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Federal Circuit and Family Court of Australia Bill 2018

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2016 - 2017 - 2018 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

Federal Circuit and Family court of australia bill 2018

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Attorney-General, the Honourable Christian Porter MP)

 

               



 

Federal Circuit and Family court of australia bill 2018

General Outline

1.                 Family law is a key pressure on the civil justice system. To improve outcomes for children and families in the family law jurisdiction of the federal court system by increasing efficiencies and reducing delays, the Australian Government has committed to structural reform of the federal courts (excluding the High Court of Australia).

2.                 In recognition of the pressures on the civil justice system, the performance, funding and operation of the federal courts have been considered in many reviews and reports over the last decade. Most recently, PricewaterhouseCoopers completed a 2018 report into the efficiencies of the operation of the federal courts in respect of family law. These reviews and reports establish a clear and persuasive case for reform that the Government must address in order to ensure that the family law system meets the contemporary needs of families.

3.                 The Federal Circuit and Family Court of Australia Bill 2018 (the Bill) would bring the Federal Circuit Court of Australia (the Federal Circuit Court) and the Family Court of Australia (the Family Court) together into an overarching, unified administrative structure to be known as the Federal Circuit and Family Court of Australia (FCFC). These structural reforms facilitated by the Bill would create a framework in the FCFC for common leadership, common management and a comprehensive and consistent internal case management approach.

4.                 To further ensure that these objects are met, the Bill provides for the making of regulations and, in particular, Rules of Court which govern the details, operations and practice and procedure of the FCFC.  This statutory framework in its entirety would underpin the court forms, practice notes, directions and a consistent case management pathway for family law matters.

5.                 The structural reform would therefore provide the impetus to: help Australian families resolve their disputes faster by improving the efficiency of the existing split family law system; provide appropriate protection for vulnerable people; and ensure the expertise of suitably qualified and experienced professionals supports those families in need.

6.                 The FCFC would comprise two divisions. The Federal Circuit and Family Court of Australia (Division 1) (FCFC (Division 1)) would be a continuation of the Family Court. The Federal Circuit and Family Court of Australia (Division 2) (FCFC (Division 2)) would be a continuation of the Federal Circuit Court.

7.                 As two divisions located in the FCFC, this structural reform of the federal courts is intended: 

·        to create a consistent pathway for Australian families in having their family law disputes dealt with in the federal courts

·        to improve the efficiency of the federal court system, and

·        to ensure outcomes for Australian families are resolved in the most timely, informed and cost effective manner possible.

8.                 The FCFC would provide, in effect, the single point of entry into the family law jurisdiction of the federal court system. To achieve optimal efficiency in the handling of matters, the Bill would provide for matters to be transferred between FCFC (Division 1) and FCFC (Division 2) with the approval of the Chief Justice/ Chief Judge of the receiving Division. With consistent internal approaches to case management, practices and procedures, it is anticipated that the FCFC would significantly improve efficiency in the family law jurisdiction of the federal court system, providing additional resources that can be directed to reducing the growing backlog of pending cases in the system and reducing the average time it takes to resolve family law matters.

9.                 Critically, and as provided for in the Bill, the Government intends that the FCFC would operate under the leadership of one Chief Justice, supported by one Deputy Chief Justice, with each holding a dual commission to both Division 1 and Division 2. The Bill provides a framework that would enable the Chief Justice to ensure more stringent, early assessments of the relative complexity of matters requiring determination by the FCFC and then ensure the more effective allocation of cases between the two Divisions. This would also facilitate the ability of the FCFC to take a consistent internal case management approach, resulting in the more efficient handling of family law matters. It is also expected that one Chief Justice would ensure the issuing of common rules of courts, practice notes and directions, which would guide the Judges and Court staff of each division, legal practitioners and litigants about the way uniform procedures are expected to operate.

10.             FCFC (Division 1) would continue to have jurisdiction with respect to matters under the Family Law Act 1975 (Family Law Act) as currently exists in the Family Court . FCFC (Division 2) would be conferred with much the same family law jurisdiction as that conferred on FCFC (Division 1) such that the jurisdiction of both divisions will largely become the same. The Bill would also ensure that the Federal Circuit Court’s existing general federal law jurisdiction and fair work jurisdiction would be preserved in FCFC (Division 2).

11.             Nothing in this Bill, or any of the amendments in the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018, of themselves, constitute a significant change in circumstances or new factor that would enable a decided family law matter to be reopened or a matter reinstituted (that is, these reforms do not of themselves meet the test of Rice and Asplund (1979) FLC 90-725). This means that if a family law matter has been decided, this Bill would not change the outcome of that decision for the parties.

12.             More specifically, the Bill would:

·        provide for the continuation of the Family Court of Australia as the FCFC (Division 1)

·        provide for the continuation of the Federal Circuit Court of Australia as the FCFC (Division 2)

·        ensure that the FCFC (Division 1) is considered a superior court of record and a court of law and equity, and the FCFC (Division 2) is considered a court of record and a court of law and equity

·        provide that the Chief Justice of the FCFC (Division 1) may hold a dual appointment as the Chief Judge of the FCFC (Division 2)

·        provide that the Deputy Chief Justice of the FCFC (Division 1) may hold a dual appointment as the Deputy Chief Judge of the FCFC (Division 2)

·        confer jurisdiction to hear matters arising under the Family Law Act on the FCFC (Division 1) and the FCFC (Division 2)

·        provide that the jurisdiction of the FCFC (Division 1) and the jurisdiction of the FCFC (Division 2) are only to be exercised by one Judge

·        provide for the Rules of Court of the FCFC (Division 1) and the Rules of Court of the FCFC (Division 2) to be made solely by the Chief Justice and Chief Judge, respectively, rather than by a majority of judges

·        provide a power for matters to be transferred between the FCFC (Division 1) and the FCFC (Division 2)

·       provide that the overarching purpose of practice and procedure provisions in relation to family law proceedings in both FCFC (Division 1) and FCFC (Division 2) is to facilitate the just resolution of disputes, according to law, and as quickly, inexpensively and as efficiently as possible, and

·       provide a Judge may order a lawyer to bear costs personally for failure to comply with the duty to facilitate the just resolution of disputes, according to law and as quickly, inexpensively and efficiently as possible .

13.             Significantly, the Bill would provide that:

·       the Chief Justice and Chief Judge must work cooperatively to achieve a common approach to case management in the FCFC, including in relation to common practices and procedures, rules of court and forms (noting the Government’s clear intention that there would be a single Chief Justice holding a dual commission to both Division 1 and Division 2)

·       the Chief Justice and Chief Judge may authorise Judges in the FCFC to manage proceedings or classes of proceedings (which would enable specialist management of proceedings), and

·       a single Chief Executive Officer, the Chief Executive Officer of the Federal Court, is to assist the Chief Justice and the Chief Judge in the administrative affairs of the FCFC.

14.             The Bill therefore would provide a framework to, over time and through a standardised set of Rules, realise:

·       a single set of forms for court users

·       a common scale of costs

·       uniform procedures, and

·       a cultural change in the conduct of litigation, encouraged by the FCFC’s new case management provisions, so that the Court and the parties are focussed on resolving disputes as quickly, inexpensively and efficiently as possible.

FINANCIAL IMPACT

15.             As part of the 2018-19 Budget, $4.0 million was allocated to assist with the implementation costs of the structural reform of the federal courts.

16.             Locating the Federal Circuit Court and the Family Court in the FCFC is expected to deliver efficiencies to the courts of $3.0 million over the forward estimates. These efficiencies will be reinvested in the courts to further enhance their capacity to provide services.

 

 



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Federal Circuit and Family Court of Australia Bill 2018

17.             This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

18.             The Federal Circuit and Family Court of Australia Bill 2018 (the Bill) brings together the Family Court of Australia (Family Court) and the Federal Circuit Court of Australia (FCC) to be known as the Federal Circuit and Family Court of Australia (FCFC).

19.             The bringing together of the courts is intended to provide Australian families with a quicker dispute resolution mechanism, as well as greater certainty and consistency. This intention will be achieved by improved shared case management practices so that information will be readily available about what to expect and when, thereby standardising the experience of litigants, and providing an early sense of the likely cost implications of lodging a family law application in the FCFC. The FCFC would become the single point of entry into the family law jurisdiction of the federal court system for all Australian family law matters.

20.             It is also anticipated that these reforms will make it easier for the public to understand court practices and also improve access to justice. By creating standardised rules and procedures, the FCFC will be simpler to use and more efficient.  

21.             This Bill deliberately replicates existing provisions in the Federal Circuit Court of Australia Act 1999 , together with some existing provisions from the Family Law Act 1975 . For each of the rights engaged, the bringing together of the Family Court and the FCC creates a framework to consolidate the procedures, management and administration of the two courts in their current iterations. This is achieved by providing the practical capacity for a dual commissioned head of jurisdiction, and by having the Chief Executive Officer of the Federal Court also fulfil that role in the FCFC (Division 1) and FCFC (Division 2), and by providing that  the family law jurisdiction of the FCFC (Division 1) and the FCFC (Division 2) would be the same. This consolidation will allow for litigants to access a streamlined procedure, especially in family law matters, instead of navigating two sets of procedures for different courts.

Human rights implications

22.             The Bill engages the following human rights:

·        right to a fair and public hearing: Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR);

·        right to an effective remedy: Article 2(3) of the ICCPR;

·        elimination of discrimination against women: Articles 2 and 26 of the ICCPR, and Articles 2, 3 and 5 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW);

·        best interests of the child: Article 3(1) of the Convention on the Rights of the Child (CRC), and in relation to children with disabilities Article 7(2) of the Convention on the Rights of Persons with Disabilities (CRPD);

·        protection from exploitation, violence and abuse: Article 20(2) of the ICCPR; in relation to children Articles 19(1) and 34 of the CRC, and Article 24(1) of the ICCPR; and in relation to persons with disabilities Article 16(1) of the CRPD;

·        protection against unlawful and arbitrary interference with privacy: Article 17 of the ICCPR; and

·        right to security of the person and freedom from arbitrary detention: Article 9 of the ICCPR.

23.             As most of the provisions in the Bill replicate or are drawn from existing provisions of the Federal Circuit Court Act 1999 or the Family Law Act 1975 , there is little change in the treatment of most of the rights mentioned above. As such, while the Bill promotes human rights by increasing access to justice, the limitations it imposes on human rights largely maintain existing limitations. The Bill does not substantially alter the substantive powers of the judiciary or the rights of parties to have a matter heard by the courts.

Right to a fair and public hearing, and to an effective remedy - Article 2(3) and 14(1) of the ICCPR

24.             Article 14(1) of the ICCPR enshrines the right of a person to have a fair and public hearing by a competent, independent and impartial tribunal established by law. Article 2(3) requires States to ensure that any person whose rights and freedoms as stipulated in the ICCPR are violated, that person shall have an effective remedy, which is to be determined by a competent judicial authority. The Bill predominately engages these rights through the provisions relating to the ability of both divisions of the FCFC to ‘go on circuit’, the use of audio or video link, vexatious litigants, suppression and non-publication orders, closed-court requirements, and case management provisions.

Place of sitting

25.             Clauses 46 and 150 provide that sittings of the FCFC (Division 1) and FCFC (Division 2), respectively, ‘must be held from time to time as required and the Court may sit at any place in Australia’. Currently the FCC is a circuit court; that is, judges from the Family Court or the FCC are able to conduct proceedings in various cities around Australia, including regional areas. It will be open to both the FCFC (Division 1) and FCFC (Division 2) to operate anywhere in Australia pursuant to clauses 46 and 150.  Having the ability for the courts to sit outside of major Australian cities particularly engages and promotes the right to an effective remedy as it facilitates access to the courts for Australians in non-metropolitan areas. Further, clauses 47 and 151 allow either division of the FCFC to change the venue of the court to continue a proceeding, or part of a proceeding at any stage of the proceedings. These provisions ensure the court can flexibly adapt the nature of the proceedings and any unforeseen circumstances that may arise for the users of the court. 

Use of audio or video link

26.             Division 6 of Part 6 of Chapter 4 provides for the FCFC (Division 2) to allow applicants to use audio or video link for a variety of purposes, including allowing a person to give evidence, make appearances or submissions. Similar provisions are made in Division 2 of Part XI of the Family Law Act 1975 for the FCFC (Division 1). These provisions promote the right to a fair hearing and the right to an effective remedy by allowing the court to use technology to respond flexibly to the needs of its users. This may include circumstances where users of the court are unable to travel to the court, or in sensitive circumstances where attending court in person is unsafe or may traumatise a person. This provision ensures that in such circumstances, access to the courts is not denied, and thus the right to a fair hearing and the right to an effective remedy are promoted.

Vexatious litigants

27.             Clauses 205-210 engage with the right to a fair hearing and the right to an effective remedy by allowing the FCFC (Division 2) to make an order that prevents litigants considered vexatious from instituting proceedings without a grant of leave. The definition of ‘vexatious’ is provided in clause 7 of the Bill, and clause 205(1) limits the circumstances in which the FCFC (Division 2) can make the vexatious proceedings order to circumstances where a person, or a person has acted in concert with a person who, has frequently instituted or conducted proceedings considered vexatious in Australian courts or tribunals. The Bill defines this order as a ‘vexatious proceedings order’.

28.             These proposed clauses promote the right to a fair hearing and the rights to an effective remedy by ensuring the courts are not misused for an improper purpose. However, the provisions may also be viewed as limiting the use of the courts for those litigants subject to the order. In circumstances where a litigant is limited from their right to an fair hearing and their right to an effective remedy, the legitimate objective of the power to make vexatious proceedings orders is to prevent the abuse of process, or the use of the court to annoy, harass, cause delay or detriment, or for another wrongful purpose. There is a rational connection between clauses 205-210 and this objective, as these clauses enable the FCFC (Division 2) to make an order that a litigant is vexatious, provides the circumstances in which such an order can be made, and outline the effect of the order.

29.             These clauses are considered reasonable and necessary to protect the integrity of the court system, to protect applicants who may be adversely affected by vexatious litigants and accordingly improve access to justice for non-vexatious litigants, and ensure that court resources are allocated usefully and efficiently. Moreover, clauses 205-210 replicate the current ability of the FCC to make the same order.  Similar provisions relating to vexatious proceedings are made in Part XIB of the Family Law Act 1975 for the FCFC (Division 1).  The limitation is proportionate as the term ‘vexatious’ is discretely defined in clause 7, and clause 205(1) limits the circumstances under which the FCFC (Division 2) can make the vexatious proceedings order. Therefore, to the extent that the provisions relating to vexatious proceedings orders can be considered a limitation on articles 2(3) and 14 of the ICCPR, the limitation is permissible.



Suppression and non-publication orders and circumstances in which proceedings may not be public

30.             Clause 105(7) engages with the right to a fair and public hearing, and the right to an effective remedy, by providing circumstances under which the FCFC (Division 2) can make an order for a matter to be conducted in closed court, such that the order may exclude the public or specific people from sitting in court during a matter. Not only does this clause engage the right to a public hearing, by restricting the attendance of the public from the court, but the circumstances in which the order can be made are for the purposes of promoting the right to a fair hearing and the right to an effective remedy. Clause 195 provides the FCFC (Division 2) the power to make suppression and non-publication orders such that certain matters will not be made public. In making a suppression order, the FCFC (Division 2) is required to ‘take into account that a primary objective of the administration of justice is to safeguard the public interest in justice’. The power to make suppression or non-publication orders is further limited by clause 197 which set out grounds for making the order.

31.             The legitimate objective of both powers under clauses 105 and 195 is to facilitate the administration of justice, on the basis that the presence of the public or certain people, or the publication and disclosure of certain information, is not conducive to a fair hearing or the administration of justice in all events. Suppression and non-publication orders operate to protect vulnerable people, including children during a hearing and in its aftermath.

32.             The circumstances in which a closed court may be preferable are set out in clause 105(7) (specifically, that the presence of the public or persons specified by the Court for a sitting of the Court would be contrary to the interests of justice, or prejudicial to the security of the Commonwealth). The circumstances in which non-publication and non-disclosure are in fact preferable are set out in clause 197, and include safety of a person, avoiding the cause of undue distress and embarrassment to a party or witness in a criminal proceeding involving an offence of a sexual nature, and to prevent prejudice to the interests of the Commonwealth or a state or territory in relation to national or international security. There is a rational connection between the provisions and the objective, as clauses 105(7) and 197 give the court the power to make the order.

33.             The provisions can be considered reasonable and necessary as they operate in the pursuit of the administration of justice, and progress the right to a fair hearing and an effective remedy in circumstances in which an open hearing compromises justice to the most vulnerable parties to a court proceeding. The provision is proportionate to the legitimate objective, as it is limited by the specific grounds which are required for either order to be made. Moreover, these orders can be appealed, which allows a relevant party with sufficient interest to apply to the court to consider the appropriateness and scope of the order. This ensures that the limitation on articles 2(3) and 14 of the ICCPR is reasonable and proportionate. Therefore, to the extent that the provisions relating to suppression orders, or closed court orders, can be considered a limitation on articles 2(3) and 14 of the ICCPR, the limitation is permissible.

Case management provisions

34.             The case management provisions in the Bill promote the right to a fair and public hearing and the right to an effective remedy by creating the framework for early dispute resolution, and better allocation depending on the subject matter, complexity and urgency of the application. The case management provisions in clauses 48-50 and 157-159 stipulate that the overarching purpose of practice and procedure is to ‘facilitate the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible’ and require parties to act consistently with this overarching purpose. Similarly, clauses 51, 55, 160 and 183 require the Chief Justice and Chief Judge to work cooperatively with the aim of ensuring common approaches to case management, and common practices and procedures and common rules of court and forms. As discussed above, the operation of the Bill in the context of these objectives and requirements will provide Australian families with a quicker dispute resolution mechanism, as well as greater certainty and consistency in their family law proceedings. Together, these factors will increase every Australian’s access to justice and promote the right to a fair and public hearing and the right to an effective remedy .

Elimination of discrimination against women - Articles 2 and 26 of the ICCPR and Articles 2, 3 and 5 of the CEDAW

35.             Article 2 the ICCPR requires States to undertake to respect and ensure the rights of persons under the ICCPR, regardless of any distinction, including sex. In this respect, article 26 requires States to provide all persons effective protection against discrimination on any ground, including sex. The CEDAW builds upon articles 2 and 26 of the ICCPR, by not only creating an international bill of rights for women, but also an agenda for action for States party to CEDAW to guarantee the enjoyment of those rights. It outlines key principles of equality in relation to women’s political participation, health, education, employment, marriage, family relations and equality before the law. In particular:

·        Article 2 provides that parties agree to pursue the elimination of discrimination against women, including by introducing new laws or policies for the practical realisation of equality of men and women, and to effectively protect women against any act of discrimination through competent national tribunals;

·        Article 3 requires parties to take appropriate measures to ensure women’s full development and advancement, so that they can enjoy human rights and fundamental freedoms on the same basis as men;

·        Article 5 requires parties to take appropriate measures to modify the social and cultural patterns of conduct of men and women, to eliminate prejudices based on the idea of inferiority or superiority of either of the sexes.

36.             Discrimination against women includes gender-based violence: violence that is directed against a woman because she is a woman, or that affects women disproportionately. Although family violence is perpetrated by and against both men and women, the majority of those who experience family violence are women, and thus affect women disproportionately. It is therefore suggested that family violence amounts to discrimination against women. [1] As this Bill seeks to better protect victims of family violence, it will in turn address the impacts on women of gender-based violence, and thus promote the elimination of discrimination against women.

37.             This Bill supports articles 2, 3, 5 of the CEDAW through the case management provisions discussed above, in Division 4 of Part 5 of Chapter 3 and in Division 4 of Part 6 of Chapter 4 of the Bill. This is achieved by enhancing the ability of the FCFC to manage family violence matters and applications with allegations of sexual abuse by creating the case management framework for urgent and high risk cases to be prioritised, and for each case to be allocated to the judge and division with the appropriate expertise and capacity to hear the matter. The case management framework will ensure that a matter will come to the immediate attention of the court and the most suitable case management pathway can be determined to achieve a safe outcome when family violence or allegations of sexual abuse have been identified. There will be a range of court-based options available to both divisions for the effective case management of these types of matters. As such, articles 2, 3 and 5 of the CEDAW are promoted by this Bill.

Best interests of the child: Article 3 of the CRC and in relation to children with disabilities Article 7(2) of the CRPD

38.             Article 3 of the CRC, particularly article 3(1), provides that in all actions concerning children, including by courts, the best interests of the child shall be a primary consideration. Article 7(2) of the CRPD provides for this right in relation to children with disabilities. The principle applies to all actions concerning children and as required by article 3(2), state parties are required to take active measures to protect children’s rights and promote their survival, growth, and wellbeing; as well as take measures to support and assist parents and others who have day-to-day responsibility for ensuring recognition of children's rights. It requires all legislative, administrative and judicial bodies and institutions to systematically consider how children's rights and interests are or will be affected directly or indirectly by their decisions and actions.

39.             This Bill engages these articles largely through the case management provisions in clauses 48 and 157, discussed above. The note to subclauses 48(1) and 157(1) provides that both divisions of the FCFC ‘must give effect to the principles in the Family Law Act 1975 when exercising the jurisdiction in relation to proceedings under that Act’. Therefore, despite one element of the overarching purpose of this Bill being the quick, inexpensive and efficient resolution of disputes, this purpose must also be exercised in accordance with principles under the Family Law Act 1975 , which include acting in the best interests of the child (including children with disabilities), as determined under section 60CC, in relation to a variety of matters; including when conducting child-related proceedings under division 12A, or making parenting orders (sections 60CA and 65AA of the Family Law Act 1975 ), location orders (section 67L of the Family Law Act 1975 ), or recovery orders (section 67V of the Family Law Act 1975 ).

40.             More generally, the Family Law Act 1975 makes clear that when exercising jurisdiction under that Act, a court must have regard to the need to protect the rights of children and to promote their welfare (section 43). This combination of efficient dispute resolution through the case management provisions, while mandating the best interest of the child as required in the Family Law Act 1975, ensures that the rights of the child are not compromised in pursuit of efficiency, and the rights under article 3(1) of the CRC and article 7(2) of the CRPD are promoted. 

Protection from exploitation, violence and abuse: Article 20(2) of the ICCPR; in relation to children, Article 19(1) and 34 of the CRC and Article 24(1) of the ICCPR; and in relation to persons with disabilities Article 16(1) of the CRPD

41.             The right to protection from exploitation, violence and abuse is contained in article 20(2) of the ICCPR. In relation to children, the right to protection from exploitation, violence and abuse is elaborated upon in article 19(1) and for protection against sexual exploitation, the right is contained in article 34 of the CRC. Article 24(1) of the ICCPR also provides for the protection of all children, without discrimination, by virtue of their status as minors. In relation to persons with disabilities, this protection is contained in article 16(1) of the CRPD. This right, as stated in article 19(1) of the CRC, provides that States are required to ‘take all appropriate legislative, administrative, social and educational measures to protect the child or people from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person’.

42.             The Bill supports the right to protection from exploitation, violence and abuse through the case management provisions in Division 4 of Part 5 of Chapter 3 and in Division 4 of Part 6 of Chapter 4 of the Bill.  As analysed above, similar to promoting the elimination of discrimination against women the Bill creates a framework that enhances the ability of the FCFC to better manage allegations of family violence and sexual abuse, by creating a system of prioritisation and allocation in accordance with factors including urgency, expertise and capacity. As such, articles 20(2) and 24(1) of the ICCPR, 19(1) and 34 of the CRC, and 16(1) of the CRPD are promoted by this Bill.

Protection against unlawful and arbitrary interference with privacy - Article 17 of the ICCPR

43.             Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy. The right in article 17 may be subject to permissible limitations, where the limitations are authorised by law and are not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the particular circumstances. The UN Human Rights Committee has interpreted the requirement of reasonableness to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.

44.             This Bill interacts with the right to privacy by allowing the disclosure of personal information, in the limited circumstances of a request being made under clause 206, and providing the court the power to make closed-court, suppression and non-publication orders, under clauses 105 and 197.



Suppression and non-publication orders, and circumstances in which proceedings may not be public

45.             As discussed above, clauses 105 and 197 empower the court to make orders requiring that proceedings be conducted in a closed court, or to make suppression, or non-publication orders. By limiting the public dissemination of certain sensitive information, in court or later through publication, the Bill protects against the arbitrary interference in a person’s private proceedings. Therefore, the right in article 17 of the ICCPR is promoted through clauses 105 and 197.

Disclosure of whether a person is subject to a vexatious proceedings order

46.             Clause 206 allows a person to request a certificate from the Chief Executive Officer of the FCFC stating whether another person is or has been the subject of a vexatious proceedings order. If a person is the subject of a vexatious proceedings order, the Chief Executive Officer is required to produce a certificate specifying the date of the order and any other information as prescribed by the Rules of Court, which may include personal information. This will only occur in situations where a vexatious proceedings order has been made against a person, and if there are no other restrictions on disclosure, such as another law or order, such as a suppression order.

47.             The legitimate objective of this clause is to prevent the abuse of process, or the use of the court to annoy, harass, cause delay or detriment, or for another wrongful purpose. The rational connection between clause 206 and this objective is that by allowing a person to seek information in relation to whether an order has been made against another applicant, the person seeking the information can better assist the court and prevent the abuse of process or any other wrongful purpose. The provision is reasonable and necessary as it ensures that defendants are not unnecessarily and unjustifiably forced to defend vexatious cases brought against them. It also ensures that court resources are not wasted on vexatious proceedings, ensuring that other litigation is able to be dealt with by the courts in a timelier manner and thus providing access to justice for a greater number of Australian families. The provision is proportionate to the objective as information about another person is only disclosed when the vexatious proceedings order has been made against them. Noting the discussion on closed courts and vexatious proceedings orders above, vexatious proceedings orders are made in open court in limited circumstances. Therefore, much of the personal information may be considered public; however clause 206 facilitates ease of access to the information. In the event that the information is not public due to legal prohibition, either by the effect of a law or an order, subclause 206(3) prohibits the Chief Executive Officer from disclosing the information. Therefore any limitation on article 17 of the ICCPR due to clause 206 is permissible. 

Right to liberty - Article 9 of the ICCPR

48.             Article 9 of the ICCPR provides that everyone has the right to liberty and security of the person and that no one shall be subjected to arbitrary arrest or detention. It also provides for further protections in the course of arrest, including to be informed of the reason for arrest, to be brought promptly before a judge, to habeas corpus, and to take proceedings before a court.

49.             The Bill interacts with the right to liberty as clause 237 provides for the Sheriff or a deputy Sheriff of the FCFC (Division 2), a Sheriff or Deputy Sheriff of a court of a State or Territory, or a police officer (the arrester) who is authorised by this Act or the Rules of Court, to arrest another person (the arrestee).

50.             The legitimate objective of this clause is to ensure that Court Officers have the powers they require to enforce orders of the FCFC and maintain effective justice. Clause 237 is reasonable and necessary as it ensures the powers of Court Officers to arrest a person are to only be executed with legislative authority, and can therefore not be considered arbitrary or as otherwise contravening article 9 of the ICCPR. Court Officers’ powers are also subject to appropriate qualifications and safeguards to ensure that any force, indignity or potential harm caused to an arrestee is reasonably proportionate to the risk of escapee or harm to the Officer or another person. Further, subclause 237(4) provides limitation on the arrester power to use force, ensuring the limitation on the right of liberty is reasonable and proportionate. The arrester must not use more force, or subject the arrestee to greater indignity, than is necessary and reasonable to make the arrest or prevent escape; nor do anything that is likely to cause the death of, or grievous bodily harm to, the arrestee, unless the arrester reasonably believes that doing so is necessary to protect the life or prevent serious injury to another person (including the arrester). In addition, the arrester must inform the arrestee of the substance of grounds of the arrest (unless the arrestee should, in the circumstances, know the substance of the grounds for the arrest, or if the arrestee’s actions make it impracticable to do so). Furthermore, an arrestee is to be informed of the grounds for their arrest, which assists in preventing any arrest that is arbitrary in nature. In light of these qualifications and safeguards, to the extent that subclause 237 may be considered a limitation on article 9 of the ICCPR, the limitation is permissible. 

Conclusion

51.             The Bill is compatible with human rights because it promotes the protection of human rights and t o the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate to achieve the legitimate objectives of the Bill.

 



Summary of the Bill

Policy background

52.             Family law is a key pressure on the civil justice system. Structural reform of the federal courts (excluding the High Court of Australia) would increase efficiencies, reduce delays, and lead to better outcomes in the family law jurisdiction of the federal court system, particularly for those families interacting with the courts during stressful and difficult periods in their lives. Structural reform would support the long term financial sustainability of the federal court system, building upon court reform work undertaken in the context of the 2015-16 Budget and aligning with ongoing efficiency work of the federal courts.

53.             Some Australian families are waiting for up to three years to have their family law disputes resolved, protracting highly stressful proceedings and exacerbating conflict. This results in poor outcomes for some children and families.

54.             Separating families primarily rely on the federal court system through the two courts responsible for family law - the Family Court and the Federal Circuit Court, noting the Family Court of Western Australia and some state courts also exercise federal family law jurisdiction. In practice, the Federal Circuit Court finalises over 85 per cent of final order family law matters in the federal court system and 90 per cent of the Federal Circuit Court’s caseload consists of family law matters.

55.             Currently, the Family Court and the Federal Circuit Court maintain virtually parallel jurisdiction in family law. However, the family law application process varies significantly between the Family Court and the Federal Circuit Court. This is the result of variations in the courts’ legislative frameworks (including their respective Acts, Regulations and Rules) and operational and cultural practices that have evolved over time. Most significantly, differences exist between the two courts in the case management process between filing and trial. This can lead to confusion, delays, additional costs and unequal experiences for many applicants.

Major features of the Bill

56.             Structural reform would significantly improve the efficiency of the family law system, reduce the backlog of the family law courts, and drive faster and cheaper resolution of matters for parties to proceedings.

57.             For constitutional reasons, the FCFC would be established as two courts, brought together in practice under a single, overarching, unified administrative structure. This would nonetheless allow for the continuation of the Family Court and the Federal Circuit Court with the collective personnel (other than Judges) of the existing Courts being brought together under the unified administrative structure of the new Court entity. It in no way would constitute either court absorbing the other, or either court being disbanded. The FCFC would become, in effect, the single point of entry into the family law jurisdiction of the federal court system. The FCFC would comprise two divisions. FCFC (Division 1) would be a continuation of the Family Court. FCFC (Division 2) would be a continuation of the Federal Circuit Court. FCFC (Division 1) would deal only with family law matters, while FCFC (Division 2) would deal with both first instance family law and general federal law matters. The Bill would ensure that the Federal Circuit Court’s existing general federal law jurisdiction and fair work jurisdiction would be preserved in FCFC (Division 2).

58.             Crucially, the Government intends that the FCFC would operate under the leadership of one Chief Justice supported by one Deputy Chief Justice, who would each hold a dual commission to both FCFC (Division 1) and FCFC (Division 2) (Chief Judge and Deputy Chief Judge, respectively). The appointment of a single Chief Justice/Chief Judge would ensure more effective allocation of cases between the two Divisions. It would also enable the FCFC to take consistent internal approaches to case management, practice and procedure, resulting in the more efficient handling of family law matters. The main Bill would allow applications to be made to Division 1 and Division 2 from 1 January 2019. Applications would be funnelled into a common case management pathway and directed to the most appropriate Division by case management teams led by judges. 

59.             There would be only one statutory Chief Executive Officer (CEO) position for the Federal Court responsible for the single federal court corporate entity to assist both the Chief Justice of the Federal Court and the Chief Justice/Chief Judge of the FCFC in the administration of the courts. Consistent with the 2015-16 Budget measures, the single CEO would retain sole responsibility for corporate services.

60.             A fundamental change in establishing the FCFC would be the removal of most of the appellate jurisdiction of the Family Court. The FCFC (Division 1) would only retain a limited appellate jurisdiction to hear appeals from State and Territory courts of summary jurisdiction exercising federal family law jurisdiction (excluding decisions of Family Law Magistrates and non-family law Magistrates in Western Australia). As there will be significantly fewer appeals, these amendments would realise substantial savings in judicial time and enable judges who typically hear appeals to focus on hearing first instance family law matters. This would reduce the backlog in first instance family law matters and contribute to reducing median case waiting times.

61.             Appeals in family law matters from the FCFC would be heard in a new Family Law Appeal Division of the Federal Court (which would be established by the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 ) . Appeals from the FCFC (Division 1), as a superior court of record, would be heard by the Full Court of the Family Law Appeal Division. Other appeals in family law matters, including those from Division 2, would ordinarily be heard by a single Judge of the Family Law Appeal Division. Having appeals heard by a single judge will free up considerable judicial resources to help reduce delays in family law appeal matters. From 1 January 2019, appeals from both Western Australian Family Law Magistrates and non-family law Magistrates would be heard by the Family Court of Western Australia. Consistent with the new appeal pathway being established for family law matters, appeals from the Family Court of Western Australia would be heard in the new Family Law Appeal Division.

62.             This Bill establishing the FCFC would complement and enhance ongoing court efficiency initiatives that commenced in the 2015-16 Budget to achieve the financial sustainability of the Courts The Bill would also complement the current Australian Law Reform Commission (ALRC) Review of the Family Law System, which is due to report in 2019. Recommendations of merit arising from the ALRC Review would be enhanced by having a new, more efficient court structure already in place.

Consequential and transitional arrangements

63.             The Bill would be supported by the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018, which would make a number of consequential amendments to other Commonwealth laws. For example :

·       the Federal Court of Australia Act 1976 would be amended to provide an appellate jurisdiction to the Federal Court in relation to appeals from judgments from the FCFC (Division 1) and the FCFC (Division 2)

·       the Family Law Act would be amended to ensure that the Family Law Act continues to operate in the context of the new Federal Circuit and Family Court of Australia, and

·       a number of minor consequential amendments would be made to other Acts and relevant subordinate legislation.

64.             The Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 would also ensure that appropriate transitional arrangements are in place for matters before the federal courts as at the date of commencement of the Bill.



NOTES ON CLAUSES

List of abbreviations

Family Court                                       Family Court of Australia

Family Law Act                                  Family Law Act 1975

FCFC                                                  Federal Circuit and Family Court of Australia

FCFC (Division 1)                              Federal Circuit and Family Court of Australia (Division 1)

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

Federal Circuit Court                          Federal Circuit Court of Australia

Federal Circuit Court Act                   Federal Circuit Court of Australia Act 1999   

Federal Court                                      Federal Court of Australia

Federal Court Act                               Federal Court of Australia Act 1976

Federal Court CEO                             Federal Court of Australia Chief Executive Officer and Principal Registrar

High Court                                          High Court of Australia

Public Service Act                              Public Service Act 1999

 



 

CHAPTER 1 - INTRODUCTION

PART 1 - INTRODUCTION

Division 1 - Preliminary  

Clause 1 - Short title

1.                    Clause 1 is a formal provision specifying that the short title of the Act is the Federal Circuit and Family Court of Australia Act 2018 .

Clause 2 - Commencement

2.                    Clause 2 provides for the commencement of each provision of the Bill as set out in the table. Item 1 provides that sections 1 and 2 would commence on the day the Act receives Royal Assent. Item 2 provides that sections 3 to 249 would commence on 1 January 2019.

Clause 3 - Crown to be bound

3.                    Clause 3 provides that the Act would bind the Crown in each of its capacities but would not make the Crown liable to be prosecuted for an offence.

Clause 4 - External Territories

4.                    Clause 4 provides that the Bill would apply in every external Territory.

Division 2 - Objects of this Act

Clause 5 - Objects of this Act

5.                    Clause 5 sets out the objects of the Bill.

6.                    The reforms to be implemented by the Bill aim to improve outcomes for children and families in the family law jurisdiction of the federal court system, including through increasing efficiencies, and reducing delays. A key reason for creating the FCFC is to provide a streamlined court system that will allow Australian families to spend significantly less time in the courts to resolve their family law disputes.

7.                    Subclause 5(a) states that an object of the Bill would be to ensure that justice is delivered by federal courts effectively and efficiently.

8.                    This objective builds on reforms that were introduced by the Courts Administration Legislation Amendment Act 2016 , which streamlined the federal courts and improved their financial sustainability.

9.                    Subclause 5(b) provides that an object of the Bill would be to provide for just outcomes, in particular, in family law or child support proceedings.

10.                Subclause 5(c) provides that an object of the Bill would be to provide a framework to facilitate cooperation between the FCFC (Division 1) and the FCFC (Division 2) with the aim of ensuring: (i) common rules of court and forms; (ii) common practices and procedures; and (iii) common approaches to case management. This objective is intended to strengthen the goal of ensuring the efficient resolution of disputes.

11.                In view of the objects of the Bill, it is expected that each head of division, in practice one Chief Justice, would issue common rules of courts, practice notes and directions, which would guide the Judges and Court staff of each division, legal practitioners and litigants about the way uniform procedures are expected to operate.

Division 3 - Simplified outline of this Act

Clause 6 - Simplified outline of this Act

12.                Clause 6 provides a high-level overview of the Bill.

13.                Simplified outlines are included to assist readers to understand the Bill. The outline is not intended to be comprehensive. Readers should rely on the substantive provisions.

PART 2 - DEFINITIONS

Clause 7- Definitions

14.                Clause 7 would define key terms used in the Bill.

15.                Many of the terms defined in this clause would mirror those used in the Federal Circuit Court Act and the Family Law Act, noting that terms have been amended as necessary to give effect to changes in name and structure as required by the Bill. As the Family Law Act would continue to operate, not all definitions provided for in the Family Law Act have been incorporated in this clause. To ensure consistency, subclause 7(2) provides that an expression would have the same meaning in this Bill as it has in the Family Law Act. Subclause 7(3) provides that, to the extent of any inconsistency between the meaning of an expression defined in this Bill and the Family Law Act, the meaning of the expression in this Bill prevails.

16.                Clause 7 provides definitions for some expressions that may change depending on the Chapter of the Bill in which the expression is being used.

17.                Some expressions would be defined only by reference to FCFC (Division 2) because the equivalent Division 1 provisions and expressions are found in the Family Law Act or otherwise not required. For example:

·        ‘ Vexatious proceedings order ’ would be defined only in relation to FCFC (Division 2). This is because FCFC (Division 1) would continue to rely on the Family Law Act in relation to provisions addressing vexatious proceedings.

·       Prior judicial service ’, ‘ retired disabled Judge ’, and ‘ retires ’ would be defined only in relation to FCFC (Division 2) because there are differences in pension and superannuation arrangements between the Family Court and the Federal Circuit Court.

·       ‘Division’ would be defined only in relation to FCFC (Division 2). This is because the FCFC (Division 1) does not have the General Division or the Fair Work Division. Without those Divisions, this definition is unnecessary for the purposes of the FCFC (Division 1).



CHAPTER 2 - FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

Clause 8 - Federal Circuit and Family Court of Australia

18.                Clause 8 provides that the Family Court of Australia and the Federal Circuit Court of Australia would continue in existence as separate courts, but renamed as the FCFC (Division 1) and FCFC (Division 2). The Bill is not intended to impermissibly abolish either court upon commencement of relevant provisions on 1 January 2019.

19.                Subclause 8(1) provides that the Family Court of Australia would continue in existence as the FCFC (Division 1).

20.                Subclause 8(2) provides that the Federal Circuit Court of Australia would continue in existence as the FCFC (Division 2).

Clause 9 - Federal Circuit and Family Court of Australia (Division 1)

21.                Clause 9 provides that the FCFC (Division 1) would be a superior court of record, and a court of law and equity. It would consist of a Chief Justice, a Deputy Chief Justice and such Senior Judges and other Judges as from time to time hold office in accordance with the Act.

22.                Subclause 9(1) clarifies that the FCFC (Division 1) is a court of law and equity, as well as a superior court of record (in the same way as the Federal Court of Australia). This would ensure consistency with equivalent existing provisions relating to the Federal Court of Australia and the Federal Circuit Court, both of which are explicitly created as courts of law and equity. This subclause would also reflect the longstanding view of the Court’s jurisdiction, and ensures finality of matters for parties who will be involved in proceedings before the FCFC (Division 1). This subclause would reflect an amendment to the Family Law Act which is currently contained in item 8 of the Civil Law and Justice Legislation Amendment Bill 2017.

Clause 10 - Federal Circuit and Family Court of Australia (Division 2)

23.                Clause 10 provides that the FCFC (Division 2) would be a court of record and a court of law and equity. It would consist of a Chief Judge, a Deputy Chief Judge and such other Judges as from time to time hold office in accordance with the Act.

24.                Subclause 10(2) would create the position of Deputy Chief Judge. That position is intended to be equivalent to the position of Deputy Chief Justice of the FCFC (Division 1). Currently, the position of Deputy Chief Judge does not exist in the Federal Circuit Court whereas there is a Deputy Chief Justice position in the Family Court.



CHAPTER 3 - FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

PART 1 - CONSTITUTION

Division 1 - Constitution

Clause 11 - Appointment of Judges

25.                Clause 11 provides for the appointment of Judges to the FCFC (Division 1).

26.                Subclause 11(1) provides that a Judge is to be appointed by the Governor-General by commission.

27.                Paragraph 11(2)(a) provides that a person is not to be appointed as a Judge unless the person is or has been (i) a Judge of another court created by the Parliament or of a court of a State, or (ii) enrolled as a legal practitioner of the High Court or the Supreme Court of a State or Territory for at least 5 years.

28.                In addition, paragraph 11(2)(b) provides that, by reason of training, experience and personality, the person is a suitable person to deal with matters of family law. This paragraph reflects paragraph 22(2)(b) of the Family Law Act. The paragraph is intended to ensure that a person not only has the necessary duration of experience as outlined in paragraph 11(2)(a), but also has the appropriate type of training, experience and personality to be appointed as a Judge of the FCFC (Division 1).

29.                Subclause 11(3) provides that a person must not be appointed as a Judge if the person has attained the age of 70 years. This aligns with section 72 of the Constitution, which provides that the maximum age of Justices of a court created by Parliament is 70 years.

30.                Subclause 11(4) provides that the term of appointment of a Judge will expire upon the Judge attaining the age of 70 years. Note 1 to this subclause describes how section 72 of the Constitution sets out requirements relating to the appointment and tenure of Judges. Note 2 would direct the reader to Division 2 of this Part which deals with terms and conditions of appointment.

Clause 12 - Judges to be assigned to particular location

31.                Clause 12 provides that the commission of appointment must assign a Judge of the FCFC (Division 1) to a particular location. In accordance with subclause 12(1), a Judge must not sit at another location on a permanent basis unless the Minister and the Chief Justice consent. A Judge cannot be required to sit at another location on a permanent basis unless the Judge agrees. A Judge may sit at another location on a temporary basis.

32.                This clause replicates the effect of subsection 22(2AAA) of the Family Law Act. The policy intent of subsection 22(2AAA) remains relevant to this Bill. Clause 12 would ensure that, over time, judicial resources in a particular location would continue to be sufficient and not excessive for the workloads of that location. More specifically, clause 12 would prevent Judges moving permanently from one location to another except with the consent of the Chief Justice and the Minister.

33.                Subclause 12(2) provides that, in deciding whether to consent to a Judge sitting in another location on a permanent basis as set out in paragraph 12(1)(a), the Chief Justice would have the same protection and immunity as if the Chief Justice were making a decision as, or as a member of, the FCFC (Division 1).

34.                Subclause 12(3) provides that, despite section 39B of the Judiciary Act 1903 , the Federal Court does not have jurisdiction in respect of the exercise by the Minister or the Chief Justice of their power to consent to a Judge sitting in another location (as mentioned in paragraph 12(1)(a)).

35.                Section 39B of the Judiciary Act provides that the original jurisdiction of the Federal Court includes jurisdiction with respect to any matter in which a writ of mandamus, prohibition or an injunction is sought against an officer of the Commonwealth.

Clause 13 - Authorised Judges may manage classes of proceedings

36.                Subclause 13(1) provides that the Chief Justice may, by written instrument, authorise a Judge to manage a class or classes of proceedings as specified in the instrument or by the Rules of Court.  Such instrument would not be a legislative instrument by virtue of the operation of paragraph (c) of item 8 in the table in section 6 of the Legislation (Exemptions and Other Matters) Regulations 2015. The purpose of this clause is to enable more specialist management of particular classes of proceedings.

37.                Subclause 13(2) provides that, in managing a class or classes of proceedings, a Judge is subject to any direction from the Chief Justice.

38.                Subclause 13(3) provides that the authorisation of a Judge does not affect the rank, title, status and precedence that the Judge would otherwise have.

39.                Subclause 13(4) provides that, if the Chief Justice gives a direction under subclause 13(2) in writing, that direction is not a legislative instrument.  This subclause is to assist readers, as the direction would not be a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003 .

Clause 14 - Style

40.                Clause 14 describes the formal title of the Chief Justice, Deputy Chief Justice and other Judges of the FCFC (Division 1). The formal title for Judges (and former Judges) replicates the effect of subsection 22(4) of the Family Law Act.

41.                Subclause 14(1) provides that the Chief Justice is to be styled “the Honourable Chief Justice (name) of the Federal Circuit and Family Court of Australia (Division 1)”.

42.                Subclause 14(2) provides that the Deputy Chief Justice is to be styled “the Honourable Deputy Chief Justice (name) of the Federal Circuit and Family Court of Australia (Division 1)”.

43.                Subclause 14(3) provides that a Judge is to be styled “the Honourable”.

44.                Subclause 14(4) provides that a former Judge is to be styled “the Honourable”.

Clause 15 - Seniority

45.                Clause 15 provides that the order of seniority of the Judges of the FCFC (Division 1) would be as follows: the Chief Justice, the Deputy Chief Justice, Senior Judges and Judges.  Senior Judges and Judges have seniority according to the days on which their appointments as Senior Judges or Judges took effect.

46.                Subclause 15(2) provides that, where two or more commissions of appointment as Judge took effect on the same day, those Judges have such seniority as is assigned by the Governor-General.

47.                Clause 15 is modelled on section 23 of the Family Law Act with the exception of references to the Appeal Division. This is because the Appeal Division of the Family Court is not being continued in the FCFC (Division 1).

Clause 16 - Oath or affirmation of allegiance and office

48.                Clause 16 provides that a Judge of the FCFC (Division 1) must take an oath or affirmation before proceeding to discharge the duties of office.

49.                In accordance with subclause 16(1)(a), a Judge must take an oath or affirmation of allegiance in the form in the Schedule to the Constitution. In accordance with subclause 16(1)(b), a Judge must also take an oath or affirmation in accordance with the form set out in whichever of subclauses 16(3) or (4) is applicable. This clause replicates the effect of section 26 of the Family Law Act.

50.                The second oath or affirmation required by subclause 16(1)(b) is necessary as it is specific to serving as a Judge of the FCFC (Division 1).

51.                Subclause 16(2) provides that the oaths or affirmations must be taken before: the Chief Justice, or a Justice of the High Court, or another Judge of the FCFC (Division 1), or a Judge of another court created by the Parliament.

52.                Subclause 16(3) provides the form of the oath for the purposes of paragraph 16(1)(b).

53.                Subclause 16(4) provides the form of the affirmation for the purposes of paragraph 16(1)(b).

Division 2 - Terms and conditions of judges

Clause 17 - Remuneration

54.                Clause 17 is not designed to alter arrangements for the remuneration of Judges. Its structure would replicate Schedule 1, clause 5 of the Federal Circuit Court Act.

55.                Subclause 17(1) provides that the Remuneration Tribunal would determine the remuneration of a Judge of the FCFC (Division 1).

56.                Subclause 17(2) provides that subclause 17(1) would have effect subject to the Remuneration Tribunal Act 1973 .

57.                Subclause 17(3) provides that ‘remuneration’ would have the same meaning as in Part II of the Remuneration Tribunal Act 1973 . Note 1 directs the reader to the requirement under the Constitution that a Judge’s remuneration may not be diminished during the Judge’s continuance in office. Note 2 describes how subsection 3(2) of the Remuneration Tribunal Act 1973 provides that a reference in Part II of that Act is to be read as a reference to annual allowance. Note 3 describes how, under subsection 7(4) of the Remuneration Tribunal Act 1973 , the Remuneration Tribunal may determine any matter significantly related to the remuneration of Judges.

Clause 18 - Resignation from office

58.                Clause 18 provides for the way in which a Judge of the FCFC (Division 1) may resign office. It replicates the effect of current subsections 22(3) and (3A) of the Family Law Act.

59.                Subclause 18(1) provides that a Judge may resign office by delivering a written resignation to the Governor-General. Subclause 18(2) provides that the resignation would take effect on the day it is received by the Governor-General or on a later day if so specified in the resignation.

Clause 19 - Removal from office

60.                Clause 19 provides for the way in which a Judge may be removed from office. It replicates current paragraph 22(1)(b) of the Family Law Act.

61.               Clause 19 reflects section 72(ii) of the Constitution which provides that Justices ‘shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity’.

Division 3 - Judges of 2 or more courts

Clause 20 - Dual appointments

62.                Clause 20 provides for the possibility of dual appointments of the Chief Justice and Deputy Chief Justice. Clause 20 underpins the Government’s intention of enabling a common case management approach and effective allocation of cases between FCFC (Division 1) and FCFC (Division 2).

63.                By providing scope for the Chief Justice of FCFC (Division 1) to also occupy the office of the Chief Judge of FCFC (Division 2), a dual appointment of the Chief Justice as the Chief Judge can ensure that management decisions are, as much as possible, consistent across the FCFC.

64.                Clause 20 would, in conjunction with clauses 56 and 184, enable each head of division, in practice one Chief Justice, to issue common rules of courts, practice notes and directions, which would guide the Judges and Court staff of each division, legal practitioners and litigants about the way uniform procedures are expected to operate. This would provide a streamlined court system that would allow Australian families to spend significantly less time in the courts to resolve their family law disputes.

65.                Subclause 20(1) provides that nothing in the Bill would prevent the Chief Justice of the FCFC (Division 1) from being appointed to, and holding at the same time, the office of Chief Judge of the FCFC (Division 2).

66.                Subclause 20(2) provides that nothing in the Bill would prevent the Deputy Chief Justice of the FCFC (Division 1) from being appointed to, and holding at the same time, the office of Deputy Chief Judge of the FCFC (Division 2).

Clause 21 - Judge also holding office of a prescribed court

67.                Subclause 21(1) provides that a Judge of the FCFC (Division 1) may hold office as a Judge of a prescribed court or of two or more prescribed courts. Allowing Judges to hold office of two or more courts may be appropriate in certain circumstances, for example, for case management purposes, for a Judge of the FCFC (Division 1) to also hold office as a Judge of the FCFC (Division 2).

68.                Subclause 21(2) provides that a ‘prescribed court’ would mean the Supreme Court of the Northern Territory, or a court other than the FCFC (Division 1) created by the Parliament. Clause 21 replicates the effect of the existing subsections 22(2AG) and (2AH) of the Family Law Act.

Clause 22 - Judge also holding office of a State Family Court

69.                In the event that a person who holds office as a Judge of the FCFC (Division 1) is appointed or serves as a Judge of a Family Court of a State, Clause 22 provides that the appointment or service would not affect:

·        the person’s tenure of office of Judge of the FCFC (Division 1); or

·        the person’s rank, title, status, precedence, salary or annual allowance, or other rights or privileges, as the holder of the office of Judge of the FCFC (Division 1).

70.                Subclause 22 further provides that, for all purposes, the person’s service as a Judge of the Family Court of that State would be taken to be service as holder of the office of Judge of the FCFC (Division 1).

Division 4 - Acting Chief Justice

Clause 23 - Acting Chief Justice

71.                Clause 23 provides for acting arrangements during a vacancy in the office of the Chief Justice or when the Chief Justice is absent from duty or from Australia, or unable to perform the duties of the Office.

72.                Subclause 23(1) provides that the Deputy Chief Justice may act as Chief Justice.

73.                Subclause 23(2) provides that, during a vacancy in the offices of Chief Justice and Deputy Chief Justice, or when both are unavailable, the Minister may appoint a Judge to act as the Chief Justice. This situation may arise, for example, when both the Chief Justice and Deputy Chief Justice are attending an international judicial conference. This clause is modelled on Schedule 1, clause 10 of the Federal Circuit Court Act.

74.                Subclause 23(3) provides that a person who is acting as Chief Justice would be called Acting Chief Justice of the Federal Circuit and Family Court of Australia (Division 1).

PART 2 - JURISDICTION

Division 1 - Original Jurisdiction

Clause 24 - Original Jurisdiction

75.                Subclause 24(1) provides that the FCFC (Division 1) would have original jurisdiction with respect to matters under the Family Law Act in respect of which proceedings may be instituted under that Act, or as conferred on the Court by any other Act. It also provides that the FCFC (Division 1) has original jurisdiction with respect to matters arising under the Marriage Act 1961 (other than proceedings arising under Part VII of that Act). It further provides that the FCFC (Division 1) has original jurisdiction with respect to matters arising under a law of a Territory (other than the Northern Territory) concerning the adoption of children, the property of the parties to a marriage, or the rights and status of an ex-nuptial child and that child’s relationship with their parents.  It further provides that the FCFC (Division 1) has original jurisdiction as is conferred on the court by any other Act, or in respect of which proceedings may be instituted by any other Act.

76.                Subclause 24(2) provides that, subject to any restrictions and conditions listed in (i) section 111AA of the Family Law Act (which relates to the Convention on Recognition and Enforcement of Decisions Relating to Maintenance Obligations ), (ii) regulations made under the Family Law Act, or (iii) the Rules of Court made under this Chapter of the Bill, the FCFC (Division 1) would be able to exercise its jurisdiction in relation to persons or things outside Australia. 

Division 2 - Appellate jurisdiction

Clause 25 - Appeals from courts of summary jurisdiction in relation to family law or child support matters

77.                Subclause 25(1) provides that the FCFC (Division 1) would have jurisdiction to hear and determine appeals from a judgment of a court of summary jurisdiction of a State or Territory exercising jurisdiction under either the Family Law Act, or the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988. Note 1 to subclause 25(1) directs the reader to the definition of ‘court of summary jurisdiction’ in section 2B of the Acts Interpretation Act 1901 . Note 2 to subclause 25(1) directs the reader to section 47A of the Family Law Act which provides for appeals from courts of summary jurisdiction.

78.                Subclause 25(2) provides that a Family Court of a State is not a court of summary jurisdiction for the purposes of subclause 25(1).

Division 3 - Associated matters

Clause 26 - Jurisdiction in associated matters

79.                Clause 26 provides that jurisdiction would be conferred on the FCFC (Division 1) in respect of matters not otherwise within its jurisdiction but which are associated with matters in which the jurisdiction of the FCFC (Division 1) is invoked. Clause 26 continues the effect of existing section 33 of the Family Law Act.

Division 4 - Exercise of jurisdiction

Clause 27 - Exercise of jurisdiction

80.                Subclause 27(1) provides that the jurisdiction of the FCFC (Division 1), including its appellate jurisdiction, is to be exercised by the Court constituted by a single Judge.

81.                Currently, the original jurisdiction of the Family Court can be exercised by one or more Judges. The jurisdiction of the Family Court in an appeal from a court of summary jurisdiction may be exercised by one Judge or a Full Court.

82.                Subclause 27(1) will operate so that all matters in the FCFC (Division 1) must be heard by a single Judge. This reflects Government’s goal of improving efficiency in the federal family law courts. Pursuant to provisions of the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018, the appellate function of the Family Court will largely be removed and placed in the new Family Law Appeal Division of the Federal Court of Australia. The FCFC (Division 1) will only retain a limited appellate jurisdiction to hear appeals from State and Territory courts of summary jurisdiction exercising federal family law jurisdiction. As there will be significantly fewer appeals, the reforms will enable the existing judicial resources of the Family Court to be refocussed to finalise more first instance family law matters and to clear the backlog of family law matters.

83.                The removal of most of the appellate function of the Family Court will also mean there is no need for the jurisdiction of the FCFC (Division 1) to be exercised by more than one Judge. The exercise of original jurisdiction by a single Judge of the FCFC (Division 1) will largely reflect current practice, as first instance family law matters in the Family Court are typically dealt with by a single Judge.

84.                Subclause 27(2) provides that, in matters before, or coming before, the FCFC (Division 1), a Judge would be able to give directions under subclause 50(1) of this Bill. Subclause 50(1) provides that a Judge may give directions about the practice and procedure to be followed in relation to a civil proceeding before the Court.

Clause 28 - Determination of matter completely and finally

85.                Clause 28 provides for the determination of every matter before the FCFC (Division 1) completely and finally. In doing so, the Court must grant all remedies to which any of the parties appears to be entitled so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning those matters may be avoided.

86.                Clause 28 replicates section 14 of the Federal Circuit Court Act. It is designed to avoid multiple proceedings arising from the same dispute between the parties. It has been included in this chapter for consistency with the equivalent FCFC (Division 2) provision.

Division 5 - Certain powers relating to matters of jurisdiction

Clause 29 - Making of orders and issuing writs

87.                Clause 29 provides that the FCFC (Division 1) would have power to make orders as it considers appropriate, or issue, or direct the issue of, writs as it considers appropriate. This power relates to matters in which it has jurisdiction. This clause has been modelled on section 34 of the Family Law Act.

Clause 30 - Contempt of court

88.                Clause 30 provides that the FCFC (Division 1) would have the same power to punish contempt as is possessed by the High Court. It is consistent with existing contempt powers of the Federal and Family Courts. It also mirrors clause 110 in the Bill which provides the same contempt power to the FCFC (Division 2).

89.                Subclause 30(2) provides that this jurisdiction to punish a contempt of the Court may be exercised by the Court as constituted at the time of the contempt.

90.                Section 112AP of the Family Law Act would also apply to a contempt of the FCFC (Division 1) in proceedings under that Act.

Division 5 - Administration

Clause 31 - Arrangement of business

91.                Clause 31 generally continues the effect of subsections 21B(1) and (1A) of the Family Law Act.

92.                Subclause 31(1) provides that the Chief Justice would be responsible for ensuring the effective, orderly and expeditious discharge of the business of the FCFC (Division 1). 

93.                Subclause 31(2) provides that, in discharging the Chief Justice’s responsibility, the Chief Justice must:

·        promote the objects of the Act, and

·        ensure that arrangements are in place to provide Judges with appropriate access to (or reimbursement for the cost of) annual health assessment, counselling and judicial education.

94.                Subclause 31(2) provides that, in discharging the Chief Justice’s responsibility, the Chief Justice may:

·        make arrangements as to the Judge who is to constitute the Court in particular matters or classes of matters, including assigning particular caseloads, classes of cases or functions to particular Judges (which would ensure equity in the workload of Judges)

·        temporarily restrict a Judge to non-sitting duties

·        deal with a complaint about the performance of another Judge’s judicial or official duties;

·        take any measures reasonably necessary to maintain public confidence in the FCFC (Division 1) including, but not limited to, temporarily restricting another Judge to non-sitting duties.

95.                Subclause 31(3) provides that the Deputy Chief Justice is to assist the Chief Justice in the exercise of functions conferred on the Chief Justice by clause 31, other than in relation to paragraph 31(2)(d) (which relates to a complaint about the performance of another Judge’s judicial or official duties) and paragraph 31(2)(e) (which relates to taking measures reasonably necessary to maintain public confidence  in the FCFC (Division 1).

96.                Proposed paragraph 31(2)(d) provides that the Chief Justice’s powers include a power to deal with a complaint about the performance by another judge of his or her judicial or official duties.  The paragraph requires the Chief Justice to deal with such a complaint in accordance with the process set out in clause 32.

97.                As noted in the explanatory memorandum to the Courts Legislation Amendment (Judicial Complaints) Bill 2012 , a complaint about performance by another judge of his or her judicial or official duties will not include complaints about matters in cases that are capable of being raised in an appeal.  Such complaints are properly matters for judicial determination.  It may be necessary for the Chief Justice or other complaint handler to consider whether the complaint relates to a matter capable of being raised on appeal.

98.                The performance of official duties would extend the circumstances in which a complaint may be dealt with.  An example would include where a judge is representing the Court in an official capacity or where the judge is undertaking certain official functions in their personal capacity.

99.                Proposed paragraph 31(2)(e) gives the Chief Justice power to take any measures that he or she believes are reasonably necessary to maintain public confidence in the Court. This includes the ability to temporarily restrict another judge to non-sitting duties.  This power operates whether or not there has been a complaint about the judge. 

100.            As noted in the explanatory memorandum to the Courts Legislation Amendment (Judicial Complaints) Bill 2012 , paragraph 31(2)(e) would enable a Chief Justice to take timely action that the Chief Justice believes is reasonably necessary to maintain public confidence in the Court.  The Chief Justice would need to establish a clear basis for his or her belief that measures are reasonably necessary.  Measures are characterised in terms of facilitating the smooth operation of the Court, rather than disciplinary action directed at a judge.  The type of measure that might be taken would be consistent with the Chief Justice’s responsibilities for ensuring the effective discharge of the business of the Court.

101.            Paragraphs 31(2)(d) and (e) do not limit action that the Chief Justice may take in discharging his or her general obligation to ensure the effective, orderly and expeditious discharge of the business of the Court.  The paragraphs provide an express mechanism by which complaints arising in a wide variety of circumstances may be addressed.

Clause 32 - Complaints

102.            Clause 32 provides for the process to be followed by the Chief Justice in dealing with a complaint made about another Judge of the FCFC (Division 1). Paragraph 31(2)(d) requires the Chief Justice to deal with such a complaint pursuant to the process set out in clause 32. Clause 32 replicates the process outlined in subsections 21B(1B) - (3B) of the Family Law Act.

103.            Subclause 32(1) provides that the Chief Justice may do either or both of the options under paragraphs 32(1)(a) and (b).

104.            Under paragraph 32(1)(a), the Chief Justice may decide whether or not to handle the complaint. The Chief Justice may then take one of the following actions:

·        dismiss the complaint (subparagraph 32(1)(a)(i))

·        handle the complaint if the Chief Justice has a relevant belief in relation to the complaint about the other Judge (subparagraph 32(1)(a)(ii)) - the definition for ‘relevant belief’ is located in Clause 32(4); the definition for ‘handle a complaint’ is located in Clause 7 of the Bill, or

·        arrange for any other complaint handlers to assist in handling the complaint if the Chief Justice has a relevant belief in relation to the complaint about the other Judge (subparagraph 32(1)(a)(iii)).

105.            Under paragraph 32(1)(b), the Chief Justice may arrange for any other complaint handlers to decide whether or not to handle the complaint, and then take one of the following actions:

·        dismiss the complaint (subparagraph 32(1)(b)(i)), or

·        handle the complaint if each of the complaint handlers has a relevant belief in relation to the complaint about the other Judge (subparagraph 32(1)(b)(ii)).

106.            The powers of another complaint handler under paragraph 32(1)(b) are similar to those of the Chief Justice under paragraph 32(1)(a).  This subclause would enable a Chief Justice to arrange for a complaint handler to deal with a complaint without needing to conduct preliminary investigations about a complaint.

107.            The note to subclause 32(1) clarifies that a complaint handler (other than the Chief Justice) may handle a complaint by referring it to the Chief Justice.  The Chief Justice may then do either or both of the things referred to in paragraphs 32(1)(a) or (b) in respect of the complaint.

108.            By providing for options for a Chief Justice that are not mutually exclusive, subclause 32(1) gives the Chief Justice a high degree of flexibility to deal with complaints as appropriate, including through managing complaints on a case by case basis. 

109.            As noted in the explanatory memorandum to the Courts Legislation Amendment (Judicial Complaints) Bill 2012, a complaint about performance by another Judge of his or her judicial or official duties will not include complaints about matters in cases that are capable of being raised in an appeal.  Such complaints are properly matters for judicial determination.  It may be necessary for the Chief Justice or other complaint handler to consider whether the complaint relates to a matter capable of being raised on appeal.

110.            The powers provided for in clause 32 do not limit the ability of a Chief Justice to refer a matter to the Parliament for consideration of removal of a judge under paragraph 72(ii) of the Constitution. 

111.            The ability of the Chief Justice or a complaint handler to dismiss a complaint summarily under paragraphs 32(1)(a)(i) and 32(1)(b)(i) does not affect the ability of a person handling a complaint to dispose of a complaint by dismissing it where the person considers this to be appropriate in the circumstances, including where the complaint has not been substantiated on further investigation of the complaint.

112.            Subclause 32(2) would enable the Chief Justice to authorise a person or body to assist the Chief Justice to handle complaints, decide whether or not to handle complaints, dismiss complaints or handle complaints. Authorisations may be made either generally or in relation to a specified complaint. An authorisation must be in writing.

113.            Subclause 32(2) gives discretion to the Chief Justice as to the categories of person or body which may be authorised to handle a complaint.  This is necessary to ensure a high degree of flexibility for the Chief Justice in complaints handling processes, which may involve a wide variety of circumstances. 

114.            Subclause 32(3) is inserted to avoid doubt and clarifies that a Chief Justice may authorise under subclause 32(3) the Deputy Chief Justice or a body that includes the Deputy Chief Justice.  This confirms the discretion of the Chief Justice to authorise the Deputy Chief Justice to undertake functions relating to complaints handling. 

115.            Subclause 32(4) provides the meaning of ‘relevant belief’ for the purposes of clause 32. The meaning applies where a person has a relevant belief in relation to a complaint about a Judge. A person has such a belief if:

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

·        the person believes that circumstances giving rise to a complaint may, if substantiated, (i) adversely affect the performance of judicial or official duties by the Judge, or (ii) have the capacity to adversely affect the reputation of the FCFC (Division 1).

116.            Having a relevant belief enables the Chief Justice or complaint handler to take certain actions, such as handling the complaint (see paragraphs 32(1)(a)(ii) and 32(1)(b)(ii) of the Bill).

Clause 33 - Protection for the Chief Justice and Deputy Chief Justice

117.            Clause 33 affords certain protection and immunity to the Chief Justice and the Deputy Chief Justice in the exercise, or assisting in the exercise of, the functions or powers mentioned in clause 31(2)(b). It replicates the effect of subsections 21B(4) and (5) of the Family Law Act.

118.            Subclauses 33(1) and (2) provide that, in exercising the functions or powers pursuant to paragraph 31(2)(b) of this Bill, the Chief Justice and the Deputy Chief Justice have the same protection and immunity as if they were exercising those functions or powers as, or as a member of, the FCFC (Division 1). The notes to subclauses 33(1) and (2) refer the reader to clause 78, which provides for the protection of persons involved in the handling of complaints.

119.            Subclause 33(3) provides that, despite section 39B of the Judiciary Act 1903 , the Federal Court of Australia would not have jurisdiction with respect to a matter relating to the exercise by the Chief Justice, or the assisting in the exercise by the Deputy Chief Justice, of the functions or powers mentioned in subclause 31(2) or clause 32 of the Bill.

120.            Subclause 33(4) provides that, in addition to the powers and functions conferred on the Chief Justice by this Chapter of the Bill, the Chief Justice has such other functions and powers as are specified in the regulations.

 

PART 3 - TRANSFER OF PROCEEDINGS

Clause 34 - Discretionary transfer of proceedings to the FCFC (Division 2)

121.            A key concern with current transfer arrangements between the Family Court and the Federal Circuit Court is the time lost due to transfers of matters between the two courts. Typically, once a decision is made to transfer a matter, the parties would have to commence proceedings afresh using the procedures of the receiving court.

122.            Clause 34 provides a mechanism that would enable the discretionary transfer of proceedings from the FCFC (Division 1) to the FCFC (Division 2). An equivalent provision, clause 117, would enable the discretionary transfer of proceedings from the FCFC (Division 2) to the FCFC (Division 1).

123.            In accordance with subclauses 34(1) and (2), the FCFC (Division 1) may order the transfer of a proceeding to the FCFC (Division 2) on the application of a party to the proceeding, or on its own initiative.

124.            Subclause 34(3) specifies the factors to which the FCFC (Division 1) must have regard in deciding whether to transfer a proceeding. These factors would be:

·        any Rules of Court made for the purposes of subclause 35(2)

·        whether proceedings in respect of an associated matter are pending in the FCFC (Division 2)

·        whether the resources of the FCFC (Division 1) are sufficient to hear and determine the proceeding, and

·        the interests of the administration of justice.

125.            These factors are designed to ensure that the FCFC (Division 1) has the ability to transfer cases to the FCFC (Division 2) having regard to both efficiency and resource considerations. When read with clauses 36 and 51, it is expected that the FCFC (Division 1) and FCFC (Division 2) would have in place more consistent approaches to case management that would minimise any inconvenience to parties arising from a transfer from the FCFC (Division 1) to the FCFC (Division 2).

126.            Subclause 34(4) provides that if an order is made under subclause 34(1), the order would take effect on the day it is approved by the Chief Judge of the FCFC (Division 2) under subclause 34(5).

127.            Subclause 34(5) provides that the Chief Judge of the FCFC (Division 2) may approve an order under subclause 34(1). The approval must be in writing. In deciding whether to approve the order, the Chief Judge must have regard to any Rules of Court made for the purposes of subclause 35(2). The FCFC (Division 1) would retain the ability to continue to make orders in respect of the matter by virtue of subclause 34(6). Subclause 34(5) would allow the Chief Judge of the FCFC (Division 2) to consider the workload and resource situation within the FCFC (Division 2), including whether there are any related matters already on foot in the FCFC (Division 2) before accepting the transfer. Given the Government’s intention to dually appoint the same person to the role of Chief Justice of the FCFC (Division 1) and the role of Chief Judge of the FCFC (Division 2), the Chief Justice of the FCFC would be able to manage the transfer process of matters between the divisions, ensuring the efficient transfer of matters. Clause 34 therefore enables the FCFC to reduce current waiting times in family law matters by removing delays in the transfer process

128.            Subclause 34(6) provides that, before the Chief Judge’s written approval is given under subclause 34(5), the FCFC (Division 1) may make such orders as it considers necessary.

129.            Subclause 34(7) provides that an appeal does not lie from a decision of the FCFC (Division 1) to transfer a proceeding under this clause. This approach is consistent with similar legislation, such as the Jurisdiction of Courts (Cross-vesting) Act 1987 . It is designed to prevent time-wasting appeals on minor procedural matters which do not affect the substantive rights of the parties.

130.            Subclause 34(8) provides that the Administrative Decisions (Judicial Review) Act 1977 does not apply to a decision by the Chief Judge of the FCFC (Division 2) to give an approval under subclause 34(5). Subclause 34(8) also provides that the Federal Court does not have jurisdiction with respect to a matter relating to a decision by the Chief Judge of the FCFC (Division 2) to give, or refuse to give, an approval under subclause 34(5), despite section 39B of the Judiciary Act 1903 . Consistent with the policy intent of subclause 34(7), this is designed to prevent time-wasting attempts at review of decisions of a minor procedural nature which do not affect the substantive rights of the parties.

131.            Subclause 34(9) is included to assist readers, as the approval given under subclause 32(5) is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003 .

132.            Subclause 34(10) provides that this section would not apply to proceedings of a kind specified in the regulations.

Clause 35 - Rules of Court

133.            Subclause 35(1) provides for Rules of Court to make provision in relation to transfers of proceedings to the FCFC (Division 2) under subclause 34(1). Subclause 35(1) provides that the Rules of Court may include the scale of costs that applies to any order made in respect of proceedings that are transferred. For example, the Rules of Court may provide that costs to be paid to a party in the period before a transfer are to be at the FCFC (Division 2) scale.

134.            Subclause 35(2) provides that the Rules of Court may specify matters to which the FCFC (Division 1) must have regard in deciding whether to transfer a proceeding to the FCFC (Division 2) under subclause 34(1).

135.            Subclause 35(3) provides that before any Rules of Court would be made for the purposes of clause 35, the Chief Justice of the FCFC (Division 1) must consult the Chief Judge of the FCFC (Division 2). This provision is intended to ensure that in circumstances where different persons occupy the offices of the Chief Justice of the FCFC (Division 1) and the Chief Judge of the FCFC (Division 2), the Rules of Court developed across both Divisions are consistent.

136.            This clause is intended to strengthen the goal of ensuring the efficient resolution of family law disputes which underpins this structural reform of the federal courts. To that end, this clause also facilitates the objects of the Bill provided for in clause 5.

Clause 36 - Delegation

137.            Clause 36 provides that the Chief Justice may delegate the Chief Justice’s power under subclause 117(5) to any one or more of the Judges. The note to this clause clarifies that clause 117 allows the FCFC (Division 2) to order the transfer of proceedings to the FCFC (Division 1), subject to the approval of the Chief Justice.

PART 4 - APPEALS

Clause 37 - Appeals to the High Court may not be brought

138.            Clause 37 provides that an appeal must not be brought directly to the High Court from a judgment of the FCFC (Division 1). The FCFC (Consequential Amendments and Transitional Provisions) Bill 2018 would amend the Federal Court Act to provide for appeals from the FCFC to a newly created Family Law Appeal Division. Clause 37 therefore enables Government’s intention for appeals from judgments of the FCFC (Division 1) to be directed to the Federal Court.  

139.            Subclause 37(2) provides that, if subclause 37(1) is inconsistent with section 73 of the Constitution (which outlines the appellate jurisdiction of the High Court), subclause 37(1) will have effect as though the words “, except by special leave of the High Court” were added to the end of subclause 37(1).

PART 5 - PRACTICE AND PROCEDURE

Division 1 - General

Clause 38 - Practice and procedure

140.            Clause 38 provides for the practice and procedure of the FCFC (Division 1). Clause 38 does not apply to proceedings that are transferred from the Federal Court of Australia to the FCFC (Division 1) (subclause 38(3)). Rule 27.01 of the Federal Court Rules (which has been renumbered as Rule 27.08 in the consequentials Bill) provides that a party may apply to the Federal Court to transfer a proceeding to the Family Court of Australia 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 .

141.            Subclause 38(1) provides that the practice and procedure of the FCFC (Division 1) is to be in accordance with the regulations made under this Bill, regulations made under the Family Law Act, and the Rules of Court.

142.            To the extent that the rules and regulations in subclause 38(1) are insufficient, subclause 38(2) provides that the Rules of the High Court are to apply, modified in application as required, to the practice and procedure so far as they are they are capable of applying and subject to any directions of the FCFC (Division 1) or a Judge.

143.            Subclause 38(4) provides that ‘practice and procedure’ would include all matters with respect to which regulations under this Bill, the Family Law Act, or Rules of Court may be made.

Clause 39 - Representation

144.            Clause 39 provides the circumstances under which a party to proceedings in the FCFC (Division 1) is entitled to be represented by another person. These circumstances are that the other person:

·        is entitled, under the Judiciary Act 1903 , to practice as a barrister or solicitor, or both, in a federal court

·        is taken to be an authorised representative under the regulations, or

·        is authorised to represent the party under another law of the Commonwealth.

145.            Unless these circumstances exist, a party would not be entitled to be represented by another person.

146.            This clause replicates section 44 of the Federal Circuit Court Act. It has been included in this chapter for consistency with the equivalent FCFC (Division 2) provision.

Division 2 - Documents filed in the Federal Circuit and Family Court of Australia (Division 1)

Clause 40 - Filing of documents in the Federal Circuit and Family Court of Australia (Division 1)

147.            Clause 40 provides that if a document is required or permitted to be filed in the FCFC (Division 1), it is to be filed at a registry of the Court, or in accordance with an arrangement made under clauses 58 or 59, and in accordance with the Rules of Court.

148.            Subclause 40(2) provides that the Rules of Court would be able to provide that the requirements for filing a document are met if the document is sent to the FCFC (Division 1) using the web portal of the FCFC, or in other circumstances as set out in the Rules of Court.

149.            This clause replicates section 46 of the Federal Circuit Court Act. It has been included in this chapter for consistency with the equivalent FCFC (Division 2) provision.

Clause 41 - Seal of the Federal Circuit and Family Court of Australia (Division 1)

150.            Clause 41 provides for the FCFC (Division 1) to have a seal, whose design would be determined by the Minister. The seal is to be kept in such custody as the Chief Justice directs.

151.            Subclause 41(3) provides that the seal must be affixed to documents as provided by this Act, any other Act, or the Rules of Court.

152.            This clause replicates section 47 of the Federal Circuit Court Act. It has been included in this chapter for consistency with the equivalent FCFC (Division 2) provision.

Clause 42 - Federal Circuit and Family Court of Australia (Division 1) stamps

153.            Clause 42 provides that the stamp or stamps of the FCFC (Division 1) are to be, as nearly as practicable, the same as the design of the seal of the FCFC (Division 1).

154.            Subclause 42(2) provides that a document marked with a FCFC (Division 1) stamp is as valid and effectual as if it had been sealed with a seal.

155.            Subclause 42(3) provides that a FCFC (Division 1) stamp must be affixed to documents as provided by this Act, any other Act, or the Rules of Court.

156.            This clause replicates section 48 of the Federal Circuit Court Act. It has been included in this chapter for consistency with the equivalent FCFC (Division 2) provision.

Clause 43 - Writs etc.

157.            Clause 43 provides the requirements for a writ, commission or process issued from the FCFC (Division 1).

158.            Subclause 43(1) provides that all writs, commissions and process issued must be under the seal of the Court and signed (including by electronic signature) by: a Judge, the Chief Executive Officer, a Registrar, a Deputy Registrar or an officer acting with the authority of the Chief Executive Officer.

159.            Subclause 43(2) provides that subclause 43(1) does not apply to writs, commissions and process signed and issued in accordance with clause 58. Clause 58 provides that the Chief Justice may make arrangements with other courts for the performance of certain functions. For example, the FCFC (Division 1) may arrange for a registry of the Federal Court to issue writs on behalf of the FCFC (Division 1).  In those circumstances it may not be possible to satisfy the requirements of subclause 43(1).  However, it is expected that any such arrangement would include some process of authentication.

160.            Subclause 43(3) clarifies that subclause 43(1) does not apply to an order of the FCFC (Division 1). This is intended to ensure that if an urgent order is obtained from the FCFC (Division 1), for example on the weekend, the order remains valid notwithstanding that it may not be affixed with the seal of the Court.

161.            This clause replicates section 49 of the Federal Circuit Court Act. It has been included in this chapter for consistency with the equivalent FCFC (Division 2) provision.

Clause 44 - Proceedings may be instituted by application

162.            Clause 44 provides that, subject to the Rules of Court, proceedings could be instituted in FCFC (Division 1) by way of application without the need for pleadings.

163.            This clause replicates section 50 of the Federal Circuit Court Act. It has been included in this chapter for consistency with the equivalent FCFC (Division 2) provision. Section 44 of the Family Law Act and the Family Law Rules also provide that proceedings could be initiated by application. The inclusion of this clause does not create a substantive change to current practices.

Clause 45 - Limits on length of documents

164.            Clause 45 provides that, subject to the Rules of Court, the FCFC (Division 1) or a Judge would have the power to give directions about limiting the length of documents required or permitted to be filed in the Court.

165.            This clause replicates section 51 of the Federal Circuit Court Act. It has been included in this chapter for consistency with the equivalent FCFC (Division 2) provision.

Division 3 - Conduct of proceedings

Clause 46 - Place of sitting

166.            Clause 46 provides that the FCFC (Division1) may sit at any place in Australia. Sittings of the Court must be held from time to time as required.

Clause 47 - Change of Venue

167.            Clause 47 provides that the FCFC (Division 1) or a Judge may, at any stage of a proceeding, make an order for a change of venue. This is a discretionary power as it can be used at any point during a proceeding being heard, and any such order can be made subject to any condition as determined by the Court or Judge. The Court also has the capacity to direct that only part of the proceedings be subject to a change of venue. This clause replicates section 27A of the Family Law Act.

Clause 47A - Formal defects not to invalidate

168.            Subclause 47A(1) provides that formal defects or irregularities would not invalidate proceedings in the FCFC (Division 1) unless the Court considers that the defect or irregularity has caused substantial injustice which cannot be remedied by an order of the Court.

169.            Subclause 47A(2) provides that the FCFC (Division 1) or a Judge would be able to make an order declaring that the proceeding is not invalid by reason of a defect (that it considers to be formal) or an irregularity. Such an order may be subject to conditions (if any) as the Court or Judge thinks fit.

170.            This clause replicates section 57 of the Federal Circuit Court Act. It has been included in this chapter for consistency with the equivalent FCFC (Division 2) provision.

Division 4 - Case management

171.            These case management provisions introduce an overarching obligation upon the Court, the parties to litigation and legal practitioners to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.  They also clarify the kinds of directions the Court can make to control the progress and conduct of proceedings. This would provide clear legislative direction and support to judges so that they can confidently employ active case management powers which have been effective for the Federal Court.

Clause 48 -Overarching purpose of family law practice and procedure provisions

172.            Clause 48 provides the overarching purpose of the family law practice and procedure provisions. It generally mirrors section 37M of the Federal Court Act which was the centre-piece of the case management reforms of the Federal Court in 2009.

173.            Subclause 48(1) provides that that the purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:

·        according to law, and

·        as quickly, inexpensively and efficiently as possible.

174.            Note 1 directs the reader to paragraphs 5(a) and (b) of the Bill. Note 2 clarifies that the FCFC (Division 1) must give effect to principles in the Family Law Act when exercising its jurisdiction under that Act.

175.            Clause 48 will apply to both the Court and parties to the proceedings (see clause 48) in recognition of the fact that it would not be possible for either the Court or the parties to achieve the overarching purpose without the assistance of the other.

176.            Subclause 48(2) elaborates on the objectives of the overarching purpose. These are:

·        the just determination of all proceedings before the FCFC (Division 1)

·        the efficient use of the judicial and administrative resources available for the purposes of the Court

·        the efficient disposal of the Court’s overall caseload

·        the disposal of all proceedings in a timely manner, and

·        the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

177.            This provision is intended to be a reminder to litigants that costs should be proportionate to the matter in dispute.  It is not only the cost to the parties that is relevant. The efficient use of the Court’s resources needs to be taken into account.  However, at the same time, due process would be observed so that justice may be done in the individual case. These objectives will support the intention that both the Court’s and the litigant’s resources are spent efficiently. 

178.            Subclause 48(3) provides that the family law practice and procedure provisions, and any power conferred or duty imposed by them, must be exercised in the way that best promotes the overarching purpose.

179.            Subclause 48(4) provides that the family law practice and procedure provisions are the Rules of Court and any other provision made by or under the Act or any other Act with respect to the practice and procedure of the FCFC (Division 1).

Clause 49 - Parties to act consistently with the overarching purpose

180.            Subclause 49(1) would impose a duty on parties to a civil proceeding before FCFC (Division 1) to conduct the entire proceeding, including settlement negotiations, consistently with the overarching purpose. Clause 49 generally mirrors section 37N of the Federal Court Act.

181.            Subclause 49(2) would require a party’s lawyer to take into account the duty imposed on the party by subclause 49(1). It also requires the party’s lawyer to assist the party to comply with the duty.  In practice, this would require a lawyer to conduct a case taking into account the duty on the party, and advise their client if certain actions are consistent with the overarching purpose.

182.            If, for example, a party wishes to prolong the litigation as a strategy to increase the costs of the other party, their lawyer would be obliged to explain that this behaviour is contrary to the overarching purpose and may have adverse cost consequences.  Also, if a party is refusing to accept a reasonable offer of settlement, a lawyer would have to explain that it is in their interest to accept the offer and that failing to do so may be regarded by the Court as acting inconsistently with the overarching purpose.

183.            Subclause 49(3) is intended to assist parties to comply with their duty by making informed decisions about the progress of their matter.  The Court may order a party’s lawyer to give the party an estimate of the likely duration of the proceedings and the likely amount of costs the party will have to pay in connection with the proceeding.  This may have the effect of assisting the party to prioritise the issues in dispute, or re-consider the resources they wish to allocate to the litigation.  The note below subclause 49(3) refers the reader to section 117 of the Family Law Act which provides that parties to proceedings under that Act bear their own costs, unless the court is of the opinion that there are circumstances that justify an order as to costs and security for costs, and a range of factors that the court shall have regard to in considering whether to make such an order.

184.            Subclause 49(4) would require a Judge to take into account, in awarding costs in a civil proceeding, any failure to comply with subclauses 49(1) or 49(2). This clause makes it clear that the court can order costs in a way other than costs against the unsuccessful party.

185.            Subclause 49(5) provides that the Court or a Judge may order a party’s lawyer to bear costs personally.

186.            Subclause 49(6) provides that a Judge would be able to order a lawyer to bear costs personally for a failure to comply with the duty imposed by subclause 49(2). Subclause 49(6) ensures that the lawyer cannot pass such costs on to their client contractually or in any other way. This subclause ensures that lawyers take responsibility for their own failure to comply with their duty under subclause 49(2).  

187.            The intention of clause 49 is to support a cultural change in the conduct of litigation so that the Court and the parties are focussed on resolving disputes as quickly and cheaply as possible.  Parties who act consistently with this duty will be able to avoid cost orders being made against them and, overall, their litigation costs should be reduced.

Clause 50 - Power of the FCFC (Division 1) to give directions about practice and procedure in a civil proceeding

188.            Subclause 50(1) provides that the FCFC (Division 1) or a Judge would be able to give directions about the practice and procedure to be followed in a civil proceeding before the Court. Such directions can be made at any stage of a proceeding, including at any time during or after the trial. Clause 50 generally mirrors section 37P of the Federal Court Act.

189.            Subclause 50(2) provides examples of the types of directions a Court would be able to make. These include setting time limits and limiting the length of submissions.  These examples are not intended to limit the powers of the Court to manage proceedings on a case-by-case basis.  They are intended to assist with the practical implementation of the overarching purpose.

190.            Subclause 50(3) provides that, if a party fails to comply with a direction, the FCFC (Division 1) or a Judge would be able to make any order or direction the Court or Judge thinks appropriate.

191.            Subclause 50(4) provides that the FCFC (Division 1) or a Judge may dismiss the proceeding in whole or in part, strike out, amend or limit any part of a party’s claim or defence, disallow or reject any evidence; or award costs against a party.  Paragraph 50(4)(e) makes it clear that such costs may be awarded on an indemnity basis.

192.            Subclauses 50(3)-(4) do not affect any other power of the Court or of a Judge to deal with a party’s failure to comply with a direction (subclause 50(5)).

Clause 51 - Chief Justice to achieve common approaches to case management with the Federal Circuit and Family Court of Australia (Division 2)

193.            Clause 51 provides that the Chief Justice must work cooperatively with the Chief Judge with the aim of ensuring common approaches to case management. This clause is intended to strengthen the goal of ensuring the efficient resolution of family law and child support proceedings which underpins this structural reform of the federal courts. To that end, clause 51 also facilitates the objects of the Bill provided for in clause 5. 

194.            This clause is modelled on section 75 of the Federal Circuit Court Act. It has been included in this chapter for consistency with the equivalent FCFC (Division 2) provision.

Division 5 - Evidence

Clause 52 - Oaths and affirmations

195.            Clause 52 provides for the administration of oaths and affirmations in the FCFC (Division 1).

196.            Subclause 52(1) provides a Judge the power to require and administer all necessary oaths and affirmations.

197.            Subclause 52(2) provides that a Judge would be able to authorise, either orally or in writing, any person (whether they are in or outside Australia) to administer oaths and affirmations for the purposes of the Court.

198.            Subclause 52(3) provides that the Chief Executive Officer would be able to authorise the Registrar or Deputy Registrar of the FCFC (Division 1), or a staff member of the FCFC (Division 1) to administer oaths and affirmation for the purposes of the Court. The authorisation must be in writing. The note beneath subclause 52(3) directs the reader to paragraph 58(1)(d) of the Bill, which provides that the administration of oaths and affirmations may be the subject of an arrangement with another Australian court to perform that function on behalf of the FCFC (Division 1).

Clause 53 - Swearing of affidavits etc.

199.            An affidavit is a written statement of evidence.  As it is a document containing evidence, the affidavit must be sworn or affirmed. Clause 53 provides for the swearing or affirmation of affidavits in proceedings in the FCFC (Division 1).

200.            Subclause 53(1) provides an exhaustive list of people or offices before which an affidavit may be sworn or affirmed in Australia.

201.            Subclause 53(2) provides an exhaustive list of people or offices before which an affidavit may be sworn or affirmed at a place outside Australia.

202.            Subclause 53(3) provides that the Rules of Court would be able to stipulate circumstances in which an affidavit sworn or affirmed outside Australia before a person not referred to in subclause 53(2) may be used in a proceeding in the FCFC (Division 1).

Clause 53A - Orders and commissions for examination of witnesses

203.            Clause 53A provides that the FCFC (Division 1) or a Judge would be able to order the examination of a person at any place within Australia. It also provides that the Court would be able to order that a commission be issued to a person either within or outside Australia for the purpose of taking the testimony of another person. This clause replicates section 60 of the Federal Circuit Court Act.

204.            Subclause 53A(a) provides that the FCFC (Division 1) would be able to order, for the purposes of any proceeding in the FCFC (Division 1), 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.

205.            Subclause 53A(b) provides that the FCFC (Division 1) would be able to order, for the purposes of any proceeding in the FCFC (Division 1), that a commission be issued to a person, either in or outside Australia, authorising the person to take the testimony on oath or affirmation of another person. An examination of a person could be ordered, for example, where the person was unable to attend court because they were in hospital.

206.            Subclauses 53A(c) and 53A(d) provide that the FCFC (Division 1) or a Judge would be able to, by the same or subsequent order, give any necessary directions concerning the time, place or manner of the examination, and empower any party to the proceeding to give in evidence the testimony so taken on such terms as the Court directs.

Division 6- Judgments

Clause 54 - Reserved Judgments etc.

207.            Clause 54 provides for the publication of orders and reasons where a judgment is reserved in proceedings. Orders or reasons prepared by the Judge who heard the proceeding may be made public by another Judge on behalf of the judge who heard the proceeding or otherwise as provided for by the Rules of Court. This is intended to ensure that there is no delay in delivering orders or reasons if a Judge who heard the proceeding is unavailable to deliver orders and reasons that have been prepared. 

Division 7 - Common approaches with the Federal Circuit and Family Court of Australia (Division 2)

Clause 55 - Chief Justice to achieve common approaches with the Federal Circuit and Family Court of Australia (Division 2)

208.            Clause 55 provides that the Chief Justice must work cooperatively with the Chief Judge with the aim of ensuring common rules of court and forms and common practices and procedures. This clause is intended to strengthen the goal of ensuring the efficient resolution of family law and child support proceedings which underpins this structural reform of the federal courts. To that end, clause 55 also facilitates the objects of the Bill provided for in clause 5.

Division 8 - Rules of Court

Clause 56 - Rules of Court

209.            Clause 56 provides that the Chief Justice may make Rules of Court:

·        providing for the practice and procedure to be followed in the FCFC (Division 1), including in Registries of the Court

·        providing for all matters and things incidental to the practice and procedure in the FCFC (Division 1)

·        providing for any matter or thing in respect of which Rules of Court may be made under the Family Law Act for the purposes of their application to the FCFC (Division 1)

·        providing for proceedings transferred to the FCFC (Division 1) under section 35A of the Bankruptcy Act 1966

·        providing for the time and manner of institution of appeals in and to the FCFC (Division 1)

·        prescribing the duties of officers of the FCFC (Division 1)

·        prescribing penalties (not exceeding 50 penalty units) for offences against the Rules of Court

·        prescribing matters as required or permitted by (i) this Chapter of the Bill, or (ii) any other law of the Commonwealth.

210.            Providing that Rules of Court can be made by the Chief Justice is intended, in circumstances where the Chief Justice is also the Chief Judge of the FCFC (Division 2), to enable consistency between the Rules of Court that apply in the FCFC (Division 1) and FCFC (Division 2).

211.            Subclause 56(2) provides that the Rules of Court may make provision for the amendment of, or 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 that would have been barred by the expiry of a period of limitation at the time of the amendment. This subclause replicates section 82 of the Federal Circuit Court Act and has been included for consistency with the equivalent FCFC (Division 2) provision.

212.            Subclause 56(3) provides that the Rules of Court would have effect subject to any provision made in another Act, or by rules and regulations under another Act, with respect to the practice and procedure in particular matters.

213.            Subclause 56(4) provides that the Legislation Act 2003 would apply in relation to Rules of Court made by the Chief Justice (i) as if a reference to a legislative instrument were a reference to a Rule of Court, and (ii) subject to modifications made under clause 249 of this Bill.

214.            Subclause 56(5) provides that the Office of Parliamentary Counsel may provide assistance in the drafting of any of the Rules of Court, if the Chief Justice so desires.

PART 6 - MANAGEMENT AND ADMINISTRATION

Division 1 - Management responsibilities of the Chief Justice

Clause 57 - Management of administrative affairs of the FCFC (Division 1)

215.            Clause 57 outlines the management of the administrative affairs of the FCFC (Division 1). Clause 57 would also define corporate services and provide that they are excluded from administrative affairs.

216.            Subclause 57(1) provides that the Chief Justice would be responsible for managing the administrative affairs of the FCFC (Division 1). This would appropriately ensure the independence of the FCFC (Division 1) by placing responsibility for the management of the court with the head of jurisdiction.

217.            Subclause 57(2) provides that the administrative affairs of the FCFC (Division 1) does not include corporate services of the Court. This is consistent with the current arrangement for the federal courts (excluding the High Court) of sharing corporate services. The Chief Executive Officer of the Federal Court would be responsible for providing the corporate services of the FCFC (Division 1) in accordance with section 18Z of the Federal Court Act.

218.            Subclause 57(3) provides for the matters that are the corporate services of the FCFC (Division 1):

·        communications, which would include managing information and publications (online and in print), and managing internal and external communications, but exclude media officers, who would remain within the administrative affairs of the courts and report directly to the respective heads of jurisdiction

·        finance, which would include asset management, finance systems administration, accounts receivable, accounts payable, credit card processing, travel management, financial controls, tax management, balance sheet management, internal and external budgeting, and finance governance

·        human resources (HR), which would include workforce planning, recruitment, managing payroll, HR systems administration, HR administration and HR initiatives and project delivery

·        information technology (IT), which would include IT service desk, applications development and support, network support, general IT management, IT security and records management

·        libraries, which would include library services

·        records management, which would include the management of online and paper based records

·        administrative matters relating to judgments to the extent that such matters do not involve the exercise of judicial power, which would include developing the templates for judgments and uploading the judgments to the website

·        procurement and contract management, which would include procurement management, contract management (including the management of external security contracts), and fleet vehicle management

·        property, which would include managing national property and accommodation initiatives, outsourced property contracts, building fit outs, and environmental management

·        risk oversight and management, which would include internal audit and risk management

·        court security, which would include providing for the security of the courts

·        statistics, which would include assisting each court with the collection, extraction, archiving and reporting of court related data, managing collection methodology and quality controls, and providing analysis to support research projects. Each court would continue to own data relevant to its own performance, and to have ultimate responsibility for the analysis and dissemination of such data.

·        Any other matter prescribed by a determination under subclause 57(7).

219.            The meaning of corporate services would now explicitly include records management, administrative matters relating to judgments and court security. The Chief Executive Officer of the Federal Court already takes responsibility for these matters. These updates are therefore intended to clarify the delineation of matters as between administrative affairs and corporate services.

220.            Records management includes the development of record keeping and management policies and practices, management of Records Authorities agreed with the National Archives of Australia, management on behalf of the Courts and the National Native Title Tribunal of digital and physical case and administrative files. It also includes transferring digital and physical files required for retention to the National Archives of Australia, management of records contracts (for example with offsite storage providers) and support for information governance.

221.            Administrative matters relating to judgments, to the extent that such matters do not involve the exercise of judicial power,  includes development of judgment templates, style guides, systems and applications, redaction of personal and other identifying information from judgments where appropriate or required at law or by order. It also includes electronic publication of judgments on court websites and intranets, the distribution of all judgments as appropriate to legal publishers, and provision of training in the use of templates and systems.

222.            Court security includes the development of policies, procedures and practices for the security of the courts, judges and other court personnel as well as for court premises. It also includes the development of policies, procedures and practices for emergency and threat management, management of the acquisition, maintenance and replacement of security equipment and apparatus (for example for monitoring appropriate areas of premises, screening of persons, bags and mail on entry, controlling and monitoring access to the premises and parts of premises as appropriate), management of security contracts (for example for guarding), compliance with all external regulatory and similar requirements regarding court security, and security training for judges and court personnel.

223.            Subclause 57(4) provides that, for the purposes of subclause 57(1), the Chief Justice would have the power to do all things that are necessary or convenient to be done, including entering into contracts on behalf of the Commonwealth. Subclause 57(4) recognises the delineation between the management of administrative affairs in subclause 57(1) and the management of those matters defined as corporate services in subclause 57(3), which would be the responsibility of the Chief Executive Officer of the Federal Court.

224.            Subclause 57(5) provides that the powers given to the Chief Justice by subclause 56(4) are in addition to other powers provided by the Act or by any other Act.

225.            Subclause 57(6) provides that the Chief Justice may only enter into contracts on behalf of the Commonwealth for amounts exceeding $1 million, or a higher amount if prescribed, with the approval of the Minister.

226.            Subclause 57(7) provides that the Minister would be able to, by legislative instrument, determine matters that are the corporate services of the court. This would provide flexibility for the Minister to determine the inclusion of further matters in the definition of corporate services in the future, should further matters be identified.

227.            Subclause 57 includes the following notes for clarification:

·        Note 1 would clarify that new Part IIB of the Federal Court Act contains provisions relating to the corporate services of the courts

·        Note 2 would clarify that the officers and staff of the FCFC (Division 1) are officials of the listed entity for the purposes of the finance law referred to in new section 18ZB of the Federal Court Act, and

·        Note 3 would clarify that the APS employees of the FCFC are part of the statutory agency for the purposes of the Public Service Act referred to in section 18ZE of the Federal Court Act.

Clause 58 - Arrangements with other courts

228.            Clause 58 provides that the Chief Justice of the FCFC (Division 1) would be able to arrange with the chief judicial officer of another court for an officer or officers of that court to perform certain functions on the behalf of the FCFC (Division 1). This clause replicates section 38BAA of the Family Law Act.

229.            Subclause 58(1) sets out the functions that may be performed.

230.            Subclause 58(2) provides that if an arrangement is in place, the officer would be able to perform the function despite any other provision of this Chapter of the Bill or any other Commonwealth law. Subclause 58(3) provides that a function performed on behalf of the FCFC (Division 1) would have effect as if the function had been performed by the Court.

231.            Subclause 58(4) provides that copies of any arrangements under subclause 58(1) would be available for inspection by the public.

232.            Subclause 58(5) provides that, for the purposes of clause 58, a member of the staff of an Australian court is taken to be an officer of that court.

233.            In circumstances where the FCFC (Division 1) does not have appropriate court facilities or services in a particular location, this clause would enable the FCFC (Division 1) to make arrangements with another court for the provision of services on behalf of the FCFC (Division 1).

Clause 59 - Arrangements with agencies or organisations

234.            Clause 59 provides that the Chief Justice of the FCFC (Division 1) would be able to arrange with the chief executive officer of another agency of the Commonwealth, a State or a Territory, or with another organisation, for an employee of that organisation or agency to receive documents or perform non-judicial functions on behalf of the FCFC (Division 1). This clause replicates section 38BAB of the Family Law Act.

235.            Subclause 59(2) provides that, if such an arrangement is in place, the employee would be able to perform the function despite any other provision of this Chapter of the Bill or any other Commonwealth law.

236.            Subclause 59(3) provides that a function performed on behalf of the FCFC (Division 1) would have effect as if the function had been performed by the Court.

237.            Subclause 59(4) provides that copies of any such arrangements would be available for inspection by the public.

238.            In circumstances where there are no appropriate court facilities or services in a particular location, this clause would enable the FCFC (Division 1) to make arrangements with another agency or organisation for the provision of services on behalf of the FCFC (Division 1).

Clause 60 - Arrangements for sharing courtrooms and other facilities

239.            Clause 60 provides that the Chief Justice would be able to make arrangements with another Australian court for the FCFC (Division 1) to sit in rooms of the other court and to share registry facilities and other facilities with the other court.

240.            This clause replicates section 92 of the Federal Circuit Court Act. It has been included in this chapter for consistency with the equivalent FCFC (Division 2) provision.

Clause 61 - Advisory committees

241.            Clause 61 enables the FCFC (Division 1) or the Chief Justice to appoint an advisory committee, consisting of Judges, or of Judges and other persons, for a number of purposes.

242.            Subclause 61(1) provides that the FCFC (Division 1) would be able to appoint committees to advise the FCFC (Division 1) on the exercise of powers of the Court under Chapter 3 of this Bill.

243.            Subclause 61(2) provides that the Chief Justice would be able to appoint committees to advise the Chief Justice on the making of the Rules of Court, or on managing the administrative affairs of the FCFC (Division 1).

Division 2 - Chief Executive Officer

Clause 62 - Chief Executive Officer

244.            Clause 62 provides that the Chief Justice would be assisted by the Chief Executive Officer in managing the administrative affairs of the FCFC (Division 1). In accordance with clause 7, the Chief Executive Officer means the Chief Executive Officer and Principal Registrar of the Federal Court.

Clause 63 - Powers of Chief Executive Officer

245.            Clause 63 provides for the powers of the Chief Executive Officer. It replicates section 38D of the Family Law Act.

246.            Subclause 63(1) provides that the Chief Executive Officer would have the power to do all things necessary or convenient for the purposes of assisting the Chief Justice in managing the administrative affairs of the FCFC (Division 1) (see clause 62).

247.            Subclause 63(2) provides that the Chief Executive Officer would be able to act on behalf of the Chief Justice in relation to the administrative affairs of the FCFC (Division 1).

248.            Subclause 63(3) provides that the Chief Justice may give the Chief Executive Officer directions regarding the exercise of the Chief Executive Officer’s powers under Chapter 3 or Chapter 5, to the extent that the provisions of Chapter 5 apply to the FCFC (Division 1).

Division 3 - Registries and registrars

Clause 64 - Registries

249.            Clause 64 provides that the Minister must ensure that Registries of the FCFC (Division 1) are established as the Minister sees fit. It is expected that the Minister would establish such registries as are required according to workload and regional needs.

Clause 65 - Registrars and Deputy Registrars

250.            Clause 65 provides that the FCFC (Division 1) is to have Registrars and Deputy Registrars as necessary.

251.            As there would be only one statutory Chief Executive Officer (CEO) position for the Federal Court responsible for the single federal court corporate entity to assist both the Chief Justice of the Federal Court and the Chief Justice/Chief Judge of the FCFC in the administration of the courts, both FCFC (Division 1) and the FCFC (Division 2) would be able to draw from a single pool of Registrars. This would ensure that litigants experience a streamlined procedure, especially in family law matters, instead of navigating two sets of procedures for different courts.

Clause 66 - Powers exercisable by Chief Executive Officer, Registrars and Deputy Registrars

252.            Clause 66 sets out the powers exercisable by the Chief Executive Officer, Registrars and Deputy Registrars. This clause replicates section 102 of the Federal Circuit Court Act. It has been included in this chapter for consistency with the equivalent FCFC (Division 2) provision.

253.            Subclause 66(1) provides that the object of this clause is to allow certain powers of the FCFC (Division 1) to be exercised by the Chief Executive Officer, a Registrar or a Deputy Registrar. The note to this subclause clarifies that the Chief Executive Officer, a Registrar or a Deputy Registrar, may be delegates of the FCFC (Division 1).

254.            Subclause 66(2) provides a non-exhaustive list of powers that may be exercised by a delegate if the Court or Judge so directs. Subclause 66(2) includes the following powers:

·        the power to make an order transferring family law or child support proceedings to the FCFC (Division 2) under clause 34

·        the power to require a party’s lawyer, under subclause 49(3), to give the party an estimate of the duration of a proceeding and the likely costs

·        the power to give directions, under subclause 50(1), about the practice and procedure to be followed in relation to a proceeding, and

·        the power to make such order or direction as is appropriate under subclause 50(3) when a party fails to comply with a direction.

255.            Subclauses 66(3) provides a non-exhaustive list of powers in respect of which the Court or a Judge may not give a direction. This mirrors subsection 37A(2) of the Family Law Act and includes:

·        the power to make a divorce order in proceedings that are defended

·        the power to make a decree of nullity of marriage

·        the power to make a declaration as to the validity of a marriage, divorce, or annulment of marriage

·        the power to make an excluded child order, and

·        the power to make an order setting aside a registered award under section 13K of the Family Law Act.

256.            Subclause 66(4) provides that a delegate must not exercise the power to make an order as to costs (see paragraph 66(2)(j)) except in relation to costs of, or in connection with, an application heard by the delegate.

257.            Subclause 66(5) provides that a delegate must not exercise the power (referred to in paragraph 66(2)(q)) to make an order under section 66Q, 67E, 77 or 90SG of the Family Law Act or an order for the payment of maintenance pending the disposal of proceedings on application by a party to proceedings under the Family Law Act. That is, unless (i) the other party to the proceedings appears at the hearing of the application, or (ii) the delegate is satisfied that notice of the intention of the party making the application has been served on the other party.

258.            Subclause 66(6) would ensure that provisions that relate to the exercise by the FCFC (Division 1) of a power would apply in relation to the exercise of that power by a delegate.

Clause 67 - Delegation

259.            Subclause 67(1) provides that the Chief Justice may make Rules of Court delegating any of the powers of the FCFC (Division 1), including those mentioned in subclause 66(2), to a delegate.

260.            Subclause 67(2) provides a non-exhaustive list of powers that may not be delegated. These include:

·        the power to make a divorce order in proceedings that are defended

·        the power to make a decree of nullity of marriage

·        the power to make a declaration as to the validity of a marriage, divorce, or annulment of marriage

·        the power to make an excluded child order, and

·        the power to make an order setting aside a registered award under section 13K of the Family Law Act

261.            Subclause 67(3) provides that a power delegated by the Rules of Court and exercised by the FCFC (Division 1) or a Judge, is taken to have been exercised by the FCFC (Division 1) or a Judge.

262.            Subclause 67(4) provides that the delegation of a power by the Rules of Court would not prevent the exercise of that power by the FCFC (Division 1) or a Judge.

263.            Subclause 67(5) provides that, if the power to make an order as to costs (see paragraph 66(2)(j)) is delegated by the Rules of Court, a delegate must not exercise it except in relation to costs of, or in connection with, an application heard by the delegate.

264.            If the power referred to in paragraph 66(2)(q) is delegated by the Rules of Court, subclause 67(6) provides that a delegate must not exercise that power to make an order under section 66Q, 67E, 77 or 90SG of the Family Law Act or an order for the payment of maintenance pending the disposal of proceedings on application by a party to proceedings under the Family Law Act. That is, unless (i) the other party to the proceedings appears at the hearing of the application, or (ii) the delegate is satisfied that notice of the intention of the party making the application has been served on the other party.

265.            Subclause 67(7) would ensure that provisions that relate to the exercise by the FCFC (Division 1) of a power would apply in relation to the exercise of that power by a delegate.

266.            This clause is drawn from section 37A of the Family Law Act.

Clause 68 - Independence of delegates

267.            Clause 68 provides that, despite any other provision of this Chapter and any provision of the Public Service Act or of any other law, a delegate is not subject to the direction or control of any person or body in relation to the way in which the delegate exercises powers under subclause 66(2) or under a delegation under subclause 67(1). This clause is drawn from subsection 37A(8) and section 37B of the Family Law Act.

Clause 69 - Review of power exercised by delegate

268.            Subclause 69(1) provides that a party to proceedings in which a delegate has exercised any powers of the FCFC (Division 1) under subclause 66(2) or under a delegation under subclause 67(1) would be able to apply to the Court for review of that exercise of power. A timeframe for making such an application may be specified in the Rules of Court.

269.            Subclause 69(2) provides that the FCFC (Division 1) would be able to, of its own initiative or on application under subclause 69(1), review the exercise of power by a delegate under subclause 66(2) or under a delegation under subclause 67(1). The FCFC (Division 1) would be able to make any order(s) it thinks fit in relation to the matter.

270.            Subclause 69(3) provides that if, during the course of exercising a power referred to in subclause 66(2) or under a delegation under subclause 67(1), a delegate considers that it is not appropriate for the application to be determined by the delegate, or if an application is made to the delegate for the matter to be determined by a Judge, the delegate must not hear (or continue to hear) the application, and must make appropriate arrangements for it to be heard by a Judge.

271.            This clause is drawn from section 37A of the Family Law Act.

Clause 70 - Oath or affirmation of office

272.            Clause 70 provides for an oath or affirmation of office for Registrars and Deputy Registrars.

273.            Subclause 70(1) provides that a Registrar or Deputy Registrar must take an oath or affirmation before discharging the duties of office.

274.            Subclause 70(2) provides that the oath or affirmation must be taken before the Chief Justice or another Judge of the FCFC (Division 1).

275.            Subclause 70(3) sets out the form of the oath.

276.            Subclause 70(4) sets out the form of the affirmation.

Division 4 - Other officers and staff

Clause 71 - Officers of the FCFC (Division 1)

277.            Clause 71 provides that, in addition to the Chief Executive Officer, there are to be the following officers of the of the FCFC (Division 1):

·        the Registrars and Deputy Registrars

·        such Registry Managers as are necessary

·        the Marshal

·        such Deputy Marshals as are necessary, and

·        such family consultants as are necessary.

278.            Subclause 71(2) provides that the officers of the Court, other than the Chief Executive Officer, have such duties, powers and functions as given to them by or under Chapter 3 or Chapter 5 of this Bill, the Family Law Act, the Rules of Court, or by the Chief Justice or the Court.

279.            Subclause 71(3) provides that officers of the FCFC (Division 1), other than the Chief Executive Officer and the Deputy Marshals, are to be engaged under the Public Service Act.

280.            Subclause 71(4) provides that the Deputy Marshals may be engaged under the Public Service Act.

281.            Subclause 71(5) provides that the Chief Executive Officer, on behalf of the Chief Justice, would be able to arrange with an agency head, or with an authority of the Commonwealth, for the services of offices or employees of the agency or authority to be made available for the purposes of the administrative affairs of the FCFC (Division 1).

282.            Subclause 71(6) provides that there are to be such staff of the Registries as are necessary.

283.            Subclause 71(7) provides that the staff of the Registries are to consist of persons engaged under the Public Service Act.

Clause 72 - Marshal

284.            Subclause 72(1) provides that the Marshal of the FCFC (Division 1) would be responsible for the service and execution of all process of the Court directed to the Marshal.

285.            Subclause 72(2) provides that the Marshal would also be responsible for:

·        dealing with the Australian Federal Police and the police forces of the States and Territories in relation to the service and execution of process of the Court

·        the security of the FCFC (Division 1)

·        the personal security of Judges, officers and staff of the Court

·        detaining all persons committed to the Marshal’s custody by the FCFC (Division 1), and

·        discharging persons when directed by the FCFC (Division 1) or when required by law.

286.            Subclause 72(3) provides that a Deputy Marshal would be able to perform any of the powers and functions of the Marshal, subject to any directions of the Marshal.

287.            Subclauses 72(4) and (5) provide that the Marshal and the Deputy Marshal would be able to authorise persons to assist in exercising powers or performing functions in their respective roles.

288.            This clause is modelled on section 38P of the Family Law Act.

Clause 73 - Delegation by Registry Managers

289.            Clause 73 provides that a Registry Manager of the FCFC (Division 1) may delegate all or any of their functions or powers under the Family Law Act to a person considered by the Registry Manager to be an appropriate officer or staff member of the Court. In performing a delegated function, subclause 73(2) provides that the person must comply with any written directions of the relevant Registry Manager.

290.            This provision will enable greater efficiency and accountability in the performance of the functions of the Registry Manager, including but not limited to, providing notifications to a prescribed child welfare authority pursuant to section 67Z of the Family Law Act.

Division 5 - Miscellaneous administrative matters

Clause 74 - Procedural information to be given to unrepresented parties

291.            Clause 74 provides that the Chief Executive Officer would be able to give directions and issue guidelines in relation to procedural information for staff of the FCFC (Division 1) to give to parties to enable them to formulate and present their cases. This clause replicates section 116 of the Federal Circuit Court Act. It has been included in this chapter for consistency with the equivalent FCFC (Division 2) provision.

292.            Procedural information is information about the processes involved in the Court and information about the progress of the matter before the FCFC (Division 1).  FCFC (Division 1) staff will not provide legal advice to parties.

Clause 75 - Annual report

293.            Clause 75 sets out the mechanism for ensuring that the administration and finances of the FCFC (Division 1) are accountable to the Minister and Parliament. It replicates section 38S of the Family Law Act.

294.            Subclause 75(1) provides that the Chief Justice must prepare a report, as soon as practicable after 30 June each financial year, on the management of the administrative affairs of the FCFC (Division 1) during the financial year.

295.            Subclause 75(2) provides that the report, prepared after 30 June in a year, must be given to the Minister by 15 October of that year.

296.            Subclause 75(2) provides that the Minister must cause a copy of the report to be tabled in Parliament.

297.            Subclause 75(4) provides that a report prepared under clause 75 may be included in a report prepared and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 in relation to the listed entity referred to in section 18ZB of the Federal Court Act .  

Clause 76 - Delegation of administrative powers of Chief Justice

298.            Clause 76 provides that the Chief Judge may delegate any or all of his or her powers under clause 57 to any one or more of the Judges of the FCFC (Division 1). The delegation must be in writing. This replicates section 38W of the Family Law Act.

Clause 77 - Proceedings arising out of administration of the Federal Circuit and Family Court of Australia (Division 1)

299.            Clause 77 provides that any judicial or other proceeding relating to a matter arising out of the management of the administrative affairs of the FCFC (Division 1) under this Part, including in relation to actions of the Chief Executive Officer, may be instituted by or against the Commonwealth. This replicates section 38X of the Family Law Act.

Clause 78 - Protection of persons involved in handling etc. complaints

300.            Clause 78 affords certain protections to persons involved in considering or handling complaints about judges. The protections are in addition to existing protections and immunities of the Chief Justice and Deputy Chief Justice. Clause 78 replicates section 38Y of the Family Law Act.

301.            Subclause 78(1) provides that, in exercising powers in this Bill under paragraph 31(2)(d) (which provides for the Chief Justice to make arrangements about which Judges will sit on particular courts, classes of cases, or functions; or to temporarily restrict a Judge to non-sitting duties ) and paragraph 32(1)(d) (which provides for the Chief Justice to decide if and how to handle complaints, including for other complaint handlers to do so), a complaint handler would have the same protection and immunity as a Justice of the High Court.  

302.            Subclause 78(2) provides that the Chief Justice, in authorising a person or body to assist the Chief Judge in handling a complaint, would have the same protection and immunity as a Justice of the High Court.

303.            Subclause 78(3) provides that a witness appearing before a complaint handler handling a complaint would be subject to the same liabilities in a proceeding as a witness in a case before the High Court.

304.             Subclause 78(4) provides that a lawyer assisting (or appearing on behalf of a person before) a complaint handler handling a complaint would have the same protection and immunity as a barrister would have in appearing for a party in High Court proceedings.



CHAPTER 4 - FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

PART 1 - CONSTITUTION

Division 1 - Constitution

Clause 79 - Appointment of Judges

305.            Clause 79 provides for the appointment of Judges to the FCFC (Division 2).

306.            Subclause 79(1) provides that a Judge is to be appointed by the Governor-General by commission.

307.            Paragraph 79(2)(a) provides that a person is not to be appointed as a Judge unless the person has been enrolled as a legal practitioner of the High Court or the Supreme Court of a State or Territory for at least 5 years. This criterion is provided to ensure that a person has the appropriate duration of experience in the legal profession to be appointed as Judge of the FCFC (Division 2).

308.            In addition, paragraph 79(2)(b) provides that a person must not be appointed as a Judge unless the person has appropriate knowledge, skills and experience to deal with the kinds of matters that may come before the FCFC (Division 2). This is to ensure that not only does a person need to have the necessary duration of experience as outlined in paragraph 79(2)(a), but also the appropriate types of knowledge, skills and experience.

309.            Subclause 79(3) provides that a person must not be appointed as a Judge if the person has attained the age of 70 years. This aligns with section 72 of the Constitution, which provides that the maximum age of Justices of a court created by Parliament is 70 years.

310.            Subclause 79(4) provides that the term of appointment of a Judge will expire upon the Judge attaining the age of 70 years. Note 1 to this subclause describes how section 72 of the Constitution sets out requirements relating to the appointment and tenure of Judges. Note 2 would direct the reader to Division 2 of this Part which deals with terms and conditions of appointment.

Clause 80 - Assignment of Judges to Divisions

311.            Clause 80 provides that the Governor-General may assign Judges to Divisions. In accordance with clause 104, the FCFC (Division 2) would comprise two Divisions: the General Division and the Fair Work Division. The General Division and the Fair Work Division are existing divisions within the Federal Circuit Court.

312.            Subclause 80(a) provides that the Governor-General may assign a Judge (other than the Chief Judge and Deputy Chief Judge) to one of the Divisions of the FCFC (Division 2) in the commission of appointment of the Judge, or at a later time with the consent of the Judge.

313.            Subclause 80(b) provides that the Governor-General may vary any such assignment with the consent of the Judge.

Clause 81 - Authorised Judges may manage classes of proceedings

314.            Subclause 81(1) provides that the Chief Judge may, by written instrument, authorise a Judge to manage a class or classes of proceedings as specified in the instrument or by the Rules of Court.  Such instrument would not be a legislative instrument by virtue of the operation of paragraph (c) of item 8 in the table in section 6 of the Legislation (Exemptions and Other Matters) Regulations 2015. The purpose of this clause is to enable more specialist management of particular classes of proceedings.

315.            Subclause 81(2) provides that, in managing a class or classes of proceedings, a Judge is subject to any direction from the Chief Judge.

316.            Subclause 81(3) provides that the authorisation of a Judge does not affect the rank, title, status and precedence that the Judge would otherwise have.

317.            Subclause 81(4) provides that, if the Chief Judge gives a direction under subclause 81(2) in writing, that direction is not a legislative instrument.  This subclause is to assist readers, as the direction would not be a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003 .

Clause 82 - Style

318.            Clause 82 describes the formal title of the Chief Judge, Deputy Chief Judge and other Judges of the FCFC (Division 2). This clause is modelled on Schedule 1, clause 2 of the Federal Circuit Court Act.

319.            Subclause 82(1) provides that the Chief Judge is to be styled “His Honour Chief Judge (name) of the Federal Circuit and Family Court of Australia (Division 2)” or “Her Honour Chief Judge (name) of the Federal Circuit and Family Court of Australia (Division 2)”.

320.            Subclause 82(2) provides that the Deputy Chief Judge is to be styled “His Honour Deputy Chief Judge (name) of the Federal Circuit and Family Court of Australia (Division 2)” or “Her Honour Deputy Chief Judge (name) of the Federal Circuit and Family Court of Australia (Division 2)”.

321.            Subclause 82(3) provides that a Judge of the FCFC (Division 2) (other than the Chief Judge and Deputy Chief Judge) is to be styled “His Honour Judge (name) ” or “Her Honour Judge (name) ”.

Clause 83 - Oath or affirmation of office

322.            Clause 83 provides that a Judge of the FCFC (Division 2) must take an oath or affirmation prior to discharging the duties of office.

323.            In accordance with subclause 83(1), a Judge must take an oath or affirmation in accordance with the form set out in whichever of subclauses 83(3) or (4) is applicable.

324.            Subclause 83(2) provides that the oath or affirmation must be taken before the Governor-General, or a Justice of the High Court, or a Judge of the Federal Court, or a Judge of the FCFC (Division 1), or another Judge of the FCFC (Division 2).

325.            Subclause 83(3) provides the form of the oath for the purposes of subclause 83(1).

326.            Subclause 83(4) provides the form of the affirmation for the purposes of subclause 83(1).

Division 2 - Terms and conditions of serving Judges

Clause 84 - Remuneration

327.            Clause 84 provides for the remuneration of a Judge. It would replicate Schedule 1, clause 5 of the Federal Circuit Court Act.

328.            Subclause 84(1) provides that a Judge of the FCFC (Division 2) is to be paid such remuneration as determined by the Remuneration Tribunal.

329.            Subclause 84(2) provides that subclause 84(1) would have effect subject to the Remuneration Tribunal Act 1973 .

330.            Subclause 84(3) provides that ‘remuneration’ would have the same meaning as in Part II of the Remuneration Tribunal Act 1973 . Note 1 clarifies that a Judge’s remuneration may not be diminished during the Judge’s continuance in office. Note 2 describes how subsection 3(2) of the Remuneration Tribunal Act 1973 provides that a reference in Part II of the Act is to be read as a reference to annual allowance. Note 3 describes how, under subsection 7(4) of the Remuneration Tribunal Act 1973 , the Remuneration Tribunal may determine any matter significantly related to the remuneration of Judges.

Clause 85 - Leave

331.            Clause 85 provides that a Judge would have the recreation leave entitlements that are determined by the Remuneration Tribunal. This clause replicates Schedule 1, clause 6 of the Federal Circuit Court Act. Other leave entitlements will be on such terms and conditions as the Governor-General determines (see clause 87).

Clause 86 - Outside work

332.            Clause 86 provides that a Judge must not engage in remunerated work which is incompatible with the holding of judicial office. This clause replicates Schedule 1, clause 4 of the Federal Circuit Court Act.

333.            Subclause 86(1) provides that a Judge must not engage in paid work outside the duties of the Judge’s office if that work is incompatible with the holding of a judicial office under Chapter III of the Constitution.

334.            Subclause 86(2) provides that a Judge must not engage in work as a legal practitioner or engage in work as an employee of, or consultant to, a legal practice.

335.            Subclause 86(3) provides that this clause does not, by implication, limit the application to a Judge of any doctrine of constitutional incompatibility. For example, in Wilson   v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 138 ALR 220, the High Court held that there were certain functions that could not be conferred on a federal judicial officer.  This would be the case if the function were incompatible with the judicial officer’s performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power.

336.            Subclause 86(4) provides that paid work means work for financial gain or reward (whether as an employee, a self-employed person or otherwise).

Clause 87 - Other terms and conditions

337.            Clause 87 provides for the Governor-General to determine other terms and conditions not specified in the Bill upon which a Judge of the FCFC (Division 2) holds office. This clause replicates Schedule 1, clause 8 of the Federal Circuit Court Act.

338.            Subclause 87(1) provides that the Governor-General may make a written determination specifying terms and conditions in relation to matters not covered by the Bill.

339.            Subclause 87(2) provides that the Minister must cause a copy of a determination made under subclause 85(1) to be tabled in each House of the Parliament.

340.            Subclause 87(3) provides that either House of the Parliament may, following a motion upon notice, pass a resolution disallowing the determination. The resolution must be passed within 15 sitting days of the House after the determination is tabled in the House.

341.            Subclause 87(4) provides that if no resolution disallowing the determination is passed in either House of the Parliament, the determination would take effect immediately after the last day upon which such a resolution could have been passed.

Clause 88 - Resignation from office

342.            Clause 88 provides that a Judge of the FCFC (Division 2) may resign from office. It replicates Schedule 1, clause 7 of the Federal Circuit Court Act.

343.            Subclause 88(1) provides that a Judge may resign office by delivering a written resignation to the Governor-General. Subclause 88(2) provides that the resignation would take effect on the day it is received by the Governor-General, or on a later day as specified in the resignation.

Clause 89 - Removal from office

344.            Clause 89 provides for the way in which a Judge of the FCFC (Division 2) may be removed from office. It replicates Schedule 1, clause 7 of the Federal Circuit Court Act.

345.            Clause 89 reflects section 72(ii) of the Constitution which provides that Justices ‘shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity’.

Division 3 - Disability and death benefits

Clause 90 - Certification of retired disabled Judges

346.            Clause 90 provides that the Minister may be requested to certify that a Judge of the FCFC (Division 2) who retires before attaining age 70 is a retired disabled Judge. This replicates Schedule 1, clause 9A of the Federal Circuit Court Act.

347.            Subclause 90(2) provides that the Minister can only certify that a Judge is a retired disabled Judge following a request to do so and if the Minister is satisfied that the retirement was due to permanent disability or infirmity. Otherwise, the Minister must refuse to so certify. Where a retired disabled Judge was incapacitated to the extent that he or she was unable to make such a request, the request could be made by another person.

348.            Subclause 90(3) provides that applications could be made to the Administrative Appeals Tribunal for review of a decision by the Minister to refuse to certify that a person is a retired disabled Judge.

Clause 91 - Pensions for retired disabled Judges

349.            Clause 91 provides that a retired disabled Judge of the FCFC (Division 2) is entitled to a pension until that Judge attains 70 years of age or dies, whichever happens first. This clause replicates Schedule 1, clause 9B of the Federal Circuit Court Act.

350.            Subclause 91(2) provides that the pension is 60 per cent of the salary the Judge would have received if the Judge had not retired.

351.            Subclause 91(3) provides that the rate of the pension must be reduced by the amount of any pension or retiring allowance payable to the retired disabled Judge out of money provided (in full or in part) by the Commonwealth, a State or a Territory, and which was payable by reason of prior judicial service, or prior judicial service and any other service.

352.            Subclause 91(4) provides that the salary on which the pension is based is defined to be the annual rate of remuneration (ie. salary and allowances) set by the Remuneration Tribunal but excluding any allowances that can be taken in lieu of other entitlements, such as for vehicle entitlements. This ensures any such allowances are not pensionable.

353.            Subclause 91(5) provides that the pension is due daily but is payable on the days on which salary payments are made to Judges.

354.            Subclause 91(6) deems a pension payable to a retired disabled Judge to be a pension payable to the Judge under a superannuation scheme for the purposes of Division 3 of Part II of the Safety, Rehabilitation and Compensation Act 1988 . That Division provides for workers’ compensation payments for injuries resulting in incapacity for work. Any such payments are reduced by pension payments from a Commonwealth superannuation scheme.

Clause 92 - Superannuation for retired disabled Judges

355.            Clause 92 provides that a retired disabled Judge of the FCFC (Division 2) would also be entitled to Commonwealth superannuation contributions until the Judge attains the age of 65 years or dies, whichever happens first. This clause replicates Schedule 1, clause 9C of the Federal Circuit Court Act.

356.            Subclause 92(2) provides that the contributions would be payable as if the Judge had not retired.

357.            Subclause 92(3) provides that the contribution is to be made by payments on the days on which salary payments are made to Judges.

Clause 93 - Death benefits

358.            Clause 93 provides for death benefits in respect of a Judge, or a retired disabled Judge, of the FCFC (Division 2) who dies before attaining the age of 65 years where the Judge leaves one or more eligible spouses or eligible children. This clause replicates Schedule 1, clause 9D of the Federal Circuit Court Act.

359.            Subclauses 93(2) and (3) provide that the amount of death benefit payable is equivalent to the amount of Commonwealth superannuation the Judge would have been entitled to for the period up to the age of 65 years if the Judge had neither died nor retired before attaining that age, calculated from the day the Judge died and on the basis of the amount of superannuation contributions payable for the Judge as at that date.

360.            Subclause 93(4) defines the beneficiaries in respect of the payment as being each eligible spouse and eligible child the Judge leaves. Payments to eligible children are further addressed in subclauses 93(7) to (9).

361.            Subclause 93(5) provides that if there is only one beneficiary, the payment is payable to the beneficiary.

362.            Subclause 93(6) provides that if there is more than one beneficiary, the payment is payable to the beneficiaries in proportions considered appropriate by the Minister. When considering proportions, the Minister must have regard to the respective circumstances of each beneficiary.

363.            Subclause 93(7) provides that, where a payment is payable to an eligible child, the Minister may direct that some or all of the payment be paid to a specified person for the benefit of the child. This would allow, for example, the Minister to direct that an amount payable to an eligible child be paid to the deceased Judge’s former spouse, with whom the eligible child lives, for the benefit of the child. The Minister can alternatively direct that the payment be spent in a specified manner for the benefit of the child. The direction under subclause 93(7) must be in writing.

364.            Subclause 93(8) provides that a request may be made to the Minister to give a direction under subclause 93(7) in respect of an eligible child. Subclause 93(9) provides that, on receiving an application, the Minister must only give such a direction if the Minister is satisfied that the Minister should make a direction in respect of the child. If the Minister is not so satisfied, the Minister must refuse to give such a direction.

365.            Subclause 93(10) provides that applications could be made to the Administrative Appeals Tribunal for review of the following decisions of the Minister:

·        a decision determining the proportions of payment under subclause 93(6)

·        a decision directing that a death benefit payment payable to an eligible child be paid instead to a specified person, or be spent in a specified manner, for the child’s benefit under subclause 93(7), and

·        a decision to refuse to give a direction under paragraph 93(9)(b).

Clause 94 - Relationship definitions

366.            Clause 94 defines certain relationships for the purpose of establishing status as a beneficiary for a death benefit payment. These definitions, and that included in clause 95, are generally consistent with the definitions used in legislation establishing Commonwealth superannuation and pension schemes, including those contained in the Judges’ Pensions Act 1968 . Clause 94 replicates Schedule 1, clause 9E of the Federal Circuit Court Act.

367.            In accordance with subclauses 94(2), (3) and (4), a person is an ‘eligible spouse’ of a Judge of the FCFC (Division 2), or a retired disabled Judge of the FCFC (Division 2), who dies, if any of the following circumstances apply:

·        The person had a marital or couple relationship with the Judge at the time of the Judge’s death.

·        The person had a marital or couple relationship with the retired disabled Judge at the time of the Judge’s death, and that relationship began before (i) the Judge retired or (ii) attained age 60.

·        The person had previously had a marital or couple relationship with the Judge or the retired disabled Judge and did not, at the time of the Judge’s death, have such a relationship with the Judge but was legally married to the Judge, and was, in the Minister’s opinion, wholly or substantially dependent upon the Judge. Where the marital or couple relationship began after the Judge had retired, the relationship has to have begun before the Judge attached age 60.

368.            Subclause 94(5) provides that a person had a ‘marital or couple relationship’ with another person at a particular time if the person had been living with the other person as the other person’s husband, wife, spouse or partner:

·        for a continuous period of at least three years up to that time, or

·        for a continuous period of less than three years up to that time, and the Minister, in having regard to any relevant evidence, is of the opinion that the person ordinarily lived with the other person as the other person’s husband, wife, spouse or partner on a permanent and bona fide domestic basis at that time,

whether or not they are legally married.

369.            Subclause 94(6) provides that a ‘marital or couple relationship’ is taken to have begun at the beginning of the continuous period referred to in subclause 94(5).

370.            Subclause 94(7) provides that relevant evidence for the Minister to have regard to in making a decision about whether a person ordinarily lived with another person as the other person’s husband, wife, spouse or partner on a permanent and bona fide domestic basis at a particular time would include evidence:

·        That the person was wholly or substantially dependent on the other person at the time.

·        That they were legally married to each other at the time.

·        That their relationship was registered under a law of a State or Territory.

·        That they had a child or had adopted a child during their relationship.

·        That they jointly owned a home which was their usual residence.

371.            Subclause 94(8) provides that a person is taken to be ‘living with’ another person if the Minister is satisfied that the person would have been living with that other person except for a period of temporary absence or absence because of special circumstances.

372.            Subclause 94(9) provides that applications could be made to the Administrative Appeals Tribunal for review of a decision by the Minister that:

·        a person was wholly or substantially dependent upon the Judge at the time of the Judge’s death (see subparagraph 94(4)(c))

·        the person ordinarily lived with the other person as the other person’s husband, wife, spouse or partner on a permanent and bona fide domestic basis at that time (see subparagraph 94(5)(b)(ii)), or

·        a person is taken to be living with another person (see subclause 94(8)).

Clause 95 - Meaning of eligible child

373.            Clause 95 defines ‘eligible child’ for the purpose of establishing status as a beneficiary for a death benefit payment. This clause replicates Schedule 1, clause 9F of the Federal Circuit Court Act.

374.            Subclause 95(1) provides that a person is an ‘eligible child’ of a Judge of the FCFC (Division 2), or a retired disabled Judge of the FCFC (Division 2), who dies if the person:

·        is under 16 years of age, or under 25 years of age and is receiving full-time education, and

·        is a child or adopted child of the Judge, or a child of the Judge within the meaning of the Family Law Act, or in the Minister’s opinion was or would have been wholly or substantially dependent on the Judge at the time of the Judge’s death, or in the Minister’s opinion was or would have been wholly or substantially dependent on the Judge.

375.            Subclause 95(2) provides that applications could be made to the Administrative Appeals Tribunal for review of a decision by the Minister that the person was or would have been wholly or substantially dependent on the Judge under either subparagraph 95(1)(b)(iii) or subparagraph 95(1)(b)(iv).

Clause 96 - Appropriation

376.            Clause 96 would establish a special appropriation for:

·        Pensions payable to retired disabled Judges of the FCFC (Division 2) under clause 91.

·        Superannuation contributions payable for retired disabled Judges of the FCFC (Division 2) under clause 92.

·        Death benefits payable under clause 93.

377.            The establishment of a special appropriation is necessary as it is not possible to predict when such benefits will need to be paid. Clause 96 replicates Schedule 1, clause 9G of the Federal Circuit Court Act.

Division 4 - Judges of 2 or more courts

Clause 97 - Dual appointments

378.            Clause 97 provides for the possibility of dual appointments of the Chief Judge and Deputy Chief Judge. Together with clause 20 of the Bill, clause 97 underpins the Government’s intention of enabling a common case management approach and effective allocation of cases between FCFC (Division 1) and FCFC (Division 2).

379.            By providing scope for the Chief Judge of the FCFC (Division 2) to also occupy the office of the Chief Justice of the FCFC (Division 1), a potential dual appointment of the Chief Judge can ensure that management decisions are, as much as possible, consistent across the FCFC.

380.            Clause 97 would also enable, in conjunction with clauses 56 and 184, a Chief Judge who was also the Chief Justice of FCFC (Division 1), to make Rules of Court that are consistent for both FCFC (Division 1) and FCFC (Division 2).

381.            Subclause 97(1) provides that nothing in the Bill would prevent the Chief Judge of the FCFC (Division 2) from being appointed to, and holding at the same time, the office of Chief Justice of the FCFC (Division 1).

382.            Subclause 97(2) provides that nothing in the Bill would prevent the Deputy Chief Judge of the FCFC (Division 2) from being appointed to, and holding at the same time, the office of Deputy Chief Justice of the FCFC (Division 1).

Division 6 - Acting Chief Judge

Clause 98 - Acting Chief Judge

383.            Clause 98 provides for acting arrangements during a vacancy in the office of the Chief Judge, or when the Chief Judge is absent from duty or from Australia, or unable to perform the duties of the Office. This clause is modelled on Schedule 1, clause 10 of the Federal Circuit Court Act.

384.            Subclause 98(1) provides that the Deputy Chief Judge may act as Chief Judge.

385.            Subclause 98(2) provides that, during a vacancy in the offices of Chief Judge and Deputy Chief Judge, or when both are unavailable, the Minister may appoint a Judge to act as Chief Judge. This situation may arise, for example, when both the Chief Judge and Deputy Chief Judge are attending an international judicial conference.

386.            Subclause 98(3) provides that a person who is acting as Chief Judge would be called Acting Chief Judge of the Federal Circuit and Family Court of Australia (Division 2).

387.            Subclause 98(4) provides that a person acting as Chief Judge is taken not to be assigned to either Division of the Federal Circuit and Family Court of Australia (Division 2). The note to subclause 98(4) clarifies that a Judge who is not assigned to either Division of the FCFC (Division 2) (that is, the General Division and the Fair Work Division) may exercise the powers of the Court in either Division.

PART 2 - JURISDICTION

Division 1 - Original Jurisdiction

Clause 99 - Original jurisdiction - general

388.            Clause 99 provides detail on how some original jurisdiction is vested in FCFC (Division 2). It replicates section 10 of the Federal Circuit Court Act.

389.            Subclause 99(1) provides that the FCFC (Division 2) would have such original jurisdiction as is vested in it by other legislation (expressly, or by operation of section 15C of the Acts Interpretation Act 1901 ) or by a legislative instrument under clause 101 of this Bill (which relates to jurisdiction over Commonwealth tenancy disputes). 

390.            Subclause 99(2) provides that the FCFC (Division 2) would also have jurisdiction to hear and determine appeals from decisions of persons, authorities or tribunals other than courts. 

391.            Subclause 99(3) would ensure that the process of the FCFC (Division 2) runs throughout Australia. It also ensures that the judgments of the FCFC (Division 2) would have effect and may be executed throughout Australia.

Clause 100 - Original jurisdiction - family law or child support matters

392.            Clause 100 provides for the jurisdiction that the FCFC (Division 2) would have in respect of family law matters. The family law jurisdiction is intended to be the same as that which would be conferred on FCFC (Division 1).

393.            Subclause 100(1) provides that the FCFC (Division 2) would have original jurisdiction with respect to matters under the Family Law Act in respect of which proceedings may be instituted under that Act. It also provides that the FCFC (Division 2) would have original jurisdiction with respect to matters arising under the Marriage Act 1961 (other than proceedings arising under Part VII of that Act). It further provides that the FCFC (Division 2) would have original jurisdiction with respect to matters arising under a law of a Territory (other than the Northern Territory) concerning the adoption of children, the property of the parties to a marriage, or the rights and status of an ex-nuptial child and that child’s relationship with their parents.  It further provides that the FCFC (Division 2) has original jurisdiction as is conferred on the court by any other Act, or in respect of which proceedings may be instituted by any other Act.

394.            Subclause 100(2) provides that, subject to any restrictions and conditions listed in (i) section 111AA of the Family Law Act (which relates to the Convention on Recognition and Enforcement of Decisions Relating to Maintenance Obligations), (ii) regulations made under the Family Law Act, or (iii) the Rules of Court made under that Act, the FCFC (Division 2) would be able to exercise its jurisdiction in relation to persons or things outside Australia. 

Clause 101 - Original jurisdiction - Commonwealth tenancy disputes

395.            Clause 101 would confer jurisdiction on the FCFC (Division 2) in particular circumstances. Clause 101 replicates section 10AA of the Federal Circuit Court Act.

396.            Subclause 101(1) provides that the FCFC (Division 2) would have jurisdiction to hear and determine a Commonwealth tenancy dispute between the parties to a lease, licence or other arrangement, in which the Commonwealth (or a person suing or being sued on behalf of the Commonwealth) is:

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

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

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

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

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

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

·        the grantee of the right or permission.

397.            Subclause 101(2) provides that the Minister would be able to confer, by legislative instrument, jurisdiction on the FCFC (Division 2) in respect of any other specified Commonwealth tenancy dispute.

398.            This subclause aims to reduce the burden of making future legislative amendments if it is considered appropriate for the FCFC (Division 2) to have jurisdiction to determine additional Commonwealth tenancy disputes, such as those in which the Commonwealth is a sublessor or a sublicensor, or a lessee.

399.            Subclause 101(3) provides that the Minister may, by legislative instrument, make provision for and in relation to the matters listed in respect of a Commonwealth tenancy dispute:

·        the rights of the parties to the Commonwealth tenancy dispute

·        the law (whether a law of the Commonwealth or a law of a State or Territory) to be applied in determining the Commonwealth tenancy dispute (the applicable law)

·        any modifications of the applicable law that are to apply in relation to the Commonwealth tenancy dispute

·        the powers that the FCFC (Division 2) may exercise under the applicable law, and

·        if the FCFC (Division 2) makes an order when exercising jurisdiction over the Commonwealth tenancy dispute—the powers that may be exercised when executing the order or a class of orders.

400.            As noted in the explanatory memorandum to the Federal Courts Legislation Amendment Bill 2014 , this provision aims to ensure, as far as possible, that the rights of the parties to the Commonwealth tenancy dispute are not substantially different from the rights of parties to tenancy disputes. This provision would enable the Minister to flexibly respond to particular issues in relation to particular state or territory regimes which might arise in the context of conferral of jurisdiction on a federal court, such as:

·        omitting or modifying provisions to ensure the vested jurisdiction is suitable for a court, and

·        ensuring that there are clear and valid enforcement mechanisms available.

401.            Legislative instruments conferring additional jurisdiction or making provision for issues that arise in the context of conferral of jurisdiction on a federal court would remain subject to parliamentary scrutiny, consistent with the requirements of the Legislation Act 2003 .

Division 2 - Appellate jurisdiction

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

402.            Subclause 102(1) provides that the FCFC (Division 2) would have jurisdiction to hear and determine appeals from a judgment of a court of summary jurisdiction of a State or Territory exercising jurisdiction under either the Family Law Act or the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988. Note 1 to subclause 102(2) directs the reader to the definition of ‘court of summary jurisdiction’ in section 2B of the Acts Interpretation Act 1901 . Note 2 to subclause 25(1) directs the reader to section 47A of the Family Law Act, which provides for appeals from courts of summary jurisdiction.

403.            Subclause 102(2) provides that a Family Court of a State is not a court of summary jurisdiction for the purposes of subclause 102(1).

Division 3 - Associated matters

Clause 103 - Jurisdiction in associated matters

404.            Clause 103 provides that jurisdiction would be conferred on the FCFC (Division 2) in respect of matters not otherwise within its jurisdiction but which are associated with matters in which the jurisdiction of the FCFC (Division 2) is invoked the court.  This clause replicates section 18 of the Federal Circuit Court Act. This clause is intended to avoid multiple proceedings by enabling the Court to dispose of associated matters otherwise outside its jurisdiction so that the matter before the Court may be completely and finally determined. 

Division 4 - Exercise of jurisdiction

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

405.            Clause 104 provides that the FCFC (Division 2) is two comprise two Divisions, a General Division and a Fair Work Division. A Judge may be assigned to a Division by the Governor-General as part of their initial appointment, or at a later date with the consent of the Judge concerned. This clause replicates section 10A of the Federal Circuit Court Act.

406.            Subclause 104(1) provides that the FCFC (Division 2) would comprise a General Division and a Fair Work Division.

407.            Subclause 104(2) provides that proceedings in the FCFC (Division 2) must be instituted, heard and determined in one of these Divisions.

408.            Subclauses 104(3) and 104(4) set out the jurisdiction of the Fair Work and General Divisions.

409.            The Fair Work Division would hear and determine matters that are required by another Act to be heard and determined in the Fair Work Division. The Fair Work Division would also be able to exercise jurisdiction that is incidental to jurisdiction required to be exercised in the Fair Work Division. The note to subclause 104(3) clarifies that, under section 567 of the Fair Work Act 2009 , jurisdiction is required to be exercised in the Fair Work Division of the FCFC (Division 2) in relation to matters arising under that Act.

410.            The General Division would hear and determine all matters where jurisdiction is not required by another Act to be exercised in the Fair Work Division, and any jurisdiction that is incidental to that jurisdiction. 

411.            A single proceeding may give rise to various issues, some of which are required to be dealt with in the Fair Work Division, and some of which are required to be dealt with in the General Division.  Subclause 104(5) gives the Chief Judge of the FCFC (Division 2) the discretion to determine in which Division of the Court the proceeding will be instituted, heard and determined.  The Chief Judge may issue a direction at any time during the proceeding.

Clause 105 - Exercise of jurisdiction - open court or in Chambers

412.            Clause 105 provides that the jurisdiction of the FCFC (Division 2) must be exercised in open court. This clause replicates section 13 of the Federal Circuit Court Act.

413.            Subclause 105(1) provides that this clause does not apply to family law and child support proceedings.  The note to subclause 105(1) clarifies that section 97 of the Family Law Act applies to courts exercising jurisdiction in family law and child support proceedings.  Section 97 provides when such proceedings may be heard in open court or in Chambers. 

414.            Subclause 105(2) provides that the jurisdiction of the FCFC (Division 2) must be exercised in open court. This rule does not apply where, as authorised by this Chapter of the Bill or another law of the Commonwealth, the jurisdiction of the Court is exercised by a Judge sitting in Chambers. Unless otherwise ordered, open court means that there is no restriction on members of the public attending proceedings in the Court.  Sitting in Chambers means that the matter is heard in private before the Judge, usually in a separate room from the courtroom.

415.            Subclause 105(3) provides that the jurisdiction of the FCFC (Division 2) may be exercised by a Judge of the Court sitting in Chambers in a proceeding:

·        on an application relating to the conduct of a proceeding, and

·        on an application for orders or directions as to any matter which is made subject to the direction of a Judge sitting in Chambers, and

·        on any other application authorised by the Rules of Court to be made to a Judge sitting in Chambers.

416.            Subclause 105(4) provides that the jurisdiction of the FCFC (Division 2) is to be exercised by a Judge sitting in Chambers in a proceeding where, under the Rules of Court, the Court is authorised to make a decision relating to the proceeding without an oral hearing, and the parties have consented to a decision being made without an oral hearing.  This subclause is designed to allow matters to be decided without a hearing in appropriate cases.

417.            Subclause 105(5) provides that a Judge may order a proceeding in Chambers to be adjourned into the Court. Subclause 105(6) provides that the FCFC (Division 2) may order a proceeding in open court to be adjourned into Chambers if the jurisdiction of the Court may be exercised by a Judge sitting in Chambers in that proceeding.

418.            Subclause 105(7) provides that the Court may order the exclusion of the public or specified persons if their presence in court would be contrary to the interest of justice or prejudicial to the security of the Commonwealth. 

Clause 106 - Exercise of jurisdiction

419.            Clause 106 provides that the jurisdiction of the FCFC (Division 2), including its appellate jurisdiction, is to be exercised by the Court constituted by a single Judge. This replicates section 11 of the Federal Circuit Court Act. Subclause 106(1) will operate so that all matters in the FCFC (Division 2) must be heard by a single Judge.

420.            Subclause 106(2) provides that a Judge may give directions under subclause 159(1) of this Bill, which relates to the power of the FCFC (Division 2) to give directions about practice and procedure in a civil proceeding before the court.     

Clause 107 - Determination of matter completely and finally

421.            Clause 107 provides for the determination of every matter before the FCFC (Division 2) completely and finally. In doing so, the Court must grant all remedies to which any of the parties appears to be entitled so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning those matters may be avoided.

422.            Clause 107 replicates section 14 of the Federal Circuit Court Act. It is designed to avoid multiple proceedings arising from the same dispute between the parties. 

Division 5 - Certain powers relating to matters of jurisdiction

Clause 108 - Making of orders and issue of writs

423.            Clause 108 provides that the FCFC (Division 2) would have power to make orders and issue writs, as it considers appropriate. This power relates to matters in which it has jurisdiction. It replicates section 15 of the Federal Circuit Court Act. 

Clause 109 - Declarations of right

424.            Clause 109 provides that the FCFC (Division 2) would be able to make binding declarations of right, even if no other relief is available to a party. This replicates section 16 of the Federal Circuit Court Act.

425.            Subclause 109(2) provides that proceedings may not be challenged on the ground that only a declaration is sought.

Clause 110 - Contempt of court

426.            Clause 110 provides that the FCFC (Division 2) would have the same power to punish as is possessed by the High Court. This clause replicates section 17 of the Federal Circuit Court Act. It mirrors clause 30 of in the Bill which provides the same contempt power to the FCFC (Division 1).

427.            Subclause 110(2) provides that this jurisdiction to punish a contempt of the Court may be exercised by the Court as constituted at the time of the contempt.

428.            The note to subclause 110(2) clarifies that section 112AP of the Family Law Act would also apply to a contempt of the FCFC (Division 2) in family law or child support proceedings.

Clause 111 - Summary judgment

429.            Clause 111 provides that the FCFC (Division 2) would be able to give summary judgment where it is satisfied that a proceeding, or part of a proceeding, or a defence to part of a proceeding, has no reasonable prospect of success. This largely replicates section 17A of the Federal Circuit Court Act.

430.            Subclauses 111(1) and 111(2) provide that the FCFC (Division 2) may give judgment for one party against another in relation to the whole or any part of a proceeding if:

·        The first party is prosecuting (or defending) the proceeding or that part of the proceeding; and

·        The court is satisfied that the other party has no reasonable prospect of defending (or prosecuting) the proceeding or that part of the proceeding.

431.            Subclause 111(3) provides that, for the purposes of giving summary judgment, a proceeding or part of a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success.

432.            Subclause 111(4) provides that clause 111 does not limit any of the other powers of the FCFC (Division 2).

Division 6 - Administration

Clause 112 - Arrangement of Business

433.            Clause 112 generally continues the effect of subsections 12(1)-(3) of the Federal Circuit Court Act.

434.            Subclause 112(1) provides that the Chief Judge would be responsible for ensuring the effective, orderly and expeditious discharge of the business of the FCFC (Division 2). 

435.            Subclause 112(2) provides that, in discharging the Chief Judge’s responsibility, the Chief Judge must:

·        promote the objects of the Act, and

·        ensure that arrangements are in place to provide Judges with appropriate access to (or reimbursement for the cost of) annual health assessment, counselling and judicial education. 

436.            Subclause 112(2) provides that, in discharging the Chief Judge’s responsibility, the Chief Judge may:

·        make arrangements as to the Judge who is to constitute the Court in particular matters or classes of matters, including assigning particular caseloads, classes of cases or functions to particular Judges

·         temporarily restrict a Judge to non-sitting duties

·        deal with a complaint about the performance of another Judge’s judicial or official duties, and

·        take any measures reasonably necessary to maintain public confidence in the FCFC (Division 1) including, but not limited to, temporarily restricting another Judge to non-sitting duties.

437.             Subclause 112(3) provides that the Deputy Chief Judge is to assist the Chief Judge in the exercise of functions conferred on the Chief Judge by clause 112, other than in relation to paragraph 112(2)(d) (which relates to a complaint about the performance of another Judge’s judicial or official duties) and paragraph 112(2)(e) (which relates to taking measures reasonably necessary to maintain public confidence in the FCFC (Division 2).

438.            As noted in the explanatory memorandum to the Courts Legislation Amendment (Judicial Complaints) Bill 2012 , a complaint about performance by another judge of his or her judicial or official duties will not include complaints about matters in cases that are capable of being raised in an appeal.  Such complaints are properly matters for judicial determination.  It may be necessary for the Chief Judge or other complaint handler to consider whether the complaint relates to a matter capable of being raised on appeal.

439.            The performance of official duties would extend the circumstances in which a complaint may be dealt with.  An example would include where a judge is representing the Court in an official capacity or where the judge is undertaking certain official functions in their personal capacity.

440.            Proposed paragraph 112(2)(e) gives the Chief Judge power to take any measures that he or she believes are reasonably necessary to maintain public confidence in the Court. This includes the ability to temporarily restrict another judge to non-sitting duties.  This power operates whether or not there has been a complaint about the Judge. 

441.            As noted in the explanatory memorandum to the Courts Legislation Amendment (Judicial Complaints) Bill 2012 , paragraph 112(2)(e) would enable a Chief Judge to take timely action that the Chief Judge believes is reasonably necessary to maintain public confidence in the Court.  The Chief Judge would need to establish a clear basis for his or her belief that measures are reasonably necessary.  Measures are characterised in terms of facilitating the smooth operation of the Court, rather than disciplinary action directed at a judge.  The type of measure that might be taken would be consistent with the Chief Judge’s responsibilities for ensuring the effective discharge of the business of the Court.

442.            Paragraphs 112(2)(d) and (e) do not limit action that the Chief Judge may take in discharging his or her general obligation to ensure the effective, orderly and expeditious discharge of the business of the Court.  The paragraphs provide an express mechanism by which complaints arising in a wide variety of circumstances may be addressed.

Clause 113 - Complaints

443.            Clause 113 provides for the process to be followed by the Chief Judge in dealing with a complaint made about another Judge of the FCFC (Division 2). Paragraph 112(2)(d) requires the Chief Judge to deal with such a complaint pursuant to the process set out in clause 113. Clause 113 replicates the process outlined in subsections 12(3AA) - (3AB) of the Federal Circuit Court Act.

444.            Subclause 113(1) provides that the Chief Judge may do either or both of the options under paragraphs 113(1)(a) and (b).

445.            Under paragraph 113(1)(a), the Chief Judge may decide whether or not to handle the complaint. The Chief Judge may then take one of the following actions:

·        dismiss the complaint (subparagraph 113(1)(a)(i))

·        handle the complaint if the Chief Judge has a relevant belief in relation to the complaint about the other Judge (subparagraph 113(1)(a)(ii)) - the definition for ‘relevant belief’ is located in clause 113(4); the definition for ‘handle a complaint’ is located in clause 7 of the Bill, or

·        arrange for any other complaint handlers to assist in handling the complaint if the Chief Judge has a relevant belief in relation to the complaint about the other Judge (subparagraph 113(1)(a)(iii)).

446.            Under subparagraph 113(1)(b), the Chief Judge may arrange for any other complaint handlers to decide whether or not to handle the complaint, and then take one of the following actions:

·        dismiss the complaint (subparagraph 113(1)(b)(i)), or

·        handle the complaint if each of the complaint handlers has a relevant belief in relation to the complaint about the other Judge (subparagraph 113(1)(b)(ii)).

447.            The powers of another complaint handler under paragraph 113(1)(b) are similar to those of the Chief Judge under paragraph 113(1)(a). This subclause enables a Chief Judge to arrange with a complaint handler to deal with complaint without needing to conduct preliminary investigations about a complaint.

448.            The note to subclause 113(1) clarifies that a complaint handler (other than the Chief Judge) may handle a complaint by referring it to the Chief Judge.  The Chief Judge may then do either or both of the things referred to in paragraphs 113(1)(a) or (b) in respect of the complaint.

449.            By providing for options for a Chief Judge that are not mutually exclusive, subclause 113(1) gives the Chief Judge a high degree of flexibility to deal with complaints as appropriate, including through managing complaints on a case by case basis. 

450.            As noted in the explanatory memorandum to the Courts Legislation Amendment (Judicial Complaints) Bill 2012, a complaint about performance by another Judge of his or her judicial or official duties will not include complaints about matters in cases that are capable of being raised in an appeal.  Such complaints are properly matters for judicial determination.  It may be necessary for the Chief Judge or other complaint handler to consider whether the complaint relates to a matter capable of being raised on appeal.

451.            The powers provided for in clause 113 do not limit the ability of a Chief Judge to refer a matter to the Parliament for consideration of removal of a judge under paragraph 72(ii) of the Constitution. 

452.            The ability of the Chief Judge or a complaint handler to dismiss a complaint summarily under paragraphs 113(1)(a)(i) and 113(1)(b)(i) does not affect the ability of a person handling a complaint to dispose of a complaint by dismissing it where the person considers this to be appropriate in the circumstances, including where the complaint has not been substantiated on further investigation of the complaint.

453.            Subclause 113(2) would enable the Chief Judge to authorise a person or body to assist the Chief Judge to handle complaints, decide whether or not to handle complaints, dismiss complaints or handle complaints. Authorisations may be made either generally or in relation to a specified complaint. An authorisation must be in writing.

454.            Subclause 113(2) gives discretion to the Chief Judge as to the categories of person or body which may be authorised to handle a complaint.  This is necessary to ensure a sufficient degree of flexibility for the Chief Judge in complaints handling processes, which may involve a wide variety of circumstances. 

455.            Subclause 113(3) is inserted to avoid doubt and clarifies that a Chief Judge may authorise under subclause 113(3) the Deputy Chief Judge or a body that includes the Deputy Chief Judge.  This confirms the discretion of the Chief Judge to authorise the Deputy Chief Judge to undertake functions relating to complaints handling.

456.            Subclause 113(4) provides the meaning of ‘relevant belief’ for the purposes of clause 113. The meaning applies where a person has a relevant belief in relation to a complaint about a Judge. A person has such a belief if:

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

·        the person believes that circumstances giving rise to a complaint may, if substantiated, (i) adversely affect the performance of judicial or official duties by the Judge, or (ii) have the capacity to adversely affect the reputation of the FCFC (Division 2).

457.           Having a relevant belief enables the Chief Judge or complaint handler to take certain actions, such as handling the complaint (see paragraphs 92(1)(a)(ii) and 92(1)(b)(ii) of the Bill).

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

458.            Clause 114 provides that where a Judge is assigned to a particular Division, he or she can only exercise the powers of the Court in that Division. This clause replicates subsection 12(3A)-(3D) of the Federal Circuit Court Act.

459.            The Chief Judge can arrange for a Judge that is assigned to a particular Division to deal with a matter in the other Division, if he or she considers it desirable to do so, consistent with the Chief Judge’s overall responsibility for ensuring the orderly and expeditious discharge of the business of the Court.

460.            Clause 114(1) provides that a Judge assigned to a Division of the FCFC (Division 2) (that is, the General Division or the Fair Work Division - see clause 104) must exercise the powers of the Court only in that Division, except as otherwise provided for in subclause 114(2).

461.            Subclause 114(2) provides that the Chief Judge may arrange for a Judge who is assigned to particular Division to exercise the powers of the Court in the other Division, if the Chief Judge considers that circumstance make it desirable to do so.

462.            Subclause 114(3) provides that, to avoid doubt, a Judge who is not assigned to either Division of the FCFC (Division 2) would be able to exercise the powers of the Court in either Division.

463.            Subclause 114(4) provides that subclause 114(1) does not affect the validity of any exercise of powers by the FCFC (Division 2). This makes it clear that an exercise of the Court’s power is not invalid, and cannot be challenged, on the ground that a proceeding was instituted, heard and determined in the wrong Division of the Court.

Clause 115 - Assignment of Judges to locations or registries

464.            Clause 115 provides that the Chief Judge would be able to assign a particular Judge to a particular location or registry. This replicates subsections 12(4)-(5) of the Federal Circuit Court Act. Clause 115 would ensure that, over time, judicial resources in a particular location would continue to be sufficient and not excessive for the workloads of that location.

465.            Subclause 115(1) provides that the assignment must be by way of written instrument.

466.            Subclause 115(2) provides that the assignment under subclause 115(1) must be approved in writing by the Minister.

467.            Subclause 115(3) provides that the assignment does not prevent a Judge from performing duties at one or more other locations or registries on a temporary basis (whether on circuit, or otherwise).

Clause 116 - Protection for the Chief Judge and Deputy Chief Judge

468.            Clause 116 affords certain protection and immunity to the Chief Judge and the Deputy Chief Judge in the exercise, or assisting in the exercise of, the functions or powers exercised under paragraph 112(2)(b) or subclause 115(1) of this Bill. It replicates subsection 12(6A)-(6B) of the Federal Circuit Court Act and extends the protection of that subsection to the Deputy Chief Judge.

469.            Subclauses 116(1) and (2) provide that, in exercising the functions or powers pursuant to paragraph 112(2)(b) or subclause 115(1) of this Bill, the Chief Judge and the Deputy Chief Judge have the same protection and immunity as if they were exercising those functions or powers as, or as a member of, the FCFC (Division 2). The notes to subclauses 116(1) and (2) refer the reader to clause 216, which provides for the protection of persons involved in the handling of complaints.

470.            Subclause 116(3) provides that, despite section 39B of the Judiciary Act 1903 , the Federal Court of Australia would not have jurisdiction with respect to a matter relating to the exercise by the Chief Judge, or the assisting in the exercise by the Deputy Chief Judge, of the functions or powers mentioned in subclause 112(2) or clause 113 of the Bill.

471.            Subclause 116(4) provides that, in addition to the powers and functions conferred on the Chief Judge by this Chapter of the Bill, the Chief Judge has such other functions and powers as are specified in the regulations.

PART 3 - TRANSFER OF PROCEEDINGS

Division 1 - Transfer of proceedings to the FCFC (Division 1)

Clause 117 - Discretionary transfer of proceedings

472.            A key concern with current transfer arrangements between the Family Court and the Federal Circuit Court is the time lost due to transfers of matters between the two courts. Typically, once a decision is made to transfer a matter, the parties would have to commence proceedings afresh using the procedures of the receiving court.

473.            Clause 117 provides a mechanism that would enable the discretionary transfer of proceedings from the FCFC (Division 2) to the FCFC (Division 1). An equivalent provision, clause 34, would enable the discretionary transfer of proceedings from the FCFC (Division 1) to the FCFC (Division 2).

474.            In accordance with subclauses 117(1) and (2), the FCFC (Division 2) may order the transfer of a family law or child support proceeding to the FCFC (Division 1) on the application of a party to the proceeding, or on its own initiative.

475.            Subclause 117(3) specifies the factors to which the FCFC (Division 1) must have regard in deciding whether to transfer a proceeding. These factors would be:

·        any Rules of Court made for the purposes of subclause 118(2)

·        whether proceedings in respect of an associated matter are pending in the FCFC (Division 1)

·        whether the resources of the FCFC (Division 2) are sufficient to hear and determine the proceeding, and

·        the interests of the administration of justice.

476.            These factors are designed to ensure that the FCFC (Division 2) has the ability to transfer cases to the FCFC (Division 1) having regard to both efficiency and resource considerations. When read with clauses 119 and 160, it is expected that the FCFC (Division 1) and FCFC (Division 2) would have in place more consistent approaches to case management that would minimise any inconvenience to parties arising from a transfer from the FCFC (Division 2) to the FCFC (Division 1).

477.            Subclause 117(4) provides that if an order is made under subclause 117(1), the order would take effect on the day it is approved by the Chief Justice of the FCFC (Division 1) under subclause 117(5).

478.            Subclause 117(5) provides that the Chief Justice of the FCFC (Division 1) may approve an order under subclause 117(1). The approval must be in writing. In deciding whether to approve the order, the Chief Justice must have regard to any Rules of Court made for the purposes of subclause 118(2). The FCFC (Division 2) would retain the ability to continue to make orders in respect of the matter by virtue of subclause 117(6). Subclause 117(5) would allow the Chief Justice of the FCFC (Division 1) to consider the workload and resource situation within the FCFC (Division 1), including whether there are any related matters already on foot in the FCFC (Division 1) before accepting the transfer. Given the Government’s intention to dually appoint the same person to the role of Chief Justice of the FCFC (Division 1) and the role of Chief Judge of the FCFC (Division 2), the Chief Justice of the FCFC would be able to manage the transfer process of matters between the divisions, ensuring the efficient transfer of matters. Clause 117 therefore enables the FCFC to reduce current waiting times in family law matters by removing delays in the transfer process

479.            Subclause 117(6) provides that, before the Chief Judge’s written approval is given under subclause 117(5), the FCFC (Division 2) may make such orders as it considers necessary.

480.            Subclause 117(7) provides that an appeal does not lie from a decision of the FCFC (Division 2) to transfer a proceeding under this clause. This approach is consistent with similar legislation, such as the Jurisdiction of Courts (Cross-vesting) Act 1987, where no appeal lies from a transfer decision. It is designed to prevent time-wasting appeals on minor procedural matters which do not affect the substantive rights of the parties.

481.            Subclause 117(8) provides that the Administrative Decisions (Judicial Review) Act 1977 does not apply to a decision by the Chief Justice of the FCFC (Division 1) to give an approval under subclause 117(5). Subclause 117(8) also provides that the Federal Court does not have jurisdiction with respect to a matter relating to a decision by the Chief Justice of the FCFC (Division 1) to give, or refuse to give, an approval under subclause 117(5), despite section 39B of the Judiciary Act 1903 . Consistent with the policy intent of subclause 117(7), this is designed to prevent time-wasting attempts at review of decisions of a minor procedural nature which do not affect the substantive rights of the parties.

482.            Subclause 117(9) is included to assist readers, as the approval given under subclause 117(5) is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003 .

483.            Subclause 117(10) provides that this section would not apply to proceedings of a kind specified in the regulations.

Clause 118 - Rules of Court

484.            Clause 118 provides for Rules of Court to make provision in relation to transfers of proceedings to the FCFC (Division 1) under subclause 117(1).  Subclause 118(1) provides that the Rules of Court may include the scale of costs that applies to any order made in respect of proceedings that are transferred. However, it is intended that the scale of costs that applies to any order made in respect of proceedings that are transferred between FCFC (Division 1) and FCFC (Division 2) would be the same.

485.            Subclause 118(2) provides that the Rules of Court would be able to specify matters to which the FCFC (Division 2) must have regard in deciding whether to transfer a proceeding to the FCFC (Division 1) under subclause 117(1).

486.            Subclause 118(3) provides that, before any Rules of Court are made for the purposes of clause 118, the Chief Judge of the FCFC (Division 2) must consult the Chief Justice of the FCFC (Division 1). Clause 118 is intended to ensure that, in circumstances where different persons occupy the offices of the Chief Justice of the FCFC (Division 1) and the Chief Judge of the FCFC (Division 2), the Rules of Court developed across both Divisions are consistent.

487.            This clause is intended to strengthen the goal of ensuring the efficient resolution of family law disputes which underpins this structural reform of the federal courts. To that end, this clause also facilitates the objects of the Bill provided for in clause 5.

Clause 119 - Delegation

488.            Clause 119 provides that the Chief Judge may delegate the Chief Judge’s power under subclause 34(5) to any one or more of the Judges. The note to this clause clarifies that clause 33 allows the FCFC (Division 1) to order the transfer of proceedings to the FCFC (Division 2), subject to the approval of the Chief Judge.

Division 2 - Transfer of proceedings to the Federal Court

Clause 120 - Discretionary transfer of proceedings

489.            Clause 120 provides for the discretionary transfer of proceedings from the FCFC (Division 2) to the Federal Court. This clause is intended to ensure appropriate and efficient case management in fair work matters and general federal law matters. The transfer of proceedings pursuant to this clause does not apply to family law matters. This clause is modelled on section 39 of the Federal Circuit Court Act.

490.            Subclause 120(1) provides that the Court may, by order, transfer a proceeding pending in the FCFC (Division 2) to the Federal Court provided the proceeding is not a family law or child support proceeding.

491.            Subclause 120(2) provides that the FCFC (Division 2) would be able to order the transfer of a proceeding on the application of a party to the proceeding, or on its own initiative.

492.            Subclause 120(3) specifies the factors to which the FCFC (Division 2) must have regard in deciding whether to transfer a proceeding. These factors would be:

·         any Rules of Court made for the purposes of subclause 121(2)

·        whether proceedings in respect of an associated matter are pending in the Federal Court

·        whether the resources of the FCFC (Division 2) are sufficient to hear and determine the proceeding, and

·        the interests of the administration of justice.

493.            These factors are designed to ensure that the FCFC (Division 2) has the ability to transfer cases to the Federal Court having regard to both efficiency and resource considerations.

494.            Subclause 120(4) provides that, if an order is made to transfer a matter under subclause 120(1), the order would take effect on the day it is confirmed by the Federal Court under proposed new section 32AD of the Federal Court Act. Item 210 of the FCFC (Consequential Amendments and Transitional Provisions) Bill 2018 is intended to introduce section 32AD which will permit the Federal Court discretion to confirm the transfer of the proceeding to that Court by order.

495.            Subclause 120(5) provides that the FCFC (Division 2) would retain the ability to continue to make orders in respect of the matter pending the order transferring the proceeding being confirmed by the Federal Court.

496.            Subclause 120(6) provides that an appeal does not lie from a decision of the FCFC (Division 2) to transfer a proceeding under this clause. This approach is consistent with similar legislation, such as the Jurisdiction of Courts (Cross-vesting) Act 1987 . It is designed to prevent time-wasting appeals on minor procedural matters which do not affect the substantive rights of the parties.

497.            Subclause 120(7) provides that this clause would not apply to proceedings of a kind specified in the regulations.

Clause 121 - Rules of Court

498.            Clause 121 provides for the Rules of Court to make provision in relation to transfers of proceedings to the Federal Court under subclause 121(1).

499.            Subclause 121(1) provides that the Rules of Court may include the scale of costs that applies to any order made in respect of proceedings that are transferred. For example, in the period before a transfer, the Rules of Court may provide that the costs to be paid to a party would be at the Federal Court scale.

500.            Subclause 121(2) provides that the Rules of Court may set out factors to be taken into account by the FCFC (Division 2) in deciding whether to transfer a proceeding to the Federal Court under subclause 120(1).

501.            Subclause 121(3) provides that, before any Rules of Court are made for the purposes of this section, the Chief Judge of the FCFC (Division 2) must consult the Chief Justice of the Federal Court. This provision is intended to ensure that the Rules of Court complement related processes in the Federal Court.

PART 4 - APPEALS

Clause 122 - Appeals to the High Court may not be brought

502.            Clause 122 provides that an appeal must not be brought directly to the High Court from a judgment of the FCFC (Division 2). This clause reflects Government’s intention that appeals from judgments of the FCFC (Division 2) would be directed to the Federal Court.

503.            Subclause 122(2) provides that, if subclause 122(1) is inconsistent with section 73 of the Constitution (which outlines the appellate jurisdiction of the High Court), subclause 122(1) will have effect as though the words “, except by special leave of the High Court” were added to the end of subclause 122(1).

PART 5 - DISPUTE RESOLUTION FOR PROCEEDINGS OTHER THAN PROCEEDINGS UNDER THE FAMILY LAW ACT 1975

Division 1 - General

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

504.            Clause 123 provides that this Part would apply to proceedings in the FCFC (Division 2) other than proceedings under the Family Law Act . It replicates section 20A of the Federal Circuit Court Act.

505.            Note 1 to this clause clarifies that, for proceedings under the Family Law Act, the reader should see Parts II, III, IIIA and IIIB of that Act, which contain provisions dealing with family counselling, family dispute resolution and other processes that apply to the FCFC (Division 2) in relation to proceedings under that Act.

506.            Note 2 to this clause clarifies that this Part would apply to proceedings under the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988 .

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

507.            Clause 124 provides that the FCFC (Division 2) must consider whether or not to advise the parties to proceedings before it about the dispute resolution processes that could be used to resolve any matter in dispute. It replicates section 22 of the Federal Circuit Court Act. 

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

508.            Clause 125 provides that, if the FCFC (Division 2) considers that a dispute resolution process may help the parties to resolve a dispute, the Court must advise the parties to use that dispute resolution process.  This clause replicates section 23 of the Federal Circuit Court Act. It is intended to ensure that parties are referred to appropriate dispute resolution processes.

509.            Subclause 125(2) provides that, if the FCFC (Division 2) advises the parties (as required by subclause 125(1)) to use a dispute resolution process, it may adjourn proceedings before it to enable attendance in connection with the dispute resolution process. The note to this subclause directs the reader to Part III of the Family Law Act, which deals with dispute resolution in family law and child support matters.

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

510.            Clause 126 provides that a legal practitioner, acting in or consulted about proceedings in the FCFC (Division 2), must consider whether to advise the parties about dispute resolution processes that could be used to resolve matters in dispute. This clause replicates section 24 of the Federal Circuit Court Act.

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

511.            Clause 127 provides that a designated officer of the FCFC (Division 2) must advise parties to proceedings, or a person considering instituting proceedings in the FCFC (Division 2), about dispute resolution processes. This clause replicates section 25 of the Federal Circuit Court Act.

512.            Subclause 127(2) provides that a member of the staff of the FCFC (Division 2) is taken to be an officer of the Court.

513.            Subclause 127(3) provides that, for the purposes of clause 127, a ‘designated officer’ of the FCFC (Division 2) is an offer of the Court specified in writing by the Chief Executive Officer for the purposes of this subclause.

514.            Taken together, clauses 124, 126 and 127 are intended to ensure that parties, at all stages of their dispute, are advised of the dispute resolution processes available to resolve their dispute. 

Clause 128 - Conciliation

515.            Clause 128 provides that the FCFC (Division 2) would be able to refer proceedings for conciliation in accordance with the Rules of Court. This clause replicates section 26 of the Federal Circuit Court Act.

516.            Clause 128(3) provides that referrals to a conciliator may be made with or without the consent of the parties to the proceedings.

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

517.            Clause 129 provides that a party to a dispute resolution process (who has been ordered by the FCFC (Division 2) to undertake a dispute resolution process (other than arbitration)) would be able to apply to the Court for determination of a question of law arising out of the proceedings. This clause replicates section 27 of the Federal Circuit Court Act.  

518.            Subclause 129(2) provides that such an application must be accompanied by a statement by the person conducting the dispute resolution process to the effect that the person consents to the making of the application and is of the opinion that the determination of the question of law would be likely to assist parties in reaching agreement about all or any matters in dispute in the proceedings.

519.            Subclause 129(3) provides that the FCFC (Division 2) must determine the question of law if an application is made under subclause 129(1).

520.            Subclause 129(4) provides that if FCFC (Division 2) determines a question of law, the determination is binding on the parties to the proceedings.

Clause 130 - Rules of Court about dispute resolution processes

521.            Clause 130 provides that Rules of Court may be made in relation to dispute resolution processes ordered by the FCFC (Division 2). This clause replicates section 28 of the Federal Circuit Court Act.

522.            Subclause 130(2) provides that Rules of Court may be made in relation to the procedure to be followed when any dispute resolution process ends.

Clause 131 - Regulations about dispute resolution processes

523.            Clause 131 provides that regulations may be made in relation to dispute resolution processes ordered by the FCFC (Division 2). This clause replicates section 29 of the Federal Circuit Court Act.

524.            Subclause 131(2) provides that the regulations would be able to address the procedures to be followed by a person conducting the dispute resolution process, the attendance of persons at the dispute resolution process, and the kinds of person who are eligible to conduct particular kinds of dispute resolution processes.

Clause 132 - Rules of Court about costs of dispute resolution processes

525.            Clause 132 provides that Rules of Court may be made about the costs of dispute resolution processes, where the dispute resolution process was ordered by the FCFC (Division 2) or was carried out for the purpose of settling a dispute about a matter before the FCFC (Division 2). This clause replicates section 30 of the Federal Circuit Court Act.

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

526.            Clause 133 provides that Rules of Court may be made in relation to applications under the Family Law Act for mediation and arbitration, and for orders under section 13F of that Act (which provides that the Court may make orders to facilitate arbitration of certain disputes). Clause 133 replicates section 31 of the Federal Circuit Court Act.

527.            Clause 133 also provides that clause 123 of this Bill would not affect clause 133. This addresses the inconsistency with clause 123, which currently provides that Part 5 (within which clause 133 is located) would not apply to proceedings under the Family Law Act.  

Clause 134 - Consent Orders

528.            Clause 134 provides that, subject to the Rules of Court, where parties have reached agreement about a matter in dispute in proceedings before the FCFC (Division 2), the Court or a Judge may make an order in the terms of the agreement on application by the parties. This clause replicates section 32 of the Federal Circuit Court Act.  

Division 2 - Proceedings other than family law or child support proceedings

529.            This Division allows the FCFC (Division 2) to refer non-family law proceedings to mediation or arbitration, and contains various provisions in relation to arbitration. 

Clause 135 - Scope of Division

530.            Clause 135 explains the scope of Part 5, Division 2 of the Bill. Clause 135 provides that this division would apply to proceedings in the FCFC (Division 2) other than family law or child support proceedings. The note to clause 135 refers the reader to Part III of the Family Law Act, which relates to family consultants. This clause replicates section 33 of the Federal Circuit Court Act.

Clause 136 - Mediation

531.            Clause 136 provides that the FCFC (Division 2) would be able to order proceedings or matters to mediation in accordance with the Rules of Court. This clause replicates section 34 of the Federal Circuit Court Act.

532.            Subclause 136(2) provides that subclause 136(1) is subject to the Rules of Court.

533.            Subclause 136(3) provides that matters may be referred to a mediator with or without the consent of the parties to the proceedings.

534.            Subclause 136(4) provides that evidence of anything said, or of any admission made, at a conference conducted by a mediator under subclause 136(1) is not admissible in any court or in any proceedings.

535.            Subclause 136(5) provides that the mediator, in mediating anything referred under subclause 136(1), has the same protection and immunity as a Judge of the FCFC (Division 2).

Clause 137 - Arbitration

536.            Clause 137 provides that the FCFC (Division 2) would be able to refer proceedings or matters to arbitration in accordance with the Rules of Court. This clause replicates section 35 of the Federal Circuit Court Act.

537.            Subclause 137(2) provides that subclause 137(1) has effect subject to the Rules of Court. Subclause 137(4) provides that the Rules of Court may make provision for the registration of awards made in an arbitration carried out under an order made under this clause. 

538.            Subclause 137(3) provides that matters may only be referred with the consent of the parties. 

539.            Subclause 137(5) provides that the arbitrator, in arbitrating anything referred under subclause 137(1), has the same protection and immunity as a Judge of the FCFC (Division 2).

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

540.            Clause 138 provides that an arbitrator, to whom proceedings have been referred under subclause 137(1), would be able to apply to the FCFC (Division 2) for leave to refer a question of law to the Court.  This clause replicates section 36 of the Federal Circuit Court Act.

541.            To make such an application, subclause 138(1) provides that the arbitrator has not made an award in respect of the arbitration, and a party to the arbitration has requested the arbitrator make the application to the Court.

542.            Subclause 138(2) provides that the FCFC (Division 2) must not grant leave unless satisfied that the determination of the question of law might result in substantial savings in costs to the parties. 

543.            Subclause 138(3) provides that, if leave is granted and the question of law referred by the arbitrator, the FCFC (Division 2) must determine the question of law. 

Clause 139 - Review of arbitration award on question of law etc.

544.            Clause 139 provides for the review of an arbitration award on a question of law. This clause replicates section 37 of the Federal Circuit Court Act.

545.            In accordance with subclause 139(1), clause 139 has effect if (i) a proceeding or matter has been referred to arbitration under subclause 137(1), (ii) the arbitrator has made an award, and (iii) the award has been registered with the Court under the Rules of Court.

546.            Subclause 139(2) provides that a party to the award would be able to apply to the FCFC (Division 2) for a review, on a question of law, of the award.

547.            Subclause 139(3) provides that, on a review of an award on a question of law, the FCFC (Division 2) may determine the question of law and make such orders as it thinks appropriate, including:

·        affirming the award

·        varying the award

·        setting aside the award and remitting it to the arbitrator for reconsideration in accordance with the directions of the Court, or

·        setting aside the award and determining the matter to which the award related.

548.            Subclause 139(4) provides that a party to an arbitration award would be able to apply to the FCFC (Division 2) for an order that costs payable by a party be taxed in accordance with the Rules of Court.

549.            Subclause 139(5) provides that the person who made the application under clause 139 is not liable to pay more costs in respect of the arbitration than the amount of the costs as taxed under an order made under subclause 139(4).

Clause 140 - Arbitration awards

550.            Clause 140 provides that the FCFC (Division 2) would be able to make an order in the terms of the arbitration award. This clause replicates section 38 of the Federal Circuit Court Act.

551.            Subclause 140(1) provides that the FCFC (Division 2) would be able to make such an order in relation to a matter in which the Court has original jurisdiction upon application by a party to an award made in arbitration, whether carried out under an order made under subclause 137(1) or otherwise).

552.            Subclause 140(2) provides that, for subclause 140(1) to apply, an award made in an arbitration carried out pursuant to subclause 137(1) must be registered with the FCFC (Division 2) under the Rules of Court. 

553.            Subclause 140(3) provides that an order made under subclause 140(1) is enforceable in the same manner as if it had been made in an action in the FCFC (Division 2). This subclause has effect subject to subclause 140(4).

554.            Subclause 140(4) provides that a writ of attachment must not be issued to enforce payment of money under an order made in accordance with clause 140.

PART 6 - PRACTICE AND PROCEDURE

Division 1 - General

Clause 141 - Practice and procedure

555.            Clause 141 provides for the practice and procedure of the FCFC (Division 2). This clause is modelled on section 43 of the Federal Circuit Court Act. It is expected that each head of division, in practice one Chief Justice, would issue common rules of courts, practice notes and directions, which would guide the Judges and Court staff of each division, legal practitioners and litigants about the way uniform procedures are expected to operate. This would provide a streamlined court system that would allow Australian families to spend significantly less time in the courts to resolve their family law disputes.

556.            Subclause 141(1) provides that the practice and procedure of the FCFC (Division 2) is to be in accordance with the Rules of Court and the regulations. Subclause 141(1) is subject to any other provision in this Bill or any other Act concerning practice and procedure of the Court. The note to this subclause clarifies that the Rules of Court are made under clause 184 and the regulations are made under clause 249.

557.            To the extent that the rules and regulations in subclause 141(1) are insufficient, paragraph 141(2)(a) provides that, in relation to the jurisdiction of the Court in a family law or child support proceeding, the Rules of Court of the FCFC (Division 1) are to apply, with necessary modifications, to the practice and procedure of the FCFC (Division 2) . The Rules of Court of the FCFC (Division 1) are to apply so far as they are capable of applying, and subject to any directions of the FCFC (Division 2) or a Judge.

558.            To the extent that the rules and regulations in subclause 141(1) are insufficient, paragraph 141(2)(b) provides that, 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 Act are to apply, with necessary modifications, to the practice and procedure of the FCFC (Division 2). The Rules of Court of far as they are capable of applying, and subject to any directions of the FCFC (Division 2) or a Judge.

559.            Subclause 141(3) provides that ‘practice and procedure’, for the purposes of clause 141, would mean all matters in relation to which Rules of Court may be made, and all matters in relation to which regulations may be made.

Clause 142 - Representation

560.            Clause 142 provides the circumstances under which a party to a proceedings in the FCFC (Division 2) is entitled to be represented by another person. These circumstances are that the other person:

·         is entitled, under the Judiciary Act 1903 , to practise as a barrister or solicitor, or both, in a federal court; or

·        is taken to be an authorised representative under the regulations, or

·        is authorised to represent the party under another law of the Commonwealth.

561.            Unless these circumstances exist, a party would not be entitled to be represented by another person.

562.            Clause 142 replicates section 44 of the Federal Circuit Court Act.

Clause 143 - Interrogatories and discovery

563.            Clause 143 provides that interrogatories and discovery would be allowed in relation to family law and child support proceedings in the FCFC (Division 2). However, in relation to any other proceedings in the FCFC (Division 2), interrogatories and discovery would only be permitted with the leave of the FCFC (Division 2) if it is appropriate, in the interests of the administration of justice, to allow them.  Clause 143 is modelled on section 45 of the Federal Circuit Court Act. It is designed to cut down on the unnecessary use of these procedures in general federal law matters.

564.            Subclause 143(1) provides that interrogatories and discovery would be allowed in relation to family law and child support proceedings in the FCFC (Division 2).

565.            Subclause 143(2) provides that interrogatories and discovery are not allowed in relation to any other proceedings in the FCFC (Division 2), unless the Court or a Judge declares otherwise.

566.            Subclause 143(3) provides that, in deciding whether to make a declaration under subclause 143(2), the FCFC (Division 2) or a Judge must have regard to:

·        whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings, and

·        such other matters as the Court or the Judge considers relevant.

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

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

567.            Clause 144 relates to the filing of documents in the FCFC (Division 2). It replicates section 46 of the Federal Circuit Court Act.

568.            Subclause 144(1) provides that if a document is required or permitted to be filed in the FCFC (Division 2), it is to be filed at a registry of the Court, or in accordance with an arrangement made under clauses 212 or 213, and in accordance with the Rules of Court.

569.            Subclause 144(2) provides that the Rules of Court would be able to provide that the requirements for filing a document are met if the document is sent to the FCFC (Division 2) using the web portal of the FCFC, or in other circumstances as set out in the Rules of Court.

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

570.            Clause 145 replicates section 47 of the Federal Circuit Court Act.

571.            Subclause 145(1) provides that the FCFC (Division 2) is to have a seal, the design of which would be determined by the Minister. Subclause 145(2) provides that the seal must be kept in such custody as the Chief Judge directs.

572.            Subclause 145(3) provides that the seal must be affixed to documents as provided by this or any other Act, or by the Rules of Court.

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

573.            Clause 146 replicates section 48 of the Federal Circuit Court Act.

574.            Subclause 146(1) provides that the stamp or stamps of the FCFC (Division 2) are to be, as nearly as practicable, the same as the design of the seal of the FCFC (Division 2).

575.            Subclause 146(2) provides that a document marked with a FCFC (Division 2) stamp is as valid and effectual as if it had been sealed with a seal.

576.            Subclause 146(3) provides that a FCFC (Division 1) stamp must be affixed to documents as provided by this Act, any other Act, or the Rules of Court.

Clause 147 - Writs etc.

577.            Clause 147 provides the requirements for a writ, commission or process issued from the FCFC (Division 2). This clause replicates section 49 of the Federal Circuit Court Act.

578.            Clause 147(1) provides that all writs, commissions and processes issued must be under the seal of the Court and signed (including by electronic signature) by a Judge, the Chief Executive Officer, a Registrar, or an officer acting with the authority of the Chief Executive Officer.

579.            Subclause 147(2) provides that subclause 147(1) does not apply to writs, commissions and processes signed and issued in accordance with clause 212. Clause 212 provides that the Chief Judge may make arrangements with other courts for the performance of certain functions. For example, the FCFC (Division 2) may arrange for a registry of the Federal Court to issue writs on behalf of the FCFC (Division 2).  In those circumstances it may not be possible to satisfy the requirements of subclause 147(1).  However, it is expected that any such arrangement would include some process of authentication.

580.            Subclause 147(3) provides that subclause 147(1) does not apply to an order of the FCFC (Division 2).  This is intended to ensure that if an urgent order is obtained from the FCFC (Division 2), for example on the weekend, the order remains valid notwithstanding that it may not be affixed with the seal of the Court. 

Clause 148 - Proceedings may be instituted by application

581.            Clause 148 provides that, subject to the Rules of Court, proceedings could be instituted in the FCFC (Division 2) by way of application without the need for pleadings. This clause replicates section 50 of the Federal Circuit Court Act.

Clause 149 - Limits on length of documents

582.            Clause 149 provides that, subject to the Rules of Court, the FCFC (Division 2) or a Judge would have the power to give directions about limiting the length of documents required or permitted to be filed in the Court. It is important that the FCFC (Division 2) has such powers to ensure that streamlined procedures are introduced and followed in the Court. This clause replicates section 51 of the Federal Circuit Court Act.

Division 3—Conduct of proceedings

Clause 150 - Place of sitting

583.            Clause 150 provides that the FCFC (Division 2) may sit at any place in Australia. Sittings must be held from time to time as required. This clause replicates section 52 of the Federal Circuit Court Act.

584.            It is expected that the FCFC (Division 2) will travel to hear cases in locations other than those in which the Judges of the FCFC (Division 2) are permanently based, in the same manner that the Judges of the Federal Circuit Court currently travel.  This clause ensures that the FCFC (Division 2) has the ability to sit anywhere in Australia.  This need not necessarily be in a formal court room.

Clause 151 - Change of venue

585.            Clause 151 provides that the FCFC (Division 2) or a Judge may, at any stage of a proceeding, make an order for a change of venue. This is a discretionary power as it can be used at any point during a proceeding being heard, and any such order can be made subject to any condition as determined by the Court or Judge. The Court also has the capacity to direct that only part of the proceedings be subject to a change of venue.

586.            This clause was modelled on section 27A of the Family Law Act. It has been included in this chapter for consistency with the equivalent FCFC (Division 1) provision.

Clause 152 - Determination of proceedings without a jury

587.            Clause 152 provides that civil proceedings in the FCFC (Division 2) are to be determined without a jury. There is no right to a determination of proceedings by jury in civil matters.  This provision ensures that there will be no jury hearings in civil matters before the FCFC (Division 2).  It is inappropriate to provide for hearing by jury in a Court which is designed to develop simple and efficient procedures.  Jury hearings are often long and complex and would not facilitate the FCFC (Division 2) adopting streamlined and informal procedures. 

588.            This clause replicates section 53 of the Federal Circuit Court.

Clause 153 - Decisions without oral hearing

589.            Clause 153 provides that the Rules of Court would be able to authorise the FCFC (Division 2) or a Judge to make decisions in proceedings without an oral hearing, if the parties have consented. While this is a matter for the Court, it is expected that the Rules would make it clear that a decision would only be made without an oral hearing if it was clear that the issues to be decided could be adequately determined in the absence of the parties.

590.            This clause replicates section 54 of the Federal Circuit Court Act.

Clause 154 - Limits on the length of oral argument

591.            Clause 154 provides that the FCFC (Division 2) or a judge would be able to make directions limiting the time for oral argument, subject to the Rules of Court for the FCFC (Division 2). This clause is intended to ensure that the FCFC (Division 2) has the capacity to control proceedings, by introducing time limits that are consistent with the streamlined procedures of the Court. It is a matter for the FCFC (Division 2) to determine whether it will make directions to limit oral argument.

592.            This clause replicates section 55 of the Federal Circuit Court Act.

Clause 155 - Written submissions

593.            Clause 155 allows the FCFC (Division 2) to control the use of written submissions, including the length of written submissions. This clause replicates section 56 of the Federal Circuit Court Act.

594.            Subclause 155(1) provides that the FCFC (Division 2) or a Judge would be able to make directions concerning the use of written submissions in proceedings.

595.            Subclause 155(2) provides that the FCFC (Division 2) or a Judge would be able to make directions limiting the length of written submissions in proceedings.

596.            Subclause 155(3) provides that both subclauses 155(1) and (2) are subject to the Rules of Court.

Clause 156 - Formal defects not to invalidate

597.            Subclause 156(1) provides that formal defects or irregularities would not invalidate proceedings in the FCFC (Division 2) unless the Court considers that the defect or irregularity has caused substantial injustice which cannot be remedied by an order of the Court.

598.            Subclause 156(2) provides that the FCFC (Division 2) or a Judge would be able to make an order declaring that the proceeding is not invalid by reason of a defect (that it considers to be formal) or an irregularity. Such an order may be subject to conditions (if any) as the Court or Judge thinks fit.

599.            This clause replicates section 57 of the Federal Circuit Court Act.

Division 4—Case management  

600.            These case management provisions introduce an overarching obligation upon the Court, the parties to litigation and legal practitioners to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.  They also clarify the kinds of directions the Court can make to control the progress and conduct of proceedings. This would provide clear legislative direction and support to judges so that they can confidently employ active case management powers which have been effective for the Federal Court.

Clause 157 - Overarching purpose of civil practice and procedure provisions

601.            Clause 157 provides the overarching purpose of the civil practice and procedure provisions. It generally mirrors section 37M of the Federal Court Act which was the centre-piece of the case management reforms of the Federal Court in 2009.

602.            Subclause 157(1) provides that the overarching purpose of the civil practice and procedures provisions is to facilitate the just resolution of disputes:

·        according to law, and

·        as quickly, inexpensively and efficiently as possible.

603.            Note 1 to subclause 157(1) directs the reader to paragraphs 5(a) and (b) of the Bill. Note 2 clarifies that the FCFC (Division 2) must give effect to principles in the Family Law Act when exercising jurisdiction in relation to proceedings under that Act.

604.            Clause 157 will apply to both the Court and parties to the proceedings (see clause 158) in recognition of the fact that it would not be possible for either the Court or the parties to achieve the overarching purpose without the assistance of the other.

605.            Subclause 157(2) provides that the overarching purpose includes the following objectives:

·        the just determination of all proceedings before the FCFC (Division 2)

·        the efficient use of the judicial and administrative resources available for the purposes of the Court

·        the efficient disposal of the Court’s overall caseload

·        the disposal of all proceedings in a timely manner, and

·        the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

606.            This provision is intended to be a reminder to litigants that costs should be proportionate to the matter in dispute.  It is not only the cost to the parties that is relevant. The efficient use of the Court’s resources needs to be taken into account.  However, at the same time, due process will be observed so that justice may be done in the individual case. These objectives will support the intention that both the Court’s and the litigant’s resources are spent efficiently. 

607.            Subclause 157(3) provides that the civil practice and procedure provisions, and any power conferred or duty imposed by them, must be exercised in the way that best promotes the overarching purpose.

608.            Subclause 157(4) provides that the civil practice and procedure provisions are the Rules of Court, and any other provision made by or under the Act or any other Act with respect to the practice and procedure of the FCFC (Division 2).

Clause 158 - Parties to act consistently with the overarching purpose

609.            Subclause 158(1) would impose a duty on parties to a civil proceeding before the FCFC (Division 2) to conduct the entire proceeding, including settlement negotiations, consistently with the overarching purpose. Clause 158 generally mirrors section 37N of the Federal Court Act.

610.            Subclause 158(2) would require a party’s lawyer to take into account the duty imposed on the party by subclause 158(1). It also requires the party’s lawyer to assist the party to comply with the duty. In practice, this would require a lawyer to conduct a case taking into account the duty on the party, and advise their client if certain actions are consistent with the overarching purpose.

611.            If, for example, a party wishes to prolong the litigation as a strategy to increase the costs of the other party, their lawyer would be obliged to explain that this behaviour is contrary to the overarching purpose and may have adverse cost consequences.  Also, if a party is refusing to accept a reasonable offer of settlement, a lawyer would have to explain that it is in their interest to accept the offer and that failing to do so may be regarded by the Court as acting inconsistently with the overarching purpose.

612.            Subclause 158(3) is intended to assist parties to comply with their duty by making informed decisions about the progress of their matter.  The Court may order a party’s lawyer to give the party an estimate of the likely duration of the proceedings and the likely amount of costs the party will have to pay in connection with the proceeding.  This may have the effect of assisting the party to prioritise the issues in dispute, or re-consider the resources they wish to allocate to the litigation.  The note below subclause 158(3) refers the reader to section 117 of the Family Law Act which provides that parties to proceedings under that Act bear their own costs, unless the court is of the opinion that there are circumstances that justify an order as to costs and security for costs, and a range of factors that the court shall have regard to in considering whether to make such an order.

613.            Subclause 158(4) would require a Judge to take into account, in awarding costs in a civil proceeding, any failure to comply with subclauses 158(1) or (2). This clause makes it clear that the court can order costs in a way other than costs against the unsuccessful party.

614.            Subclause 158(5) provides that the Court or a Judge may order a party’s lawyer to bear costs personally.

615.            Subclause 158(6) provides that a Judge would be able to order a lawyer to bear costs personally for a failure to comply with the duty imposed by subclause 158(2). Subclause 158(6) ensures that the lawyer cannot pass such costs on to their client contractually or in any other way. This subclause ensures that lawyers take responsibility for their own failure to comply with their duty under subclause 158(2).

616.            The intention of clause 158 is to support a cultural change in the conduct of litigation so that the Court and the parties are focussed on resolving disputes as quickly and cheaply as possible.  Parties who act consistently with this duty will be able to avoid cost orders being made against them and, overall, their litigation costs should be reduced.

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

617.            Subclause 159(1) provides that the FCFC (Division 2) or a Judge would be able to give directions about the practice and procedure to be followed in a civil proceeding before the Court. Such directions can be made at any stage of a proceeding, including at any time during or after the trial. Clause 159 generally mirrors section 37P of the Federal Court Act.

618.            Subclause 159(2) provides examples of the types of directions a Court would be able to make. These include setting time limits and limiting the length of submissions.  These examples are not intended to limit the powers of the Court to manage proceedings on a case-by-case basis.  They are intended to assist with the practical implementation of the overarching purpose.

619.            Subclause 159(3) provides that, if a party fails to comply with a direction, the FCFC (Division 2) or a Judge would be able to make any order or direction the Court or Judge thinks appropriate.

620.            Subclause 159(4) provides that the FCFC (Division 2) or a Judge may dismiss the proceeding in whole or in part, strike out, amend or limit any part of a party’s claim or defence, disallow or reject any evidence; or award costs against a party.  Paragraph 159(4)(e) makes it clear that such costs may be awarded on an indemnity basis.

621.            Subclauses 159(3)-(4) do not affect any other power of the Court or of a Judge to deal with a party’s failure to comply with a direction (subclause 159(5)).

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

622.            Clause 160 provides that the Chief Judge must work cooperatively with the Chief Justice with the aim of ensuring common approaches to case management. This clause is intended to strengthen the goal of ensuring the efficient resolution of family law or child support proceedings which underpins this structural reform of the federal courts. To that end, clause 160 also facilitates the objects of the Bill provided for in clause 5. 

Division 5—Evidence

Clause 161 - Oaths and affirmations

623.            Clause 161 provides for the administration of oaths and affirmations in the FCFC (Division 2). This clause replicates section 58 of the Federal Circuit Court Act.

624.            Subclause 161(1) provides a Judge the power to require and administer all necessary oaths and affirmations.

625.            Subclause 161(2) provides that a Judge would be able to authorise, either orally or in writing, any person (whether they are in or outside Australia) to administer oaths and affirmations for the purposes of the Court.

626.            Subclause 161(3) provides that the Chief Executive Officer would be able to authorise a Registrar or member of the staff of the FCFC (Division 2) to administer oaths and affirmations for the purposes of the Court. The authorisation must be in writing.

Clause 162 - Swearing of affidavits etc.

627.            An affidavit is a written statement of evidence.  As it is a document containing evidence, the affidavit must be sworn or affirmed. Clause 162 provides for the swearing or affirmation of affidavits in proceedings in the FCFC (Division 2). This clause replicates section 59 of the Federal Circuit Court Act.

628.            Subclause 162(1) provides an exhaustive list of people or offices before which an affidavit may be sworn or affirmed in Australia.

629.            Subclause 162(2) provides an exhaustive list of people or offices before which an affidavit may be sworn or affirmed at a place outside Australia.

630.            Subclause 162(3) provides that the Rules of Court would be able to stipulate circumstances in which an affidavit sworn or affirmed outside Australia before a person not referred to in subclause 162(2) may be used in a proceeding in the FCFC (Division 2).

Clause 163 - Orders and commissions for examination of witnesses

631.            Clause 163 provides that the FCFC (Division 2) or a Judge would be able to order the examination of a person at any place within Australia. It also provides that the Court would be able to order that a commission be issued to a person either within or outside Australia for the purpose of taking the testimony of another person. This clause replicates section 60 of the Federal Circuit Court Act.

632.            Subclause 163(a) provides that the FCFC (Division 2) would be able to order, for the purposes of any proceeding in the FCFC (Division 2), 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.

633.            Subclause 163(b) provides that the FCFC (Division 2) would be able to order, for the purposes of any proceeding in the FCFC (Division 2), that a commission be issued to a person, either in or outside Australia, authorising the person to take the testimony on oath or affirmation of another person. An examination of a person could be ordered, for example, where the person was unable to attend court because they were in hospital.

634.            Subclauses 163(c) and 163(d) provide that the FCFC (Division 2) or a Judge would be able to, by the same or subsequent order, give any necessary directions concerning the time, place or manner of the examination, and empower any party to the proceeding to give in evidence the testimony so taken on such terms as the Court directs.

Clause 164 - Time limits on giving of testimony

635.            Clause 164 provides that the FCFC (Division 2) would be able to limit the time for the giving of testimony. It replicates section 62 of the Federal Circuit Court Act.

636.            Subclause 164(1) provides that the FCFC (Division 2) or a Judge may give directions about limiting the time for the giving of testimony in proceedings. It is a matter for the Court to decide whether to limit the time for oral evidence generally, or in a particular case.

637.            Subclause 164(2) provides that the making of directions under subclause 164(1) is subject to the Rules of Court.

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

638.            Clause 165 provides that the FCFC (Division 2) may put a question to a witness. This clause replicates section 63 of the Federal Circuit Court Act.

639.             Paragraph 165(1)(a) provides that the FCFC (Division 2) would be able to put a question to a person giving testimony in proceedings if the question is likely to assist in the resolution of a matter in dispute or the expeditious and efficient conduct of the proceeding.

640.            Paragraph 165(1)(b) provides that the FCFC (Division 2), in putting a question to a witness in accordance with paragraph 165(1)(a), would be able to require the witness to answer the question.

641.            Subclause 165(2) provides that this clause is subject to the Rules of Court.

642.            Subclause 165(3) provides that clause 165 has effect in addition to, and not instead of, any other powers that the FCFC (Division 2) may have to ask questions.

643.            It is expected that clause 165 could be used by the FCFC (Division 2) where a matter is being conducted by an unrepresented litigant, so that the litigant is not denied the opportunity to present a proper case by reason of his or her inexperience with court practice and procedures.  Although this clause gives a wide discretion to Judges of the Court, it must be exercised in accordance with the proper discharge of judicial power. 

Clause 166 - Evidence may be given orally or by affidavit

644.             Clause 166 provides that evidence may be given orally or by affidavit. This clause replicates section 64 of the Federal Circuit Court Act.

645.            Subclause 166(1) provides that testimony is to be given orally or by affidavit in proceedings in the FCFC (Division 2).

646.            Subclause 166(2) provides that the FCFC (Division 2) or a Judge may direct that particular evidence is to be given orally or by affidavit.

647.            Subclause 166(3) provides that subclauses 166(1) and (2) are subject to any other provision in this Chapter, the Rules of Court and any other law of the Commonwealth.

648.            Subclause 166(4) provides that, if evidence is provided by affidavit in proceedings in the FCFC (Division 2), the other party may request the person to appear as a witness to be cross-examined with respect to the matters in the affidavit. This is intended to ensure that parties’ rights to challenge such evidence are maintained.

649.            Subclause 166(5) provides that subclause 166(4) is subject to the Rules of Court.

650.            Subclause 166(6) provides that, if the person who made the affidavit does not appear as a witness to be cross-examined on the content of the affidavit, the FCFC (Division 2) may give the matters in the affidavit such weight as the Court thinks fit.

Clause 167 - Offences by witness

651.            Clause 167 provides for certain offences in relation to witnesses who fail to comply with the requirements of the FCFC (Division 2). This clause replicates section 65 of the Federal Circuit Court Act.

652.            If a person has been duly served with a subpoena or summons to appear as a witness, subclause 167(1) provides that the person commits an offence if they fail to attend as required or fail to appear and report from day to day (unless excused or released from attendance by the Court). The penalty for non-compliance is imprisonment for six months.

653.            Subclause 167(2) provides that a person commits an offence if, while appearing as a witness before the FCFC (Division 2), the person refuses or fails to:

·        be sworn or make an affirmation

·        answer a question the person is required by the Court to answer, or

·        produce a document that the person is required to produce.

654.            The penalty for non-compliance under subclause 167(2) is imprisonment for six months.

655.            Subclause 167(3) provides that this clause does not limit the power of the FCFC (Division 2) to punish persons for contempt of the Court. However, a person must not be punished under this clause and for contempt of the Court in respect of the same act or omission. The note to this subclause directs the reader to Division 13A of Part VII, and Parts XIII and XIIIA, of the Family Law Act in relation to family law or child support proceedings.

656.            Subclause 167(4) provides that Chapter 2 of the Criminal Code applies to offences under this clause. As the note to this subclause clarifies, Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Division 6—Use of video links or audio links

657.            Division 6 facilitates the use of video and audio technology for the taking of submissions and evidence.  It is common for parties to live in, or have their place of business in, different towns, states or even countries.  Use of video links will avoid parties having to travel long distances to attend directions hearings or final hearings of their cases.  This will save individuals significant time and money. This division applies to the giving of testimony, appearances and making submissions by video or audio link. Similar provisions are made in Division 2 of Part XI of the Family Law Act 1975 for application to the FCFC (Division 1) in family law proceedings.

Clause 168 - Testimony by video link or audio link

658.            Clause 168 relates to the taking of testimony by video link or audio link. This clause replicates section 66 of the Federal Circuit Court Act.

659.            Subclause 168(1) provides that the FCFC (Division 2) or a Judge would be able to direct or allow testimony to be given by video or audio link for the purposes of any proceeding. ‘Video link’ is defined in clause 7 to mean ‘facilities (for example, closed-circuit television facilities) that enable audio and visual communication between persons in different places’. ‘Audio link’ is similarly defined in clause 7 to mean ‘facilities (for example, telephone facilities) that enable audio communication between persons in different places’.

660.            Subclause 168(2) provides that any testimony must be given on oath or affidavit unless the person is in a foreign country in which the law does not permit or makes it inconvenient for the person to give an oath or affirmation, and the FCFC (Division 2) considers that it is appropriate for testimony to be given otherwise than on oath or affirmation. This exception to giving testimony on oath or affirmation exists because in some countries it is not permissible for an oath or affirmation to be administered to a witness taking part in a foreign proceeding. 

661.            Subclause 168(3) provides that, if testimony is not given on oath or affirmation, the FCFC (Division 2) or Judge would be able to give the testimony such weight as it thinks fit.

662.            Subclause 168(4) provides that the FCFC (Division 2) or a Judge would be able to direct testimony to be given by video or audio link either on the application of a party to proceedings or on the initiative of the Court or the Judge.

663.            The court may direct the giving of testimony from any place within or outside Australia under clause 168. However, subclause 168(5) provides that this clause does not apply if the person giving testimony is in New Zealand. The Trans-Tasman Proceedings Act 2010 provides arrangements for obtaining evidence for proceedings in Australia or New Zealand from witnesses in the other country, including arrangements for the use of video or audio links. 

Clause 169 - Appearance of persons by video link or audio link

664.            Clause 169 relates to the appearance of persons by video link or audio link. This clause replicates section 67 of the Federal Circuit Court Act.

665.            Subclause 169(1) provides that the FCFC (Division 2) or a Judge would be able to direct or allow a person to appear before the Court by video or audio link. The note to subclause 169(1) directs the reader to clause 171, which provides that clause 169 is subject to the conditions for use of video and audio links.

666.            Subclause 169(2) provides that the power conferred on the FCFC (Division 2) or a Judge under subclause 144(1) may be exercised on the application of a party or on the initiative of the Court or Judge.

667.            Subclause 169(3) provides that this clause applies regardless of whether the person making a submission is in or outside Australia. However, it does not apply if the person making the submission is in New Zealand. The Trans-Tasman Proceedings Act 2010 (Cth) applies if the person is in New Zealand. The note to subclause 169(3) directs the reader to Part 6 of that Act.

Clause 170 - Making of submissions by video link or audio link

668.            Clause 170 relates to the making of submissions by video link or audio link. It replicates section 68 of the Federal Circuit Court Act.

669.            Subclause 170(1) provides that the FCFC (Division 2) or a Judge may direct or allow a person to make submissions to the FCFC (Division 2) by video or audio link. Clause 170 is subject to the conditions for use of video and audio links set out in clause 171.

670.            Subclause 170(2) provides that the power conferred on the FCFC (Division 2) or a Judge under subclause 170(1) may be exercised on the application of a party, or on the initiative of the Court or Judge.

671.            Subclause 170(3) provides that this clause applies regardless of whether the person making a submission is in or outside Australia. It does not apply if the person making the submission is in New Zealand. The Trans-Tasman Proceedings Act 2010 (Cth) applies if the person is in New Zealand. The note to subclause 170(3) directs the reader to Part 6 of that Act.

Clause 171 - Conditions for use of video links and audio links

672.            Clause 171 sets out the technical requirements for the use of video and audio links in proceedings in the FCFC (Division 2). It provides that the Court or a Judge must not direct or allow the use of video or audio links unless the technical requirements specified are satisfied. This clause replicates section 69 of the Federal Circuit Court Act.

673.            Subclause 171(1) sets out the requirements for video links, providing that the Court or a Judge must not exercise the power conferred by subclauses 168(1), 169(1) or 170(1) for use of a video link unless satisfied that the conditions are met.  The conditions are that the courtroom (or other place where the Court is sitting) and the remote location are equipped with facilities that enable:

·         all eligible persons in the courtroom (or other place) to see and hear the person who is giving testimony, appearing, or making the submission

·        all eligible persons at the remote location to see and hear persons present in the courtroom (or other place). 

674.            Paragraphs 171(1)(c) and (d) allow for other conditions as prescribed by the Rules of Court and as imposed by the Court or Judge.

675.            Subclause 171(2) outlines the conditions that may be prescribed by Rules of Court in accordance with paragraph 171(1)(c).

676.            Subclause 171(3) sets out the conditions for audio links, providing that the Court or a Judge must not exercise the power conferred by subclauses 168(1), 169(1) or 170(1) unless satisfied that the conditions are met.  The conditions are that the courtroom (or other place where the Court is sitting) and the remote location are equipped with facilities that enable:

·        all eligible persons at the courtroom (or other place) to hear the person who is giving testimony, appearing or making the submission

·        all eligible persons at the remote location to hear persons present at the courtroom (or other place). 

677.            Subclauses 171(3)(c) and (d) allow for other conditions to be prescribed by the Rules of Court and imposed by the Court or Judge.

678.            Subclause 171(4) sets out the conditions that may be prescribed by the Rules of Court for audio links.

679.            Subclause 171(5) defines ‘eligible persons’ for the purposes of the application of this clause to proceedings in the FCFC (Division 2). Eligible persons would be such persons as the FCFC (Division 2) or a Judge considers should be treated as eligible persons for the purposes of the proceeding.

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

680.            Clause 172 provides for powers of the FCFC (Division 2) or a Judge to make orders for the putting of documents to a person in the course of an examination or appearance by video or audio link. This clause replicates section 70 of the Federal Circuit Court Act.

681.            Clause 172 provides that the FCFC (Division 2) or a Judge would be able to direct or allow a document to be put to the person by causing a copy of the document to be transmitted to the court or to the remote location as appropriate. This clause is necessary because, in general, a person cannot be questioned about a document unless the person is given a copy of the document.  The process of giving a copy of the document to the person to be questioned is called putting a document to the person. 

Clause 173 - Administration of oaths and affirmations

682.            Clause 173 relates to the administration of oaths and affirmations in proceedings in the FCFC (Division 2) that involve testimony by video link or audio link. It replicates section 71 of the Federal Circuit Court Act.

683.            Subclause 173(a) provides that, when evidence is to be given by video or audio link, an oath or affirmation may be administered to a person by means of the video or audio link in a way that corresponds to the way in which it would be administered if given in the courtroom (or other place where the Court is sitting).

684.            Subclause 173(b) provides that the FCFC (Division 2) or a Judge would be able to allow another person (who is present at the place where the person giving evidence is located) to administer the oath or affirmation.

Clause 174 - Expenses

685.            Clause 174 provides for the payment of expenses incurred in the use of video or audio links.  Generally, the person who wishes to give evidence, appear or make a submission by video or audio link would be responsible for having all the necessary arrangements made and for meeting the costs. Clause 174 replicates section 72 of the Federal Circuit Court Act.

686.            Subclause 174(1) provides that the FCFC (Division 2) or a Judge would be able to make such orders as the Court or Judge thinks just for the payment of expenses incurred in connection with the giving of testimony, or appearance or making of submissions by video link or audio link. Subclause 174(2) provides that subclause 174(1) would have effect subject to the regulations.

Clause 175 - New Zealand proceedings

687.            Clause 175 provides that this Division of the Bill does not affect the operation of the Trans-Tasman Proceedings Act 2010 .  The Trans-Tasman Proceedings Act 2010 provides arrangements for obtaining evidence for proceedings in Australia or New Zealand from witnesses in the other country. This clause replicates section 73 of the Federal Circuit Court Act.

Division 7—Orders and judgments

Clause 176 - Orders

688.            Clause 176 provides that an order of the FCFC (Division 2) must be in writing, or be reduced to writing as soon as practicable. An order of the FCFC (Division 2) may be authenticated as provided for by the Rules of Court. This clause replicates section 74 of the Federal Circuit Court Act.

Clause 177 - Reserved judgments etc.

689.            Clause 177 provides for the publication of orders and reasons where a judgment is reserved in proceedings. Orders or reasons prepared by the Judge who heard the proceeding may be made public by another Judge on behalf of the Judge who heard the proceeding, or as otherwise as provided by the Rules of Court. This is intended to ensure that there is no delay in delivering orders or reasons if a Judge who heard the proceeding is unavailable to deliver orders and reasons that have been prepared. This clause replicates section 75 of the Federal Circuit Court Act.  

Clause 178 - Interest up to judgment

690.            Clause 178 provides that, in proceedings for the recovery of money (including a debt, damages, or the value of goods), the FCFC (Division 2) would be able to either award interest or a lump sum in lieu of interest. This clause replicates section 76 of the Federal Circuit Court Act.

691.            Subclause 178(1) provides that this clause would not apply to family law or child support proceedings.  The payment of interest on moneys ordered to be paid in those proceedings is provided for by section 117B of the Family Law Act.

692.            Subclause 178(2) provides that a party to proceedings would be able to apply to the FCFC (Division 2) or a Judge for an interest order under subclause 178(3) if the proceedings are in the FCFC (Division 2) and for the recovery of any money in respect of a particular cause of action.

693.            Subclause 178(3) provides that, if an application is made under subclause 178(2), and the FCFC (Division 2) is not satisfied that good cause has been shown for not making an interest order, then the FCFC (Division 2) must either:

·        order that interest be included in the sum for which the judgment is given, calculated at the rate the Court thinks fit on either the whole or part of the money for either the whole or part of the period between the date on which the cause of action arose and the date on which judgment is entered, or

·        without calculating interest, order a lump sum be included in the sum for which the judgment is given in lieu of such interest.

694.            Subclause 178(4) provides that subclause 178(3) would not:

·         authorise the giving of interest upon interest

·        apply to any debt upon which interest is payable as of right

·        affect the damages recoverable for the dishonour of a bill of exchange

·        limit the operation of any enactment or rule of law which provides for the award of interest, or

·        authorise the giving of interest otherwise than by consent upon any sum for which judgment is given by consent.

695.            Subclause 178(5) provides that interest would not be available on any such amount of the sum for which judgment is given which is for compensation for future loss or damage, or which is for exemplary or punitive damages.

Clause 179 - Interest on judgment

696.            Clause 179 provides for the interest on a judgment debt. It replicates section 77 of the Federal Circuit Court Act.

697.            Subclause 179(1) provides that this clause would not apply to family law or child support proceedings.  The payment of interest on moneys ordered to be paid in those proceedings is provided for by section 117B of the Family Law Act .

698.            Subclause 179(2) provides that a judgment debt carries interest from the date on which the judgment is entered.

699.            Subclause 179(3) provides that the rate of interest is payable at a rate fixed by the Rules of Court, or at a lower rate in a particular case if the FCFC (Division 2) thinks that justice so requires. 

Clause 180 - Enforcement of judgment

700.            Clause 180 provides that, subject to the Rules of Court, a person in whose favour a judgment of the FCFC (Division 2) is given is entitled to the same remedies for enforcing judgments as are allowed in like cases in the State and Territory Supreme Courts. This clause replicates section 78 of the Federal Circuit Court Act.

701.            Subclause 180(1) provides that this clause does not apply to family law or child support proceedings. The note to this subclause directs the reader to Division 13A of Part VII, and Parts XIII and XIIIA, of the Family Law Act in relation to family law or child support proceedings.

Division 8—Costs

Clause 181 - Costs

702.            Clause 181 provides that the FCFC (Division 2) would have jurisdiction to award costs in all proceedings unless another Act provides that costs must not be awarded. This clause replicates section 79 of the Federal Circuit Court Act.

703.            Subclause 181(3) provides that the award of costs would be in the discretion of the FCFC (Division 2) or Judge unless otherwise provided by the Rules of Court or any other Act. The note to this subclause also directs the reader to Division 4 of Part 6 and paragraphs 159(4)(d) and (e).

704.            Subclause 181(1) provides that this clause would not apply to family law or child support proceedings, or proceedings in relation to a matter arising under the Fair Work Act 2009, or section 14, 15 or 16 of the Public Interest Disclosure Act 2013. The note to this subclause directs the reader: to section 117 of the Family Law Act in relation to family law or child support proceedings; to section 570 of the Fair Work Act 2009 for proceedings in relation to matters arising under that Act; and to 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.

Clause 182 - Security for costs

705.            Clause 182 provides that the FCFC (Division 2) would be able to order that an applicant in a proceeding give security for the payment of costs that may be awarded against the applicant. This clause replicates section 80 of the Federal Circuit Court Act.  

706.            The amount of the security, and its manner, form and timing is to be determined by the FCFC (Division 2) or Judge.  Subclause 157(5) provides that if the security is not provided then the proceedings may be dismissed or stayed until the security is provided. 

707.            Clause 182(1) provides that this clause would not apply to family law or child support proceedings. The note to this subclause directs the reader to section 117 of the Family Law Act in relation to family law or child support proceedings.

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

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

708.            Clause 183 provides that the Chief Judge must work cooperatively with the Chief Justice with the aim of ensuring common rules of court and forms, and common practices and procedures. This clause is intended to strengthen the goal of ensuring the efficient resolution of family law or child support proceedings which underpins this structural reform of the federal courts. To that end, clause 183 also facilitates the objects of the Bill provided for in clause 5. 

Division 10—Rules of Court

Clause 184 - Rules of Court

709.            Clause 184 provides that the Chief Judge may make Rules of Court:

·        providing for the practice and procedure to be followed in the FCFC (Division 2), including in Registries of the Court

·        providing for all matters and things incidental to the practice and procedure in the FCFC (Division 2)

·        providing for the time and manner of institution of appeals in and to the FCFC (Division 2)

·        prescribing penalties (not exceeding 50 penalty units) for offences against the Rules of Court

·        prescribing matters as required or permitted by (i) this Chapter of the Bill, or (ii) any other law of the Commonwealth.

710.            Providing that Rules of Court can be made by the Chief Judge is intended, in circumstances where the Chief Judge is also the Chief Justice of the FCFC (Division 1), to enable consistency between the Rules of Court that apply in the FCFC (Division 1) and FCFC (Division 2).

711.            Subclause 184(2) provides that the Rules of Court would have effect subject to any provision made in another Act, or by rules and regulations under another Act, with respect to the practice and procedure of the FCFC (Division 2) in particular matters.

712.            Subclause 184(3) provides that the Legislation Act 2003 would apply in relation to Rules of Court made by the Chief Judge (i) as if a reference to a legislative instrument were a reference to a rule of court, and (ii) subject to modifications made under clause 249 of this Bill.

713.            Subclause 184(4) provides that the Office of Parliamentary Counsel may provide assistance in the drafting of any of the Rules of Court, if the Chief Judge so desires.

Clause 185 - Documents

714.            Clause 185 provides that the Rules of Court may make provision in relation to:

·        pleading

·        appearance under protest

·        interrogatories

·        discovery, production and inspection of documents

·        the making of applications for dissolution of marriage jointly by both parties to the marriage, and

·        the forms to be used for the purposes of proceedings in the FCFC (Division 2).

715.            Clause 185(2) provides that the Rules of Court may make provision for the amendment of, or 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 that would have been barred by the expiry of a period of limitation at the time of the amendment.

716.            This clause replicates section 82 of the Federal Circuit Court Act.

Clause 186 - Service

717.            Clause 186 provides that the Rules of Court may make provision in relation to the service and execution of the process of the FCFC (Division 2). This clause replicates section 83 of the Federal Circuit Court Act.

Clause 187 - Evidence

718.            Clause 187 provides that the Rules of Court may make provision in relation to:

·        subpoenas

·        summonses

·        the attendance of witnesses

·        the administration of oaths and affirmations

·        the means by which particular facts may be proved and the mode in which evidence of particular facts may be given

·        the reception from New Zealand of copies of documents sent by fax

·        the reception from New Zealand of evidence or submissions by video link or audio link

·        issuing subpoenas for service in New Zealand and the service of such subpoenas, and

·        the form to accompany a subpoena for service in New Zealand.

719.            This clause replicates section 84 of the Federal Circuit Court Act.

Clause 188 - Orders and judgments

720.            Clause 188 provides that the Rules of Court may make provision in relation to: 

·        the enforcement and execution of judgments of the FCFC (Division 2)

·        the stay of proceedings in the FCFC (Division 2), or another court, or tribunals

·        the procedure of the FCFC (Division 2) exercising powers to deal with a person for contempt of the Court, and

·        the form in which the FCFC (Division 2) is to give reasons for decisions.

721.            This clause replicates section 85 of the Federal Circuit Court Act.

Clause 189 - Costs

722.            Clause 189 provides that the Rules of Court may make provision in relation to:

·        the giving of security

·        the costs of proceedings in the FCFC (Division 2)

·        the fees to be charged by practitioners in the FCFC (Division 2) for the work done by them in relation to proceedings in the Court and the taxation of their bills of costs, and

·        the kinds of proceedings in which each party is to bear the party’s own costs.

723.            This clause replicates section 86 of the Federal Circuit Court Act.

Clause 190 - General

724.            Clause 190 provides that the Rules of Court may make provision in relation to a number of general matters. This clause replicates the effect of section 87 of the Federal Circuit Court Act.

725.            In addition to the list of general matters replicated from section 87 of the Federal Circuit Court Act, subclause 190(1) provides that the Rules of Court would be able to make provision in relation to:

·        the power to order a party’s lawyer to give the party an estimate of the likely duration of the proceedings and the likely amount of costs the party will have to pay in connection with the proceeding (subclause 158(3))

·        the power to give directions about the practice and procedure to be followed in a civil proceeding before the Court (subclause 159(1)), and

·        the power to make any order or direction the Court or Judge thinks appropriate if 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 (subclause 159(3)).

Clause 191 - Incidental matters

726.            Clause 191 provides that the Rules of Court would be able to prescribe matters incidental to the matters that are required or permitted to be prescribed by the Rules of Court under any provision of this Chapter of the Bill or under any other law of the Commonwealth. This clause replicates section 88 of the Federal Circuit Court Act. 

PART 7—SUPPRESSION AND NON-PUBLICATION ORDERS

Division 1—Introduction

Clause 192 - Powers of Federal Circuit and Family Court of Australia (Division 2) not affected

727.            Clause 192 provides that Part 7 of the Bill would not limit or otherwise affect any powers that the FCFC (Division 2) would have (apart from this Part) to regulate its proceedings or deal with a contempt of the Court. This includes the Court’s implied powers. This clause replicates section 88B of the Federal Circuit Court Act.

Clause 193 - Other laws not affected

728.            Clause 193 provides that Part 7 would not limit or affect the operation of any provision made in another Act that prohibits, restricts or authorises a court to prohibit or restrict the publication or other disclosure of information in connection with proceedings. This means that any such restrictions in other Acts would continue to operate. The provisions in this Part of the Bill are intended to govern the granting of suppression and non-publication orders under this Bill. Clause 193 replicates section 88C of the Federal Circuit Court Act.

Clause 194 - This Part does not apply to proceedings under the Family Law Act 1975

729.            Clause 194 provides that Part 7 of this Bill applies to proceedings in the FCFC (Division 2) but not if they are proceedings under the Family Law Act . The note to this clause clarifies that Part XIA of the Family Law Act deals with suppression and non-publication orders in proceedings under that Act. This clause replicates section 88D of the Federal Circuit Court Act.

Division 2—Suppression and non-publication orders

Clause 195 - Safeguarding public interest in open justice

730.            Clause 195 provides that the FCFC (Division 2) must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice when deciding whether to make a suppression order or non-publication order. This emphasises the fundamental importance of the principle of open justice which should not be overridden lightly. This clause replicates section 88E of the Federal Circuit Court Act.

Clause 196- Power to make orders

731.            Clause 196 provides that the FCFC (Division 2) would have the power to make suppression and non-publication orders. Such orders would bind all members of the public, not just those present at the proceedings. This clause replicates section 88F of the Federal Circuit Court Act.

732.            Subclause 196(1) specifies the information which could be the subject of a suppression or non-publication order.  That information includes information tending to reveal the identity of, or otherwise concerning, a party or witness (or anybody related to or otherwise associated with that person).  The Court would also be able to make such an order in relation to evidence or information about evidence, information obtained through discovery, information produced under a subpoena or information lodged with or filed in the Court.

733.            This clause would provide the FCFC (Division 2) with flexibility to determine exactly what information should be subject to an order, and to what extent access to that information should be limited.  

734.            Subclause 196(2) provides that the FCFC (Division 2) would be able to make such orders as it thinks appropriate to give effect to an order under subclause 196(1).  This subclause would, for example, give the Court the clear power to make a ‘take down’ order.  This is an order directing a publisher to remove certain information the subject of the suppression or non-publication order, and could, for example, be directed to website publishers or individuals who had posted certain content on the internet.  

Clause 197 - Grounds for making an order

735.            Clause 197 provides that the FCFC (Division 2) would only be able to make suppression or non-publication orders if one or more of the grounds set out in this clause is satisfied. These grounds are that:

·        the order is necessary to prevent prejudice to the proper administration of justice

·        the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security

·        the order is necessary to protect the safety of any person

·        the order is necessary to avoid causing undue distress or embarrassment to a party or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency).

736.            The various grounds that can found a suppression or non-publication order under clause 197 all include the condition that such an order must be ‘necessary’, and should be read in light of the current jurisprudence about what that means in the context of such orders being made.  This reinforces again that such orders cannot be made lightly, bearing in mind the interest in open justice (as recognised by clause 195). This clause replicates section 88G of the Federal Circuit Court Act.

Clause 198 - Procedure for making an order

737.            Clause 198 would establish the procedure for the FCFC (Division 2) to make suppression or non-publication orders. This clause replicates section 88H of the Federal Circuit Court Act.

738.            Subclause 198(1) provides that the FCFC (Division 2) would be able to make such an order on its own initiative, or on the application of either a party to the proceeding or any other person whom the Court considers has a sufficient interest in the making of the order.

739.            Subclause 198(2) lists the people who would be entitled to appear and be heard when an application for such an order is being considered by the Court: the applicant for the order, a party to the proceeding, the Government (or agency of the Government) of the Commonwealth or a State or Territory, a news publisher, or any other person who the Court considers has a sufficient interest in whether the order should be made.

740.            Subclause 198(3) allows such orders to be made at any time during proceedings or after proceedings have concluded.  This clause recognises that circumstances might change during or after proceedings that might warrant a suppression or non-publication order being made at that time.

741.            Subclause 198(4) allows the FCFC (Division 2) to make a suppression or non-publication order subject to such exceptions and conditions as the Court thinks fit, and to provide such specifications in the order. This encourages the Court to carefully consider the breadth of the order, and only make the order as wide as it needs to be in the circumstances. It also requires the Court to fully set out these terms in the order.

742.            Subclause 198(5) requires the FCFC (Division 2) to specify the information to which the order applies with sufficient particularity to ensure that the order is limited to achieving the purpose for which the order is made.  This clause requires the Court to limit the breadth of the order, covering only what is required to achieve its purpose, bearing in mind the principle of open justice.

Clause 199 - Interim orders

743.            Subclause 199(1) provides that the FCFC (Division 2) would be able to make an interim suppression or non-publication order without requiring the Court to assess the merits of the substantive application, pending the substantive application being heard.

744.            Once an interim order has been made, subclause 199(2) requires the FCFC (Division 2) to determine the application as a matter of urgency.

745.            This section is intended to allow the Court to make an order for an interim period in urgent cases until the Court has had an opportunity to assess the merits of the substantive application.  It is not intended that interim orders remain in place for long periods of time.

746.            This clause replicates section 88J of the Federal Circuit Court Act.

Clause 200 - Duration of orders

747.            Clause 200 is intended to ensure that the FCFC (Division 2) considers, and clearly specifies, how long it is appropriate for orders to stay in force, so that orders are not made for durations longer than necessary to achieve their purpose.  This is intended to reinforce the principle that suppression and non-publication orders should only be as broad-reaching as is necessary to achieve their aim, consistent with the principles of open justice.

748.            Subclause 200(1) provides that a suppression or non-publication order made by FCFC (Division 2) operates for the period decided by the Court and specified in the order.

749.            Subclause 200(2) provides that the FCFC (Division 2) is to ensure that an order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.

750.            Subclause 200(3) allows the duration of the order to be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event.

751.            This clause replicates section 88K of the Federal Circuit Court Act.

Clause 201 - Exception for court officials

752.            Clause 201 provides that a suppression order does not prevent a person from disclosing information provided that the disclosure is not by publication and is in the course of performing functions or duties or exercising powers in a public official capacity. It must be either in connection with the conduct of proceedings or the recovery or enforcement of any penalty imposed in proceedings, or in compliance with any procedure adopted by the Court for informing a news publisher of the existence and content of a suppression order or non-publication order made by the Court.

145.                This provision ensures that Court officials can undertake certain specified duties without infringing a suppression or non-publication order.  In particular, Court officials must be able to notify news publishers that suppression or non-publication orders have been made so that news publishers can avoid breaching such orders.

753.            This clause replicates section 88L of the Federal Circuit Court Act.

Clause 202 - Contravention of order

754.            Subclause 202(1) provides that a person would commit an offence if a person does an act or omits to do an act that contravenes a suppression or non-publication order made under clause 196. The penalty prescribed for this offence is imprisonment for 12 months, 60 penalty units, or both.

755.            If a person’s act or omission constitutes an offence under clause 176, subclauses 202(2)-(4) provide that that person can either be punished for committing an offence under subclause 202(1) or for contempt of court, but not for both.

756.            This clause replicates section 88M of the Federal Circuit Court Act.

PART 8—VEXATIOUS PROCEEDINGS

757.            Provisions relating to vexatious proceedings are made in Part XIB of the Family Law Act 1975 for the FCFC (Division 1). The provisions relating to vexatious proceedings in that Act and in this Part are consistent.

Division 1—Introduction

Clause 203 - Meaning of a person acting in concert

758.            Clause 203 provides that, for the purposes of this Part of the Bill, ‘a person acting in concert’ with another person in instituting or conducting proceedings would not include a person acting as a legal practitioner or representative of the person. The term ‘representative’ may include, for example, the representatives of persons under a disability, deceased persons or children.

Clause 204 - Powers of the Federal Circuit and Family Court of Australia (Division 2) not affected

759.            Clause 204 clarifies that Part 8 does not limit or otherwise affect any other powers (including implied powers) that the FCFC (Division 2) has apart from that Part to deal with vexatious proceedings. This clause replicates section 88P of the Federal Circuit Court Act.

Division 2—Vexatious proceedings orders

Clause 205 - Making vexatious proceedings orders

760.            Clause 205 provides that the FCFC (Division 2) would be able to make an order to manage litigants who institute or conduct vexatious proceedings, as defined in clause 7 of the Bill. This clause replicates section 88Q of the Federal Circuit Court Act.

761.            Clause 7 provides a definition of ‘vexatious proceeding’ that is inclusive. It lists some examples of various kinds of proceedings including:

·        a proceeding that is an abuse of the process of a court or tribunal

·        a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose

·        a proceeding instituted or pursued in a court or tribunal without reasonable ground, and

·        a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

762.            Subclause 205(1) establishes the threshold which needs to be met before a ‘vexatious proceedings order’ (an order made under subclause 205(2)) can be made.  It will require the Court to be satisfied either that:

·        a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals (paragraph 205(1)(a)), or

·        a person, acting in concert with another person, has instituted or conducted a vexatious proceeding in any Australian court or tribunal (paragraph 205(1)(b)).

763.            The basic threshold that needs to be met under paragraph  205 (1)(a) is that a person has instituted or conducted vexatious proceedings in Australian courts and tribunals ‘frequently’.

764.            Where it is claimed that a person has been ‘acting in concert’ with another, the Court will also have to be satisfied that the second person was subject to a vexatious proceedings order or had frequently instituted or conducted vexatious proceedings in Australian courts or tribunals.  This is designed to ensure that a person who is already subject to a vexatious proceedings order or at risk of such an order could not avoid its consequences by arranging for another person to initiate proceedings instead. 

765.            Subclause 205 (1) expressly allows the Court to take into account vexatious proceedings instituted or conducted by a person in any other Australian court or tribunal, as well as in the FCFC, so that a person need not have a history of vexatious proceedings just in the FCFC before the Court can consider making a vexatious proceedings order against them. 

766.            Drawing from the explanatory memorandum to the Access to Justice (Federal Jurisdiction) Amendment Bill 2011 , one of the purposes of this clause is to minimise the possibility of a person unsuccessfully pursuing vexatious proceedings in one court, and then trying again with similar vexatious proceedings in another court.

767.            Subclause 205(2) provides that the FCFC (Division 2) would be able to make any or all of the following kinds of orders (defined in clause 6 as a vexatious proceedings order):

·        an order staying or dismissing all or part of any proceedings in the Court already instituted by the person (paragraph 205(2)(a));

·        an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court (paragraph 205(2)(b));

·        any other order that the Court considers appropriate in relation to the person (paragraph 205(2)(c)).

768.            Subclause 205(2) provides the Court with a broad discretion to make orders tailored to fit the circumstances of the particular person or proceedings.  Orders can range from preventing any proceedings being instituted in the Court by that person at all, to a narrower order preventing that person from bringing certain kinds of proceedings (see definition of proceedings of a particular type in clause 7), or just dismissing particular proceedings instituted by that person.  Paragraph 205(2)(c) also makes it clear that the Court can choose not to dismiss vexatious proceedings brought by a person, but deal with that person in another way.  Some examples of what this might be are set out in the note to subclause 205(2).  Furthermore, the Court can choose to deal with vexatious proceedings under its other general practice and procedure and case management powers (made clear by clause 178), for example, by striking out pleadings or ordering that a document be amended by a certain time.

769.            Subclause 205(3) provides that subclause 205(2) applies in relation to proceedings in the FCFC (Division 2) other than proceedings under the Family Law Act. The note to subclause 205(3) clarifies that Part XIB of the Family Law Act deals with vexatious proceedings under that Act.

Subclause 205(4) provides that the Court would be able to make a vexatious proceedings order on its own initiative or on the application of either:

·        the Attorney-General of the Commonwealth or of a State or Territory

·        the Chief Executive Officer

·        a person against whom another person has instituted or conducted vexatious proceedings, or

·        a person who has sufficient interest in the matter

770.            Subclause 205(5) provides that the FCFC (Division 2) must not make a vexatious proceedings order in relation to a person without giving that person a hearing or the opportunity to be heard.  This provision ensures that procedural fairness will be accorded to persons who may be subject to a vexatious proceedings order, given the potentially serious consequences of such orders.

771.            Subclause 205(6) provides that an order under paragraph 205(2)(a) or (b) is a final order (as opposed to an interlocutory or interim order).

772.            Subclause 205(7) provides a list of factors to which the FCFC (Division 2) would be able to have regard in making a determination under subclause 205(1).

Clause 206 - Notification of vexatious proceedings orders

773.            Subclause 206(1) provides that a person would be able to request a certificate from the Chief Executive Officer stating whether a person named in the request is or has been the subject of a vexatious proceedings order. This clause enables members of the public to obtain authoritative information about vexatious proceedings orders.

774.            Subclause 206(2) provides that, if the person named in the request under subclause 206(1) is or has been the subject of a vexatious proceedings order, the Chief Executive Officer must issue the certificate accordingly. The certificate is to specify the date of the order and any other information prescribed by the Rules of Court.  This allows the detail of what information is to be included in the certificate to be prescribed by the Rules of Court.

775.            Subclause 206(3) clarifies that clause 206 is subject to any Commonwealth law or an order of FCFC (Division 2) restricting the publication or disclosure of the name of a party to proceedings in the Court. The note to this subclause directs the reader to section 155 of the Evidence Act 1995 and highlights that a certificate issued under this section stating that a person is subject to a vexatious proceedings order could be adduced as evidence of that fact.

776.            This clause replicates section 88R of the Federal Circuit Court Act.

Division 3—Particular consequences of vexatious proceedings orders

Clause 207 - Proceedings in contravention of vexatious proceedings order

777.            Clause 207 prevents a person who is subject to a vexatious proceedings order made by the FCFC (Division 2) from instituting proceedings prohibited under that order, as well as providing for the consequences of instituting proceedings in contravention of such an order. This clause replicates section 88S of the Federal Circuit Court Act.

778.            Paragraph 207(1)(a) provides that, if a person is subject to a vexatious proceedings order preventing the person from instituting proceedings in the Court, the person can only institute proceedings (or proceedings of the type the subject of the order) in the Court if the Court gives leave to do so under clause 210. 

779.            Similarly, paragraph 207 (1)(b) provides that, if another person is acting in concert with a person the subject of a vexatious proceedings order, that first person can only institute proceedings (or proceedings of the kind the subject to the order) in the Court if the Court gives leave to do so under clause 210.

780.            Subclause 207(2) provides that, if a proceeding is instituted in contravention of subclause 205(1) (ie. without obtaining the leave of the Court), the proceeding is automatically stayed.

781.            Subclause 207(3) provides that, without limiting subclause 207(2), the FCFC (Division 2) would be able to declare that certain proceedings are proceedings to which subclause 207(2) applies (thereby clarifying that those proceedings are stayed).  Additionally, the FCFC (Division 2) would be able to make any other relevant orders in respect of those stayed proceedings that it considered appropriate, including an order for costs.

782.            Subclause 207(4) provides that the FCFC (Division 2) would be able to make an order under subclause 207(3) on its own initiative, or on the application of:

·        the Attorney-General of the Commonwealth or of a State or Territory

·        the Chief Executive Officer

·        a person against whom another person has instituted or conducted vexatious proceedings, or

·        a person who has sufficient interest in the matter.

783.            This list mirrors the list of those people who have standing to apply for a vexatious proceedings order under subclause 205(4).  As such, those persons who have standing to make an application for a vexatious proceedings order will also have standing to make an application if such an order were breached.

Clause 208 - Application for leave to institute proceedings

784.            Clause 208 deals with the process by which a person who is subject to a vexatious proceedings order prohibiting that person from instituting proceedings (or proceedings of a particular type) may seek leave to institute new proceedings notwithstanding the existence of that order. This clause replicates section 88T of the Federal Circuit Court Act.

785.            Subclause 208(1) provides that this clause applies to a person (the applicant) who is subject to a vexatious proceedings order prohibiting the person from instituting proceedings (or proceedings of a particular type) in the FCFC (Division 2). It also applies to a person who is acting in concert with such a person.

786.            Subclause 208(2) provides that the applicant, which includes a person acting in concert with another person subject to a vexatious proceedings order, would be able to apply for leave to institute a proceeding that is subject to a vexatious proceedings order.

787.            Subclause 208(3) provides that an applicant must file an affidavit with the application under subclause  208 (2) which includes the following information: 

·        all the occasions on which the applicant has applied for leave under this clause, and

·        all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this clause, and

·        all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.

788.            This information is designed to ensure that the applicant makes full disclosure of relevant information to assist the Court in reaching a decision as to whether to grant leave to the applicant to institute the proceedings.  Pursuant to its general case management powers, the Court could also request such further evidence or make such other directions as it considered appropriate before reaching its decision (such powers being preserved under clause 204).

789.            Subclause 208(4) provides that the applicant must not serve the application or affidavit on anyone unless the Court makes an order to do so under paragraph 210(1)(a).  This is designed to prevent potential respondents’ time being unnecessarily taken up with possibly vexatious proceedings.

Clause 209 - Dismissing application for leave

790.            Clause 209 establishes how and in what circumstances the FCFC (Division 2) or a Judge can make an order dismissing an application under clause 208 which sought leave to institute a proceeding. This clause replicates section 88U of the Federal Circuit Court Act.

791.            Subclause 209(1) provides that the FCFC (Division 2) or a Judge would be able to make an order dismissing an application for leave to institute a proceeding made under clause 208 if the FCFC (Division 2) or a Judge considered that the affidavit filed by the applicant did not substantially comply with subclause 208(3). This subclause would give the FCFC (Division 2) or a Judge the discretionary power to dismiss the application on such grounds.

792.            Subclause 209(2) compels the FCFC (Division 2) or a Judge to dismiss an application for leave to institute a proceeding made under clause 208 if the FCFC (Division 2) or a Judge considers the proceeding to be vexatious. The definition of ‘vexatious proceeding’ is set out in clause 7, and includes a proceeding that is an abuse of process, proceedings instituted or conducted in a way to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and a proceeding instituted or pursued without reasonable ground.

793.            Subclause 209(3) provides that the FCFC (Division 2) or a Judge may dismiss an application without an oral hearing (either with or without the consent of the applicant). This subclause preserves the Court’s discretion to conduct an oral hearing if it chooses to do so. 

794.            As noted in the explanatory memorandum to the Access to Justice (Federal Jurisdiction) Amendment Bill 2011 , t his clause is intended to provide the Court with an efficient way of dealing with further unmeritorious litigation sought to be brought by persons already subject to vexatious proceedings orders.  The Court would still be able to afford procedural fairness to such persons by providing them with the opportunity to make written submissions.

Clause 210 - Granting application for leave

795.            Clause 210 establishes how and in what circumstances the FCFC (Division 2) would be able to make an order granting an application made under clause 208 for leave to institute proceedings. This clause replicates section 88V of the Federal Circuit Court Act.

796.            Subclause 210(1) provides that the FCFC (Division 2) must, before it makes an order granting an application under clause 208, order that the applicant serve the respondent(s) and such other persons as specified in the order with a copy of the application and affidavit, and a notice that the person is entitled to be heard on the application.  Such persons must be given an opportunity, if they choose to appear, to be heard at the hearing of the application.

797.             Subclause 210(2) provides that the FCFC (Division 2) would be able to receive as evidence any record of evidence given, or affidavit filed, in any proceeding in any Australian court or tribunal in which the applicant is (or was) involved as a party or as a person acting in concert with a party.  This subclause is intended to enable the Court to receive with minimal formality evidence regarding other proceedings in which the applicant has been involved.

798.            Subclause 210(3) provides that the FCFC (Division 2) would be able to grant the application. That order could be made subject to such conditions as the Court considers appropriate.  The order could, for example, grant an applicant the right to institute a proceeding only in relation to a specific matter or against a particular person.

799.            Subclause 210(4) clarifies that the FCFC (Division 2) can only grant leave if it is satisfied that the proceedings are not vexatious.  This reinforces the restriction in subclause 209(2) which requires the Court to dismiss an application for leave if it considers the proceeding to be vexatious.

 

PART 9—MANAGEMENT AND ADMINISTRATION

Division 1—Management responsibilities of the Chief Judge and the Chief Executive Officer

Clause 211 - Management of administrative affairs of the Federal Circuit and Family Court of Australia (Division 2)

800.            Clause 211 outlines the management of administrative affairs of the FCFC (Division 2). Clause 211 would also define corporate services and provide that they are excluded from administrative affairs

801.             Subclause 211(1) provides that the Chief Judge would be responsible for managing the administrative affairs of the FCFC (Division 2). This would appropriately ensure the independence of the FCFC (Division 2) by placing responsibility for the management of the court with the head of jurisdiction.

802.            Subclause 211(2) provides that the administrative affairs of the FCFC (Division 2) do not include the corporate services of the Court. This is consistent with the current arrangement for the federal courts (excluding the High Court) of sharing corporate services. The Chief Executive Officer of the Federal Court would be responsible for providing the corporate services of the FCFC (Division 2) in accordance with section 18Z of the Federal Court Act

803.            Subclause 211(3) provides for the matters that are the corporate services of the FCFC (Division 2):

·        communications, which would include managing information and publications (online and in print), and managing internal and external communications, but exclude media officers, who would remain within the administrative affairs of the courts and report directly to the respective heads of jurisdiction

·        finance, which would include asset management, finance systems administration, accounts receivable, accounts payable, credit card processing, travel management, financial controls, tax management, balance sheet management, internal and external budgeting, and finance governance

·        human resources (HR), which would include workforce planning, recruitment, managing payroll, HR systems administration, HR administration and HR initiatives and project delivery

·        information technology (IT), which would include IT service desk, applications development and support, network support, general IT management, IT security and records management

·        libraries, which would include library services

·        records management, which would include the management of online and paper based records

·        administrative matters relating to judgments, to the extent that such matters do not involve the exercise of judicial power, would include developing the templates for judgments and uploading the judgments to the website

·        procurement and contract management, which would include procurement management, contract management (including the management of external security contracts), and fleet vehicle management

·        property, which would include managing national property and accommodation initiatives, outsourced property contracts, building fit outs, and environmental management

·        risk oversight and management, which would include internal audit and risk management

·        court security, which would include providing for the security of the courts

·        statistics, which would include assisting each court with the collection, extraction, archiving and reporting of court related data, managing collection methodology and quality controls, and providing analysis to support research projects. Each court would continue to own data relevant to its own performance, and to have ultimate responsibility for the analysis and dissemination of such data.

·        Any other matter prescribed by a determination under subclause 211(7).

804.            The meaning of corporate services would now explicitly include records management, administrative matters relating to judgments and court security. The Chief Executive Officer of the Federal Court already takes responsibility for these matters. These updates are therefore intended to clarify the delineation of matters as between administrative affairs and corporate services.

805.            Records management includes the development of record keeping and management policies and practices, management of Records Authorities agreed with the National Archives of Australia, management on behalf of the Courts and the National Native Title Tribunal of digital and physical case and administrative files. It also includes transferring digital and physical files required for retention to the National Archives of Australia, management of records contracts (for example with offsite storage providers) and support for information governance.

806.            Administrative matters relating to judgments, to the extent that such matters do not involve the exercise of judicial power, includes development of judgment templates, style guides, systems and applications, redaction of personal and other identifying information from judgments where appropriate or required at law or by order. It also includes electronic publication of judgments on court websites and intranets, the distribution of all judgments as appropriate to legal publishers, and provision of training in the use of templates and systems.

807.            Court security includes the development of policies, procedures and practices for the security of the courts, judges and other court personnel as well as for court premises. It also includes the development of policies, procedures and practices for emergency and threat management, management of the acquisition, maintenance and replacement of security equipment and apparatus (for example for monitoring appropriate areas of premises, screening of persons, bags and mail on entry, controlling and monitoring access to the premises and parts of premises as appropriate), management of security contracts (for example for guarding), compliance with all external regulatory and similar requirements regarding court security, and security training for judges and court personnel.

808.            Subclause 211(4) provides that, for the purposes of subclause 211(1), the Chief Judge would have the power to do all things that are necessary or convenient to be done, including entering into contracts on behalf of the Commonwealth. Subclause 211(4) recognises the delineation between the management of administrative affairs in subclause 211(1) and the management of those matters defined as corporate services in subclause 211(3), which would be the responsibility of the Chief Executive Officer of the Federal Court.

809.            Subclause 211(5) provides that the powers given to the Chief Judge by subclause 211(4) are in addition to other powers provided by the Act or by any other Act.

810.            Subclause 211(6) provides that the Chief Judge may only enter into contracts on behalf of the Commonwealth for amounts not exceeding $1 million, or a higher amount if prescribed, with the approval of the Minister.

811.            Subclause 211(7) provides that the Minister would be able to, by legislative instrument, determine matters that are the corporate services of the Court. This would provide flexibility for the Minister to determine the inclusion of further matters in the definition of corporate services in the future, should further matters be identified.

812.            Subclause 211(7) includes the following notes for clarification:

·        Note 1 would clarify that new Part IIB of the Federal Court Act contains provisions relating to the corporate services of the courts

·        Note 2 would clarify that the officers and staff of the FCFC (Division 2) are officials of the listed entity for the purposes of the finance law referred to in new section 18ZB of the Federal Court Act, and

·        Note 3 would clarify that the APS employees of the FCFC are part of the statutory agency for the purposes of the Public Service Act referred to in section 18ZE of the Federal Court Act.

Clause 212 - Arrangements with other courts

813.            Clause 212 provides that the Chief Judge of the FCFC (Division 2) would be able to arrange with the chief judicial officer of another court for an officer or officers of that court to perform certain functions on the behalf of the FCFC (Division 2). This clause replicates section 90 of the Federal Circuit Court Act.

814.            Subclause 212(1) sets out the functions that may be performed.

815.            Subclause 212(2) provides that if an arrangement is in place, the officer would be able to perform the function despite any other provision of this Chapter of the Bill or any other Commonwealth law.

816.            Subclause 212(3) provides that a function performed on behalf of the FCFC (Division 2) would have effect as if the function had been performed by the Court.

817.            Subclause 212(4) provides that copies of any arrangements under subclause 212(1) would be available for inspection by the public.

818.            Subclause 212(5) provides that, for the purposes of clause 212, a member of the staff of an Australian court is taken to be an officer of that court.

819.            In circumstances where the FCFC (Division 2) does not have appropriate court facilities or services in a particular location, this clause would enable the FCFC (Division 2) to make arrangements with another court for the provision of services on behalf of the FCFC (Division 2).

Clause 213 - Arrangements with agencies or organisations

820.            Clause 213 provides that the Chief Judge of the FCFC (Division 2) would be able to arrange with the chief executive officer of another agency of the Commonwealth, a State or a Territory, or with another organisation for an employee of that organisation or agency to receive documents or perform non-judicial functions on behalf of the FCFC (Division 2). This clause replicates section 91 of the Federal Circuit Court Act.

821.            Subclause 213(2) provides that, if such an arrangement is in place, the employee would be able to perform the function despite any other provision of this Chapter of the Bill or any other Commonwealth law.

822.            Subclause 213(3) provides that a function performed on behalf of the FCFC (Division 2) would have effect as if the function had been performed by the Court.

823.            Subclause 213(4) provides that copies of any arrangements under subclause 213(1) would be available for inspection by the public.

824.            In circumstances where there are no appropriate court facilities or services in a particular location, this clause would enable the FCFC (Division 2) to make arrangements with another agency or organisation for the provision of services on behalf of the FCFC (Division 2).

Clause 214 - Arrangements for sharing courtrooms and other facilities

825.            Clause 214 provides that the Chief Judge would be able to make arrangements with another Australian court for the FCFC (Division 2) to sit in rooms of the other court and to share registry facilities and other facilities with the other court. This clause replicates section 92 of the Federal Circuit Court Act.

Clause 215 - Advisory committees

826.            Clause 215 enables the FCFC (Division 2) or the Chief Judge to appoint an advisory committee, consisting of Judges, or of Judges and other persons, for a number of purposes.

827.            Subclause 215(1) provides that the FCFC (Division 2) would be able to appoint committees to advise the FCFC (Division 2) on the exercise of powers of the Court under Chapter 4 of this Bill.

828.            Subclause 215(2) provides that the Chief Judge would be able to appoint committees to advise the Chief Judge on the making of the Rules of Court, or on managing the administrative affairs of the FCFC (Division 2).

Division 2 - Chief Executive Officer

Clause 216- Chief Executive Officer

829.            Clause 216 provides that the Chief Judge would be assisted by the Chief Executive Officer in managing the administrative affairs of the FCFC (Division 2). In accordance with clause 7, the Chief Executive Officer means the Chief Executive Officer and Principal Registrar of the Federal Court.

Clause 217 - Powers of Chief Executive Officer

830.            Clause 217 provides for the powers of the Chief Executive Officer.

831.            Subclause 217(1) provides that the Chief Executive Officer would have the power to do all things necessary or convenient for the purposes of assisting the Chief Judge in managing the administrative affairs of the FCFC (Division 2) (see clause 216).

832.            Subclause 217(2) provides that the Chief Executive Officer would be able to act on behalf of the Chief Judge in relation to the administrative affairs of the FCFC (Division 2).

833.            Subclause 215(3) provides that the Chief Justice may give the Chief Executive Officer directions regarding the exercise of the Chief Executive Officer’s powers under Chapter 4, or Chapter 5 (to the extent that the provisions of that Chapter apply to the FCFC (Division 2)) of this Bill.

Division 3 - Registries and registrars

Clause 218 - Registries

834.            Clause 218 provides that the Minister must establish registries of the FCFC (Division 2) as the Minister thinks fit. This clause replicates section 98 of the Federal Circuit Court Act. It is expected that the Minister would establish such registries as are required according to workload and regional needs. 

Clause 219 - Registrars

835.            Clause 219 provides that Registrars of the FCFC (Division 2) are to be engaged under the Public Service Act . This clause replicates section 101 of the Federal Circuit Court Act.

836.            As there would be only one statutory Chief Executive Officer (CEO) position for the Federal Court responsible for the single federal court corporate entity to assist both the Chief Justice of the Federal Court and the Chief Justice/Chief Judge of the FCFC in the administration of the courts, both FCFC (Division 1) and the FCFC (Division 2) would be able to draw from a single pool of Registrars. This would ensure that litigants experience a streamlined procedure, especially in family law matters, instead of navigating two sets of procedures for different courts

Clause 220 - Powers exercisable by Chief Executive Officer and Registrars

837.            Clause 220 sets out the powers exercisable by the Chief Executive Officer and Registrars.

838.            Subclause 220(1) provides that the object of this clause is to allow certain powers of the FCFC (Division 2) to be exercised by the Chief Executive Officer or a Registrar. The note to this subclause clarifies that the Chief Executive Officer and a Registrar may be delegates of the FCFC (Division 2).

839.            Subclause 220(2) provides a non-exhaustive list of powers that may be exercised by a delegate if the Court or Judge so directs. Subclause 220(2) includes the following powers:

·        the power to make an order transferring family law or child support proceedings to the FCFC (Division 1) under clause 117

·        the power to require a party’s lawyer, under subclause 158(3), to give the party an estimate of the duration of a proceeding and the likely costs

·        the power to give directions, under subclause 159(1), about the practice and procedure to be followed in relation to a proceeding, and

·        the power to make such order or direction as is appropriate under subclause 159(3) when a party fails to comply with a direction.

840.            Subclauses 220(3) provides a non-exhaustive list of powers in respect of which the Court or a Judge may not give a direction. This replicates subsection 37A(2) of the Family Law Act and includes:

·        the power to make a divorce order in proceedings that are defended

·        the power to make a decree of nullity of marriage

·        the power to make a declaration as to the validity of a marriage, divorce, or annulment of marriage

·        the power to make an excluded child order, and

·        the power to make an order setting aside a registered award under section 13K of the Family Law Act.

841.            Subclause 220(4) provides that a delegate must not exercise the power to make an order as to costs (see paragraph 220(2)(j)) except in relation to costs of, or in connection with, an application heard by the delegate.

842.            Subclause 220(5) provides that a delegate must not exercise the power (referred to in paragraph 220(2)(q)) to make an order under section 66Q, 67E, 77 or 90SG of the Family Law Act or an order for the payment of maintenance pending the disposal of proceedings on application by a party to proceedings under the Family Law Act. That is, unless (i) the other party to the proceedings appears at the hearing of the application, or (ii) the delegate is satisfied that notice of the intention of the party making the application has been served on the other party.

843.            Subclause 220(6) would ensure that provisions that relate to the exercise by the FCFC (Division 2) of a power would apply in relation to the exercise of that power by a delegate.

Clause 221 - Delegation

844.            Subclause 221(1) provides that the Chief Judge may make Rules of Court delegating any of the powers of the FCFC (Division 2), including those mentioned in subclause 220(2), to a delegate.

845.            Subclause 221(2) provides a non-exhaustive list of powers that may not be delegated. These include:

·        the power to make a divorce order in proceedings that are defended

·        the power to make a decree of nullity of marriage

·        the power to make a declaration as to the validity of a marriage, divorce, or annulment of marriage

·        the power to make an excluded child order, and

·        the power to make an order setting aside a registered award under section 13K of the Family Law Act

846.            Subclause 221(3) provides that a power delegated by the Rules of Court and exercised by the FCFC (Division 2) or a Judge, is taken to have been exercised by the FCFC (Division 2) or a Judge.

847.            Subclause 221(4) provides that the delegation of a power by the Rules of Court would not prevent the exercise of that power by the FCFC (Division 2) or a Judge.

848.            Subclause 221(5) provides that, if the power to make an order as to costs (see paragraph 220(2)(j)) is delegated by the Rules of Court, a delegate must not exercise it except in relation to costs of, or in connection with, an application heard by the delegate.

849.            If the power referred to in paragraph 220(2)(q) is delegated by the Rules of Court, subclause 221(6) provides that a delegate must not exercise that power to make an order under section 66Q, 67E, 77 or 90SG of the Family Law Act or an order for the payment of maintenance pending the disposal of proceedings on application by a party to proceedings under the Family Law Act. That is, unless (i) the other party to the proceedings appears at the hearing of the application, or (ii) the delegate is satisfied that notice of the intention of the party making the application has been served on the other party.

850.            Subclause 221(7) would ensure that provisions that relate to the exercise by the FCFC (Division 2) of a power would apply in relation to the exercise of that power by a delegate.

Clause 222 - Independence of delegates

851.            Clause 222 provides that, despite any other provision of this Chapter and any provision of the Public Service Act or of any other law, a delegate is not subject to the direction or control of any person or body in relation to the way in which the delegate exercises powers under subclauses 220(2) or 221(1) . This clause replicates subsection 104(1) of the Federal Circuit Court Act.

Clause 223 - Review of power exercised by delegate

852.            Subclause 223(1) provides that a party to proceedings in which a delegate has exercised any powers of the FCFC (Division 2) under subclauses 220(2) or 221(1) would be able to apply to the Court for review of that exercise of power. A timeframe for making such an application may be specified in the Rules of Court.

853.            Subclause 223(2) provides that the FCFC (Division 2) would be able to, of its own initiative or on application under subclause 223(1), review the exercise of power by a delegate. The FCFC (Division 2) would be able to make any order(s) it thinks fit in relation to the matter.

854.            Subclause 223(3) provides that if, during the course of exercising a power under subclauses 220(2) or 221(1), a delegate considers that it is not appropriate for the application to be determined by the delegate, or if an application is made to the delegate for the matter to be determined by a Judge, the delegate must not hear (or continue to hear) the application, and must make appropriate arrangements for it to be heard by a Judge.

855.            This clause replicates subsection 104(2)-(4) of the Federal Circuit Court Act.

Clause 224 - Oath or affirmation of office

856.            Clause 224 provides for an oath or affirmation of office for Registrars. This clause replicates section 105 of the Federal Circuit Court Act.

857.            Subclause 224(1) provides that a Registrar must take an oath or affirmation before a Judge before discharging the duties of office.

858.            Subclause 224(2) sets out the form of the oath.

859.            Subclause 224(3) sets out the form of the affirmation.

Division 4 - Other officers and Staff

Subdivision A - Officers and Staff

Clause 225 - Officers of the Federal Circuit and Family Court of Australia (Division 2)

860.            Clause 225 provides that, in addition to the Chief Executive Officer, there are to be the following officers of the of the FCFC (Division 2):

·        the Registrars

·        such Registry Managers as are necessary

·        the Sheriff

·        such Deputy Sheriffs as are necessary

·        the Marshal

·        such Deputy Marshals as are necessary, and

·        such family consultants as are necessary.

861.            Subclause 225(2) provides that the officers of the Court, other than the Chief Executive Officer, have such duties, powers and functions as given by or under Chapter 4 or Chapter 5, the Family Law Act, the Rules of Court, or by the Chief Judge or the Court.

Clause 226 -Sheriff

862.            Subclause 226(1) provides that the Sheriff of the FCFC (Division 2) is to be engaged under the Public Service Act .

863.            Subclause 226(2) provides that the Sheriff is responsible for the service and execution of all process of the FCFC (Division 2)

864.            Subclause 226(3) provides that the Sheriff is responsible for dealing with the Australian Federal Police and the police forces of the States and Territories in relation to the service and execution of process of the Court directed to members of those police forces.

865.            This clause replicates section 106 of the Federal Circuit Court Act.

Clause 227 - Deputy Sheriffs

866.            Clause 227 provides that a Deputy Sheriff would be able to exercise the powers of the Sheriff, subject to any directions of the Sheriff.  Deputy Sheriffs are to be engaged under the Public Service Act .

867.            This clause replicates section 107 of the Federal Circuit Court Act.

Clause 228 -Marshal

868.            Subclause 228(1) provides that the Marshal of the FCFC (Division 2) is to be engaged under the Public Service Act .

869.            Subclause 228(2) provides that the Marshal would be responsible for:

·        the security of the FCFC (Division 2), and

·        the personal security of Judges, officers and staff of the Court.

870.            Subclause 228(3) provides that the Marshal would also be responsible for:

·        detaining all persons committed to the Marshal’s custody by the FCFC (Division 2), and

·        discharging persons when directed by the FCFC (Division 2) or when required by law.

871.            This clause replicates section 109 of the Federal Circuit Court Act.

Clause 229 - Deputy Marshals

872.            Clause 229 provides for a Deputy Marshal to exercise the powers of the Marshal, subject to any directions of the Marshal. Deputy Marshals are to be engaged under the Public Service Act . This clause replicates section 110 of the Federal Circuit Court Act.

Clause 230 - Family consultants

873.            Clause 230 provides that Family Consultants of the FCFC (Division 2) who are officers of the Court are to be engaged under the Public Service Act . This clause replicates section 111A of the Federal Circuit Court Act.

874.            The note to this clause clarifies that family consultants who are not officers of the FCFC (Division 2) may be appointed under regulations made under the Family Law Act (see paragraph 11B(c) of that Act).

Clause 231 - Staff of the Federal Circuit and Family Court of Australia (Division 2)

875.            Clause 231 provides that there are to be such staff of the FCFC (Division 2) as are necessary. The staff of the FCFC (Division 2) are to consist of persons engaged under the Public Service Act. This clause replicates section 112 of the Federal Circuit Court Act.

Subdivision B - Provisions relating to officers and staff

Clause 232 - Arrangements relating to Commonwealth staff

876.            Clause 232 provides that the Chief Executive Officer, on behalf of the Chief Judge, would be able to arrange with an agency head, or with an authority of the Commonwealth, for the services of offices or employees of the agency or authority to be made available for the purposes of the administrative affairs of the FCFC (Division 2). This clause replicates section 100 of the Federal Circuit Court Act.

Clause 233 - Delegation by Registry Managers

877.            Clause 233 provides that a Registry Manger of the FCFC (Division 2) may delegate all or any of a Registry Manager’s functions or powers under the Family Law Act to a person considered by the Registry Manager to be an appropriate officer or staff member of the Court. In performing a delegated function or power, the person must comply with any directions of the relevant Registry Manager.

878.            This provision will enable greater efficiency and accountability in the performance of the functions of the Registry Manager, including but not limited to, providing notifications to a prescribed child welfare authority pursuant to section 67Z of the Family Law Act.

Clause 234 - Authorised persons to assist the Sheriff or Deputy Sheriffs

879.            Clause 234 provides for other persons to be authorised by the Sheriff or Deputy Sheriff to assist the Sheriff or Deputy Sheriff in exercising their powers or functions.   This clause replicates section 108 of the Federal Circuit Court Act.