family Law Act 1975 made by this Act, on 1 January 2019 the time for instituting the appeal or making the application has not ended;

then, after 1 January 2019, the appeal or application may be made to the Family Law Appeal Division of the Federal Court.

(2)       For the purposes of subitem (1), an appeal or application for leave to appeal must be made in accordance with the Federal Court Rules 2011 , as amended by this Act.

(3)       To avoid doubt, the Family Law Appeal Division of the Federal Court is to hear and determine the appeal or application according to:

                     (a)  the Federal Court of Australia Act 1976 , as amended by this Act; and

                     (b)  the Family Law Act 1975 , as amended by this Act; and

                     (c)  any other law of the Commonwealth, as relevant.

(4)       For the purposes of applying the Federal Court of Australia Act 1976 , as amended by this Act (as mentioned in paragraph (3)(a)), any reference to the Federal Circuit and Family Court of Australia (Division 1) is taken to include a reference to a single Judge of the Family Court of Australia.

26  Right of appeal to Federal Circuit and Family Court of Australia

(1)       If:

                     (a)  on 31 December 2018, an appeal could be instituted under section 96 of the Family Law Act 1975 ; and

                     (b)  despite the amendments to the Family Law Act 1975 made by this Act, on 1 January 2019 the time for instituting the appeal has not ended;

then, after 1 January 2019, the appeal may be made to the Federal Circuit and Family Court of Australia.

(2)       For the purposes of subitem (1), an appeal must be made in accordance with the Federal Circuit and Family Court of Australia (Division 1) Rules 2018 or the Federal Circuit and Family Court of Australia (Division 2) Rules 2018 , as applicable.

(3)       To avoid doubt, a Judge of the Federal Circuit and Family Court of Australia is to hear and determine the appeal according to:

                     (a)  the Federal Circuit and Family Court of Australia Act 2018 ; and

                     (b)  the Family Law Act 1975 , as amended by this Act; and

                     (c)  any other law of the Commonwealth, as relevant.

27  Extensions of time to appeal or seek leave to appeal

(1)       Despite the amendments to the Family Law Act 1975 made by this Act, if, on 1 January 2019, a person could seek an extension of time:

                     (a)  to institute an appeal under the Family Law Act 1975 (other than section 96); or

                     (b)  to apply for leave to appeal under that Act;

then, after 1 January 2019, the person may apply to the Family Law Appeal Division of the Federal Court to seek such an extension of time.

(2)       To avoid doubt, the Family Law Appeal Division of the Federal Court is to hear and determine the application according to:

                     (a)  the Federal Court of Australia Act 1976 , as amended by this Act; and

                     (b)  the Family Law Act 1975 , as amended by this Act; and

                     (c)  any other law of the Commonwealth, as relevant.

(3)       Despite the amendments to the Family Law Act 1975 made by this Act, if, on 1 January 2019, a person could seek an extension of time to institute an appeal under section 96 of the Family Law Act 1975 , then, after 1 January 2019, the person may apply to the Federal Circuit and Family Court of Australia to seek such an extension of time.

Division 2—Matters not substantively heard before 1 January 2019

28  Matters before a Judge or Full Court of the Family Court of Australia

Matters to be substantively heard by the Family Law Appeal Division of the Federal Court

(1)       Subject to subitems (4) and (5), if:

                     (a)  before 1 January 2019, any of the following occur:

                              (i)  an application is made under section 94AA of the Family Law Act 1975 for leave to appeal under Part X of that Act;

                             (ii)  an appeal is instituted, as allowed by Part X of that Act;

                            (iii)  facts and a question of law are stated in the form of a special case for the opinion of a Full Court of the Family Court of Australia; and

                     (b)  on 31 December 2018, either:

                              (i)  there has not been a substantive hearing of the application, appeal or special case by the Full Court of the Family Court of Australia; or

                             (ii)  in the case of an application referred to in subparagraph (a)(i) that could be determined by a single Judge of the Family Court of Australia, there has not been a substantive hearing of the application by a single Judge of the Court;

then, after 1 January 2019, the Family Law Appeal Division of the Federal Court is to hear and determine the application, appeal or special case, as if the application were made to, the appeal instituted in, or the special case stated for, the Family Law Appeal Division of the Federal Court.

(2)       To avoid doubt, the Family Law Appeal Division of the Federal Court is to hear and determine the application, appeal or special case according to:

                     (a)  the Federal Court of Australia Act 1976 , as amended by this Act; and

                     (b)  the Family Law Act 1975 , as amended by this Act; and

                     (c)  any other law of the Commonwealth, as relevant.

(3)       For the purposes of applying the Federal Court of Australia Act 1976 , as amended by this Act (as mentioned in paragraph (2)(a)), any reference to the Federal Circuit and Family Court of Australia (Division 1) is taken to include a reference to the Family Court of Australia.

Federal Circuit and Family Court of Australia (Division 1) to deal with certain applications of a procedural nature first

(4)       If, on 31 December 2018, a Full Court of the Family Court of Australia has reserved judgment on an application of a procedural nature (as mentioned in subsection 94(2D) or 94AAA(10) of the Family Law Act 1975 ) in relation to an application or appeal mentioned in paragraph (1)(a), then, after 1 January 2019, a Full Court of the Federal Circuit and Family Court of Australia (Division 1) must deliver the judgment on the procedural application.

Note:       For provisions relating to the constitution of a Full Court, see item 32.

(5)       If, on 31 December 2018, a single Judge of the Family Court of Australia has reserved judgment on an application of a procedural nature (as mentioned in subsection 94(2D) or 94AAA(10) of the Family Law Act 1975 ) in relation to an application or appeal mentioned in paragraph (1)(a), then, after 1 January 2019, a single Judge of the Federal Circuit and Family Court of Australia (Division 1) must deliver the judgment on the procedural application.

Note:       For provisions relating to the unavailability of a Judge, see item 33.

(6)       Once judgment has been delivered on the procedural application, as mentioned in subitem (2) or (3), the application or appeal mentioned in paragraph (1)(a) is to be dealt with by the Family Law Appeal Division of the Federal Court as required by subitem (1).

Family Law Appeal Division of the Federal Court to deal with other applications of a procedural nature

(7)       If, on 31 December 2018:

                     (a)  an application of a procedural nature (as mentioned in subsection 94(2D) or 94AAA(10) of the Family Law Act 1975 ) exists in relation to an application or appeal mentioned in paragraph (1)(a); and

                     (b)  subitems (4) and (5) do not apply;

the Family Law Appeal Division of the Federal Court must deal with the procedural application before dealing with the application or appeal mentioned in paragraph (1)(a) as required by subitem (1), and for this purpose, subitems (2) and (3) apply.

Full Court divided in opinion

(8)       If the Judges constituting the Full Court of the Federal Circuit and Family Court of Australia (Division 1) are divided in opinion as to the judgment to be pronounced on an application of a procedural nature:

                     (a)  if there is a majority—judgment is be pronounced according to the opinion of the majority; and

                     (b)  if the Judges are equally divided in opinion:

                              (i)  in the case of an appeal from a judgment of the Family Court of Australia constituted by a single Judge, or of a Family Court of a State or the Supreme Court of a State or Territory—the judgment appealed from is to be affirmed; and

                             (ii)  in any other case—the opinion of the Chief Justice or, if the Chief Justice is not one of the Judges constituting the Full Court, the opinion of the most senior of the Judges constituting the Full Court is to prevail.

Transfer of documents

(9)       For the purposes of the Family Law Appeal Division of the Federal Court hearing and determining an application, appeal or special case mentioned in subitem (1):

                     (a)  all documents filed in the Family Court of Australia before 1 January 2019 in relation to the application, appeal or special case are to be transferred to the Federal Court; and

                     (b)  any money paid to the Family Court of Australia before 1 January 2019 in relation to the application, appeal or special case is to be transferred to the Federal Court; and

                     (c)  everything done in, or in relation to, the application, appeal or special case in the Family Court of Australia before 1 January 2019 is taken to have been done in the Federal Court.

Jurisdiction to hear applications of a procedural nature

(10)     To avoid doubt:

                     (a)  a Full Court of the Federal Circuit and Family Court of Australia (Division 1) has jurisdiction to deal with an application of a procedural nature for the purposes of subitem (2); and

                     (b)  a single Judge of the Federal Circuit and Family Court of Australia (Division 1) has jurisdiction to deal with an application of a procedural nature for the purposes of subitem (3).

Definition

(11)     In this item:

Full Court , in relation to the Federal Circuit and Family Court of Australia (Division 1), means 2 or more Judges of the Court.

29  Appeals from courts of summary jurisdiction

Appeals before a single Judge of the Family Court of Australia

(1)       If:

                     (a)  before 1 January 2019, an appeal is instituted, as allowed by section 96 of the Family Law Act 1975 ; and

                     (b)  on 31 December 2018, both:

                              (i)  there has not been a substantive hearing of the appeal by a single Judge of the Family Court of Australia; and

                             (ii)  the appeal has not been referred to the Full Court of the Family Court of Australia under subsection 96(5) of that Act;

then, after 1 January 2019, a single Judge of the Federal Circuit and Family Court of Australia (Division 1) is to hear and determine the appeal.

(2)       To avoid doubt, the Judge of the Federal Circuit and Family Court of Australia (Division 1) is to hear and determine the appeal or application according to:

                     (a)  the Federal Circuit and Family Court of Australia Act 2018 ; and

                     (b)  the Family Law Act 1975 , as amended by this Act; and

                     (c)  any other law of the Commonwealth, as relevant.

Appeals before a Full Court of the Family Court of Australia

(3)       If:

                     (a)  before 1 January 2019:

                              (i)  an appeal is instituted, as allowed by section 96 of the Family Law Act 1975 ; and

                             (ii)  the appeal has been referred to, or an application has been made for referral to, a Full Court of the Family Court of Australia under subsection 96(5) of that Act; and

                     (b)  on 31 December 2018, there has not been a substantive hearing of the appeal or application by a Full Court of the Family Court of Australia;

then, despite the referral or application for referral to a Full Court of the Family Court of Australia, after 1 January 2019, a Full Court of the Family Law Appeal Division of the Federal Court is to hear and determine the appeal or application.

(4)       To avoid doubt, the Full Court of the Family Law Appeal Division of the Federal Court is to hear and determine the appeal or application according to:

                     (a)  the Federal Court of Australia Act 1976 , as amended by this Act; and

                     (b)  the Family Law Act 1975 , as amended by this Act; and

                     (c)  any other law of the Commonwealth, as relevant.

Definition

(5)       In this item:

Full Court , in relation to the Federal Court, has the same meaning as in the Federal Court of Australia Act 1976 .

Division 3—Matters substantively heard, in whole or in part, before 1 January 2019

30  Matters before the Full Court of the Family Court of Australia

Judgment to be delivered by the Federal Circuit and Family Court of Australia (Division 1)

(1)       If:

                     (a)  before 1 January 2019, a Full Court of the Family Court of Australia has heard, in whole or in part, any of the following:

                              (i)  an application made under section 94AA of the Family Law Act 1975 for leave to appeal under Part X of that Act;

                             (ii)  an appeal allowed by Part X of that Act;

                            (iii)  an appeal referred under subsection 96(5) of that Act;

                            (iv)  a special case for the opinion of the Full Court; and

                     (b)  on 31 December 2018, either:

                              (i)  a substantive hearing of the application, appeal or special case has not concluded; or

                             (ii)  a substantive hearing of the application, appeal or special case has concluded, but judgment has not been delivered in relation to the application, appeal or special case;

then, after 1 January 2019, despite the amendments to the Family Law Act 1975 made by this Act, the Federal Circuit and Family Court of Australia (Division 1), constituted as a Full Court, must:

                     (c)  if required, conclude the substantive hearing of the application, appeal or special case; and

                     (d)  deliver the judgment in relation to the application, appeal or special case.

Regard may be had to prior evidence

(2)       A Full Court of the Federal Circuit and Family Court of Australia (Division 1) may have regard to any evidence given or received, and arguments adduced, by or before the Full Court of the Family Court of Australia, as constituted before 1 January 2019.

Reasons for decision may be given in short form in certain cases

(3)       Except in the case of an appeal referred under subsection 96(5) of the Family Law Act 1975 , if, in dismissing an appeal, a Full Court of the Federal Circuit and Family Court of Australia (Division 1) is of the opinion that the appeal does not raise any question of general principle, it may give reasons for its decision in short form.

Full Court divided in opinion

(4)       If the Judges constituting a Full Court of the Federal Circuit and Family Court of Australia (Division 1) are divided in opinion as to the judgment to be pronounced:

                     (a)  if there is a majority—judgment is be pronounced according to the opinion of the majority; and

                     (b)  if the Judges are equally divided in opinion:

                              (i)  in the case of an appeal from a judgment of the Family Court of Australia constituted by a single Judge, or of a Family Court of a State or the Supreme Court of a State or Territory—the judgment appealed from is to be affirmed; and

                             (ii)  in any other case—the opinion of the Chief Justice or, if the Chief Justice is not one of the Judges constituting the Full Court, the opinion of the most senior of the Judges constituting the Full Court is to prevail.

Appellate jurisdiction

(5)       To avoid doubt, a Full Court of the Federal Circuit and Family Court of Australia (Division 1) has appellate jurisdiction for the purposes of this item.

Definition

(6)       In this item:

Full Court , in relation to the Federal Circuit and Family Court of Australia (Division 1), means 2 or more Judges of the Court.

31  Matters before a Judge of the Family Court of Australia

Judgment to be delivered by Judge of the Federal Circuit and Family Court of Australia (Division 1)

(1)       If:

                     (a)  before 1 January 2019, a single Judge of the Family Court of Australia has heard, in whole or in part, either of the following:

                              (i)  an application made under section 94AA of the Family Law Act 1975 for leave to appeal under Part X of that Act;

                             (ii)  an appeal allowed by Part X of that Act; and

                     (b)  on 31 December 2018, either:

                              (i)  a substantive hearing of the application or appeal has not concluded; or

                             (ii)  a substantive hearing of the application or appeal has concluded, but judgment has not been delivered in relation to the application or appeal;

then, after 1 January 2019, despite the amendments to the Family Law Act 1975 made by this Act, the Judge, as a Judge of the Federal Circuit and Family Court of Australia (Division 1), must deliver the judgment in relation to the application or appeal.

Note:       For provisions relating to the unavailability of a Judge, see item 33.

Reasons for decision may be given in short form in certain cases

(2)       Except in the case of an appeal under section 96 of the Family Law Act 1975 , if, in dismissing an appeal, a single Judge of the Federal Circuit and Family Court of Australia (Division 1) is of the opinion that the appeal does not raise any question of general principle, the Judge may give reasons for the Judge’s decision in short form.

Appellate jurisdiction

(3)       To avoid doubt, a single Judge of the Federal Circuit and Family Court of Australia (Division 1) has appellate jurisdiction for the purposes of this item.

Division 4—Miscellaneous

32  Constituting a Full Court of the Federal Circuit and Family Court of Australia (Division 1)

(1)       For the purposes of subitems 28(4) and 30(1), if:

                     (a)  one or more of the Judges involved in hearing and determining the application, appeal or special case are not available to constitute a Full Court of the Federal Circuit and Family Court of Australia (Division 1); and

                     (b)  the allocation of another Judge is necessary to constitute a Full Court;

the Chief Justice must allocate another Judge of the Federal Circuit and Family Court of Australia (Division 1) to be a member of the Full Court.

(2)       For the purposes of subitems 28(4) and 30(1), if:

                     (a)  one or more of the Judges involved in hearing and determining the application, appeal or special case are not available to constitute a Full Court of the Federal Circuit and Family Court of Australia (Division 1); and

                     (b)  the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) otherwise considers it necessary;

the Chief Justice may allocate another Judge of the Federal Circuit and Family Court of Australia (Division 1) to be a member of the Full Court.

(3)       In this item:

Full Court means 2 or more Judges of the Federal Circuit and Family Court of Australia (Division 1).

33  Unavailability of a Judge of the Federal Circuit and Family Court of Australia (Division 1)

(1)       For the purposes of subitems 28(5) and 31(1), if the single Judge of the Federal Circuit and Family Court of Australia (Division 1) involved in hearing and determining the application or appeal is not available to deliver judgment in relation to the application or appeal, the Chief Justice must allocate another Judge of the Court to do so.

(2)       The Judge of the Federal Circuit and Family Court of Australia (Division 1) so allocated:

                     (a)  may have regard to any evidence given or received, and arguments adduced, by or before the Judge of the Family Court of Australia before 1 January 2019; and

                     (b)  may receive further evidence or submissions, or hear further argument, if required.

34  Other matters

(1)       If an application is made, before, on or after 1 January 2019 that relates, or is incidental, to a proceeding mentioned in a preceding item of this Part, then, taking into account the jurisdiction of the Family Law Appeal Division of the Federal Court, the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1), in consultation with the Chief Judge of the Federal Circuit and Family Court of Australia (Division 2), may give any direction necessary to ensure that the application is heard and determined, and judgment is delivered, pending the disposal of the proceeding.

(2)       When giving a direction, as allowed by subitem (1), the Chief Justice must consider the workload and resources of the Federal Circuit and Family Court of Australia.

35  Application of case management provisions

(1)       Part VB of the Federal Court of Australia Act 1976 (Case management in civil proceedings) applies in relation to:

                     (a)  a proceeding commenced before 1 January 2019 that will come before the Family Law Appeal Division of the Federal Court because of an item of this Part; and

                     (b)  a proceeding commencing on or after 1 January 2019 that comes before the Family Law Appeal Division of the Federal Court because of an item of this Part.

(2)       Division 4 of Part 5 of Chapter 3 of the Federal Circuit and Family Court of Australia Act 2018 (Case management) applies in relation to:

                     (a)  a proceeding commenced before 1 January 2019 that will come before the Federal Circuit and Family Court of Australia (Division 1) because of an item of this Part; and

                     (b)  a proceeding commencing on or after 1 January 2019 that comes before the Federal Circuit and Family Court of Australia (Division 1) because of an item of this Part.

(3)       Division 4 of Part 6 of Chapter 4 of the Federal Circuit and Family Court of Australia Act 2018 (Case management) applies in relation to:

                     (a)  a proceeding commenced before 1 January 2019 that will come before the Federal Circuit and Family Court of Australia (Division 2) because of an item of this Part; and

                     (b)  a proceeding commencing on or after 1 January 2019 that comes before the Federal Circuit and Family Court of Australia (Division 2) because of an item of this Part.

Part 5 Miscellaneous

36  Prior judicial service

Paragraph 91(3)(b) of the Federal Circuit and Family Court of Australia Act 2018 has effect, on and after 1 January 2019, as if paragraph (c) of the definition of prior judicial service in subsection 7(1) of that Act included a reference to a Federal Magistrate.

Note:       The appointment of a Federal Magistrate under the former Federal Magistrates Act 1999 continued as an appointment of a Judge of the Federal Circuit Court of Australia: see subitem 8(1) of Schedule 2 to the Federal Circuit Court of Australia Legislation Amendment Act 2012 . See also item 14 of this Schedule.

37  Application

The Federal Circuit and Family Court of Australia Act 2018 , including the following provisions of that Act:

                     (a)  Division 4 of Part 5 of Chapter 3 (Case management);

                     (b)  Division 4 of Part 6 of Chapter 4 (Case management);

applies in relation to a proceeding commenced before, on or after 1 January 2019.

38  Transitional rules

(1)       The Minister may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to:

                     (a)  the amendments or repeals made by this Act; or

                     (b)  the enactment of the Federal Circuit and Family Court of Australia Act 2018 .

(2)       To avoid doubt, the rules may not do the following:

                     (a)  create an offence or civil penalty;

                     (b)  provide powers of:

                              (i)  arrest or detention; or

                             (ii)  entry, search or seizure;

                     (c)  impose a tax;

                     (d)  set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act or the Federal Circuit and Family Court of Australia Act 2018 ;

                     (e)  directly amend the text of this Act or the Federal Circuit and Family Court of Australia Act 2018 .

39  Schedule does not limit certain provisions of the Acts Interpretation Act 1901

This Schedule does not limit the operation of section 7 or subsection 25B(1) of the Acts Interpretation Act 1901 .