House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Christian Porter MP)

SCHEDULE 1 - AMENDMENTS RELATING TO THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

PART 1 - AMENDMENTS

Family Law Act 1975

Item 1 - Subsection 4(1)

30. Subsection 4(1) provides a list of definitions which apply to the Family Law Act, the standard Rules of Court and the related Federal Circuit Court Rules.

31. Item 1 omits 'the standard rules of Court and the related Federal Circuit Court Rules, unless the contrary intention appears' and substitutes 'and the applicable Rules of Court' to encompass the various Rules of Court which will now use these definitions. The definition of applicable Rules of Court is amended by item 3 of Schedule 1 of this Bill.

Item 2 - Subsection 4(1)

32. Item 2 repeals the definitions of administrative affairs, appeal and Appeal Division in subsection 4(1). These definitions are relevant to the structure, administration and function of the FCFC (defined in item 8 of Schedule 1 of this Bill, and provided for by the FCFC Bill) and are no longer required in the Family Law Act. A replacement definition of administrative affairs is included in clause 7 of the FCFC Bill. The term 'appeal' is not defined in the FCFC Bill, but arrangements for appeals to the FCFC (Division 1) are set out in detail. While the FCFC (Division 1) will retain the Family Court's appellate jurisdiction, the FCFC (Division 1) will not have an Appeal Division, meaning this definition is redundant.

Item 3 - Subsection 4(1) (definition of applicable Rules of Court )

33. Item 3 repeals the definition of applicable Rules of Court in subsection 4(1) and substitutes a new definition to reflect the rules applicable to the courts exercising jurisdiction under the Family Law Act. The definition is expanded to cover the FCFC (Division 1), FCFC (Division 2) and any other relevant court.

Item 4 - Subsection 4(1) (definition of Chief Executive Officer )

34. Item 4 repeals the existing definition of Chief Executive Officer in subsection 4(1) and substitutes a new definition: 'Chief Executive Officer means the Chief Executive Officer and Principal Registrar of the Federal Circuit and Family Court of Australia (Division 1).' This aligns with the definition of Chief Executive Officer in clause 7 of the FCFC Bill.

35. In effect, the Chief Executive Officer of the FCFC (Division 1) will be the Chief Executive Officer of the FCFC. While the Chief Executive Officer is appointed to the FCFC (Division 1), the FCFC Bill provides that the Chief Executive Officer is also to assist the Chief Judge in managing the administrative affairs of the FCFC (Division 2).

Item 5 - Subsection 4(1)

36. Item 5 repeals the existing definitions of Chief Justice, complaint, complaint handler and corporate services in subsection 4(1). These definitions are relevant to the structure and administration of the FCFC (defined in item 8 of Schedule 1 of this Bill, and provided for by the FCFC Bill. As such, they are no longer required in the Family Law Act. Definitions of those terms in the context of the FCFC are provided in clause 7 the FCFC Bill.

Item 6 - Subsection 4(1) (at the end of the definition of court )

37. Item 6 amends the existing definition of court in subsection 4(1) to ensure that a 'court' for the purposes of the Family Law Act includes a court, in relation to any proceedings, exercising jurisdiction in those proceedings by virtue of the Family Law Act, the FCFC Bill, the Child Support (Assessment) Act 1989, or the Child Support (Registration and Collection) Act 1988. This amendment recognises that each of those Acts and the FCFC Bill confer jurisdiction upon a number of courts, including the FCFC (defined in item 8 of Schedule 1 of this Bill, and provided for by the FCFC Bill).

Item 7 - Subsection 4(1) (definition of Deputy Chief Justice )

38. Item 7 repeals the existing definition of Deputy Chief Justice in subsection 4(1). This definition is relevant to the structure of the FCFC (defined in item 8, of Schedule 1 of this Bill, and provided for by the FCFC Bill). A definition of Deputy Chief Justice in the context of the FCFC is provided in clause 7 of the FCFC Bill.

Item 8 - Subsection 4(1)

39. Item 8 inserts a new definition of the Federal Circuit and Family Court of Australia in subsection 4(1) of the Family Law Act. The 'Federal Circuit and Family Court of Australia' is defined as the FCFC (Division 1) or the FCFC (Division 2). The FCFC is provided for by clause 8 of the FCFC Bill. Reference in the Family Law Act to the FCFC should be read as a reference to the FCFC (Division 1) or the FCFC (Division 2).

40. Item 8 also inserts a new definition of Federal Circuit and Family Court of Australia (Division 1) Rules in subsection 4(1) of the Family Law Act. The practice and procedure of the FCFC (Division 1) will be governed by a set of rules made under Chapter 3 of the FCFC Bill, rather than rules made under section 123 of the Family Law Act.

Item 9 - Subsection 4(1)

41. Item 9 repeals the definitions of Federal Circuit Court and Federal Circuit Court Chief Executive Officer in subsection 4(1). These definitions are relevant to the structure, administration and function of the FCFC (Division 2) as provided for by the FCFC Bill. A definition of Chief Executive Officer in the context of the FCFC is provided in clause 7 of the FCFC Bill. The definition of Federal Circuit Court is no longer required because of the continuation of the Federal Circuit Court as the FCFC (Division 2), as provided in clause 8 of the FCFC Bill.

Item 10 - Subsection 4(1)

42. Item 10 repeals the definitions of Full Court, General Division and handle in subsection 4(1). These definitions are relevant to the structure and function of the FCFC (defined in item 8 of Schedule 1 of this Bill, and provided for by the FCFC Bill) and are no longer required in the Family Law Act. A new definition of handle in the context of the FCFC is provided in clause 7 the FCFC Bill, and relates to handling of a complaint against a Judge.

Item 11 - Subsection 4(1) (definition of Registrar)

43. Item 11 repeals the existing definition of 'Registrar' in subsection 4(1) and substitutes a new definition that reflects the structure, administration and functions of the new FCFC (defined in item 8 of Schedule 1 of this Bill, and provided for by the FCFC Bill).

44. Item 11 provides that Registrar will mean a person or persons occupying the office of a Senior Registrar or Registrar of the FCFC (Division 1) or the FCFC (Division 2), or the principal legal officer, or any other appropriate officer, of any other court. The new definition of Registrar is purposefully narrower in its application than the existing definition; the new definition does not include a Principal Registrar or Deputy Registrar. The office of Principal Registrar is not separately defined in the Family Law Act; this position is incorporated into the new definition of Chief Executive Officer in subsection 4(1) (see item 4 of Schedule 1 of this Bill). Provisions in the Family Law Act that refer to Registrar, with the intention that the provision also apply to other officers of the court such as the Chief Executive Officer (Principal Registrar) or a Deputy Registrar, have been amended to clearly identify the officers of the court to which the provisions apply.

45. For courts other than the FCFC (Division 1) and the FCFC (Division 2), the substituted definition retains the former requirement that the Registrar is the principal legal officer or any other appropriate officer of that court.

Item 12 - Subsection 4(1) (definition of Registry Manager )

46. Item 12 repeals the definition of Registry Manager in subsection 4(1) and substitutes a new definition that reflects the structure, administration and functions of the FCFC (defined in item 8 of Schedule 1 of the Bill, and provided for by the FCFC Bill) and which applies throughout the Family Law Act. The definition includes Registry Managers of the FCFC (Division 1) and the FCFC (Division 2), and the principal legal officer or any other appropriate officer of any other court exercising jurisdiction under the Family Law Act. A consistent definition of Registry Manager is also provided in clause 7 the FCFC Bill.

Item 13 - Subsection 4(1)

47. Item 13 inserts a new definition of related Federal Circuit and Family Court of Australia (Division 2) Rules in subsection 4(1) of the Family Law Act, which provides that these are the Rules of Court under Chapter 4 of the new FCFC Bill to the extent to which they relate to the Family Law Act.

Item 14 - Subsection 4(1)

48. Item 14 repeals the definitions of related Federal Circuit Court Rules, relevant belief and split court in subsection 4(1). These definitions are relevant to the structure of the FCFC (defined in item 8, of Schedule 1 of this Bill, and provided for by the FCFC Bill).

49. The repeal of the definition of related Federal Circuit Court Rules is required as item 13 of Schedule 1 of this Bill inserts a definition of Federal Circuit and Family Court of Australia (Division 2) Rules to reflect the change to the source of the relevant rule making power.

50. The definition of relevant belief relates to complaints and is no longer required in the Family Law Act. A definition of relevant belief in the context of complaints made about a Judge of the FCFC (Division 1) or a Judge of the FCFC (Division 2) is provided in clause 7 of the FCFC Bill.

51. The definition of a split court is no longer required in the Family Law Act as it will no longer establish or directly govern the operation of the FCFC (Division 1).

Item 15 - Subsection 4(1A)

52. Subsection 4(1A) currently provides how a reference to the 'Family Court' and to a 'Family Court of a State' are to be read in the standard Rules of Court and related Federal Circuit Court Rules.

53. Item 15 repeals subsection 4(1A) and substitutes a new subsection 4(1A) that aligns with the new arrangements established under the FCFC Bill.

54. The new subsection 4(1A) inserted by item 15 includes updated terminology to refer to the applicable Rules of Court (the definition of that term is provided in item 3 of Schedule 1 of this Bill). This will ensure that this subsection applies to all relevant Rules of Court. The reference to the 'Family Court' has been removed from subsection 4(1A), recognising that the 'Family Court' is continued in existence as the FCFC (Division 1) (by clause 8 of the FCFC Bill).

Item 16 - Subsection 4(2) and (2A)

55. Subsection 4(2) provides that a reference in the Act, the standard Rules of Court or the related Federal Circuit Court Rules to a 'party to a marriage' includes a person to whom one of the circumstances, outlined in paragraphs 4(2)(a) to (c), applies.

56. Similarly, subsection 4(2A) provides that a reference in the Act, the standard Rules of Court or the related Federal Circuit Court Rules to a 'party to a de facto relationship' includes a reference to a party to a de facto relationship that has broken down.

57. Item 16 amends subsections 4(2) and 4(2A) to align with the new arrangements established under the FCFC Bill. Item 16 omits the reference to 'the standard Rules of Court or the related Federal Circuit Court Rules' in subsections 4(2) and 4(2A) and substitutes the applicable Rules of Court (the definition of that term is provided in item 3 of Schedule 1 of this Bill). This will ensure that these subsections apply to all relevant Rules of Court.

Item 17 - Subsection 4(3)

58. Subsection 4(3) provides that jurisdiction, proceedings and orders under the standard Rules of Court and the related Federal Circuit Court Rules, is taken to be jurisdiction, proceedings and orders under the Family Law Act.

59. Item 17 repeals this subsection and substitutes a new subsection to align with the new arrangements established under the FCFC Bill. Item 17 updates the terminology in subsection 4(3) such that jurisdiction, proceedings and orders under the applicable Rules of Court (the definition of that term is provided in item 3 of Schedule 1 of this Bill) are taken to be jurisdiction, proceedings and orders under the Family Law Act. This ensures that the subsection applies to all relevant Rules of Court.

60. New paragraph 4(3)(a) provides that jurisdiction under a provision of the Federal Circuit and Family Court of Australia Act 2019 referring to the Family Law Act, is taken to be jurisdiction under the Family Law Act. This reflects that the courts primarily exercising original and appellate jurisdiction in family law matters will no longer be established by the Family Law Act and so, to avoid doubt, this subsection provides that the exercise of jurisdiction of these courts currently conferred under the Family Law Act, remains an exercise of jurisdiction under the Family Law Act.

61. Further, new paragraph 4(3)(b) provides that, for the avoidance of doubt, jurisdiction under paragraphs 25(1)(a) and 25(1)(b) of the FCFC Bill is taken to be jurisdiction under the Family Law Act. Paragraphs 25(1)(a) and 25(1)(b) of the FCFC Bill provide that in family law or child support proceedings, the original jurisdiction of the FCFC (Division 1) are those matters transferred or uplifted to the Court under clauses 51 or 149 of the FCFC Bill. The original jurisdiction of the FCFC (Division 1) in clause 25 of the FCFC Bill is one of the key ways the FCFC Bill implements a single point of entry into the family law courts - more information is in the Explanatory Memorandum to that Bill.

62. Similarly, new paragraph 4(3)(e) provides that proceedings transferred under clauses 51 or 149 of the FCFC Bill referring to the Family Law Act are taken to be proceedings under the Family Law Act. Clauses 51 and 149 provide mechanisms for the transfer of matters from the FCFC (Division 2) to the FCFC (Division 1), and are key to the original jurisdiction of the FCFC (Division 1). In addition, transfers made by the Chief Justice under clause 149 pursuant to clause 150 would be taken to be proceedings under the Family Law Act.

63. New paragraph 4(3)(c) provides that jurisdiction under section 101 of the Child Support (Assessment) Act 1989 and under section 106 of the Child Support (Registration and Collection) Act 1988 is taken to be jurisdiction under the Family Law Act. The sections referred to in new paragraph 4(3)(c) confer jurisdiction on a Family Court of a State and the Northern Territory Supreme Court to hear appeals in the respective child support Acts (see items 166 and 180 of Schedule 2 of this Bill).

64. New paragraph 4(3)(d) provides that jurisdiction under applicable Rules of Court is taken to be jurisdiction under the Family Law Act. New paragraph (4)(3)(f) provides that proceedings under applicable Rules of Court are taken to be proceedings under the Family Law Act. New paragraph 49(3)(g) provides that an order, however described, made by a court under the applicable Rules of Court, is taken to be an order made by the court under the Family Law Act.

Item 18 - Subsection 8(1)

65. Section 8 provides limitations on the institution and continuing of certain types of proceedings after the commencement of the Family Law Act.

66. Item 18 repeals subsection 8(1) to remove the option of continuing matrimonial causes proceedings in accordance with the section 9 arrangements, reflecting that section 9 of the Family Law Act will be repealed (see item 19 of Schedule 1 of this Bill).

Item 19 - Section 9

67. Section 9 contains transitional provisions relating to proceedings pending prior to the commencement of the Family Law Act.

68. Item 19 repeals section 9 as there are now no proceedings to which this section would apply.

Item 20- Paragraphs 10C(1)(c) and (d)

69. Section 10C provides a definition of family counsellor. Paragraphs 10C(1)(c) and (d) of the definition provide that persons authorised by the Chief Executive Officer of the Family Court or the Chief Executive Officer of the Federal Circuit Court, respectively, to provide family counselling under the Family Law Act are to be taken to be a family counsellor.

70. Item 20 repeals paragraphs 10C(1)(c) and (d) and substitutes a new paragraph 10C(1)(c) to align with the new arrangements established under the FCFC Bill. Clause 281 of the FCFC Bill confers a new power on the Chief Executive Officer of the FCFC to authorise officers or staff of the FCFC to provide family counselling under the Family Law Act. Item 20 inserts a new paragraph 10C(1)(c) which provides that officers and staff so authorised by the Chief Executive Officer of the FCFC under clause 281 of the FCFC Bill are to be taken to be a family counsellor.

Item 21 - Paragraphs 10G(1)(c) and (d)

71. Section 10G provides a definition of family dispute resolution practitioner. Paragraphs 10G(1)(c) and (d) provide that persons authorised by the Chief Executive Officer of the Family Court or the Chief Executive Officer of the Federal Circuit Court, respectively, to act as a family dispute resolution practitioner are to be taken to be a family dispute resolution practitioner.

72. Item 21 repeals paragraphs 10G(1)(c) and (d) and substitutes a new paragraph 10G(1)(c) to align with the new arrangements established under the FCFC Bill. Clause 281 of the FCFC Bill confers a new power on the Chief Executive Officer of the FCFC to authorise officers or staff of the FCFC to provide family dispute resolution under the Family Law Act. Item 21 inserts a new paragraph 10G(1)(c) which provides that officers and staff so authorised by the Chief Executive Officer of the FCFC Bill under clause 281 of the FCFC Bill are to be taken to be a family dispute resolution practitioner.

Item 22 - Section 10P

73. Section 10P provides an arbitrator, performing their functions as an arbitrator, with the same protection and immunity that a Judge of the Family Court has in performing the functions of a Judge.

74. Item 22 omits the reference to 'Family Court' and substitutes a reference to 'Federal Circuit and Family Court of Australia (Division 2)' to align with the new arrangements established under the FCFC Bill. Item 22 reflects the continuation of the Family Court as the FCFC (Division 2) (provided by clause 8 of the FCFC Bill) and does not change the operation of section 10P.

Item 23 - Section 11B (note)

75. The note to section 11B provides that the Chief Executive Officer has all the functions and powers of family consultants and may direct consultants in the performance of their functions, with a direction to see Division 1A of Part IVA of the Family Law Act in this regard.

76. Item 23 omits, in this note, the reference to 'Division 1A of Part IVA of this Act' (referring to the Family Law Act), and substitutes a reference to 'Part 1 of Chapter 5 of the Federal Circuit and Family Court of Australia Act 2019' to provide the correct legislative reference for the information contained in the note and align with the new arrangements to be established by the FCFC Bill.

Item 24 - Subsection 11C(1) (note 1)

77. Note 1 to subsection 11C(1) provides that communications with a family consultant are not confidential except in the circumstances set out in subsection 38BD(3) of the Family Law Act.

78. Item 24 omits the reference to subsection 38BD(3) in this note and substitutes a reference to subclause 281(3) of the FCFC Bill to provide the correct legislative reference for the information contained in the note and align with the new arrangements to be established by the FCFC Bill.

Item 25 - Section 11D

79. Section 11D provides a family consultant, performing their functions as a family consultant, with the same protection and immunity that a Judge of the Family Court has in performing the functions of a Judge.

80. Item 25 omits the reference to 'Family Court' and replaces it with 'Federal Circuit and Family Court of Australia (Division 1)' to align with the new arrangements established under the FCFC Bill. Item 25 reflects the continuation of the Family Court as the FCFC (Division 1) (provided by clause 8 of the FCFC Bill), and does not change the operation of section 11D.

Item 26 - Subparagraphs 11E(1)(e)(i) and (ia)

81. Paragraph 11E(1)(e) provides that, where the Family Court or the Federal Circuit Court has the power under the Family Law Act to order that a person attend family counselling, family dispute resolution, appointments with a family consultant, or a course, program or other service, before making such an order the court can seek advice from a family consultant appointed by the Chief Executive of that court.

82. Item 26 omits subparagraphs 11E(1)(e)(i) and (ia), which refer to the Chief Executive Officer of the Family Court and the Chief Executive Officer of the Federal Circuit Court, respectively, and substitutes a single subparagraph 11E(1)(e)(i) which provides that, if the court is the Federal Circuit and Family Court of Australia, the court can seek advice from a family consultant nominated by the Chief Executive Officer. This amendment brings section 11E into alignment with the new definition of Chief Executive Officer provided by clause 7 of the FCFC Bill.

Item 27 - Subparagraph 11E(1)(e)(iii)

83. Item 27 omits the reference to '(ia)' in subparagraph 11E(1)(e)(iii), which is required because of the amendment made by item 26 of Schedule 1 of this Bill.

Item 28 - Section 13G (heading)

84. Section 13G is headed 'Family Court and Federal Circuit Court may determine question of law referred by arbitrator'.

85. Item 28 omits 'Family Court or Federal Circuit Court' from the heading and substitutes 'Federal Circuit and Family Court of Australia (Division 2)' to align with the new arrangements established under the FCFC Bill. Item 28 reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) (provided by subclause 8(2) of the FCFC Bill).

86. The heading will not refer the FCFC (Division 1) as, consistent with the implementation of a single point of entry into the family courts, arbitrators will only be able to refer questions of law to the FCFC (Division 2) or the Family Court of a State (see item 29).

Item 29 - Paragraphs 13G(1)(a), (b) and (c)

87. Paragraphs 13G(1)(a) to (b) specify the courts to which an arbitrator may refer a question of law.

88. Item 29 omits paragraphs 13G(1)(a),(b) and (c) and substitutes paragraphs 13G(1)(a) and (b). This reflects that the Federal Circuit Court is continued in existence as the FCFC (Division 2) (as provided by subclause 8(2) of the FCFC Bill).

89. Subsection 13G(1) will provide, in effect, that questions of law can only be referred by arbitrators to the FCFC (Division 2) or the Family Court of a State, to the exclusion of the FCFC (Division 1). The intent is to support a single point of entry into the family law courts, noting that clauses 51 and 149 of the FCFC Bill will provide for matters to be transferred to the FCFC (Division 1).

Item 30 - Subsection 13G(3)

90. Subsection 13G(3) provides that the arbitrator must not make an award in the arbitration until the Judge or Federal Circuit Court has determined the question of law or remitted the matter back to the arbitrator.

91. Item 30 omits the reference to the 'Federal Circuit Court of Australia' and substitutes 'Federal Circuit and Family Court of Australia (Division 2)' to align with the new arrangements established under the FCFC Bill. This reflects that the Federal Circuit Court is continued in existence as the FCFC (Division 2) (as provided by subclause 8(2) of the FCFC Bill).

Item 31 - Section 13J (heading)

92. Section 13J is headed 'Family Court or Federal Circuit Court can review registered awards'.

93. Item 31 omits 'Family Court or Federal Circuit Court' from the heading and substitutes 'Federal Circuit and Family Court of Australia (Division 2)' to align with the new arrangements established under the FCFC Bill. This reflects that the Federal Circuit Court is continued in existence as the FCFC (Division 2) (as provided by subclause 8(2) of the FCFC Bill).

94. The heading will not refer the FCFC (Division 1) as, consistent with the implementation of a single point of entry into the family courts, a party will only be able to apply for review of an arbitration award, on questions of law, by the FCFC (Division 2) or the Family Court of a State (see item 32).

Item 32 - Paragraphs 13J(1)(a), (b) and (c)

95. Paragraphs 13J(1)(a) to (b) specify the courts to which a party to a registered award may apply for a review of the award on a question of law.

96. Item 32 omits paragraphs 13J(1)(a), (b) and (c) and substitutes paragraphs 13J(1)(a) and (b). This reflects that the Federal Circuit Court is continued in existence as the FCFC (Division 2) (as provided by subclause 8(2) of the FCFC Bill.

97. Subsection 13J(1) will provide, in effect, that a party may only apply for a review of an arbitration award, on a question of law, by the FCFC (Division 2) or the Family Court of a State, to the exclusion of the FCFC (Division 1). The intent is to support a single point of entry into the family law courts, noting that clauses 51 and 149 of the FCFC Bill will provide for matters to be transferred to the FCFC (Division 1).

Item 33 - Subsection 13J(2)

98. Subsection 13J(2) provides what a Judge or the Federal Circuit Court may do on a review of an award.

99. Item 33 omits references to the 'Federal Circuit Court of Australia' in subsection 13J(2) and on each occasion substitutes 'Federal Circuit and Family Court of Australia (Division 2)' to align with the new arrangements established under the FCFC Bill. This reflects that the Federal Circuit Court is continued in existence as the FCFC (Division 2) (as provided by subclause 8(2) of the FCFC Bill.

Item 34 - Section 13K (heading)

100. Section 13K is headed 'Family Court and Federal Court may set aside registered awards'.

101. Item 34 omits 'Family Court or Federal Circuit Court' from the heading and substitutes 'Federal Circuit and Family Court of Australia' to align with the new arrangements established under the FCFC Bill. This reflects that the Family Court and the Federal Circuit Court are continued in existence as the FCFC (Division 1) and the FCFC (Division 2), respectively (as provided by clause 8 of the FCFC Bill), and are collectively referred to as the FCFC.

Item 35- Paragraphs 13K(1)(a) and (b)

102. Paragraphs 13K(1)(a) to (c) specify the courts in which an award arising out of an arbitration may be registered.

103. Item 35 omits paragraphs 13K(1)(a) and (b) and substitutes new paragraphs 13K(1)(a) and (b) to align with the new arrangements established under the FCFC Bill. The reference to the 'Family Court' in paragraph 13K(1)(a) will be replaced with the 'Federal Circuit and Family Court of Australia (Division 1)', reflecting the continuation of the Family Court under this new name as is provided by clause 8 of the FCFC Bill. The reference to the 'Federal Circuit Court of Australia' in paragraph 13K(1)(b) will be replaced with the 'Federal Circuit and Family Court of Australia (Division 2)', reflecting the continuation of the Federal Circuit Court under this new name as is provided by clause 8 of the FCFC Bill. This amendment does not change the operation of subsection 13K(1).

Item 36 - Part IV and IVA

104. Part IV governs the creation, structure and constitution of the Family Court of Australia and Part IVA governs the management of the Court.

105. Item 36 repeals Part IV and Part IVA. The Family Court will continue in existence as the FCFC (Division 1) (see subclause 8(1) of the FCFC Bill). The provisions in Parts IV and IVA are substantially replicated in the FCFC Bill, with such amendments as are necessary to support the operation of the new court structure.

Item 37 - Paragraph 39(1)(a)

106. Paragraph 39(1)(a) provides that a matrimonial cause may be instituted in the Family Court.

107. Item 37 repeals existing paragraph 39(1)(a) and replaces it with a new paragraph 39(1)(a) providing that matrimonial causes may be instituted in the Federal Circuit and Family Court of Australia (Division 2).

108. In effect, the Family Law Act will no longer provide that a matrimonial cause may be instituted in the Family Court, continuing as the FCFC (Division 1). The intent is to support a single point of entry into the family law courts through the FCFC (Division 2), noting that clauses 51 and 149 of the FCFC Bill will provide for matters to be transferred to the FCFC (Division 1).

Item 38 - Subsection 39(1A)

109. Under subsection 39(1A), matrimonial causes may be instituted in the Federal Circuit Court.

110. Item 38 repeals subsection 39(1A) on the basis that item 37 of Schedule 1 of this Bill amends paragraph 39(1)(a) to provide for matrimonial causes to be instituted in the Federal Circuit and Family Court (Division 2). This renders subsection 39(1A) unnecessary given that the Federal Circuit Court is continued in existence as the Federal Circuit and Family Court (Division 2) (see subclause 8(2) of the FCFC Bill).

Item 39 - Subsection 39(5)

111. Subsection 39(5) provides that the Family Court, and various other courts, are conferred or vested with jurisdiction for a variety of causes and proceedings instituted under the Family Law Act.

112. Item 39 omits the reference to the 'Family Court' and substitutes a reference to the 'Federal Circuit and Family Court of Australia (Division 2)'. The effect of this amendment is that, under subsection 39(5), the FCFC (Division 2) is explicitly conferred jurisdiction in relation to the various causes and proceedings under the Family Law Act.

113. This item only refers to the FCFC (Division 2), the continuation of the Federal Circuit Court, and not the FCFC (Division 1), the continuation of the Family Court. This reflects that the original jurisdiction of the FCFC (Division 1), as provided in clause 25 of the FCFC Bill, is limited to family law or child support matters transferred to or by it under clauses 51 or 149 of the FCFC Bill. The intent of this change is to create an effective single point of entry into the family law courts, where court-users file family law or child support matters in the FCFC (Division 2) in the first instance. More information is in the Explanatory Memorandum to the FCFC Bill.

Item 40 - Paragraph 39(5)(b)

114. Paragraph 39(5)(b) provides that, the courts specified in subsection 39(5) have jurisdiction in relation to matrimonial causes continued in accordance with section 9.

115. Item 40 repeals paragraph 39(5)(b). This amendment follows the repeal of section 9 (see item 19 of Schedule 1 of this Bill) because there are now no proceedings to which section 9 would apply.

Item 41 - Paragraph 39(5)(d)

116. Paragraph 39(5)(d) provides that the courts specified in subsection 39(5) have jurisdiction in relation to proceedings instituted under regulations made for the purpose of various sections of the Family Law Act, under paragraphs 125(1)(f) or (g) or under Rules of Court made for the purpose of paragraph 123(1)(r).

117. Item 41 repeals paragraph 39(5)(d) and substitutes a new paragraph 39(5)(d), which contains subparagraphs (i) to (iii). The new subparagraphs essentially cover the same proceedings as are currently covered by paragraph 39(5)(d). The type of proceedings under the applicable Rules of Court are described in subparagraph 39(5)(d)(iii) (rather than identified by cross referencing the particular power in the Rules). The definition of 'applicable Rules of Court' is to be provided in subsection 4(1) (see item 3 of Schedule 1 of this Bill).

Item 42 - Subsections 39(5AA) and (5A)

118. Subsection 39(5AA) provides that the Federal Circuit Court has, and is taken always to have had jurisdiction under the Family Law Act in respect of which matrimonial causes (with some exceptions) are instituted.

119. Subsection 39(5A) provides that the Federal Circuit Court has jurisdiction with respect to matters outlined in paragraphs 39(5A)(a) to (d). This subsection is the Federal Circuit Court equivalent to subsection 39(5) which confers jurisdiction on various courts, including the Family Court, in respect to various proceedings.

120. Item 42 repeals subsections 39(5AA) and (5A) as amendments to subsection 39(5) (see item 39 of Schedule 1 of this Bill) render this clause unnecessary. With the repeal of subsection 39(5AA), the exceptions that apply to the Federal Circuit Court in relation to jurisdiction for particular matrimonial causes, will not apply to the FCFC (Division 2).

Item 43 - Paragraph 39(6)(b)

121. Paragraph 39(6)(b) provides that courts of summary jurisdiction specified in subsection 39(6) have jurisdiction in relation to matrimonial causes continued in accordance with section 9.

122. Item 43 repeals paragraph 39(6)(b), reflecting the repeal of section 9 (see item 19 of Schedule 1 of this Bill) because there are now no proceedings to which section 9 would apply.

Item 44 - Paragraph 39(6)(d)

123. Paragraph 39(6)(d) provides that the courts of summary jurisdiction specified in subsection 39(6) have jurisdiction in relation to proceedings instituted under regulations made for the purpose of various sections of the Family Law Act, under paragraphs 125(1)(f) or (g), under Rules of Court made for the purpose of paragraph 123(1)(r) or under Rules of Court made for the purpose of paragraph 87(1)(j) of the Federal Circuit Court Act.

124. Item 44 repeals paragraph 39(6)(d) and substitutes a new paragraph 39(6)(d), which contains subparagraphs (i) to (iii). The new subparagraphs essentially cover the same proceedings as are currently covered by paragraph 39(6)(d). The type of proceedings under the applicable Rules of Court are described in subparagraph 39(6)(d)(iii) rather than identified by cross referencing the particular power in the different sets of rules. This is because with multiple sets of rules, referencing particular rules powers adds unnecessary complexity to the provision. The definition of 'applicable Rules of Court' is to be provided in subsection 4(1) (see item 3 of Schedule 1 of this Bill).

Item 45 - Paragraphs 39A(1)(a) and (b)

125. Paragraphs 39A(1)(a) and (b) provide that a de facto financial cause may be instituted in the Family Court and the Federal Circuit Court, respectively.

126. Item 45 repeals paragraphs 39A(1)(a) and (b) and substitutes a single paragraph 39A(1)(a). New paragraph 39A(1)(a) provides that de facto financial causes can be instituted in the FCFC (Division 2). This reflects the name change of the Federal Circuit Court to be the FCFC (Division 2) (see subclause 8(2) of the FCFC Bill).

127. In effect, the Family Law Act will no longer provide that a de facto financial cause may be instituted in the Family Court, continuing as the FCFC (Division 1). The intent is to support a single point of entry into the family law courts through the FCFC (Division 2), noting that clauses 51 and 149 of the FCFC Bill will provide for matters to be transferred to the FCFC (Division 1).

Item 46 - Paragraphs 39B(1)(a) and (b)

128. Paragraphs 39B(1)(a) and (b) confer jurisdiction on the Family Court and the Federal Circuit Court, respectively, for de facto financial causes instituted under the Family Law Act.

129. Item 46 repeals paragraphs 39B(1)(a) and (b) and substitutes a single paragraph 39B(1)(a). New paragraph 39B(1)(a) confers jurisdiction for de facto financial causes on the FCFC (Division 2). This reflects the name change to the Federal Circuit Court (see subclause 8(2) of the FCFC Bill).

130. This item only refers to the FCFC (Division 2), the continuation of the Federal Circuit Court, and not the FCFC (Division 1), the continuation of the Family Court. This reflects that the original jurisdiction of the FCFC (Division 1), as provided in clause 25 of the FCFC Bill, is limited to family law or child support matters transferred to or by it under clauses 51 or 149 of the FCFC Bill. The intent of this change is to create an effective single point of entry into the family law courts, where court-users file family law or child support matters in the FCFC (Division 2) in the first instance. More information is in the Explanatory Memorandum to the FCFC Bill.

Item 47 - Subsection 39B(1) (notes 1 and 2)

131. Note 1 to subsection 39B(1) provides that the exercise of the jurisdiction of the Family Court is subject to section 40. Note 2 to subsection 39B(1) provides that the exercise of the jurisdiction of the FCC is subject to section 40A.

132. Item 47 repeals notes 1 and 2 and substitutes a new note 1, which identifies that the exercise of jurisdiction by the FCFC (Division 2) under subsection 39B(1) is subject to section 40. This amendment reflects the jurisdiction of the FCFC (Division 2) provided in new paragraph 39B(1)(a) (see item 46 of Schedule 1 of this Bill), and the consequential amendments to section 40 and repeal of section 40A (see items 49 to 53 of Schedule 1 of this Bill).

Item 48 - Section 39G

133. Section 39G provides that, if proceedings in relation to a matter arising under a law of the Commonwealth are transferred under the Family Law Act to a court that has jurisdiction under Division 3 of Part V of the Family Law Act, the jurisdiction of the court includes jurisdiction in relation to that matter.

134. Item 48 repeals this section and replaces it with a new section 39G, which includes a reference to the Federal Circuit and Family Court of Australia Act 2019 to reflect that specific powers to transfer proceedings (in particular circumstances) are provided in the Family Law Act and the FCFC Bill (see, for example, clauses 51, 52, 149 and 150 of the FCFC Bill).

Item 49 - Section 40 (heading)

135. Section 40 is headed 'Limitation on jurisdiction of Family Court and of State and Territory Supreme Courts.

136. Item 49 omits 'Family Court' from the heading and substitutes 'Federal Circuit and Family Court of Australia (Division 2)' to align with the new arrangements established under the FCFC Bill, and reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) (by subclause 8(2) of the FCFC Bill). The inclusion of the FCFC (Division 2) is necessitated by the repeal of section 40A (see item 53 of Schedule 1 of this Bill) which currently limits the exercise of the Federal Circuit Court's jurisdiction in certain States and Territories, if the corresponding jurisdiction of the Family Court is not capable of being exercised in that State or Territory.

137. The heading does not reference the FCFC (Division 1) as its original jurisdiction for matters instituted under the Family Law Act arises with respect to matters transferred from the FCFC (Division 2). This will be provided by clause 25 of the FCFC Bill - more information is in the Explanatory Memorandum to that Bill. Therefore, it is sufficient for section 40 to allow for the jurisdiction of the FCFC (Division 2) to be limited by the regulations (see item 50).

Item 50 - Subsection 40(1)

138. Under subsection 40(1), the Regulations may provide that the jurisdiction of the Family Court, in relation to all or a particular class of proceedings, cannot be exercised in specified States and Territories.

139. Item 50 omits 'Family Court' from subsection 40(1) and substitutes 'Federal Circuit and Family Court of Australia (Division 2)' to appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) (see subclause 8(2) of the FCFC Bill).

140. Due to the effect of items 39, 46 and 93 of Schedule 1 of this Bill, which support a single point of entry into the family law courts, it is not necessary for regulations made pursuant to section 40 to separately limit the jurisdiction of FCFC (Division 1). This reflects that the original jurisdiction of the FCFC (Division 1), as provided in clause 25 of the FCFC Bill, is limited in family law or child support matters to those transferred to or by it under clauses 51 or 149 of the FCFC Bill. Therefore, regulations that limit the original jurisdiction of the FCFC (Division 2) will have the effect of limiting the jurisdiction of the FCFC (Division 1).

141. It is intended that regulation 39BB of the Family Law Regulations 1984 would be amended, prior to commencement of the legislation, to maintain present restrictions on the Federal Circuit Court's exercise of jurisdiction pursuant to paragraph 31(1)(c) of the Family Law Act in specified States or Territories, reflecting its continuation as the FCFC (Division 2).

Item 51 - Subsection 40(6)

142. Subsection 40(6) provides that a party to proceedings instituted or continued under the Family Law Act in the Supreme Court of a State or Territory, being proceedings that could have been instituted in the Family Court, may apply to the Family Court to have the matter transferred to it and the Family Court may order the transfer.

143. Item 51 omits and substitutes the part of the subsection referencing the Family Court to make provision for an application to be made to the FCFC (Division 2), and provides that court with the power to order the transfer.

144. This item only refers to the FCFC (Division 2), the continuation of the Federal Circuit Court, and not the FCFC (Division 1), the continuation of the Family Court. This reflects that the original jurisdiction of the FCFC (Division 1), as provided in clause 25 of the FCFC Bill, is limited to family law or child support matters transferred to or by it under clauses 51 or 149 of the FCFC Bill. The intent of this change is to create an effective single point of entry into the family law courts, where court-users file family law or child support matters in the FCFC (Division 2) in the first instance. More information is in the Explanatory Memorandum to the FCFC Bill.

Item 52 - Subsection 40(7)

145. Subsection 40(7) provides that the standard Rules of Court may make provision in relation to a transfer under subsection 40(6).

146. Item 52 omits the reference to 'standard Rules of Court' and substitutes a reference to the 'Federal Circuit and Family Court (Division 1) and the Federal Circuit and Family Court (Division 2) Rules' to reflect all relevant Rules of Court.

Item 53 - Section 40A

147. Section 40A provides that the jurisdiction of the Federal Circuit Court under the Family Law Act must not be exercised in respect of a particular proceeding in a State or Territory if the corresponding jurisdiction of the Family Court is not capable of being exercised in that State or Territory.

148. Item 53 repeals section 40A, as section 40, which contains the power to prevent the Family Court exercising jurisdiction, has been amended (see item 50 of Schedule 1 of this Bill), rendering section 40A unnecessary.

Item 54 - Subsection 41(3)

149. Subsection 41(3) provides that where the Governor-General has issued a proclamation under subsection 41(2) that section 41 applies to a Family Court created by a State, specific references in the Family Law Act to the Supreme Court of a State, are to read as references to the State Family Court.

150. Item 54 omits and substitutes specific section references in subsection 41(3) to correctly identify the provisions where a reference to the Supreme Court of a State must be read as a reference to the Family Court of a State. This amendment is necessary because of amendments that will be made by this Bill to the sections currently identified in subsection 41(3) and inserts a reference to subclause 26(1) of the FCFC Bill, which contains a reference to appeals from a judgment of a Supreme Court of a State or Territory.

Item 55 - Subsection 41(5)

151. Subsection 41(5) provides that references in the Family Law Act or the standard Rules of Court to a court of summary jurisdiction should not be read as a reference to a court to which section 41 applies.

152. Item 55 omits 'standard Rules of Court' and substitutes 'applicable Rules of Court' to reflect that different sets of rules may now be relevant to this section and that this section should apply to all relevant sets of rules. A definition of applicable Rules of Court is to be provided in subsection 4(1) (see item 3 of Schedule 1 of this Bill).

Item 56 - Subsection 43(1)

153. Subsection 43(1) provides that, in exercising jurisdiction under the Act, the Family Court and any other court exercising jurisdiction under the Act shall have regard to the principles set out in paragraphs 43(1)(a) to (d).

154. Item 56 omits 'The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction' and substitutes 'A court exercising jurisdiction under this Act must, in the exercise of that jurisdiction' This amendment removes the specific reference to the Family Court given its name change to the FCFC (Division 1) (see subclause 8(1) of the FCFC Bill). The operation of the section remains the same, such that adherence to the principles is required by all courts exercising jurisdiction under the Family Law Act.

Item 57 - Subparagraph 44(1B)(a)(ii)

155. Paragraph 44(1B)(a) provides that a divorce order shall not, without leave, be filed within two years of the date of the marriage unless, filed with an application, is a certificate stating that the parties have considered reconciliation with the assistance of a person specified in subparagraphs 46(1B)(a)(i) to (iii). Subparagraph 44(1B)(a)(ii) provides that, in relation to the Family Court, the Federal Circuit Court or the Family Court of a State, the specified person is an individual or organisation nominated for the parties by a family consultant.

156. Item 57 omits 'Family Court, the Federal Circuit Court of Australia' from subparagraph 44(1B)(a)(ii) and substitutes 'Federal Circuit and Family Court of Australia (Division 2)' to align with the new arrangements established under the FCFC Bill and reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) (see subclause 8(2) of the FCFC Bill).

157. This item only refers to the FCFC (Division 2), the continuation of the Federal Circuit Court, and not the FCFC (Division 1), the continuation of the Family Court. This reflects that the original jurisdiction of the FCFC (Division 1), as provided in clause 25 of the FCFC Bill, is limited to family law or child support matters transferred to or by it under clauses 51 or 149 of the FCFC Bill. The intent of this change is to create an effective single point of entry into the family law courts, where court-users file family law or child support matters in the FCFC (Division 2) in the first instance. More information is in the Explanatory Memorandum to the FCFC Bill.

Item 58 - Subparagraph 44(1B)(a)(iii)

158. Paragraph 44(1B)(a) provides that a divorce order shall not, without leave, be filed within two years of the date of the marriage unless, filed with an application, is a certificate stating that the parties have considered reconciliation with the assistance of a person specified in subparagraphs 46(1B)(a)(i) to (iii). Subparagraph 44(1B)(a)(iii) provides that, in relation to a court that is not the Family Court, the Federal Circuit Court or the Family Court of a State, the specified person is an individual or organisation nominated for the parties by an appropriately qualified officer of the court.

159. Item 58 omits 'Family Court, the Federal Circuit Court of Australia' from subparagraph 44(1B)(a)(iii) and substitutes 'Federal Circuit and Family Court of Australia (Division 2)' to align with the new arrangements established under the FCFC Bill and reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) (see subclause 8(2) of the FCFC Bill).

160. This item only refers to the FCFC (Division 2), the continuation of the Federal Circuit Court, and not the FCFC (Division 1), the continuation of the Family Court. This reflects that the original jurisdiction of the FCFC (Division 1), as provided in clause 25 of the FCFC Bill, is limited to family law or child support matters transferred to or by it under clauses 51 or 149 of the FCFC Bill. The intent of this change is to create an effective single point of entry into the family law courts, where court-users file family law or child support matters in the FCFC (Division 2) in the first instance. More information is in the Explanatory Memorandum to the FCFC Bill.

Item 59 - Subsection 45(1)

161. Subsection 45(1) provides that where there are pending court proceedings that have been instituted under the Family Law Act or continued in accordance with section 9, and it appears to the court that other proceedings that relate to the same marriage, void marriage or the same matter are pending in another court, the first-mentioned court may stay or dismiss the proceedings.

162. Item 59 omits references to matters being continued in accordance with section 9, reflecting that section 9 is to be repealed because there are now no proceedings to which section 9 would apply (see item 19 of Schedule 1 of this Bill).

Item 60 - Subsection 45(2)

163. Subsection 45(2) provides that, where there are pending court proceedings, instituted under the Family Law Act, or continued in accordance with section 9, and it appears to the court that the proceedings would better be dealt with in another court, the court may transfer the proceedings to the other court.

164. Item 60 omits the reference to matters being continued in accordance with section 9 reflecting that section 9 is to be repealed because there are now no proceedings to which section 9 would apply (see item 19 of Schedule 1 of this Bill).

Item 61 - Paragraphs 45(2)(a) and (b)

165. Paragraphs 45(2)(a) and (b) prohibit a transfer of pending court proceedings under subsection 45(2) where the two courts involved (the transferring and receiving courts) are the Family Court and the Federal Circuit Court.

166. Item 61 omits paragraphs 45(2)(a) and (b) and substitutes new paragraphs 45(2)(a) and (b) with the same effect but using the new terminology to appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and the Federal Circuit Court as the FCFC (Division 2) as provided by subclause 8(2) of the FCFC Bill.

Item 62 - Subsection 45(2) (notes 1 and 2)

167. Notes 1 and 2 to subsection 45(2) identify the statutory provisions which allow transfers between the Family Court and the Federal Circuit Court.

168. Item 62 repeals notes 1 and 2 and substitutes new notes 1 and 2. The new notes identify the powers in the FCFC Bill that provide for transfers between the FCFC (Division 1) and FCFC (Division 2) using the new terminology to reflect the continuation of the Family Court as the FCFC (Division 1) and the Federal Circuit Court as the FCFC (Division 2).

Item 63 - Subparagraphs 46(1)(a)(i) to (iii)

169. Subsection 46(1)(a) provides that, where proceedings are instituted or transferred to a court of summary jurisdiction in relation to property exceeding $20,000 and the respondent seeks an order different from that sought in the application, the court must inform the parties that unless they consent to the court hearing and determining the proceedings the court must transfer the proceedings to one of the courts specified in subparagraphs 46(1)(a)(i) to (iii). Subparagraph 46(1)(a)(i) specifies the Family Court and subparagraph 46(1)(a)(iii) specifies the Federal Circuit Court.

170. Item 63 repeals subparagraphs 46(1)(a)(i) to (iii) and substitutes new paragraphs 46(1)(a)(i) to (iii). New paragraph 46(1)(a)(i) specifies the FCFC (Division 2) as a body the court of summary jurisdiction must inform the parties that it may be required to transfer proceedings to. This reflects that the Federal Circuit Court is continued in existence as the FCFC (Division 2) (as provided by subclause 8(2) of the FCFC Bill.

171. This item only refers to the FCFC (Division 2), the continuation of the Federal Circuit Court, and not the FCFC (Division 1), the continuation of the Family Court. This reflects that the original jurisdiction of the FCFC (Division 1), as provided in clause 25 of the FCFC Bill, is limited to family law or child support matters transferred to or by it under clauses 51 or 149 of the FCFC Bill. The intent of this change is to create an effective single point of entry into the family law courts, where court-users file family law or child support matters in the FCFC (Division 2) in the first instance. More information is in the Explanatory Memorandum to the FCFC Bill.

Item 64 - Subparagraphs 46(1)(b)(i) to (iii)

172. Subsection 46(1)(b) provides that, where proceedings are instituted or transferred to a court of summary jurisdiction in relation to property exceeding $20,000 and the respondent seeks an order different from that sought in the application, unless the parties agree to the court hearing and determining the proceedings the court must transfer the proceedings to one of the courts specified in subparagraphs 46(1)(b)(i) to (iii). Subparagraph 46(1)(b)(i) specifies the Family Court and subparagraph 46(1)(b)(iii) specifies the Federal Circuit Court.

173. Item 64 repeals subparagraphs 46(1)(b)(i) to (iii) and substitutes new paragraphs 46(1)(b)(i) to (iii) to provide for transfers of proceedings from a court of summary jurisdiction to the FCFC (Division 2), a Family Court of a State or a Supreme Court of a State or Territory unless the parties consent to the court of summary jurisdiction hearing and determining the matter. This reflects that the Federal Circuit Court is continued in existence as the FCFC (Division 2) (as provided by subclause 8(2) of the FCFC Bill).

174. This item only refers to the FCFC (Division 2), the continuation of the Federal Circuit Court, and not the FCFC (Division 1), the continuation of the Family Court. This reflects that the original jurisdiction of the FCFC (Division 1), as provided in clause 25 of the FCFC Bill, is limited to family law or child support matters transferred to or by it under clauses 51 or 149 of the FCFC Bill. The intent of this change is to create an effective single point of entry into the family law courts, where court-users file family law or child support matters in the FCFC (Division 2) in the first instance. More information is in the Explanatory Memorandum to the FCFC Bill.

Item 65 - Paragraphs 46(1C)(a) to (c)

175. Subsection 46(1C) provides that a court of summary jurisdiction must transfer proceedings to one of the courts set out in paragraphs 46(1C)(a) to (c), if the court has given a party leave to object to the court hearing and determining the matter. Paragraph 46(1C)(a) specifies the Family Court and paragraph 46(1C)(c) specifies the Federal Circuit Court.

176. Item 65 repeals paragraphs 46(1C)(a) to (c) and substitutes new paragraphs 46(1C)(a) to (c) to provide for transfers of proceedings from a court of summary jurisdiction to the FCFC (Division 2), a Family Court of a State or a Supreme Court of a State or Territory. This reflects that the Federal Circuit Court is continued in existence as the FCFC (Division 2) (as provided by subclause 8(2) of the FCFC Bill).

177. This item only refers to the FCFC (Division 2), the continuation of the Federal Circuit Court, and not the FCFC (Division 1), the continuation of the Family Court. This reflects that the original jurisdiction of the FCFC (Division 1), as provided in clause 25 of the FCFC Bill, is limited to family law or child support matters transferred to or by it under clauses 51 or 149 of the FCFC Bill. The intent of this change is to create an effective single point of entry into the family law courts, where court-users file family law or child support matters in the FCFC (Division 2) in the first instance. More information is in the Explanatory Memorandum to the FCFC Bill.

Item 66 - Paragraphs 46(2A)(c) to (e)

178. Subsection 46(2A) provides that, where proceedings are instituted or transferred to a court of summary jurisdiction in relation to a divorce order and the proceedings are defended, the court is required to transfer the proceedings to a court specified in paragraph 46(2A)(c) to (e). Paragraph 46(2A)(c) specifies the Family Court and paragraph 46(2A)(e) specifies the Federal Circuit Court.

179. Item 66 repeals paragraphs 46(2A)(c) to (e) and substitutes new paragraphs 46(2A)(c) to (e). New paragraph 46(2A)(c) specifies the FCFC (Division 2) as a body to which the court may transfer proceedings. This reflects that the Federal Circuit Court is continued in existence as the FCFC (Division 2) (as provided by subclause 8(2) of the FCFC Bill).

180. This item only refers to the FCFC (Division 2), the continuation of the Federal Circuit Court, and not the FCFC (Division 1), the continuation of the Family Court. This reflects that the original jurisdiction of the FCFC (Division 1), as provided in clause 25 of the FCFC Bill, is limited to family law or child support matters transferred to or by it under clauses 51 or 149 of the FCFC Bill. The intent of this change is to create an effective single point of entry into the family law courts, where court-users file family law or child support matters in the FCFC (Division 2) in the first instance. More information is in the Explanatory Memorandum to the FCFC Bill.

Item 67 - Subsection 46(3A)

181. Subsection 46(3A) provides that, if proceedings, instituted under the Family Law Act or continued under section 9 are pending in a court of summary jurisdiction, the courts specified in paragraphs 46(3A)(a) to (c) may, on application of a party or of its own motion, order the proceedings to be removed to that court.

182. Item 67 omits 'or continued under section 9' as there are now no proceedings to which section 9 would apply and section 9 is being repealed (see item 19 of Schedule 1 of this Bill).

Item 68 - Paragraphs 46(3A)(a) to (c)

183. Paragraphs 46(3A)(a) to (c) specify the courts that may make an order transferring a matter, pending in a court of summary jurisdiction, to that court on application by a party or of its own motion.

184. Item 68 repeals paragraphs 46(3A)(a)to (c) and substitutes new paragraphs 46(3A)(a) to (c). New paragraph 46(3A)(a) specifies the FCFC (Division 2) as a body that may make an order transferring a matter. This reflects that the Federal Circuit Court is continued in existence as the FCFC (Division 2) (as provided by subclause 8(2) of the FCFC Bill).

185. This item only refers to the FCFC (Division 2), the continuation of the Federal Circuit Court, and not the FCFC (Division 1), the continuation of the Family Court. This reflects that the original jurisdiction of the FCFC (Division 1), as provided in clause 25 of the FCFC Bill, is limited to family law or child support matters transferred to or by it under clauses 51 or 149 of the FCFC Bill. The intent of this change is to create an effective single point of entry into the family law courts, where court-users file family law or child support matters in the FCFC (Division 2) in the first instance. More information is in the Explanatory Memorandum to the FCFC Bill.

Item 69 - At the end of Part V

186. Item 69 inserts a new 'Division 4 - Appeals' at the end of Part V.

187. The Family Law Act appeals provisions of Part X are repealed by item 109 of Schedule 1 of this Bill. The FCFC (Division 1) (the continuation of the Family Court) will hear the majority of appeals from decisions under the Family Law Act and, as such, the majority of provisions relating to appeals are contained within the FCFC Bill. Select appeals from courts of summary jurisdiction will be heard by courts other than the FCFC (Division 1) necessitating this Division.

188. Division 4, section 47A of the Family Law Act, provides for appeals from a decree of a court of summary jurisdiction of a State or Territory, replacing existing section 96.

189. New subsection 47A(1) provides that an appeal from a court of summary jurisdiction of a State or Territory, exercising jurisdiction under the Family Law Act, the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988 lies to either the FCFC (Division 1) (paragraph 47A(1)(d)) or to the Supreme Court of that State or Territory (paragraph 47A(1)(e)).

190. By virtue of subsection 41(3) (as amended by item 54 of Schedule 1 of this Bill) and a proclamation made under subsection 41(2) of the Family Law Act, references to 'the Supreme Court of a State' in new section 47A are to be read as a reference to the Family Court of a State, which, in Western Australia, is the Family Court of Western Australia.

191. Subsection 40(1) of the Family Law Act (as amended by item 50 of Schedule 1 of this Bill) specifies that the regulations may provide that the jurisdiction of the FCFC (Division 1) and (as a consequence of the changes made by items 50 and 52 of this Schedule), the FCFC (Division 2) must not be exercised in a certain State or Territory. It is intended that amendments to the Family Law Regulations 1984 will be made prior to the commencement of this legislation to restrict the exercise of the FCFC's jurisdiction, in relation to appeals under section 47A, in Western Australia, the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands. This reflects the policy intention that, in Western Australia and the other listed territories, all appeals from a decree of a court of summary jurisdiction (other than from decrees of the Magistrates Court of Western Australia constituted by a Family Law Magistrate), exercising jurisdiction under the Family Law Act, will lie to the Family Court of Western Australia, and not the FCFC (Division 1).

192. New subsection 47A(2) provides that new subsection 47A(1) does not apply to a decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia. As currently provided in Part X of the Family Law Act, because of the specialist skills and knowledge of Family Law Magistrates of Western Australia, appeals from these decrees are treated in the same manner as decrees from the Federal Circuit Court. The parity of decisions made by these two courts is continued in the FCFC Bill where appeals from decrees of the FCFC (Division 2) (the continuation of the Federal Circuit Court) and from Family Law Magistrates of Western Australia, will by default, be heard by a single Judge of the FCFC (Division 1). As the Magistrates Court of Western Australia is a court of summary jurisdiction, new subsection 47A(2) is necessary to ensure that decrees of Family Law Magistrates are not treated in the same way as decrees of other Western Australian magistrates.

193. New subsection 47A(3) provides the time within which the appeal must be filed is as provided by the applicable Rules of Court that pertain to the particular court in which the appeal is filed.

194. New subsection 47A(4) invests the Supreme Court of each State with federal family law jurisdiction, and confers jurisdiction on the Supreme Court of each Territory, to hear appeals on matters of family law from courts of summary jurisdiction that are instituted under section 47A.

195. A note is inserted after subsection 47A(4) providing that, in relation to child support, section 101 of the Child Support (Assessment) Act 1989 and section 106 of the Child Support (Registration and Collection) Act 1988, are relevant as these sections confer appellate jurisdiction on the Supreme Court of the Northern Territory and a Family Court of a State in relation to decrees of a court of summary jurisdiction in the relevant State or Territory.

196. New subsection 47A(5) provides that the Governor-General may provide, by proclamation, that a Supreme Court of the State or Territory will not institute appeals on matters of family law from courts of summary jurisdiction from a certain date. The proclamation may apply only to proceedings of a particular class to ensure that the ability of a Supreme Court to hear appeals can differ in relation to the exercise of jurisdiction under the Family Law Act, the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988.

197. The proclamation made under section 96, relating to the jurisdiction of the Supreme Courts of particular States and Territories to hear appeals is saved (see item 233 of Schedule 1 of this Bill) and taken to be made for the purpose of subsection 47A(5).

198. New subsection 47A(6) provides how a court hearing an appeal under this subsection is to proceed and what evidence the court can have regard to. The court must consider the evidence that was given in the proceedings in the court of summary jurisdiction. The court may draw inferences of fact, or if it so chooses receive additional evidence given by other means that the court considers appropriate. This is consistent with the appellate jurisdiction provided to the Family Court under subsections 93A(2) and 96(4) of Part X of the Family Law Act, which is repealed by item 109 of Schedule 1 of this Bill.

199. Section 69GA provides that Subdivision C of Division 12 of Part VII of the Family Law Act, which broadly governs the jurisdiction of courts to hear Part VII proceedings, applies to prescribed state and territory courts in the same way as it applies to courts of summary jurisdiction. New subsection 47A(7) provides that section 47A applies to decrees of a court made in section 69GA proceedings in the same way as the section applies to decrees of a court of summary jurisdiction.

200. New section 47B provides that where an appeal is from a decree of a court of summary jurisdiction of a State or Territory exercising jurisdiction under the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988 then leave of the relevant court (being the FCFC (Division 1), or the Supreme Court of a State or Territory) is required. Currently, section 105 of the Child Support (Assessment) Act 1989 and section 110 of the Child Support (Registration and Collection) Act 1998 provide for these appeals, including the need for leave to appeal. New section 47B replicates the effect of these sections and provides for the time in which an application for leave to appeal must be lodged to be prescribed in the applicable Rules of Court that pertain to the particular court in which the application is being filed.

201. New section 47C provides that the court may dismiss an appeal instituted under Division 4 of Part V, at any time, if it appears to the court to have no real prospect of success. This section replicates section 96AA of Part X of the Family Law Act which is repealed by item 109 of Schedule 1 of this Bill and is necessary because of the appeals jurisdiction that is retained in the Family Law Act in relation to courts of summary jurisdiction.

202. New subsection 47D(1) provides that an appeal to the High Court does not lie from a decree of a court of summary jurisdiction of a State or Territory, a Family Court of a State, or a Supreme Court of a State or Territory constituted by a single Judge exercising jurisdiction under the Family Law Act.

203. New subsection 47D(2) provides that if subsection 47D(1) is inconsistent with section 73 of the Constitution (which outlines the appellate jurisdiction of the High Court), subsection 47D(1) will have effect as though the words 'except by special leave of the High Court' were added to the end of subsection 47D(1). This provision is consistent with the approach taken to High Court appeals from judgments of the FCFC (Division 1) and the FCFC (Division 2) (clauses 55 and 155 of the FCFC Bill), ensuring a consistent approach across all courts exercising family law and child support jurisdiction (that is, only to permit an appeal with special leave if the provision would otherwise be unconstitutional). This approach further enforces the appeals pathways in new section 47A. New section 47E provides that, despite the provisions of Division 4 of Part V of the Family Law Act, a court only has appellate jurisdiction in relation to a matter arising under regulations made for the purposes of section 111C of the Family Law Act, as provided by those regulations. The effect of section 47E is that the FCFC (Division 1) and a Supreme Court of a State or a Territory will not have appellate jurisdiction conferred on them by section 47A in relation to matters arising under regulations made for the purpose of section 111C of the Family Law Act. The appellate jurisdiction can only be conferred in the relevant regulation.

204. This section is necessary to ensure that appellate jurisdiction is not inadvertently conferred on the FCFC (Division 1) and the Supreme Court of a State or Territory under new section 47A, where the regulations made under section 111C have conferred or invested a federal, State or Territory court with jurisdiction (either original or appellate).

205. New section 47E is intended to have the same effect as section 96A of Part X of the Family Law Act, which is repealed by item 109 of Schedule 1 of this Bill.

Item 70 - Subsection 55(5) (paragraphs (d) and (e) of the definition of appeal )

206. Subsection 55(5) provides a definition for an appeal in relation to a divorce order.

207. Item 70 repeals and replaces paragraphs 55(5)(d) and (e) to reflect the structure, administration and officers of the new FCFC (Division 1) (the continuation of the Family Court) and FCFC (Division 2) (the continuation of the Federal Circuit Court), respectively.

208. These amendments identify those officers that have had, and continue to have, the authority to exercise certain powers and functions to which these paragraphs apply, and that need to be specified as a result of the new, narrower, definition of Registrar (see item 11 of Schedule 1 of this Bill).

209. New paragraph 55(5)(d) provides that for the FCFC (Division 1), an appeal includes a review of orders made by the Chief Executive Officer, or a Senior Registrar or Registrar of that Court.

210. New paragraph 55(5)(e) reflects that for the FCFC (Division 2) an appeal includes a review of orders made by the Chief Executive Officer, or a Senior Registrar or Registrar of that Court.

Item 71 - Subsection 56(2)

211. Subsection 56(2) provides that, if a divorce order has taken effect, any person is entitled, on application to the Registry Manager, to receive a certificate signed by the Registrar of the court in which the divorce order has taken effect.

212. Item 71 omits all the words after 'certificate' in subsection 56(2) and substitutes paragraphs 56(2)(a) to (c), to reflect the structure, administration and officers of the new FCFC (Division 1) (the continuation of the Family Court), the FCFC (Division 2) (the continuation of the Federal Circuit Court), and other courts exercising family law jurisdiction.

213. These amendments identify those officers that have had, and continue to have, the authority to exercise certain powers and functions to which these paragraphs apply, but that need to be specified as a result of the new, narrower, definition of Registrar (see item 11 of Schedule 1 of this Bill).

Item 72 - At the end of Part VI

214. Item 72 inserts a new section 60 at the end of Part VI. New section 60 provides that no appeal lies from a divorce order after the order takes effect. New section 60 replicates section 93 of Part X of the Family Law Act which is repealed by item 109 of Schedule 1 of this Bill.

Item 73 - Subsection 60F(5) (definition of this Act )

215. Subsection 60F(5) provides that, in section 60F a reference to this Act includes a reference to the standard Rules of Court and the Federal Circuit Court Rules.

216. Item 73 repeals the definition of this Act in subsection 60F(5) and substitutes a new definition providing that this Act includes the 'applicable Rules of Court' to reflect that different sets of court rules that may be relevant to this section as a result of the FCFC (Division 1), FCFC (Division 2), and other relevant courts exercising family law jurisdiction.

Item 74 - Section 60G (heading)

217. Item 74 omits 'Family Court may grant leave' from the heading and substitutes 'Leave may be granted', to reflect that the FCFC (Division 2) and the other courts as described in the section now exercise family law jurisdiction and may grant leave (see item 75 of Schedule 1 of this Bill).

Item 75 - Subsection 60G(1)

218. Subsection 60G(1) provides the courts that may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent.

219. Item 75 omits the first occurring reference to 'Family Court' from subsection 60G(1) and substitutes a reference to the 'Federal Circuit and Family Court of Australia' to provide that the FCFC (Division 2) can grant leave under this subsection. This reflects that the Federal Circuit Court is continued in existence as the FCFC (Division 2) (as provided by subclause 8(2) of the FCFC Bill).

220. This item only refers to the FCFC (Division 2), the continuation of the Federal Circuit Court, and not the FCFC (Division 1), the continuation of the Family Court. This reflects that the original jurisdiction of the FCFC (Division 1), as provided in clause 25 of the FCFC Bill, is limited to family law or child support matters transferred to or by it under clauses 51 or 149 of the FCFC Bill. The intent of this change is to create an effective single point of entry into the family law courts, where court-users file family law or child support matters in the FCFC (Division 2) in the first instance. More information is in the Explanatory Memorandum to the FCFC Bill.

Item 76 - Subsection 60H(6) (definition of this Act )

221. Subsection 60H(6) provides that, in section 60H a reference to this Act includes a reference to the standard Rules of Court and the Federal Circuit Court Rules.

222. Item 76 repeals the definition of this Act in subsection 60H(6) and substitutes a new definition providing that this Act includes the 'applicable Rules of Court' to reflect that different sets of court rules that may be relevant to this section as a result of the FCFC (Division 1), FCFC (Division 2) and other relevant courts exercising family law jurisdiction.

Item 77 - Subsection 60HA(4) (definition of this Act )

223. Subsection 60HA(4) provides that, in section 60HA a reference to this Act includes a reference to the standard Rules of Court and the Federal Circuit Court Rules.

224. Item 77 repeals the definition of this Act in subsection 60HA(4) and substitutes a new definition providing that this Act includes the broader defined term of 'applicable Rules of Court' to reflect that different sets of court rules that may now be relevant to this section as a result of the FCFC (Division 1), FCFC (Division 2) and other relevant courts exercising family law jurisdiction.

Item 78 - Subsection 60HB(2) (definition of this Act )

225. Subsection 60HB(2) provides that, in section 60HB a reference to this Act includes a reference to the standard Rules of Court and Federal Circuit Court Rules.

226. Item 78 repeals the definition of this Act in subsection 60HB(2) and substitutes a new definition providing that this Act includes the 'applicable Rules of Court' to reflect that different sets of court rules that may now be relevant to this section as a result of the FCFC (Division 1), FCFC (Division 2) and other relevant courts exercising family law jurisdiction.

Item 79 - Subsections 60I(2) to (5)

227. Subsections 60I(2) to (5) are transitional provisions providing for the family dispute resolution requirements that applied between 2006 and 2008.

228. Item 79 repeals subsections 60I(2) to (5) as they no longer have application.

Item 80 - Subsection 60I(6) (heading)

229. Item 80 repeals the heading to subsection 60I(6) 'Phase 3 (from July 2008)' and substitutes a new heading 'Application for a Part VII order'. This is required because the repeal of subsections 60I(2) to (5) (see item 79 of Schedule 1 of this Bill) removes the references to phases 1 and 2 and therefore renders the current phase 3 heading redundant. The substituted heading reflects that subsection 60I(6) is relevant to all applications for a Part VII order.

Item 81 - Paragraph 60J(1)(a)

230. Paragraph 60J(1)(a) refers to circumstances when subsections 60I(7) to 60I(12) apply by referencing subsections 60I(5) and (6).

231. Item 81 omits 'subsections 60I(5) and (6)' and substitutes a reference to 'subsection 60I(6)' to reflect that subsection 60I(5) has been repealed (see item 79 of Schedule 1 of this Bill).

Item 82 - Subsection 64B(9) (definition of this Act )

232. Subsection 64B(9) provides that in section 64B 'this Act' a reference to this Act includes a reference to the standard Rules of Court and Federal Circuit Court Rules.

233. Item 82 repeals the definition of this Act in subsection 64B(9) and substitutes a new definition providing that this Act includes the 'applicable Rules of Court' to reflect that different sets of court rules that may now be relevant to this section as a result of the FCFC (Division 1), FCFC (Division 2) and other relevant courts exercising family law jurisdiction.

Item 83 - Subsection 65D(3) (note)

234. The note to subsection 65D(3) provides information about the statutory provisions that provide for particular matters to be transferred between the Family Court and the Federal Circuit Court.

235. Item 83 repeals the note and substitutes new notes 1 and 2. The new notes identify the powers in the FCFC Bill that provide for transfers of matters between the FCFC (Division 1) and FCFC (Division 2) using the new titles to appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and the Federal Circuit Court as the FCFC (Division 2).

Item 84 - Subsection 67Z(2)

236. Subsection 67Z(2) provides that, in circumstances outlined in subsection 67Z(1), an interested person must file a notice in the prescribed form and serve a copy on the person alleged to have abused the child or from whom the child is alleged to be at risk of abuse.

237. Item 84 omits the reference to 'prescribed form' and substitutes a reference to 'an approved form' to reflect the changes made by item 85 of Schedule 1 of this Bill.

Item 85 - Subsection 67Z(4)

238. Item 85 inserts a definition of approved form into subsection 67Z(4) which provides that 'approved form means a form approved for the purposes of this section under the applicable Rules of Court.' The inclusion of this definition, in conjunction with the amendments made by items 84 and 86 of Schedule 1 of this Bill has the effect that the form required to be completed and served under subsection 67Z(2) does not need to be prescribed in, but can instead be approved under, the applicable Rules of Court.

Item 86 - Subsection 67Z(4)

239. Item 86 repeals the definitions of prescribed form in subsection 67Z(4).

240. The definition of prescribed form will no longer be required as a result of the amendments made by items 84 and 85 of Schedule 1 of this Bill, which provide that the form is now an approved form.

Item 87 - Paragraph 67ZA(1)(a)

241. Item 87 omits paragraph 67ZA(1)(a), which specifies the persons in the Family Court who have obligations under section 67ZA, and substitutes new paragraphs 67ZA(1)(a) to (ab) to cover all relevant officers in the new FCFC Division 1 (the continuation of the Family Court) and FCFC Division 2 (the continuation of the Federal Circuit Court).

242. These amendments identify those officers that have had, and continue to have, obligations under section 67ZA, and that need to be specified as a result of a change to the definition of Registrar (see item 11 of Schedule 1 of this Bill).

Item 88 - Paragraph 67ZA(1)(c)

243. Item 88 repeals paragraph 67ZA(1)(c), which specifies the persons in the Federal Circuit Court who have obligations under section 67ZA, as it is redundant as a result of new paragraph 67ZA(1)(ab) inserted by item 87 of Schedule 1 of this Bill.

Item 89 - Subsection 67ZBA(2)

244. Subsection 67ZBA(2) provides that, in circumstances outlined in subsection 67ZBA(1), an interested person must file a notice in the prescribed form and serve a copy on the party referred to in paragraph 67ZBA(1)(a) or (b).

245. Item 89 omits the reference to 'prescribed form' and substitutes a reference to 'an approved form' to reflect the changes made by item 90 of Schedule 1 of this Bill.

Item 90 - Subsection 67ZBA(4)

246. Item 90 inserts a definition of approved form into subsection 67ZBA(4) which provides that 'approved form means a form approved for the purposes of this section under the applicable Rules of Court.' The inclusion of this definition, in conjunction with the amendments made by items 89 and 91 of Schedule 1 of this Bill, has the effect that the form required to be completed and served under subsection 67ZBA(2) does not need to be prescribed in, but can be instead approved under, the applicable Rules of Court.

Item 91 - Subsection 67ZBA(4)

247. Item 91 repeals the definitions of prescribed form in subsection 67ZBA(4).

248. The definition of prescribed form will no longer be required as a result of the amendments made by items 89 and 90 of Schedule 1 of this Bill, which provide that the form is now an approved form.

Item 92 - Section 69H (heading)

249. Item 92 omits the heading to section 69H and substitutes a new heading 'Jurisdiction of Federal Circuit and Family Court of Australia (Division 2), State Family Courts and Northern Territory Supreme Court'.

250. The heading will not refer the FCFC (Division 1) as, consistent with the implementation of a single point of entry into the family courts, a party will not be able to institute proceedings under Part VII of the Family Law Act in the FCFC (Division 1) (see item 93). Noting that clauses 51 and 149 of the FCFC Bill will provide for matters to be transferred to or by the FCFC (Division 1).

Item 93 - Subsection 69H(1)

251. Subsection 69H(1) provides that jurisdiction is conferred on the Family Court in matters arising under this Part.

252. Item 93 omits 'Family Court' as having jurisdiction under this Part and substitutes the 'Federal Circuit and Family Court of Australia (Division 2)' to provide that the FCFC (Division 2) (the continuation of the Federal Circuit Court has jurisdiction in relation to matters arising under Part VII of the Family Law Act. The conferral of jurisdiction on the FCFC (Division 2) is not a new conferral as the Federal Circuit Court is vested with jurisdiction by subsection 69H(4) (which, now being provided for in this item, is repealed at item 94 of Schedule 1 of this Bill).

253. This item only refers to the FCFC (Division 2), the continuation of the Federal Circuit Court, and not the FCFC (Division 1), the continuation of the Family Court. This reflects that the original jurisdiction of the FCFC (Division 1), as provided in clause 25 of the FCFC Bill, is limited to family law or child support matters transferred to or by it under clauses 51 or 149 of the FCFC Bill. The intent of this change is to create an effective single point of entry into the family law courts, where court-users file family law or child support matters in the FCFC (Division 2) in the first instance. More information is in the Explanatory Memorandum to the FCFC Bill.

Item 94 - Subsection 69H(4)

254. The requirement for Family Law Act Part VII jurisdiction to be conferred on the Federal Circuit Court (which continues in existence as the FCFC Division 2) is redundant due to the amendment in item 93 of Schedule 1 of this Bill, and therefore subsection 69H(4) is repealed.

Item 95 - Paragraphs 69N(2)(a) to (d) and (3)(a) to (d)

255. Subsection 69N(2) provides that, where proceedings for a parenting order are instituted or transferred to a court of summary jurisdiction and the respondent seeks an order different from that sought in the application, the court must inform the parties that unless they consent to the court hearing and determining the proceedings the court must transfer the proceedings to one of the courts specified in paragraphs 69N(2)(a) to (d).

256. Subsection 69N(3) provides that, where proceedings for a parenting order are instituted or transferred to a court of summary jurisdiction and the respondent seeks an order different from that sought in the application, unless the parties agree to the court hearing and determining the proceedings the court must transfer the proceedings to one of the courts specified in paragraphs 69N(3)(a) to (d).

257. Item 95 repeals paragraphs 69N(2) (a) to (d) and paragraphs 69N(3)(a) to (d) and replaces them with new paragraphs 69N(2)(a) to (c) and 69N(3)(a) to (c), respectively. New paragraphs 69N(2)(a) and 69N(3)(a) specify the FCFC (Division 2) as a body to which the parties must be informed a matter will be transferred and the body which a matter is to be transferred respectively. This reflects that the Federal Circuit Court is continued in existence as the FCFC (Division 2) (as provided by subclause 8(2) of the FCFC Bill).

258. To support an effective single point of entry into the family law courts, subsections 69N(2) and (3) will no longer provide for the transfer of matters from courts of summary jurisdiction directly to the Family Court, continuing as the FCFC (Division 1). Noting that clauses 51 and 149 of the FCFC Bill will provide for matters to be transferred from the FCFC (Division 2) to the FCFC (Division 1).

Item 96 - Subparagraphs 69N(5)(b)(i) to (iv)

259. Paragraph 69N(5)(b) provides that despite a party not being entitled to object (without leave) to a court of summary jurisdiction hearing and determining proceedings if the parties have previously consented to the court hearing and determining the proceedings, the court may, on its own initiative, transfer the proceedings to one of the courts specified in subparagraphs 69N(5)(b)(i) to (iv).

260. Item 96 repeals subparagraphs 69N(5)(b)(i) to (iv) and substitutes new paragraphs 69N(5)(b)(i) to (iii). New paragraph 69N(5)(b)(i) specifies the FCFC (Division 2) as a body to which a court of summary jurisdiction may transfer a matter. This reflects that the Federal Circuit Court is continued in existence as the FCFC (Division 2) (as provided by subclause 8(2) of the FCFC Bill).

261. To support an effective single point of entry into the family law courts, subsection 69N(5) will no longer provide for the transfer of matters from courts of summary jurisdiction directly to the Family Court, continuing as the FCFC (Division 1). Noting that clauses 51 and 149 of the FCFC Bill will provide for matters to be transferred from the FCFC (Division 2) to the FCFC (Division 1).

Item 97 - Paragraph 69N(6)(a) to (d)

262. Subsection 69N(6) provides that a court of summary jurisdiction must transfer proceedings to one of the courts, specified in paragraphs 69N(6)(a) to (d), if the court has given a party leave to object to the court hearing and determining the matter.

263. Item 97 repeals paragraphs 69N(6)(a) to (d) and substitutes new paragraphs 69N(6)(a) to (c). New paragraph 69N(6)(a) specifies the FCFC (Division 2) as a body to which a court of summary jurisdiction must transfer a matter. This reflects that the Federal Circuit Court is continued in existence as the FCFC (Division 2) (as provided by subclause 8(2) of the FCFC Bill).

264. To support an effective single point of entry into the family law courts, subsection 69N(6) will no longer provide for the transfer of matters from courts of summary jurisdiction directly to the Family Court, continuing as the FCFC (Division 1). Noting that clauses 51 and 149 of the FCFC Bill will provide for matters to be transferred from the FCFC (Division 2) to the FCFC (Division 1).

Item 98 - Section 69ZO

265. Section 69ZO provides that certain persons (a Judge, Judicial Registrar, Registrar or magistrate), who is hearing child-related proceedings in Chambers, has all the duties and powers a court has under Division 12A of Part VII of the Family Law Act.

266. Item 98 repeals and replaces section 69ZO to reflect the structure, administration and officers of the new FCFC, including Division 1 (the continuation of the Family Court), Division 2 (the continuation of the Federal Circuit Court), and other courts exercising family law jurisdiction under this provision.

267. The amendments identify the persons that had, and continue to have, all the duties and powers of a court under the division, but that need to be specified to reflect the relevant officers of the FCFC, and as a result of the narrower definition of Registrar in the Family Law Act (see item 11 of Schedule 1 of this Bill).

Item 99 - Subsection 69ZR(3)

268. Subsection 69ZR(3) provides that a certain person (a Judge, Judicial Registrar, Registrar or magistrate) who exercises a power under subsection 69ZR(1), is not required to disqualify himself or herself from a further hearing of the proceedings.

269. Item 99 omits the reference to 'Judge, Judicial Registrar, Registrar or magistrate' and substitutes a reference to 'a person' to ensure that this subsection captures all the persons who may exercise powers under subsection 69ZR(1).

Item 100 - Section 70M (heading)

270. Section 70M is headed 'Registrar to send documents etc. to overseas jurisdiction'.

271. Item 100 omits 'Registrar' from the heading and substitutes 'Registry Manager' to accurately reflect the person who currently has obligations under section 70M.

Item 101 - Paragraph 70NFD(a)

272. Paragraph 70NFD(a) provides that, a community service order made under paragraph 70NFB(2)(a) by the Family Court or the Federal Circuit Court, may be varied or discharged by either of those Courts.

273. Item 101 amends paragraph 70NFD(a) to remove the terms 'Family Court' and 'Federal Circuit Court' and replace them with the 'Federal Circuit and Family Court of Australia (Division 1)' or the 'Federal Circuit and Family Court of Australia (Division 2)', consistent with the new court structure and functions under the FCFC Bill.

Item 102 - Paragraph 70NFD(b)

274. Paragraph 70NFD(b) provides that, a community service order made under paragraph 70NFB(2)(a) by a court other than the Family Court or the Federal Circuit Court, may be varied or discharged by the Family Court.

275. Item 102 omits 'Family Court' from paragraph 70NFD(b) and substitutes with the term 'Federal Circuit and Family Court of Australia', which captures both the FCFC (Division 1) (the continuation of the Family Court) and the FCFC (Division 2) (the continuation of the Federal Circuit Court) consistent with the new court structure and functions under the FCFC Bill.

Item 103 - Subsection 79(9)

276. Subsection 79(9) provides that the Family Court or a Family Court of a State shall not make an order under section 79 in property settlement proceedings unless one of the circumstances in paragraphs 79(9)(a) to (c) is satisfied.

277. Item 103 replaces the first occurring reference to 'Family Court' with 'Federal Circuit and Family Court (Division 1)' to reflect the continuation of the Family Court as the FCFC (Division 1), consistent with the new court structure and functions under the FCFC Bill.

Item 104 - Paragraph 79(9)(a)

278. Paragraph 79(9)(a) provides one of the circumstances that, having been satisfied, would allow the Family Court or a Family Court of the State to make an order under section 79. The circumstance provided in paragraph 79(9)(a) is that the parties to proceedings have attended a conference with a Registrar or Deputy Registrar of the Family Court or a Registrar or Deputy Registrar of a Family Court of that State.

279. Item 104 repeals subparagraph 79(9)(a) and substitutes a new paragraph with a subparagraph (i) - that replaces the term 'Family Court' with the 'Federal Circuit and Family Court of Australia (Division 1)' (the continuation of the Family Court), and identifies those officers that have exercised, and continue to exercise the certain powers and functions to which the paragraph applies, and that need to be specified as a result of the new, narrower, definition of Registrar (see item 11 of Schedule 1 of this Bill).

280. New subparagraph 79(9)(a)(ii) provides, in relation to the Family Court of a State, that the parties must attend a conference with the Registrar or Deputy Registrar of that Family Court and does not change the jurisdiction of the Family Court of a State, or its officers, to which the paragraph applies.

Item 105 - Paragraph 79H(3)(c)

281. Paragraph 79H(3)(c) provides that the 'applicable Rules of Court' may make provision for a person who satisfies the circumstances in paragraphs 79H(3)(a) to (c), to notify a court exercising jurisdiction under the Family Law Act of the proceedings under the Bankruptcy Act 1966. The circumstances provided by paragraph 79H(3)(c) are that the person becomes a party to particular proceeding before the Federal Court or the Federal Circuit Court under the Bankruptcy Act 1966.

282. Item 105 replaces the term 'Federal Circuit Court of Australia' with 'Federal Circuit and Family Court of Australia (Division 2)' to reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) as provided by the FCFC Bill.

Item 106 - Subsection 90SM(9)

283. Subsection 90SM(9) provides that the Family Court shall not make an order under section 90SM in property settlement proceedings unless one of the circumstances in paragraphs 90SM(9)(a) to (c) is satisfied.

284. Item 106 replaces the reference to 'Family Court' with 'Federal Circuit and Family Court (Division 1)' to reflect the continuation of the Family Court as the FCFC (Division 1) as provided by the FCFC Bill.

Item 107 - Paragraph 90SM(9)(a)

285. Paragraph 90SM(9)(a) provides one of the circumstances that, having been satisfied, allowed the Family Court to make an order under section 90SM. The circumstance provided in paragraph 90SM(9)(a) is that the parties to proceedings must have attended a conference with a Registrar or Deputy Registrar of the Family Court.

286. Item 107 repeals subparagraph 90SM(9)(a) and substitutes a new paragraph 90SM(9)(a) that reflects the structure, administration and officers of the new FCFC (Division 1) (the continuation of the Family Court), and identifies the officers that had, and continue to have, the relevant duties to which the paragraph applies, but that need to be specified as a result of the new, narrower, definition of Registrar (see item 11 of Schedule 1 of this Bill).

Item 108 - Paragraph 90SQ(3)(c)

287. Paragraph 90SQ(3)(c) provides that the 'applicable Rules of Court' may make provision for a person who satisfies the circumstances in paragraphs 90SQ(3)(a) to (c), to notify a court exercising jurisdiction under the Family Law Act of the proceedings under the Bankruptcy Act 1966. The circumstances provided by paragraph 90SQ(3)(c) are that the person becomes a party to particular proceeding before the Federal Court or the Federal Circuit Court under the Bankruptcy Act 1966.

288. Item 108 replaces the term 'Federal Circuit Court of Australia' with 'Federal Circuit and Family Court of Australia (Division 2)' to reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) as provided by the FCFC Bill.

Item 109 - Part X

289. Item 109 repeals 'Part X - Appeals'. The FCFC (Division 1) will hear family law appeals with the exception of certain appeals from courts of summary jurisdiction (see item 69 of Schedule 1 to this Bill and clause 26 of the FCFC Bill.

Item 110 - Subsection 97(1)

290. Subsection 97(1) provides that in all proceedings in the Family Court, Federal Circuit Court or in a Court of a Territory (other than the Northern Territory), when exercising jurisdiction under the Family Law Act, shall be heard in open court.

291. Item 110 omits 'Family Court, in the Federal Circuit Court of Australia' and substitutes the 'Federal Circuit and Family Court of Australia' to reflect the continuation of the Family Court as the FCFC (Division 1) and the Federal Circuit Court as the FCFC (Division 2), as provided for in clause 8 of the FCFC Bill.

Item 111 - Subsection 97(1A)

292. Subsection 97(1A) provides that the regulations and the applicable Rules of Court may authorise proceedings to be heard by a Judge, Judicial Registrar, Registrar or magistrate sitting in Chambers.

293. Item 111 omits the words after 'heard' in subsection 97(1A) and substitutes subparagraphs 97(1A)(a) to (b), to reflect the structure, administration and officers of the FCFC, including the FCFC (Division 1) (the continuation of the Family Court), the FCFC (Division 2) (the continuation of the Federal Circuit Court), and other courts exercising family law jurisdiction under the Family Law Act.

294. The amendments also identify the persons that the subsection applied, and continues to apply, to and that need to be specified as a result of the narrower definition of Registrar in the Family Law Act (see item 11 of Schedule 1 of this Bill).

Item 112 - Subsection 97(2)

295. Subsection 97(2) provides that in proceedings in the Family Court, or in another court, the court may, on application or of its own motion, make one of the orders specified in paragraphs 97(2)(a) to (c).

296. Item 112 omits 'Family Court,' and substitutes 'Federal Circuit and Family Court of Australia' to simply and accurately reference the courts exercising jurisdiction under the Family Law Act to which this subsection applies. The reference to 'Family Court' is no longer accurate given the change to the FCFC as a result of the FCFC Bill.

Item 113 - Subsection 98(1)

297. Subsection 98(1) provides that the standard Rules of Court may provide for evidence of any material matter to be given on affidavit at certain types of hearings.

298. Item 113 omits '(1)', necessitated by the amendment made by item 115 of Schedule 1 of this Bill which deletes the only other subsection in section 98.

Item 114 - Subsection 98(1)

299. Subsection 98(1) provides that the standard Rules of Court may provide for evidence of any material matter to be given on affidavit at certain types of hearings.

300. Item 114 omits 'standard Rules of Court' and substitutes 'applicable Rules of Court' to reflect that different sets of court rules that may now be relevant to this section as a result of the new FCFC (Division 1) and FCFC (Division 2) and other relevant courts exercising family law jurisdiction.

Item 115 - Subsection 98(2)

301. Subsection 98(2) provided that section 98 (relating to the provision of evidence) does not apply to the Federal Circuit Court. This is because the Federal Circuit Court is governed by its own Act and Rules.

302. Item 115 of Schedule 1 of this Bill repeals subsection 98(2) so that the broader application of section 98 (provided for by item 114 of Schedule 1 to this Bill) is not rendered inoperative.

Item 116 - Sections 98AA and 98AB

303. Section 98AA governs the administration of oaths and affirmations in the Family Court. Section 98AB governs how an affidavit, used in proceedings in the Family Court, is to be sworn or affirmed.

304. Item 116 repeals subsections 98AA and 98AB as equivalent procedural provisions have been provided for in Part 1 of Chapter 3 of the FCFC Bill.

Item 117 - Subsection 100B(2)

305. Subsection 100B(2) provides that a child must not be called as a witness or present during proceedings in the Family Court, or another court exercising jurisdiction under the Family Law Act, unless the court makes an order allowing a child to be called as a witness or be present.

306. Item 117 omits 'the Family Court' from subsection 100B(2) and substitutes 'Federal Circuit and Family Court of Australia' to reflect that the Family Court is continued in existence as the FCFC by subclause 8(1) of the FCFC Bill.

Item 118 - Subsection 102F(7) (definition of courtroom )

307. Subsection 102F(7) defines courtroom both in relation to a split court and in relation to a court that is not split.

308. Item 118 replaces the definition of courtroom to remove the concept of a split court. The concept of a split court is no longer required in the Family Law Act, as this Act will no longer establish or directly govern the operation of the FCFC (Division 1).

Item 119 - Subsection 102G(2)

309. Subsection 102G(2) provides the circumstance in which and how a court may direct or allow documents to be put to a person in a court that is not a split court.

310. Item 119 omits in subsection 102G(2) '(that is not a split court)' as 'split court' will no longer be a concept directly provided for in the Family Law Act, as this Act will no longer establish or directly govern the operation of the FCFC (Division 1).

Item 120 - Subsection 102G(3)

311. Subsection 102G(3) provides the circumstance in which and how a court may direct or allow documents to be put to a person in a court that is a split court.

312. Item 120 repeals subsection 102G(3) as a 'split court' will no longer be a concept directly provided for in the Family Law Act.

Item 121 - Section 102H

313. Section 102H provides how the circumstances in which and how a court may direct or allow document to be put to a court that is a split court.

314. Item 121 repeals section 102H which exclusively applies to split courts, as a 'split court' will no longer be a concept directly provided for in the Family Law Act.

Item 122 - Subsection 102J(1)

315. Subsection 102J(1) provides how an oath or affirmation is to be administered in relation to a person giving testimony remotely.

316. Item 122 omits '(1)' which is necessitated by the amendment made by item 123 of Schedule 1 of this Bill repealing the only other subsection in section 102J.

Item 123 - Subsection 102J(2)

317. Subsection 102J(2) defines 'courtroom or other place where the court or the Judge is sitting' for the purpose of section 102J, by reference to 'split court'.

318. Item 123 repeals subsection 102J(2)' as a 'split court' will no longer be a concept directly provided for in the Family Law Act.

Item 124 - Paragraph 102K(1)(c)

319. Item 124 omits in paragraph 102K(1)(c) 'Division; or' and substitutes 'Division' which is required because of the repeal of paragraph 102K(1)(d) (see item 125 of Schedule 1 of this Bill).

Item 125 - Paragraph 102K(1)(d)

320. Subsection 102K(1) provides that the court or a Judge may make such orders as the court or Judge thinks just for the payment of expenses , incurred in connection with the circumstances outlined in paragraphs 102K(1)(a) to (d).

321. Paragraph 102K(1)(d) specifies the court sitting as a split court as one of the relevant circumstances for the purpose of subsection 102K(1).

322. Item 125 repeals paragraph 102K(1)(d) as a 'split court' will no longer be a concept directly provided for in the Family Law Act.

Item 126 - Division 3 of Part XI

323. Division 3 of Part XI exclusively deals with splits courts.

324. Item 126 repeals Division 3 of Part XI as a 'split court' will no longer be a concept directly provided for in the Family Law Act.

Item 127 - Division 4 of Part XI (heading)

325. Division 4 of Part XI is headed 'Division 4 - cross-examination of parties where allegations of family violence'.

326. Item 127 repeals this heading and substitutes 'Division 3-Cross-examination of parties where allegations of family violence' to renumber the division required as a result of the amendment made by item 126 of Schedule 1 to this Bill, which repeals the existing Division 3.

Item 128 - Subsection 102Q(1) (paragraphs (a) and (b) of the definition of appropriate court official )

327. Subsection 102Q(1) provides a list of definitions for the purpose of Part XIB - Vexatious Proceedings. Paragraphs 102(Q)(a) and (b) provide the definition of 'appropriate court official' in relation to the Family Court and the Federal Circuit Court, respectively.

328. Item 128 repeals paragraphs 102Q(1)(a) and (b) of the definition of 'appropriate court official', and substitutes '(a) in relation to the Federal Circuit and Family Court of Australia-the Chief Executive Officer; and'. This is to reflect that, under the new court structure, while the Chief Executive Officer is appointed to the FCFC (Division 1), they will be, in effect, Chief Executive Officer of both the FCFC (Division 1) and FCFC (Division 2).

Item 129 - Subsection 105(1) (note)

329. Subsection 105(1) provides that, subject to Part XIII of the Act, the regulations, and the applicable Rules of Court, all decrees made under the Family Law Act may be enforced by any court having jurisdiction under the Act.

330. The note to subsection 105(1) provides that, for example, the Federal Circuit Court can enforce decrees made by the Family Court.

331. Item 129 repeals the note to subsection 105(1) as the references are no longer applicable.

Item 130 - Subsection 109A(1)

332. Subsection 109A(1) provides that the power for Judges to make Rules of Court under section 123 of the Act extends to making rules for or in relation to, or anything incidental to, the enforcement by the court of certain orders under the Family Law Act, the Child Support (Registration and Collection) Act 1988, or the Child Support (Assessment) Act 1989.

333. Item 130 omits 'the Judges, or a majority of them' and substitutes 'the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1)' to appropriately reflect that the Chief Justice of the FCFC (Division 1) has the power to make Rules of Court under section 123 of the Act (see item 152 of Schedule 1 of this Bill). This will be consequentially amended to provide that the Judges of the FCFC (Division 1), or a majority of the Judges, will make the Rules of Court.

Item 131 - Subsection 109A(5) (note)

334. Subsection 109A(5) provides that for the purposes of section 109A, property means real or personal property. The note to subsection 109A(5) provides that the powers to make Rules of Court are also contained in sections 26B and 37A of the Act.

335. Item 131 repeals the note to subsection 109A(5). The note is no longer required as Part IV (which contains section 26B and 37A) is repealed by item 36 of Schedule 1 of this Bill, and substantially provided for in the FCFC Bill.

Item 132 - After section 109A

336. Item 132 inserts section 109AA, 'Rules of Court relating to enforcement - Federal Circuit and Family Court of Australia (Division 1)', after section 109A.

337. Section 109AA provides that the rule making power in relation to the FCFC (Division 1) includes the rule making power in section 109A.

338. These sections are required so that the rules of the kind covered under section 109A can be made in the rules that apply to the new FCFC (Division 1) (the continuation of the Family Court). The application of this rule making power to the FCFC (Division 2) (the continuation of the Federal Circuit Court) is provided for in section 109B (as amended by items 133 to 137 of Schedule 1 of this Bill).

Item 133 - Section 109B (heading)

339. Section 109B is headed 'Rules of Court relating to enforcement - Federal Circuit Court'.

340. Item 133 omits 'Federal Circuit Court' from the heading and substitutes 'Federal Circuit and Family Court of Australia (Division 2)' to reflect that the Federal Circuit Court continues as the FCFC (Division 2) as provided for in the FCFC Bill.

Item 134 - Subsection 109B(1)

341. Subsection 109B(1) provides that section 109A applies to the making of Rules of Court under section 81 of the Federal Circuit Court Act, in a corresponding way to how it applies to the making of Rules of Court under section 123 of the Act.

342. Item 134 omits 'section 81 of the Federal Circuit Court of Australia Act 1999' and substitutes 'Chapter 4 of the Federal Circuit and Family Court of Australia Act 2019' to appropriately reference the appropriate rule making power in relation to the FCFC (Division 2), noting that the Federal Circuit Court Act is repealed Schedule 3 of this Bill.

Item 135 - Paragraphs 109B(2)(a) and (b)

343. Paragraphs 109B(2)(a) and (b) provide that, for the purpose of the application of section 109A in accordance with subsection 109B(1), the references to 'the court' in subsections 109A(1) and (2) are to be read as a reference to the 'Federal Circuit Court of Australia'.

344. Item 135 omits 'Federal Circuit Court of Australia' and substitutes 'Federal Circuit and Family Court of Australia (Division 2)' to appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) as provided for in the FCFC Bill.

Item 136 - Paragraph 109B(2)(c)

345. Paragraph 109B(2)(c) provides that, for the purpose of the application of section 109A in accordance with subsection 109B(1), the reference to a 'Registrar' in subsection 109A(2) are to be read as a reference to a 'Registrar of the Federal Circuit Court of Australia'.

346. Item 136 omits 'a Registrar of the Federal Circuit Court of Australia' and substitutes 'the Chief Executive Officer, or a Registrar of the Federal Circuit and Family Court of Australia (Division 2)' to appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2), and to identify those relevant officers of the court that the section applied, and continues to apply, which needs to be specified as a result of the narrower definition of Registrar in the Family Law Act (see item 11 of Schedule 1 of this Bill).

Item 137 - Subsection 109B(3)

347. Subsection 109B(3) provides that section 109A has no effect in relation to the Federal Circuit Court except as provided by subsections 109B(1) and (2).

348. Item 137 replaces the term 'Federal Circuit Court of Australia' with 'Federal Circuit and Family Court of Australia (Division 2)' to reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) as provided by the FCFC Bill.

Item 138 - At the end of subsection 111C(5)

349. Subsection 111C(5) provides that regulations made for the purpose of section 111C may confer jurisdiction on a federal court or a court of a territory, or invest a court of a state with federal jurisdiction, in addition to any other jurisdiction provided for under the Family Law Act.

350. Item 138 inserts, at the end of subsection 111C(5), 'or the Federal Circuit and Family Court of Australia Act 2019', to recognise that this Act also provides family law jurisdiction.

Item 139 - Subsection 111C(7A)

351. Subsection 111C(7A) provides that the power of Judges to make Rules of Court under section 123 extends to making Rules of Court for or in relation to the making of adoption orders.

352. Item 139 omits 'the Judges, or a majority of them,' and substitutes 'the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1)' to reflect that the Chief Justice of the FCFC (Division 1) has the power to make Rules of Court under section 123 of the Family Law Act (see item 152 of Schedule 1 of this Bill).

Item 140 - After subsection 111C(7A)

353. Item 140 inserts, after subsection 111C(7A), subsections (7B) and (7C) to extend the rule making power of the relevant courts exercising family law jurisdiction, as provided in the FCFC Bill.

354. Subsection 111C(7B) provides that the rule making power of the Chief Justice in relation to the FCFC (Division 1) extends to the making of Rules of Court for or in relation to adoption orders.

355. Subsection 111C(7C) provides that the rule making power of the Chief Judge in relation to the FCFC (Division 2) extends to the making of Rules of Court for or in relation to adoption orders.

Item 141 - Paragraph 111CV(1A)(b)

356. Section 111CV relates to the obligation to inform a competent authority about serious danger to a child in relation to international protection of children. Subsection 111CV(1A) specifies who this obligation applies to under the section. Paragraph 111CV(1A)(b) specifies 'the Registrar or a Deputy Registrar of a Registry of the Family Court of Australia'.

357. Item 141 repeals paragraph 111CV(1A)(b) and substitutes paragraphs 11CV(1A)(b), (ba) and (bb), which specifies the Chief Executive Officer, a Senior Registrar or Registrar of the FCFC (Division 1), and a Senior Registrar or Registrar of the FCFC (Division 2), respectively.

358. This reflects the structure, administration and officers of the FCFC (Division 1) (the continuation of the Family Court) and the FCFC (Division 2) (the continuation of the Federal Circuit Court).

359. The amendments identify the relevant officers to which the subsection applied, and continues to apply, which needs to be specified as a result of the narrower definition of Registrar in the Family Law Act (see item 11 of Schedule 1 of this Bill).

Item 142 - Paragraph 111CV(1A)(d)

360. Section 111CV relates to the obligation to inform a competent authority about serious danger to a child in relation to international protection of children. Subsection 111CV(1A) specifies who this obligation applies to under the section. Paragraph 111CV(1A)(d) specifies 'a Registrar of the Federal Circuit Court of Australia'.

361. Item 142 repeals paragraph 111CV(1A)(d) as the updated reference to a Registrar of the FCFC (Division 2), consistent with the structure, administration and functions of the new FCFC, is provided for in new paragraph 111CV(1A)(bb) (see item 141 of Schedule 1 of this Bill).

Item 143 - Section 112AA (definition of applicable Rules of Court )

362. Item 143 repeals the definition of applicable Rules of Court, as item 3 of Schedule 1 of this Bill substitutes an amended definition that captures all the different rules applicable to the different courts exercising jurisdiction under the Family Law Act.

Item 144 - Subsection 112AK(1)

363. Subsection 112AK(1) provides that orders made under section 112AD by the Family Court may be varied or discharged by the Family Court (paragraph 112AK(1)(a)). If an order was made by another court under section 112AD, it may be varied or discharged by the court that made the order or the Family Court (paragraph 112AK(1)(b)).

364. Item 144 repeals subsection 112AK(1) and substitutes a new subsection 112AK(1) providing that the relevant order may be varied or discharged by the court that made the order or the FCFC, which includes FCFC (Division 1) (the continuation of the Family Court) and the FCFC (Division 2) (the continuation of the Federal Circuit Court).

Item 145 - Subsection 115(2)

365. Section 115 provides for the establishment of a Family Law Council. Subsection 115(2) provides that the Council shall consist of, amongst others, a 'Judge of the Family Court'.

366. Item 145 omits 'Family Court' and substitutes 'Federal Circuit and Family Court of Australia' to appropriately reflect that both the FCFC (Division 1) (continuation of the Family Court) and FCFC (Division 2) (continuation of the Federal Circuit Court), provided for by the FCFC Bill, exercise family law jurisdiction. Therefore, a Judge from either the FCFC (Division 1) or the FCFC (Division 2) is an appropriate person to sit on a Family Law Council.

Item 146 - At the end of subsection 117(2)

367. Subsection 117(2) relates to the court's ability to make orders as to costs and security for costs as it considers just, subject to other subsections.

368. Item 146 inserts two notes at the end of subsection 117(2) directing readers to the relevant provisions of the FCFC Bill, which contain further provisions about the award of costs.

Item 147 - Subsection 121(10) (note)

369. The note to subsection 121(10) provides that powers to make Rules of Court are also contained in sections 26B, 37A, 109A and 123 of the Act.

370. Item 147 omits '26B, 37A,' from the note as these sections are contained in Part IV of the Family Law Act which is repealed by item 36 of Schedule 1 of this Bill.

Item 148 - After section 122

371. Item 148 inserts a new section 122AAA, headed 'Protection of Registrars conducting conferences about property matters'. This section provides that a Registrar of a Family Court of a State, in conducting conferences with parties to property settlement proceedings that relate to those proceedings, has the same protection and immunity as a Judge of the Court has in performing the functions of a Judge.

372. New section 122AAA is identical in operation to section 38Z to the extent that section 38Z applies to Registrars of a Family Court of a State. Section 38Z will be repealed by item 36 of Schedule 1 to this Bill as this section falls within Part IVA. The operation of the section will still be relevant and, as such, new provisions to the same effect are required in the relevant Acts.

373. Identical protections for registrars of the FCFC (Division 1) and the FCFC (Division 2) are provided in the FCFC Bill.

Item 149 - Subsection 122A(1)

374. Subsection 122A(1) specifies the persons, who are authorised by the Family Law Act, or a warrant issued under the Family Law Act, the standard Rules of Court or the related Federal Circuit Court Rules, to whom sections 122A and 122AA apply.

375. Item 149 omits 'the standard Rules of Court or the related Federal Circuit Court Rules' and substitutes 'or the applicable Rules of Court' to reflect the different sets of court rules that may now be relevant to this section as a result of the FCFC (Division 1), FCFC (Division 2) and other relevant courts exercising family law jurisdiction.

Item 150 - Paragraphs 122A(1)(a) and (b)

376. Paragraphs 122A(1)(a) and (b) identify a Marshal of the Family Court and a Deputy Marshal of the Family Court respectively as persons to whom sections 122A and 122AA apply.

377. Item 150 omits 'Family Court' and substitutes 'Federal Circuit and Family Court of Australia (Division 1) to reflect that the Family Court is continued in existence as the FCFC (Division 1).

Item 151 - Paragraphs 122A(1)(c) and (d)

378. Paragraphs 122A(1)(c) and (d) identify the Sheriff of the Federal Circuit Court and the Deputy Sheriff of the Federal Circuit Court respectively as persons to whom sections 122A and 122AA apply.

379. Item 151 omits 'Federal Circuit Court' and substitutes 'Federal Circuit and Family Court of Australia (Division 2) to reflect that the Federal Circuit Court is continued in existence as the FCFC (Division 2).

Item 152 - Subsection 123(1)

380. Section 123 provides the Judges, or a majority of them, the power to make Rules of Court in relation to the practice and procedure to be followed by the Family Court and other courts exercising jurisdiction under the Family Law Act.

381. Item 152 omits 'Judges, or a majority of them,' and substitutes 'Chief Justice of the Federal Circuit and Family Court of Australia (Division 1)' to reflect that the Chief Justice of the FCFC (Division 1) has the power to make Rules of Court under section 123 of the Family Law Act. By virtue of amendments made by item 156 of Schedule 1 of this Bill, Rules of Court made under section 123 will not apply to the FCFC (Division 1) (the continuation of the Family Court) or the FCFC (Division 2) (the continuation of the Federal Circuit Court), but will continue to apply to other courts exercising jurisdiction under the Family Law Act.

Item 153 - Subsection 123(1)

382. Section 123 provides the Judges, or a majority of them, the power to make Rules of Court in relation to the practice and procedure to be followed by the Family Court and other courts exercising jurisdiction under the Family Law Act.

383. Item 153 omits 'in the Family Court and subject to subsection 69GA(3), any other court' from subsection 123(1) and substitutes ', subject to subsection 69GA(3), in a court' to reflect that, by virtue of amendments made by item 164 of Schedule 1 of this Bill, Rules of Court made under section 123 will not apply to the FCFC (Division 1) (the continuation of the Family Court).

Item 154 - Subsection 123(1)

384. Section 123 provides the Judges, or a majority of them, the power to make Rules of Court in relation to the practice and procedure to be followed by the Family Court and other courts exercising jurisdiction under the Family Law Act.

385. Item 154 omits 'those courts' from subsection 123(1) and substitutes 'the court', which is required as a result of the amendments made by item 164 of Schedule 1 of this Bill to ensure that the language used throughout subsection 123(1) is consistent.

Item 155 - Paragraph 123(1)(b)

386. Paragraph 123(1)(b) provides that the rule making power in section 123 includes a power providing for and in relation to the manner of service of process of the Family Court or another court exercising jurisdiction under the Act.

387. Item 155 omits 'the Family Court or another court' from paragraph 123(1)(b) and substitutes 'a court' necessitated by the amendments made by items 153 and 164 of Schedule 1 of this Bill.

Item 156 - Paragraphs 123(1)(bb), (c) and (d)

388. Paragraphs 123(1)(bb), (c) and (d) specify particular, Family Court specific practices and procedures that are covered by the rule making power in section 123.

389. Item 156 repeals paragraphs 123(1)(bb), (c) and (d), as Rules of Court made under section 123 will not govern the FCFC (Division 1) (the continuation of the Family Court) (see item 164 of Schedule 1 of this Bill).

Item 157- Paragraph 123(1)(f)

390. Paragraph 123(1)(f) expressly refers to the Family Court in relation to a particular practice that is covered by the rule making power in section 123.

391. Item 157 omits the 'Family Court or another court' in paragraph 123(1)(b) and 'substitutes 'a court' as the Rules of Court, made under section 123, will not govern the FCFC (Division 1) (see item 164 of Schedule 1 of this Bill) but this paragraph will still be relevant to other courts governed by the section 123 Rules of Court.

Item 158 - Paragraph 123(1)(ma)

392. Paragraph 123(1)(ma) expressly refers to Division 2 and 3 of Part XI in relation to a particular practice that is covered by the rule making power in section 123.

393. Item 158 omits 'Divisions 2 and 3' from paragraph 123(1)(ma) and substitutes 'Division 2', as Division 3 of Part XI, which relates to split courts, is repealed by this Bill (see item 126 of Schedule 1 of this Bill).

Item 159 - Subparagraph 123(1)(sda)(i)

394. Paragraph 123(1)(sda) provides that the procedures to be followed by family counsellors is covered by the rule making power in section 123.

395. Item 159 omits 'subsection 38BD(1) of this Act' from subparagraph 123(1)(sda)(i) and substitutes 'subsection 281(1) of the Federal Circuit and Family Court of Australia Act 2019', to provide the correct legislative reference relating to the authorisation of family counsellors as Part IVA is repealed by this Bill (see item 36 of Schedule 1 of this Bill) and substantially replicated in the FCFC Bill.

Item 160 - Subparagraph 123(1)(sdb)(i)

396. Paragraph 123(1)(sdb) provides that the procedures to be followed by family dispute resolution practitioners is covered by the rule making power in section 123.

397. Item 160 omits 'subsection 38BD(2) of this Act' from subparagraph 123(1)(sdb)(i) and substitutes 'subsection 281(2) of the Federal Circuit and Family Court of Australia Act 2019' to provide the correct legislative reference relating to the authorisation of family dispute resolution practitioners as Part IVA is repealed by this Bill (see item 36 of Schedule 1 of this Bill) and substantially replicated in the FCFC Bill.

Item 161 - Paragraph 123(1)(sea)

398. Paragraph 123(1)(sea) provides that matters relating to the costs of family counselling is covered by the rule making power in section 123.

399. Item 161 omits 'subsection 38BD(1) of this Act' from paragraph 123(1)(sea) and substitutes 'subsection 281(1) of the Federal Circuit and Family Court of Australia Act 2019' to provide the correct legislative reference relating to the authorisation of family counsellors, as Part IVA is repealed by this Bill (see item 36 of Schedule 1 of this Bill) and substantially replicated in the FCFC Bill.

Item 162 - Paragraph 123(1)(seb)

400. Paragraph 123(1)(seb) provides that matters relating to the costs of family dispute resolution is covered by the rule making power in section 123.

401. Item 162 omits 'subsection 38BD(2) of this Act' from paragraph 123(1)(seb) and substitutes 'subsection 281(2) of the Federal Circuit and Family Court of Australia Act 2019' to provide the correct legislative reference relating to the authorisation of family dispute resolution practitioners , as Part IVA is repealed by this Bill (see item 36 of Schedule 1 of this Bill) and substantially replicated in the FCFC Bill.

Item 163 - At the end of subsection 123(1)

402. Subsection 123(1) provides the Judges, or a majority of them, the power to make Rules of Court in relation to the practice and procedure to be followed by the Family Court and other courts exercising jurisdiction under the Family Law Act.

403. Item 152 amends subsection 123(1) to provide that the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1), rather than the Judges or a majority of them, have the power to make the standard Rules of Court under section 123.

404. Item 163 inserts, at the end of subsection 123(1), two notes.

405. Note 1 specifies 'For other powers to make Rules of Court, see section 109A and subsection 111C(7A)', to direct readers to these other rule making powers.

406. Note 2 identifies that, two years after the commencement of the Federal Circuit and Family Court of Australia Act 2019, the power to make rules of court under section 123 will revert back to the Judges or a majority of the them and referring to Part 4 of Schedule 1 to this Bill as the source of this change.

Item 164 - Subsection 123(1A)

407. Subsection 123(1A) provides that a reference in subsection 123(1) to a 'court exercising jurisdiction under this Act' does not include a reference to the Federal Circuit Court of Australia.

408. Item 164 omits 'Federal Circuit Court of Australia', and substitutes 'Federal Circuit and Family Court of Australia'. This provides that the Rules of Court made for the purposes of subsection 123(1) continue to not apply to the FCFC (Division 2) (the continuation of the Federal Circuit Court), and extends this exclusion to the FCFC (Division 1) and the Federal Court. The rule making powers for these courts are provided in clauses 76 and 217 of the FCFC Bill, and the Federal Court Act.

Item 165 - Subsection 123(2)

409. Subsection 123(2) provides how the Legislation Act 2003 is to apply to Rules of Court made by Judges.

410. Item 165 omits 'made by Judges under this section or any other Act' in subsection 123(2) and substitutes 'made by the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) under this section or any other Act (other than the Federal Circuit and Family Court of Australia Act 2019)'. This reflects that the Chief Justice of the FCFC (Division 1) will be empowered to make Rules of Court under section 123 of the Act (see item 152 Schedule 1 of this Bill) for certain courts exercising family law jurisdiction, other than the FCFC (Division 1) and the FCFC (Division 2) which have their own rule making provisions under the FCFC Bill.

Item 166 - Paragraph 123(2)(b)

411. Paragraph 123(2)(b) provides how references to a 'rule-maker' in the Legislation Act 2003 are to be read in relation to Rules of Court made by Judges. Specifically paragraph 123(2)(b) provides that the Legislation Act is to be read as if a reference to a 'rule-maker' is a reference to the Chief Justice acting on behalf of the Judges.

412. Item 166 repeals paragraph 123(2)(b) as it is no longer necessary as the 'rule-maker' under subsection 123(1) will be a single person (the Chief Justice of the FCFC (Division 1)) as a result of amendments made by item 152 of Schedule 1 of this Bill.

Item 167 - Subsection 123(2A)

413. Subsection 123(2A) provides that despite section 16 of the Legislation Act 2003 (which relates to Office of Parliamentary Counsel assistance with drafting) not applying in relation to rules of court made by Judges under this or any other Act, the Office of Parliamentary Counsel may provide assistance in the drafting of rules if the Chief Justice so desires.

414. Item 167 omits 'made by Judges under this or any other Act' from 123(2A) and substitutes 'made by the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) under this section' to reflect that the Chief Justice of the FCFC (Division 1) has the power to make Rules of Court under section 123 (see item 152 Schedule 1 of this Bill), and provide that the Office of Parliamentary Counsel may assist in drafting Rules of Court made under section 123.

Item 168 - Subsection 123(3) (including the note)

415. Subsection 123(3) provides a definition of Judge for the purpose of the section. The note to subsection 123(3) states that the power to make Rules of Court conferred by this section is extended by section 109A and subsection 111C(7A) and that powers to make Rules of Court are also contained in section 26B and 37A.

416. Item 168 repeals subsection 123(3) and the note. The definition of 'Judge' in relation to this section is no longer required, as it is only the Chief Justice of the FCFC (Division 1) that has rule making powers under section 123 (see item 152 of Schedule 1 of this Bill). The note includes references to sections 26B and 37A that will be repealed (see item 36 of Schedule 1 of this Bill) and refers to other rule making sections that are now provided for in item 163 of Schedule 1 of this Bill.

Item 169 - Subsection 124(1)

417. Subsection 124(1) provides that there shall be a Rules Advisory Committee consisting of Judges of the Family Court, Family Courts of States and other persons appointed by the Chief Justice of the Family Court of Australia.

418. Item 169 omits 'Family Court of Australia' (first occurring) and substitutes 'Federal Circuit and Family Court of Australia (Division 1), such Judges of the Federal Circuit and Family Court of Australia (Division 2)' to appropriately reflect the continuation of the Family Court as the FCFC (Division 1) as provided in the FCFC Bill and to provide that Judges of both the FCFC (Division 1) and the FCFC (Division 2) can be members of the Rules Advisory Committee.

Item 170 - Subsection 124(1)

419. Subsection 124(1) provides that there shall be a Rules Advisory Committee consisting of Judges of the Family Court, Family Courts of States and other persons appointed 'in accordance with the section'.

420. Item 170 omits 'Family Court of Australia' (second occurring) from subsection 124(1) and substitutes 'Federal Circuit and Family Court of Australia (Division 1)' to appropriately reflect the continuation of the Family Court as the FCFC (Division 1).

Items 171 and 172 - Subsection 124(2)

421. Subsection 124(2) provides that the function of the Rules Advisory Committee is to provide the Judges referred to in section 123 such advice in relation to the making of standard Rules of Court as is requested from time to time by those Judges.

422. Item 171 omits 'the Judges referred to in section 123' from subsection 124(2) and substitutes 'the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1)' to reflect that the Chief Justice of the FCFC (Division 1) will have rule making power under section 123 (see item 152 of Schedule 1 of this Bill).

423. Item 172 omits 'those Judges' from subsection 124(2) and substitutes 'the Chief Justice of the Court', referring to the Chief Justice of the FCFC (Division 1) who is the only Judge now relevant in this subsection.

Item 173 - Subsection 124(6)

424. Subsection 124(6) provides that members of the Rules Advisory Committee may resign in writing to the Chief Justice of the Family Court of Australia.

425. Item 173 omits 'Family Court of Australia' and substitutes 'Federal Circuit and Family Court of Australia (Division 1)' to appropriately reflect the continuation of the Family Court as the FCFC (Division 1).

Item 174- Paragraph 125(1)(ba)

426. Subsection 125(1) provides that the Governor-General may make regulations prescribing all matters that are required or permitted by the Family Law Act to be prescribed, or are necessary or convenient to be prescribed for carrying out or giving effect to the Act. Paragraph 125(1)(ba) provides that regulations may be made in relation to the authorisation of officers or staff members of the Family Court as family counsellors or family dispute resolution practitioners under subsections 38BD(1) and (2), respectively.

427. Item 174 repeals paragraph 125(1)(ba), as Part IVA of the Act is repealed by this Bill (see item 36 Schedule 1 of this Bill) and equivalent authorisation provisions and regulation making powers are included in the FCFC Bill.

Item 175 - Paragraph 125(1)(baa)

428. Subsection 125(1) provides that the Governor-General may make regulations prescribing all matters that are required or permitted by the Act to be prescribed, or are necessary or convenient to be prescribed for carrying out or giving effect to the Act. Paragraph 125(1)(baa) provides that regulations may be made modifying or adapting the provisions of the Legislation Act 2003 (except certain sections) in their application to the Family Court and any other court exercising jurisdiction under the Act.

429. Item 175 omits 'the Family Court and any other court' and substitutes 'a court'. Reference to Family Court is omitted because an equivalent regulation making power that applies to the FCFC (Division 1) (the continuation of the Family Court) is included in the FCFC Bill.

Item 176 - Paragraph 125(1)(ca)

430. Paragraph 125(1)(ca) provides that regulations may be made prescribing fees payable for services provided by the Family Court in circumstances other than where a court orders the provision of the services.

431. Item 176 repeals paragraph 125(1)(ca) as an equivalent regulation making power that applies to the FCFC (Division 1) (the continuation of the Family Court) is included in the FCFC Bill, and, given the new court structure, this regulation making power will no longer appropriately lie in section 125.

Item 177 - Paragraphs 125(1)(d) and (e)

432. Paragraphs 125(1)(d) and (e) provide that the section 125 regulation making power includes exempting persons from paying court (and other) fees and refunding court (and other) fees, respectively.

433. Item 177 omits 'and fees prescribed under paragraph (ca)' from paragraphs 125(1)(d) and (e) as paragraph 125(1)(ca) is repealed by item 176 of Schedule 1 of this Bill.

Federal Court of Australia Act 1976

Item 178 - Section 4 (definition of administrative affairs )

434. Item 178 repeals the existing definition of 'administrative affairs' in section 4 of the Federal Court Act and replaces it with a new definition. The new definition makes it clear that references to administrative affairs have different meanings in relation to the Federal Court and the FCFC. In relation to the Federal Court, new paragraph (a) of the definition provides that administrative affairs has a meaning affected by subsection 18A(1A). In relation to the FCFC (Division 1), administrative affairs has the meaning given to it by the definition in the FCFC Bill in relation to that Division. In relation to the FCFC (Division 2) administrative affairs has the meaning given to it by the definition in the FCFC Bill in relation to that Division.

435. The FCFC Bill provides that the Chief Justice and Chief Judge are responsible for managing the administrative affairs of the FCFC (Division 1) and FCFC (Division 2) respectively, and are to be assisted by the Chief Executive Officer of the FCFC (Division 1) in the performance of this function.

Item 179 - Section 4

436. Item 179 inserts a definition of 'Chief Executive Officer of the Federal Circuit and Family Court of Australia' in section 4 of the Federal Court Act. The 'Chief Executive Officer of the Federal Circuit and Family Court of Australia' is defined as the Chief Executive Officer and Principal Registrar of the FCFC (Division 1). This is consistent with the definition in the FCFC Bill and definition to be included in section 4(1) of the Family Law Act by Schedule 1, item 4 of this Bill.

437. In effect, the Chief Executive Officer of the FCFC (Division 1) will be the Chief Executive Officer of the FCFC. While the Chief Executive Officer is appointed to the FCFC (Division 1), the FCFC Bill provides that the Chief Executive Officer is also to assist the Chief Judge in managing the administrative affairs of the FCFC (Division 2). It is necessary for the FCFC to have its own Chief Executive Officer to properly support the Chief Justice of the FCFC (Division 1) and Chief Judge of the FCFC (Division 2) in managing affairs of their respective courts.

Item 180 - Section 4 (definition of corporate services )

438. Item 180 repeals the existing definition of 'corporate services' in section 4 and replaces it with a new definition. The definition makes it clear that references to corporate services have different meanings in relation to different courts. In relation to the Federal Court, 'corporate services' has the meaning given to it by subsection 18A(1B). In relation to the FCFC (Division 1), 'corporate services' has the meaning given to it by the definition in the FCFC Bill in relation to that Division. In relation to the FCFC (Division 2) corporate services has the meaning given to it by the definition in the FCFC Bill in relation to that Division.

Item 181 - Section 4 (definition of Family Court Chief Executive Officer )

439. Item 181 repeals the definition of 'Family Court Chief Executive Officer' in section 4. Under the FCFC Bill, there is a Chief Executive Officer appointed to the FCFC (Division 1). As the Chief Executive Officer of the FCFC (Division 1) has a role in supporting the Chief Justice of the FCFC (Division 1) and Chief Judge of the FCFC (Division 2) in managing the administrative affairs of their respective courts, this position is in effect the Chief Executive Officer of the FCFC. Judge) It is necessary for the FCFC to have its own Chief Executive Officer to properly support the Chief Justice of the FCFC (Division 1) and Chief Judge of the FCFC (Division 2) in managing affairs of their respective courts. As there will no longer be the position of the Family Court Chief Executive Officer, the definition is not necessary. The definition of 'Chief Executive Officer of the Federal Circuit and Family Court of Australia' is inserted in section 4 of the Federal Court Act by item 179.

Item 182 - Section 4

440. Item 182 inserts definitions for 'family law or child support proceeding' and 'Federal Circuit and Family Court of Australia' in section 4 of the Act. 'Family law or child support proceeding' means a proceeding under the Family Law Act, the Child Support (Assessment) Act 1989, or the Child Support (Registration and Collection) Act 1988 (other than a proceeding under section 72Q of that Act). This definition has relevance for section 32AC which is to be inserted into the Federal Court Act by Schedule 1, item 220 of this Bill. Section 32AC will provide that where a proceeding is pending in the FCFC (Division 2) and the proceeding is not a family law or child support proceeding, the Federal Court may, by order, transfer the proceedings from the FCFC (Division 2) to the Federal Court.

441. The 'Federal Circuit and Family Court of Australia' means either the FCFC (Division 1) or the FCFC (Division 2). The definition is flexible in that it allows references to the FCFC in the Act to capture either or both Divisions depending on the circumstances in which it is used. Where reference in the Act needs to be made to a specific Division of the FCFC, reference is made specifically to the FCFC (Division 1) or the FCFC (Division 2).

Item 183 - Section 4

442. Item 183 repeals the definitions of 'Federal Circuit Court' and 'Federal Circuit Court Chief Executive Officer' from section 4. The definition of 'Federal Circuit Court' is no longer required as the Federal Circuit Court will be continued as the FCFC (Division 2). The definition of 'Federal Circuit Court Chief Executive Officer' is no longer necessary as there will not be a Federal Circuit Court Chief Executive Officer under the new federal court structure. Instead, under the FCFC Bill there is to be a Chief Executive Officer appointed to the FCFC (Division 1). As the Chief Executive Officer of the FCFC (Division 1) has a role in supporting the Chief Justice of the FCFC (Division 1) and Chief Judge of the FCFC (Division 2) in managing the administrative affairs of their respective courts, this position is in effect the Chief Executive Officer of the FCFC.

Item 184 - Subsection 6(2)

443. Item 184 amends the requirements for being appointed as a Judge in subsection 6(2). In particular, the structure of the subsection is amended to add an additional requirement that a person must have the appropriate knowledge, skills and experience to deal with the kinds of matters that may come before the Court. This is to ensure that not only does a person need to have the necessary duration of experience as outlined in new paragraph (a), but also the appropriate type of knowledge, skill and experience to be appointed as a Judge of the Federal Court. The inclusion of this additional requirement reflects the current practice for appointing Judges.

Item 185 - After section 13

444. Item 185 introduces new section 13A. Section 13A provides that the Chief Justice of the Federal Court may authorise a Judge to manage a class or classes of proceedings. The purpose of this clause is to enable more specialist management of particular classes of proceedings.

445. Subsection 13A(1) provides that the Chief Justice may, by written instrument, authorise a Judge to manage a class or classes of proceedings. The class or classes of proceedings may be specified in the instrument of authorisation 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.

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

447. Subsection 13A(3) provides that a Judge may be authorised even though the Judge is not assigned to a Division.

448. Subsection 13A(4) provides that the authorisation of a Judge does not affect the rank, title, status and precedence that the Judge would otherwise have.

449. Subsection 13A(5) provides that, if the Chief Justice gives a direction under subsection 13A(2) in writing, that direction is not a legislative instrument. This subsection 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.

Item 186 - Subsection 15(1AAA)

450. Item 186 amends subsection 15(1AAA), which relates to the dealing of a complaint about a Judge. The item clarifies that the subsection applies to a complaint about 'another Judge of the Court'. The clarification is necessary to ensure that the subsection does not apply in relation to a Judge of a court other than the Federal Court.

Item 187 - Subsection 15A

451. Item 187 repeals section 15A. Section 15A provides that the Chief Justice of the Federal Court and Chief Justice of the Family Court may consult with each other in relation to the transfer of proceedings pending in the Court to the Family Court, whether generally or in relation to the transfer of specific proceedings.

452. The repeal of section 15A of the Federal Court Act is necessary as transfers from the Federal Court to the FCFC (Division 1) (as well as the FCFC (Division 2)) will now be made pursuant to section 32AB, as provided by items 216 to 219 of Schedule 1 of the Bill.

Item 188 - After paragraph 18A(1B)(e)

453. Item 188 inserts two new paragraphs into subsection 18A(1B). Subsection 18A(1B) provides that the matters specified in the subsection are the corporate services of the Federal Court. In accordance with subsection 18(1) and (1A), the Chief Justice is responsible for managing the administrative affairs of the Federal Court except for corporate services. Under section 18Z of the Act, the Chief Executive Officer is responsible for providing the corporate services of the Federal Court. New paragraphs (ea) and (eb) provide that records management and administrative matters relating to judgments (to the extent that such matters do not involve the exercise of judicial power) are included in the corporate services of the Court. 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.

454. 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.

455. 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.

Item 189 - After paragraph 18A(1B)(h)

456. Item 189 inserts new paragraph 18A(1B)(h). Subsection 18A(1B) provides that the matters specified in the subsection are the corporate services of the Federal Court. In accordance with subsection 18(1) and (1A), the Chief Justice is responsible for managing the administrative affairs of the Federal Court except for corporate services. Under section 18Z of the Act, the Chief Executive Officer is responsible for providing the corporate services of the Federal Court. New paragraph (h) provides that court security is included in the corporate services of the Court. The Chief Executive Officer of the Federal Court already takes responsibility for this matter. The update is therefore intended to clarify the delineation of matters as between administrative affairs and corporate services.

457. 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.

Item 190 - After paragraph 18N(1)(d)

458. Item 190 inserts new paragraphs 18N(1)(da) and (db). The new paragraphs provide for there to be a Marshal of the Federal Court and such Deputy Marshals of the Federal Court as are necessary as officers of the Federal Court. The offices of Marshal and Deputy Marshal are new to the Federal Court, although they already exist for the Family Court and the Federal Circuit Court (and will continue as positions of the FCFC (Division 1) and FCFC (Division 2)). The Federal Court has a number of jurisdictions which, from time to time, raise security concerns. The creation of the Marshal and Deputy Marshal offices will ensure the continued safety for families and children and other persons who attend the Federal Court. It is also beneficial for there to be a consistent structure for security across the Federal Court and FCFC Divisions.

Item 191 - Subsection 18N(4)

459. Item 191 amends subsection 18N(4), which currently provides that the officers of the Federal Court (other than the Chief Executive Officer, the Deputy Sheriffs and the Marshals for the purposes of the Admiralty Act 1988) are to be persons engaged under the Public Service Act 1999. The item omits the words 'and the Marshals' and replaces them with 'the Deputy Marshals of the Court and the Marshals for the purposes of the Admiralty Act 1988'. This amendment includes Deputy Marshals within the operation of the subsection. This means that the Chief Executive Officer, Deputy Sheriffs, Marshals and Deputy Marshals are not required to be engaged under the Public Service Act 1999. The Deputy Marshals still may be engaged under the Public Service Act 1999, as provided by item 192 of Schedule 1 of the Bill. This approach is consistent with the approach proposed for Deputy Marshals of the FCFC (Division 1) and the FCFC (Division 2).

Item 192 - Subsection 18N(5)

460. Item 192 amends subsection 18N(5), which currently provides that the Deputy Sheriffs and the Marshals for the purposes of the Admiralty Act 1988 may be persons engaged under the Public Service Act 1999. The item omits the words 'and the Marshals' and replaces them with 'the Deputy Marshals of the Court and the Marshals for the purposes of the Admiralty Act 1988. This amendment includes Deputy Marshals within the operation of the subsection. This approach is consistent with the approach proposed for Deputy Marshals of the FCFC (Division 1) and the FCFC (Division 2).

Item 193 - At the end of Division 3 of Part IIA

18PA - Marshal

461. This item inserts new section 18PA. New section 18PA establishes the position of Marshal of the Federal Court. As outlined in item 190, the Marshal position is new to the Federal Court, although it already exists for the Family Court and the Federal Circuit Court (and will continue as a position of the FCFC (Division 1) and FCFC (Division 2), respectively). The inclusion of the position in the Federal Court recognises that certain matters within the Federal Court's jurisdiction can be highly emotional and may involve potentially unsafe situations for court users. The position is designed to ensure the continued safety for all persons who attend the Federal Court.

462. Subsection 18PA(1) provides that the Marshal of the Federal Court is responsible for the security of the Federal Court and the personal security of the Judges and officers and staff of the Federal Court. Subsection 18PA(2) provides that the Marshal of the Federal Court is also responsible for taking, receiving and detaining all persons committed to the Marshal's custody by the Federal Court and discharging such persons when so directed by the Federal Court or otherwise required by law.

18PB - Deputy Marshals

463. This item also inserts new section 18PB. For the same reasons outlined above, new section 18PB establishes the position of Deputy Marshal of the Federal Court. New section 18PB provides that a Deputy Marshall of the Federal Court may, subject to any discretions of the Marshal of the Federal Court, exercise or perform any of the powers or functions of the Marshal.

18PC - Authorised persons to assist the Marshal or Deputy Marshals

464. This item also inserts new section 18PC. Subsection 18PC(1) provides that the Marshal of the Federal Court may authorise persons to assist the Marshal in exercising powers or performing functions as the Marshal. Subsection 18PC(2) provides that a Deputy Marshal of the Federal Court may authorise persons to assist the Deputy Marshal in exercising powers or performing functions as the Deputy Marshal. Allowing authorised persons to assist the Marshal and Deputy Marshal is consistent with the approach already taken by the Act in relation to Sheriffs and Deputy Sheriffs. Further, it is consistent with the approach adopted by the Family Court and Federal Circuit Court in relation to the existing Marshal and Deputy Marshal positions within each of those courts. Those persons currently authorised to provide assistance within the Federal Court are State and Territory Sheriff's officers. State and Territory Sheriff's officers perform the same duties in relation to enforcement orders issued by State and Territory Courts, are trained in accordance with State and Territory requirements and are generally uniformed and carry photo identity cards. The persons authorised under this Bill would continue to be limited to State and Territory Sheriff's officers.

Item 194 - Paragraphs 18Z(1)(b) and (c)

465. Item 194 repeals paragraphs 18Z(1)(b) and (c) and replaces them with new paragraphs. Paragraphs 18Z(1)(b) and (c) currently provide that the Chief Executive Officer provides corporate services to the Family Court and Federal Circuit Court, respectively. The item replaces these paragraphs with new ones which provide that the Chief Executive Officer of the Federal Court provides corporate services to the FCFC (Division 1) and the FCFC (Division 2), respectively. The new paragraphs ensure the continuation of the shared corporate services across the federal courts (excluding the High Court) that was introduced by the Courts Administration Legislation Amendment Act 2016.

Item 195 - Paragraphs 18Z(3)(b) to (e)

466. Item 195 repeals paragraphs 18Z(3)(b) to (e) and replaces them with new paragraphs 18(3)(b), (3)(c) and (3)(d). Subsection 18Z(3) provides that the Chief Executive Officer of the Federal Court must consult certain persons in the performance of functions and exercise of powers under section 18Z. Paragraphs (b) to (e) provide that the Chief Executive Officer must consult the Chief Justice of the Family Court, Chief Judge of the Federal Circuit Court, the Chief Executive Officer of the Family Court and the Chief Executive Officer of the Federal Circuit Court. Consultation with the Family Court and Federal Circuit Court Chief Executive Officers is no longer required as those positions are being removed under the reforms. Instead, there will be a Chief Executive Officer appointed to the FCFC (Division 1), but who is also to provide support to the Chief Judge of the FCFC (Division 2), and will be, in effect, the Chief Executive Officer of the FCFC.

467. The new paragraphs provide that the Chief Executive Officer of the Federal Court must consult with the Chief Justice of FCFC (Division 1), the Chief Judge of FCFC (Division 2) and the Chief Executive Officer of the FCFC (defined in section 4, as amended by item 179, as the Chief Executive Officer and Principal Registrar of the FCFC (Division 1)) in the performance of functions and exercise of powers under section 18Z.

Item 196 - Subsection 18Z(5)

468. Item 196 repeals subsection 18Z(5) of the Act and replaces it with a new subsection. Subsection 18Z(5) currently provides that the Chief Executive Officer must not make a decision that imposes expenditure obligations on the Courts in relation to providing corporate services unless the relevant Chief Justice or Chief Judge is consulted and consents to the decision, or the Attorney-General consents after consulting the relevant Chief Justice or Chief Judge. The provision ensures that the Chief Executive Officer of the Federal Court, in managing corporate services, cannot impose spending obligations on the Courts without input from the relevant head of jurisdiction.

469. The new subsection provides that the Chief Executive Officer must not make a decision that imposes expenditure obligations on the courts, unless the below listed person(s) are consulted about the decision and provide their consent (or the Attorney-General consents after consulting the below listed person(s)):

•

In relation to the Federal Court - the Chief Justice of the Federal Court is consulted,

•

In relation to FCFC (Division 1) - the Chief Justice of the Federal Court and Chief Justice of the FCFC (Division 1) are consulted, and

•

In relation to FCFC (Division 2) - the Chief Justice of the Federal Court and Chief Judge of the FCFC (Division 2) are consulted.

Item 197 - Subparagraphs 18ZB(a)(iv) to (ix)

470. Item 197 repeals subparagraphs 18ZB(a)(iv) to (ix) and replaces them with new paragraphs. Paragraph 18ZB(a) provides that, for the purposes of the finance law (which has the same meaning as 'finance law' in section 8 of the Public Governance, Performance and Accountability Act 2013), the group of persons specified in subparagraphs (a)(i) to (xiii) form the listed entity known as the 'Federal Court of Australia'. Under the reforms introduced in Courts Administration Legislation Amendment Act 2016, the administrative entities for the Family Court and the Federal Circuit Court were merged into one administrative entity, the Federal Court, for the purposes of the finance law.

471. Subparagraphs ZB(a)(iv) to (ix) currently refer either to existing positions within the Family Court or Federal Circuit Court or to the Chief Executive Officer positions within the Family Court and Federal Circuit Court. The item repeals these subparagraphs and replaces them with new subparagraphs (iv) to (viii). The new subparagraphs refer to positions within the FCFC (Division 1) and the FCFC (Division 2), rather than the Family Court and Federal Circuit Court. The amendments reflect the continuation of the Family Court as the FCFC (Division 1) and the Federal Circuit Court as the FCFC (Division 2).

Item 198 - Subparagraphs 18ZB(e)(ii) and (iii)

472. Item 198 repeals subparagraphs 18ZB(e)(ii) and (iii) and replaces them with a new paragraph. Paragraph (e) currently provides that the purposes of the listed entity (the 'Federal Court of Australia') include the functions of the Chief Executive Officers of the Federal Court, Family Court and Federal Circuit Court. The item repeals the functions relating to the Chief Executive Officers of the Family Court and Federal Circuit Court as these positions will no longer exist. Instead, there will be a Chief Executive Officer appointed to the FCFC (Division 1), who is also to provide support to the Chief Judge of the FCFC (Division 2), and will be, in effect, the Chief Executive Officer of the FCFC.

473. New subparagraph 18ZB(e)(ii) includes the functions that the Chief Executive Officer of the FCFC (defined in section 4, as amended by item 179, as the Chief Executive Officer and Principal Registrar of the FCFC (Division 1)) will be responsible for in relation to the FCFC (Division 1) and the FCFC (Division 2).

Item 199 - Section 18ZC

474. Item 199 repeals section 18ZC and replaces it with a new section. Existing section 18ZC relates to the application of section 110 of the Public Governance, Performance and Accountability Act 2013. The section refers to the Family Court, Federal Circuit Court and the respective Chief Executive Officers for each court. New section 18ZC is substantially the same as the existing section, except that it is updated to reflect that the Family Court will be continued as the FCFC (Division 1), the Federal Circuit Court will be continued as the FCFC (Division 2), and that there will be a CEO of the FCFC (defined in section 4, as amended by item 179, as the Chief Executive Officer and Principal Registrar of the FCFC (Division 1)).

Item 200 - Subparagraphs 18ZD(1)(b)(ii) to (iv)

475. Item 200 repeals subparagraphs 18ZD(1)(b)(ii) to (iv) and replaces them with new paragraphs. Subsection (1) provides the criteria for the application of the section. 18ZB(1)(b) provides that the section applies (subject also to paragraphs (a) and (c)) if there is an outcome for the listed entity that relates to the administrative affairs of the Court, the Family Court or the Federal Circuit Court or the corporate services of the Federal Court, the Family Court, or the Federal Circuit Court. The item replaces existing subparagraphs (b)(ii) to (iv) with paragraphs which refer to the administrative affairs of the FCFC (Division 1), the FCFC (Division 2), and the corporate services of the Federal Court, the FCFC (Division 1) and the FCFC (Division 2). The substantive operation of the existing paragraphs is not changed by the new paragraphs, only references to the names of the courts.

Item 201 - Subsections 18ZD(2) and (3)

476. Item 201 repeals subsections 18ZD(2) and (3) and replaces them with a new subsection. Subsection (2) currently provides that before spending a part of the outcome amount for another outcome the Chief Executive Officer must first both consult the relevant Chief Justice or Chief Judge and obtain their consent, or obtain the consent of the Attorney-General. Subsection (3) currently provides that before the Attorney-General can give consent under subsection (2) the Attorney-General must consult with relevant Chief Justice or Chief Judge.

477. New subsection (2) provides that before spending a part of an outcome amount for another outcome, if the outcome amount relates to the administrative affairs of the Federal Court, the Chief Executive Officer of the Federal Court must consult the below listed person(s) about the decision and obtain their consent to the spending (or obtain the consent of Attorney-General):

•

in relation to the Federal Court - consult the Chief Justice of the Federal Court,

•

in relation to Division 1 - consult the Chief Justice of the Federal Court and Chief Justice of the FCFC (Division 1), and

•

in relation to Division 2 - consult Chief Justice of the Federal Court and Chief Judge of the FCFC (Division 2).

Item 202- Subparagraphs 18ZE(2)(b)(ii) and (iii)

478. Item 202 repeals subparagraphs 18ZE(2)(b)(ii) and (iii) and replaces them with a new subparagraph. Subsection (2) currently specifies the persons who constitute a Statutory Agency for the purposes of the Public Service Act 1999. Subparagraphs (2)(b)(ii) and (iii) specify that the persons listed in section 38N of the Family Law Act and section 101, subsection 106(1), subsection 107(1), subsection 109(1), subsection 110(1), section 111A and section 112 of the Federal Circuit Court Act are amongst the persons who constitute the Statutory Agency. The item repeals these subparagraphs and replaces them with new subparagraph (iii), which refers to the correct provisions of the FCFC Bill. The amendments do no change the intent of subsection 18ZE(2).

Item 203 - Sections 18ZF and 18ZG

479. Item 203 repeals existing sections 18ZF and 18ZG and replaces them with new sections. Existing section 18ZF provides that the Chief Executive Officer must make the services of APS employees who are officers of the Family Court, or staff of the Registries of the Family Court, available for the purposes of assisting the Family Court Chief Executive Officer in the performance of his or her functions. In performing services, the persons made available must do so in accordance with the directions of the Chief Justice of the Family Court and the Family Court Chief Executive Officer. Section 18ZF also provides for similar arrangements in relation to the Federal Circuit Court.

480. New subsection 18ZF(1) will not substantively depart from existing subsection 18ZF(1), except that APS employees who are officers of the FCFC (Division 1), or staff of the Registries of the FCFC (Division 1), must be made available to Chief Executive Officer of the FCFC in the performance of functions in relation to the FCFC (Division 1) under clauses 84 and 278 of the FCFC Bill. New subsection 18ZF(3) will also provide similar arrangements in relation to the FCFC (Division 2) in the performance of functions under clauses 250 and 278 of the FCFC Bill.

481. In performing services, the persons made available must do so in accordance with the directions of the Chief Justice of the FCFC (Division 1) (when performing services made available under subsection 18ZF(1)) or Chief Judge of the FCFC (Division 2) (when performing services made available under subsection 18ZF(3)) as well as the Chief Executive Officer of the FCFC.

482. Current section 18ZG is no longer required as it relates to delegations concerning the Family Court Chief Executive Officer and the Federal Circuit Court Chief Executive Officer, positions which will no longer exist under the new court structure. Instead, there will be a Chief Executive Officer appointed to the FCFC (Division 1), who is also to provide support to the Chief Judge of the FCFC (Division 2), and will be, in effect, the Chief Executive Officer of the FCFC. As such, the section is repealed and replaced with new section 18ZG, which instead refers to the Chief Executive Officer of the FCFC (defined in section 4, as amended by item 179, as the Chief Executive Officer and Principal Registrar of the FCFC (Division 1)). The new section provides that section 78 of the Public Service Act 1999 applies, in relation to the administrative affairs of the FCFC, as if the reference in subsection 78(7) of that Act to another person were a reference to the Chief Executive Officer of the FCFC.

Item 204 - Paragraphs 18ZH(1)(b) and (c)

483. Item 204 repeals existing paragraphs 18ZH(1)(b) and (c) and replaces them with new paragraphs. In accordance with subsection 18ZH(1), the Chief Executive Officer has the power to appoint specified officers. Subsections (b) and (c) provide that the Chief Executive Officer has the power to appoint certain officers of the Family Court and the Federal Circuit Court. Similar to the existing subparagraphs, new subparagraphs (b) and (c) will allow the Chief Executive Officer of the Federal Court to appoint specified officers of the FCFC (Division 1) and the FCFC (Division 2).

Item 205 - Subsections 18ZH(2) and (3)

484. Item 205 repeals subsections 18ZH(2) and (3) as they are no longer required. Under the subsections, the Chief Executive Officer is given the power to delegate his or her appointment powers to the Family Court Chief Executive Officer and the Federal Circuit Court Chief Executive Officer. As these positions will no longer exist the provisions need to be replaced. Instead, there will be a Chief Executive Officer appointed to the FCFC (Division 1), who is also to provide support to the Chief Judge of the FCFC (Division 2), and will be, in effect, the Chief Executive Officer of the FCFC.

485. New subsection 18ZH(2) provides that the Chief Executive Officer of the Federal Court may delegate his or her powers under paragraphs 18ZH(1)(b) or 18ZH(1)(c) to appoint any or all the officers to the Chief Executive Officer of the FCFC (defined in section 4, as amended by item 179, as the Chief Executive Officer and Principal Registrar of the FCFC (Division 1)).

486. The item also inserts new subsection (3), which provides that the appointment of a person to more than one office, or an office or offices of more than one court, mentioned in subsection 18ZH(1) may be made in a single instrument. This insertion of this provision seeks to improve the practicality of appointments by allowing more than one to be made in a single instrument, reducing the administrative burden.

Item 206 - Paragraphs 18ZI(1)(b) and (c)

487. Item 206 repeals paragraphs 18ZI(1)(b) and (c) and replaces them with new paragraphs. Subsection 18ZI(1) currently provides that the Chief Executive Officer may engage persons having suitable qualifications and experience as consultants to, or to perform services for, the Federal Court, the Family Court, the Federal Circuit Court and the National Native Title Tribunal. New paragraphs (b) and (c) will correctly refer to the FCFC (Division 1) and the FCFC (Division 2), rather than the Family Court and Federal Circuit Court, respectively.

Item 207 - Subsections 18ZI(4) and (5)

488. Item 207 repeals subsections 18ZI(4) and (5), which relate to the delegation of powers to the Family Court Chief Executive Officer and the Federal Circuit Court Chief Executive Officer. These positions will no longer exist, and instead there will be a Chief Executive Officer appointed to the FCFC (Division 1), who is also to provide support to the Chief Judge of the FCFC (Division 2), and will be, in effect, the Chief Executive Officer of the FCFC. The new subsection provides that the Chief Executive Officer of the Federal Court may delegate his or her powers to the Chief Executive Officer of the FCFC (defined in section 4, as amended by item 179, as the Chief Executive Officer and Principal Registrar of the FCFC (Division 1)).

Item 208 - Section 18ZJ

489. Item 208 repeals section 18ZJ and replaces it with a new section. Section 18ZJ relates to the subdelegation of powers delegated to the Family Court Chief Executive Officer and the Federal Circuit Court Chief Executive Officer. These positions will no longer exist, and instead there will be a Chief Executive Officer appointed to the FCFC (Division 1), who is also to provide support to the Chief Judge of the FCFC (Division 2), and will be, in effect, the Chief Executive Officer of the FCFC.

490. New section 18ZJ largely replicates the original section 18ZJ, but updates references to reflect the FCFC Bill's continuation of the Family Court as the FCFC (Division 1), Federal Circuit Court as the FCFC (Division 2), and creation of the Chief Executive Officer of the FCFC (defined in section 4, as amended by item 179, as the Chief Executive Officer and Principal Registrar of the FCFC (Division 1)).

491. New subsection 18ZJ(1) provides that if the Chief Executive Officer of the Federal Court delegates any powers to the Chief Executive Officer of the FCFC, the Chief Executive Officer of the FCFC may subdelegate all or any of those powers in writing to certain staff or officers specified in new subsection 18ZB(a) (see item 197 of Schedule 1 of the Bill).

492. New subsection 18ZJ(2) provides that sections 34AA, 34AB and 34A of the Acts Interpretation Act 1091 apply to a delegation under section 18ZJ in the same way they would apply to a delegation under section 18ZH or 18ZI.

Item 209 - Section 18ZK

493. Item 209 repeals existing section 18ZK and replaces it with a new section. Section 18ZK provides that a person may be an officer of one or more of the Federal Court, Family Court, or Federal Circuit Court. New subsection 18ZK(1) is similar to the existing section, except that it is updated to refer to the FCFC (Division 1) and the FCFC (Division 2). Additionally, in a similar manner to existing subsection 18ZK(2), new subsection 18ZK(2) will provide that subsection (1) has effect despite anything in the Federal Court Act or the FCFC Bill.

Item 210 - Paragraphs 24(1)(d) and (e)

494. Item 210 amends paragraphs 24(1)(d) and (e) to replace references to the Federal Circuit Court with references to the FCFC (Division 2). Subsections (d) and (e) relate to the Federal Court's jurisdiction to hear appeals from judgments of the Federal Circuit Court. The item updates the reference to the Federal Circuit Court to be the FCFC (Division 2), but does not change the substantive operation of the paragraphs.

Item 211 - Subsections 25(1AA)

495. Item 211 amends subsection 25(1AA) to replace references to the Federal Circuit Court with references to the FCFC (Division 2). Subsection 25(1AA) provides that the appellate jurisdiction of the Federal Court in relation to an appeal from a judgment of the Federal Circuit Court is to be exercised by a single Judge or, if a Judge considers it appropriate, a Full Court. The amendment does not change the intent of subsection 25(1AA), but simply updates the reference to reflect the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 212 - Paragraph 29(1)(a)

496. Item 212 amends paragraph 29(1)(a) to replace a reference to the 'Federal Circuit Court' with the 'Federal Circuit and Family Court of Australia (Division 2)'.

497. Paragraph 29(1)(a) currently provides that where an appeal to the Federal Court from another court has been instituted, the Court or a Judge, or a Judge of that other court (excluding the Federal Circuit Court or a court of summary jurisdiction), may order, as it or he or she thinks fit, a stay of all or any proceedings under the judgment appealed from. The amendment does not change the intent of paragraph 29(1)(a), but simply updates the reference to reflect the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 213 - Section 32AA (heading)

498. Item 213 amends the heading to section 32AA to replace the reference to the 'Federal Circuit Court' with the 'Federal Circuit and Family Court of Australia (Division 2)'. The heading now reads 'Proceedings not to be instituted in the Court if an associated matter is before the Federal Circuit and Family Court (Division 2)'.

Item 214 - Paragraphs 32AA(1)(a) and (b)

499. Item 214 amends paragraph 32AA(1)(a) and (b) to replace references to the 'Federal Circuit Court' with the 'Federal Circuit and Family Court of Australia (Division 2)'. Subsection 32AA(1) currently provides that proceedings must not be instituted in the Federal Court in respect of a matter if the Federal Circuit Court has jurisdiction in that matter and proceedings in respect of an associated matter are pending in the Federal Circuit Court. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of the subparagraphs.

Item 215 - Paragraph 32AA(2)(b)

500. Item 215 amends paragraph 32AA(2)(b) to replace the reference to the 'Federal Circuit Court' with the 'Federal Circuit and Family Court of Australia (Division 2)'. Subsection 32AA(2)(b) provides that if proceedings are instituted in the Federal Court in contravention of subsection 32AA(1) and the proceedings are subsequently transferred to the Federal Circuit Court the proceedings are taken to be as valid as they would have been if subsection (1) had not been enacted. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of the subparagraph.

Item 216 - Section 32AB (heading)

501. Item 216 amends the heading to section 32AB to replace the reference to the 'Federal Circuit Court' with the 'Federal Circuit and Family Court of Australia'. The heading now reads 'Discretionary transfer of civil proceedings to the Federal Circuit and Family Court of Australia'.

Item 217 - Subsections 32AB(1), (3), (4) , (5) and (6)

502. Item 217 amends subsections 32AB(1), (3), (4), (5) and (6) by replacing references to the 'Federal Circuit Court' with the 'Federal Circuit and Family Court of Australia'. Section 32AB currently provides the power for the Federal Court to transfer a matter pending in the Federal Court, by order, to the Federal Circuit Court on the application of a party to the proceedings or on its own motion. This item expands the discretionary transfer power of the Court in section 32AB to both Divisions of the FCFC. Expanding the power is necessary as there may be related proceedings to a matter pending in the Federal Court in either Division of the FCFC. By expanding the power to cover both Divisions of the FCFC, the provision will assist in ensuring that the federal courts are able to deal with matters most efficiently. It is not intended that transfers would be made to the FCFC (Division 1) that did not appropriately reflect its continuing character as a court specialising in family law matters.

Item 218 - Subsection 32AB(7)

503. For the reasons outlined in item 217, this item amends subsection 32AB(7) to replace the reference to 'Federal Circuit Court' with the 'Federal Circuit and Family Court of Australia'. The amendment ensures the provisions operate in the same manner as they currently do, but in relation to the FCFC rather than the Federal Circuit Court.

Item 219 - Subsection 32AB(8A)

504. Item 219 amends subsection 32AB(8A) by repealing the existing subsection and substituting new subsections 32AB(8A) and (8B). New subsection 32AB(8A) provides that the FCFC (Division 1) has jurisdiction in a matter that is the subject of a proceeding transferred to it under section 32AB, and is a matter in which the FCFC (Division 1) does not have jurisdiction apart from this subsection.

505. New subsection 32AB(8B) provides that the FCFC (Division 2) has jurisdiction in a matter that is the subject of a proceeding transferred to it under section 32AB, and is a matter in which the FCFC (Division 2) does not have jurisdiction apart from this subsection. For the avoidance of doubt, the jurisdiction of the FCFC (Division 1) and the FCFC (Division 2) provided in subsections 32AB(8A) and (8B) is not subject to limits set by another provision. However, it is not intended that transfers would be made to the FCFC (Division 1) that did not appropriately reflect its continuing character as a court specialising in family law matters.

Item 220 - After section 32AB

506. Item 220 inserts new section 32AC. New section 32AC provides a power for the discretionary transfer of civil proceedings from the FCFC (Division 2) by the Federal Court to the Federal Court. The provision will enable the Federal Court to 'uplift' matters that are not family law matters from the FCFC (Division 2). This will provide for efficiencies where, for example, there is a related matter pending in the Federal Court that could be dealt with at the same time as the matter pending in the FCFC (Division 2).

507. Subsection 32AC(1) provides that if a proceeding is pending in the FCFC (Division 2) and it relates to a matter other than a family law or child support matter, the Federal Court may, by order, transfer the proceeding from the FCFC (Division 2) to the Federal Court. It is necessary to exclude family law matters from the subsection as the Federal Court does not have original jurisdiction for such matters.

508. Subsection 32AC(2) provides that the Federal Court may transfer a proceeding on the application of a party or on its own motion.

509. Subsection 32AC(3) provides that the Rules of Court may make provision in relation to transfers of proceedings from the FCFC (Division 2) under section 32AB. This will empower the Federal Court to appropriately manage such transfers. Subsection 32AC(5) provides that before making Rules of Court, the Federal Court must consult the FCFC (Division 2). This is appropriate given that the Federal Court can uplift matters without the consent of the FCFC (Division 2). However, the FCFC (Division 2) should be consulted on the making of Rules of Court to ensure that the most efficient practices are put in place for the transferring of matters between the two courts.

510. Subsection 32AC(4) provides that the Rules of Court may set out factors to be taken into account in deciding whether to transfer a proceeding. Subsection 32AC(6) provides for specific matters that the Federal Court must have regard to in deciding whether to transfer a proceeding. In particular, this includes any Rules of Court made for the purposes of subsection 32AC(4), whether proceedings in respect of an associated matter are pending in the Federal Court, whether the resources of the Federal Court are sufficient to hear and determine the proceeding, and the interests of the administration of justice. These requirements are similar to the requirements under existing subsection 32AB(6).

511. Subsection 32AC(7) provides that an appeal does not lie from a decision of the Federal Court in relation to the transfer of a proceeding. This is to ensure that the Federal Court is not burdened by appeals on matters it has already determined.

512. Subsection 32AC(8) provides that the Federal Court has jurisdiction in a matter that is the subject of a proceeding transferred to the Federal Court under this section and is a matter in which the Federal Court does not have jurisdiction apart from the subsection.

513. Subsections 32AC(9) and (10) provide that the section does not apply to criminal proceedings or proceedings of a kind specified in the regulations.

514. The item also inserts new subsection 32AD. New section 32AD provides for the confirmation of civil proceedings transferred from the FCFC (Division 2). Under subclause 120(1) of FCFC Bill, if a proceeding is pending in the FCFC (Division 2) that relates to a matter other than a family law matter the FCFC (Division 2) may, by order, transfer the proceeding to the Federal Court. New section 32AD seeks to limit the power of the FCFC (Division 2) to transfer matters.

515. Subsection 32AD(1) provides that if the FCFC (Division 2) makes an order to transfer a matter under subclause 153(1) of the FCFC Bill, the Federal Court may, by order, confirm the transfer of the proceeding to the Federal Court. The matter will only be transferred if the order is confirmed by the Federal Court under subsection 32AD(1). If the Federal Court decides not to confirm the transfer, it will not be transferred to the Federal Court and will remain with the FCFC (Division 2). This allows the Federal Court to maintain power over the proceedings before it and prevent the transfer of proceedings unnecessarily or in circumstances where the Federal Court does not (at the time) have the judicial resources to finalise the proceedings.

516. Subsection 32AD(2) provides that the Federal Court may, in its discretion, receive further evidence to decide whether to make an order under subsection 32AD(1). The evidence may be taken in any of the ways mentioned in section 27 of the Act.

517. Subsection 32AD(3) provides that the Federal Court has jurisdiction in a matter that is the subject of a proceeding transferred to it by the FCFC (Division 2) and is a matter in which the Federal Court does not have jurisdiction apart from this subsection.

518. Subsection 32AD(4) provides that an appeal does not lie from a decision of the Federal Court in relation to an order made under subsection (1) confirming the transfer of proceedings. This is to ensure the Federal Court is not burdened with appeals in relation to matters it has already determined.

Item 221 - Subsection 34(1) and (2)

519. Item 221 amends subsections 34(1) and (2), which provide for the Governor-General to make Registries of the Federal Court and to designate one of the Registries as the Principal Registry with each other Registry being a District Registry in respect of such District as specified by the Governor-General. The item amends subsection 34(1) and (2) so that it is the Minister, rather than the Governor-General, who holds the power to make Registries. Currently, there are different arrangements for the establishment of Registries between the Federal Court, Family Court and Federal Circuit Court. The amendment makes the establishment of Registries consistent across the Federal Court and both Divisions of the FCFC.

Item 222 - Subsection 34(2)

520. For the same reasons as outlined at item 221 above, this item replaces references to 'Governor-General' in subsection 34(2) with 'Minister'.

Item 223 - Subsection 49(2)

521. Item 223 repeals subsection 49(2) and replaces it with a new subsection. New subsection (2) builds on the intent of existing subsection (2) by seeking to provide alternative options to publish orders and reasons prepared by a Judge. In particular, new subsection (2) provides that if the Federal Court reserves a judgment and the Judge who heard the proceeding (whether as a single Judge or as a member of a Full Court) subsequently prepares orders and reasons, those orders and reasons may be made public by another Judge on behalf of the Judge who heard the proceeding or as otherwise provided for by the Rules of Court. The intention of the provision is to provide for the expeditious publishing of orders and reasons, so parties to the proceeding are not left waiting for those orders and reasons to be made public where they have already been prepared. For example, it would allow another Judge to make public orders and reasons of another Judge where that other Judge is unable to do so for reasons of ill health.

522. The item also inserts new subsection 49(2A) into the Act. New subsection 49(2A) provides that if the Federal Court reserves reasons for its decision in a proceeding and the Judge who heard the proceedings (whether as a single Judge or as a member of a Full Court) has prepared reasons, those reasons may be made public by another Judge on behalf of the Judge who heard the proceeding or as otherwise provided for by the Rules of Court. This provision has a similar intention to new subsection (2) in that it provides for the expeditious publishing of reasons, so parties to the proceeding are not left waiting for those reasons to be made public where they have already been prepared.

Item 224 - Subsection 49(3)

523. Item 224 amends subsection 49(3) by replacing the words 'subsection (2)' with 'this section'. The amendment is necessary to account for the inclusion of subsection 49(2A) in item 223 above.

Item 225 - After section 55

524. Item 225 inserts new section 55AA after section 55, which relates to actions by or against the Marshal or Deputy Marshal. New section 55AA provides for direction of writs, summonses, orders, warrants, precepts, process and commands that would ordinarily be directed to the Marshal in a proceeding to which the Marshal or a Deputy Marshal is party. This is necessary due to the creation of the offices of Marshal and Deputy Marshall as Officers of the Federal Court. This is consistent with equivalent provisions relating to the FCFC (Division 2) under the FCFC Bill (see subclause 270(2)).

Item 226 - After subsection 59(1)

525. Item 226 inserts new subsection 59(1A). New subsection (1A) provides that the Judges of the Federal Court, or a majority of them, may make Rules of Court prescribing matters required or permitted by any other provisions of this Act or any other law of the Commonwealth to be prescribed by the Rules of Court. The insertion of the new subsection is necessary to capture the new sections of the Act which provide for the making of Rules of Court. The making of Rules of Court by the Judges of the Federal Court, or a majority of them, is consistent with the approach to making Rules of Court in subsection 59(1).

Item 227 - After paragraph 59(2)(r)

526. Item 257 inserts new paragraph (ra) into subsection 59(2). This new paragraph provides that the Rules of Court may make provision for the transfer of proceedings from the FCFC (Division 2), including matters relating to costs.

Part 2 - Application, saving and transitional provisions

Division 1 - Introduction

Item 228 - Definitions

527. Item 228 defines 'commencement day'. The item provides that references to the 'commencement day' in Part 2 mean the day that Schedule 1 commences. This provided for in the commencement information table in clause 2 of this Bill as the same time as the Federal Circuit and Family Court of Australia Act 2019 commences.

Division 2 - Application of amendments

Item 229 - Application

528. Item 229 is an application provision, which provides that the amendments of the Family Law Act and the Federal Court Act made by Schedule 1 of the Bill apply in relation to a proceeding commenced before, on or after the commencement day.

Division 3 - Saving and transitional provisions: Family Law Act 1975 amendments

Item 230 - Authorisation about handling complaints

529. Item 230 provides that an authorisation made under subsection 21B(3A) of the Family Law Act and in force immediately before the commencement day continues as if it had been made under subsection 32(2) of the Federal Circuit and Family Court of Australia Act 2019.

530. Under subclause 32(2), the Chief Justice may authorise, in writing, a person or body to assist the Chief Justice to handle complaints, to decide whether or not to handle complaints, to dismiss complaints, or to handle complaints. Previous subsection 21B(3A) of the Family Law Act provided for a similar authorisation.

531. This amendment reflects the continuation of the Family Court in the Federal Circuit and Family Court of Australia (Division 1) (see clause 8 of the FCFC Bill). The saving of an authorisation made under subsection 21B(3A) of the Family Law Act is appropriate given the instrument will survive in effect through subclause 48(2) of the FCFC Bill and it would be administratively cumbersome and unnecessary to remake every subsection 21B(3A) authorisation.

Item 231 - Arrangements with other courts

532. Item 231 provides that an arrangement made under subsection 38BAA(1) of the Family Law Act and in force immediately before the commencement day continues as if it had been made under subclause 79(1) of the FCFC Bill.

533. Subclause 79(1) enables the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) to arrange with the chief judicial officer of another federal, state or territory court, for an officer or officers of that court to perform a series of functions on the behalf of the Federal Circuit and Family Court of Australia (Division 1). Previous subsection 38BAA(1) of the Family Law Act allowed similar arrangements.

534. This amendment reflects the continuation of the Family Court in the Federal Circuit and Family Court of Australia (Division 1) (see clause 8 of FCFC Bill). The saving of an arrangement made under subsection 38BAA(1) of the Family Law Act is appropriate given the instrument will survive in effect through subclause 79(1) of the FCFC Bill and it would be administratively cumbersome and unnecessary to remake every subsection 38BAA(1) arrangement.

Item 232 - Arrangements with agencies or organisations

535. Item 232 provides that an arrangement made under subsection 38BAB(1) of the Family Law Act and in force immediately before the commencement day continues as if it had been made under subclause 80(1) of the FCFC Bill.

536. Subclause 80(1) enables the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) to arrange with the chief executive officer of another organisation, including a government agency, for an employee of that organisation or agency to receive documents or perform non judicial functions on behalf of the FCFC (Division 1). Previous subsection 38BAB(1) of the Family Law Act allowed similar arrangements.

537. This amendment reflects the continuation of the Family Court in the FCFC (Division 1) (see clause 8 of the FCFC Bill). The saving of an arrangement made under subsection 38BAB(1) of the Family Law Act is appropriate given the instrument will survive in effect through subclause 80(1) of the FCFC Bill and it would be administratively cumbersome and unnecessary to remake every subsection 38BAB(1) arrangement.

Item 233 - Delegation

538. Item 233 provides that an instrument made under section 38W of the Family Law Act and in force immediately before the commencement day continues as if it had been made under clause 108 of the FCFC Bill.

539. Clause 108 provides that the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) may, in writing, delegate any or all of his or her powers under clause 78 to the Judges of the FCFC (Division 1). Previous subsection 38W of the Family Law Act allowed a similar delegation.

540. This amendment reflects the continuation of the Family Court in the Federal Circuit and Family Court of Australia (Division 1) (see clause 8 of the FCFC Bill). The saving of an instrument made under section 38W of the Family Law Act is appropriate given the instrument will survive in effect through clause 108 of FCFC Bill and it would be administratively cumbersome and unnecessary to remake every section 38W instrument.

Item 234 - Proclamation

541. Item 234 provides that a Proclamation made under subsection 96(3) of the Family Law Act and in force immediately before the commencement day continues as if it had been made under new subsection 47A(5) of the Family Law Act (as inserted by item 69 of this Bill).

542. New subsection 47A(5) provides that the Governor-General may, by Proclamation, fix a date as the date on or after which appeals to the Supreme Court of a specified State or Territory under this section may not be instituted. Previous subsection 96(3) of the Family Law Act had the same effect. Subsection 96(3) is repealed by item 109 as part of the repeal of Part X. These amendments are consequential to the amendments providing for the new court structure.

543. Item 234 has the effect of saving the operation of the existing Proclamation, made under subsection 96(3), ceasing the jurisdiction of Supreme Courts of specified States and Territories from hearing appeals from courts of summary jurisdiction. Additionally, paragraph (b) provides that the Supreme Courts, specified in the saved proclamation, are also specified for appeals in relation to the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988. This has been included to ensure that the inclusion of these Acts in section 47A does not have the unintended result that a Supreme Court of a State or Territory, that has not been conferred with jurisdiction to hear appeals from courts of summary under the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988 can hear appeals.

544. Under new section 101 of the Child Support (Assessment Act) 1989 (see item 166 of Schedule 2 of this Bill) and section 106 of the Child Support (Registration and Collection) Act 1988 (see item 180 of Schedule 2 of this Bill), only the Supreme Court of the Northern Territory and the Family Court of a State are conferred jurisdiction to hear appeals from a court of summary jurisdiction in the relevant Territory or State.

545. The saving of a Proclamation made under subsection 96(3) of the Family Law Act is appropriate as it would be administratively cumbersome and unnecessary to remake the subsection 96(3) Proclamation.

Item 235 - Oaths and Affirmations

546. Item 235 provides that an authorisation made under subsection 98AA(2) of the Family Law Act and in force immediately before the commencement day continues as if it had been made under subclause 71(2) of the FCFC Bill.

547. Subclause 71(2) provides that a Judge may cause the administration of oaths and affirmations and for this purpose the Federal Circuit and Family Court of Australia (Division 1) may either orally or in writing authorise any person (whether they are in or outside Australia) to administer oaths and affirmations. The Chief Executive Officer may, in writing, authorise a Registrar or Deputy Registrar, or a staff member of the Federal Circuit and Family Court of Australia (Division 1) to administer oaths and affirmations for the purposes of the Court. Previous subsection 98AA(2) of the Family Law Act allowed the same arrangements. This subsection has been repealed by item 116 of Schedule 1, above.

548. This amendment reflects the continuation of the Family Court in the Federal Circuit and Family Court of Australia (Division 1) (see clause 8 of the FCFC Bill). The saving of an authorisation made under subsection 98AA(2) of the Family Law Act is appropriate given the power will survive in effect through subclause71(2) of the FCFC Bill and it would be administratively cumbersome and unnecessary to remake every subsection 98AA(2) authorisation.

Item 236 - Seals and stamps

549. Item 236 provides that a seal or stamp of the Family Court, prescribed by the Rules of Court and in force immediately before the commencement day, may be affixed to documents (in accordance with subclauses 59(3) or 60(3) of the FCFC Bill respectively) on or after the commencement day as if it were a seal or stamp of the FCFC (Division 1), despite the amendment of paragraph 123(1)(f) of the Family Law Act (item 157 of Schedule 1 of the Bill).

550. This amendment reflects the continuation of the Family Court in the Federal Circuit and Family Court of Australia (Division 1) (see clause 8 of the FCFC Bill).

Item 237 - Continuity of Rules of Court

551. Item 237 provides that amendments made by items 132, 140, 152, 163 and 165 of this Schedule do not affect the continuity, amendment or repeal of any Rules of Court made for the purposes of section 123 of the Family Law Act that are in force immediately before the commencement day. These amendments omit references to the Rules of Court being made by Judges and substitute 'the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1)' consistent with the amendment in item 152 which provides that the Chief Justice of Division 1 has the power to make Rules of Court under section 123 of the Act.

552. This amendment reflects the continuation of the Family Court in the Federal Circuit and Family Court of Australia (Division 1) (see clause 8 of the FCFC Bill), and clarifies that the change in who has the power to make the Rules of Court does not affect their continuity or their ability to be amended or repealed.

Division 4 - Saving and transitional provisions: Federal Court of Australia Act 1976 amendments

Item 238 - Registries of the Federal Court of Australia

553. Item 238 relates to the Registries of the Federal Court. Subitem (1) provides that, despite the amendment of section 34 of the Federal Court Act, a Registry of the Federal Court existing immediately before the commencement day continues in existence on and after that day. This provision ensures that Registries of the Federal Court that have already been established will continue in operation.

554. Subitem (2) provides that the amendment of section 34 of the Federal Court Act by items 221 and 222 of Schedule 1 does not affect the designation, before the commencement day, of a Registry of the Federal Court as the Principal Registry of the Federal Court or the specification, before the commencement day, of a District (in respect of which a District Registry of the Federal Court exists).

Part 3 - Amendments not commencing before 1 January 2020

Federal Circuit and Family Court of Australia Act 2019

Item 239 - Paragraph 127(1)(a)

555. Item 239 amends paragraph 127(1)(a) of the FCFC Bill by repealing the paragraph and substituting a paragraph that refers to a child who has attained the age of 18 years, instead of 16 years.

556. Clause 127 of the FCFC Bill sets out the meaning of eligible child. The amendment to paragraph 127(1)(a) reflects amendments made by the Public Sector Superannuation Legislation Amendment Act 2018 to the Judges' Pension Act 1968, updating the definition of 'eligible child' in that Act, to refer to people who have attained the age of 18 years, instead of 16 years. As explained in the explanatory memorandum to the Public Sector Superannuation Legislation Amendment Bill 2018, the amendments are required since the pre-existing provisions reflected a time when a significant percentage of students left formal education at age 16, which is no longer the case: more students now remain in formal education until at least age 18.

557. The relevant amendments made by the Public Sector Superannuation Legislation Amendment Act 2018 to the Judges' Pension Act 1968 commence on 1 January 2020, which is the reason for the commencement date of this Part of the Bill.

Item 240 - Application provision

558. Item 240 provides that the amendment made by item 239 applies in relation to a Judge of the FCFC (Division 2) or a retired disabled Judge (as defined by the FCFC Bill) who dies on or after the day this item commences.

Part 4 - Amendments relating to Rules of Court

559. Part 4 relates to the making of Rules of Court. The amendments in Part 4 implement the policy intention that, two years after the commencement of the FCFC Bill, the power to make Rules of Court for the FCFC (Division 1) will be vested in the Judges or a majority of Judges of the FCFC (Division 1). A similar approach will be adopted for the FCFC (Division 2). The approach will give Judges of both Divisions more responsibility for making Rules of Court while also seeking to ensure the Chief Justice and Chief Judge can continue to discharge the obligations to work cooperatively with the aim of ensuring common rules across both Divisions for family law matters.

560. As provided in clause 2 of the Bill, Part 4 commences two years after the FCFC Bill commences.

Corporations (Aboriginal and Torres Strait Islander) Act 2006

Item 241 - Section 700-1 (paragraph (b) of the definition of Aboriginal and Torres Strait Islander Corporations legislation)

561. Item 241 omits reference to 'the Chief Justice' and replaces it with a reference to 'Judges' in paragraph (b) of the definition of Aboriginal and Torres Strait Islander Corporations Legislation in section 700-1 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006. This amendment reflects the policy intention that two years after the commencement of the FCFC Bill the power to make Rules of Court for the FCFC (Division 1) will be vested in the Judges or a majority of Judges of the FCFC (Division 1).

Corporations Act 2001

Item 242 - Section 9 (paragraph (c) of the definition of Corporations legislation)

562. Item 242 omits reference to 'the Chief Justice' and replaces it with a reference to 'Judges' in the paragraph (c) of the definition of Corporations legislation in the Corporations Act 2001. This amendment reflects the policy intention that two years after the commencement of the FCFC Bill the power to make Rules of Court for the FCFC (Division 1) will be vested in the Judges or a majority of Judges of the FCFC (Division 1).

Family Law Act 1975

Items 243, 244, 245, 246 - Subsection 109A(1), Subsection 111C(7A), Subsection 111C(7B), Subsection 111C(7C)

563. Items 243 to 246 omit references to 'the Chief Justice' and replaces them with references to 'Judges' in subsections 109A(1), 111C(7A), 111C(7B) and 111C(7C) of the Family Law Act. This amendment reflects the policy intention that two years after the commencement of the FCFC Bill the power to make Rules of Court for the FCFC (Division 1) will be vested in the Judges or a majority of Judges of the FCFC (Division 1).

Item 247 - Subsection 123(1)

564. Item 247 omits the reference to 'Chief Justice of the Federal Circuit and Family Court of Australia (Division 1)' and replaces it with reference to 'Judges of the Federal Circuit and Family Court of Australia (Division 1), or a majority of them' in subsection 123(1) the Family Law Act. This amendment reflects the policy intention that two years after the commencement of the FCFC Bill the power to make Rules of Court for the FCFC (Division 1) will be vested in the Judges or a majority of Judges of the FCFC (Division 1).

Item 248 - Subsection 123(1) (note 1)

565. Item 248 omits the reference to 'Note 1' in subsection 123(1) of the Family Law Act and substitutes it with a reference to 'Note'. This reflects the removal of Note 2 in subsection 123(1) of the Family Law Act below.

Item 249 - Subsection 123(1) (note 2)

566. Item 249 repeals 'Note 2' in subsection 123(1) of the Family Law Act. Note 2 refers to the rule making power being amended two years after the commencement of the FCFC Bill. This note would no longer be required after the commencement of this Part.

Item 250 - Subsection 123(2)

567. Item 250 omits reference to 'the Chief Justice' and replaces it with reference to 'Judges' in subsection 123(2) of the Family Law Act. This amendment reflects the policy intention that two years after the commencement of the FCFC Bill the power to make Rules of Court for the FCFC (Division 1) will be vested in the Judges or a majority of Judges of the FCFC (Division 1).

Item 251 - After paragraph 123(2)(a)

568. Item 251 inserts new paragraph 123(2)(b) in the Family Law Act. This paragraph will provide that the Legislation Act 2003 applies as if reference to a rule-maker were a reference to the Chief Justice acting on behalf of the Judges of that Court. This amendment reflects the policy intention that two years after the commencement of the FCFC Bill the power to make Rules of Court for the FCFC (Division 1) will be vested in the Judges or a majority of Judges of the FCFC (Division 1).

Item 252 - Subsection 123(2A)

569. Item 252 omits reference to 'the Chief Justice' and replaces it with reference to 'Judges' in subsection 123(2A) of the Family Law Act. This amendment reflects the policy intention that two years after the commencement of the FCFC Bill the power to make Rules of Court for the FCFC (Division 1) will be vested in the Judges or a majority of Judges of the FCFC (Division 1).

Item 253 - Subsection 124(2)

570. Item 253 repeals subsection 124(2) and replaces it with a new subsection (2) which provides that the function of the Rules Advisory Committee is to advise the Judges of the FCFC (Division 1) in relation to the making of standard Rules of Court as requested from time to time. This amendment reflects the policy intention that two years after the commencement of the FCFC Bill the power to make Rules of Court for the FCFC (Division 1) will be vested in the Judges or a majority of Judges of the FCFC (Division 1).

Federal Circuit and Family Court of Australia Act 2019

Item 254 - Subsection 76(1)

571. Item 254 omits reference to 'the Chief Justice' and replaces it with reference to 'Judges, or a majority of them' in subclause 76(1) of the FCFC Bill (which will have commenced). This amendment reflects the policy intention that two years after the commencement of the FCFC Bill the power to make Rules of Court for the FCFC (Division 1) will be vested in the Judges or a majority of Judges of the FCFC (Division 1).

Item 255 - Subsection 76(1) (note)

572. Item 255 repeals the note to subclause 76(1) of the FCFC Bill (which will have commenced). The note refers to the rule making power being amended two years after the commencement of the FCFC Bill. This note would no longer be required after the commencement of Part 4 of Schedule 1 of the Bill.

Item 256 - After subsection 76(1)

573. Item 256 inserts new subclause 76(1A) into the FCFC Bill (which will have commenced). New subsection (1A) provides that proposed Rules of Court for the FCFC (Division 1) are not to be made by Judges or a majority of Judges of the FCFC (Division 1) if the Chief Justice considers they are not consistent with the aim of ensuring common Rules of Court and forms. The purpose of this new subsection is to ensure that common Rules of Court will be made and retained across both Divisions of the FCFC.

Item 257 - Subsection 76(4)

574. Item 257 omits reference to 'the Chief Justice' and replaces it with reference to 'Judges' in subclause 76(4) of the FCFC Bill (which will have commenced). This amendment reflects the policy intention that two years after the commencement of the FCFC Bill the power to make Rules of Court for the FCFC (Division 1) will be vested in Judges or a majority of Judges of the FCFC (Division 1).

Item 258 - After paragraph 76(4)(a)

575. Item 258 inserts new paragraph 76(4)(aa) in the FCFC Bill (which will have commenced). This paragraph will provide that the Legislation Act 2003 applies as if reference to a rule-maker were a reference to the Chief Justice acting on behalf of the Judges of that Court. This amendment reflects the policy intention that two years after the commencement of the FCFC Bill the power to make Rules of Court for the FCFC (Division 1) will be vested in the Judges or a majority of Judges of the FCFC (Division 1).

Item 259 - Subsection 76(5)

576. Item 259 omits reference to 'made by the Chief Justice' and replaces it with reference to 'made by Judges' in subclause 76(5) of the FCFC Bill (which will have commenced). This amendment reflects the policy intention that two years after the commencement of the FCFC Bill the power to make Rules of Court for the FCFC (Division 1) will be vested in the Judges or a majority of Judges of the FCFC (Division 1).

Item 260 - Section 77

577. Item 260 repeals clause 77 of the FCFC Bill (which will have commenced). Clause 77 provides that before making the Rules of Court, the Chief Justice must be satisfied that there has been appropriate consultation with other Judges. As Judges of the FCFC (Division 1) will be responsible for making the Rules of Court two years after the commencement of the FCFC Bill, this provision would no longer be required on the commencement of this Part.

Item 261 - Subsection 82(2)

578. Item 261 repeals subclause 82(2) of the FCFC Bill (which will have commenced) and replaces it with new subclause 82(2). Clause 82 relates to Advisory Committees, which may be appointed for the purposes of advising the Chief Justice in relation to the making of the Rules of Court and the management of the administrative affairs of the FCFC (Division 1). The amendment updates the provision so that committees may be appointed for the purposes of advising the Judges of the FCFC (Division 1) in relation to the making of Rules of Court.

Item 262 - Subsection 98(1)

579. Item 262 omits reference to 'the Chief Justice' and replaces it with reference to 'Judges, or a majority of them' in subclause 98 (1) of the FCFC Bill (which will have commenced). This amendment reflects the policy intention that two years after the commencement of the FCFC Bill the power to make Rules of Court for the FCFC (Division 1) will be vested in the Judges or a majority of Judges of the FCFC (Division 1).

Item 263 - Subsection 217(1)

580. Item 263 omits reference to 'the Chief Judge' and replaces it with reference to 'Judges, or a majority of them' in subclause 217(1) of the FCFC Bill (which will have commenced). This amendment reflects the policy intention that two years after the commencement of the FCFC Bill the power to make Rules of Court for the FCFC (Division 2) will be vested in the Judges or a majority of Judges of the FCFC (Division 2).

Item 264 - Subsection 217(1) (note)

581. Item 264 repeals the note to subclause 217(1) of the FCFC Bill (which will have commenced). The note refers to the rule making power being amended two years after the commencement of the FCFC Bill. This note would no longer be required after the commencement of this Part.

Item 265 - After subsection 217(1)

582. Item 265 inserts new subclause 217(1A) into the FCFC Bill (which will have commenced). New subclause (1A) provides that proposed Rules of Court for the FCFC (Division 2) are not to be made by Judges or a majority of Judges of the FCFC (Division 2) if the Chief Judge considers they are not consistent with the aim of ensuring common Rules of Court and forms. The purpose of this new subclause is to ensure that common Rules of Court will be made and retained across both Divisions of the FCFC.

Item 266 - Subsection 217(3)

583. Item 266 omits the reference to 'the Chief Judge' and replaces it with a reference to 'Judges' in subsection 217(3) of the Federal Circuit and Family Court of Australia Act 2019 (which will have commenced). This amendment reflects the policy intention that two years after the commencement of the FCFC Bill the power to make Rules of Court for the FCFC (Division 2) will be vested in the Judges or a majority of Judges of the FCFC (Division 2).

Item 267 - After paragraph 217(3)(a)

584. Item 267 inserts new paragraph 217(3)(aa) in the FCFC Bill (which will have commenced). This paragraph will provide that the Legislation Act 2003 applies as if reference to a rule-maker were a reference to the Chief Judge acting on behalf of the Judges of that Court. This amendment reflects the policy intention that two years after the commencement of the FCFC Bill the power to make Rules of Court for the FCFC (Division 2) will be vested in the Judges or a majority of Judges of the FCFC (Division 2).

Item 268 - Subsection 217(4)

585. Item 268 omits reference to 'made by the Chief Judge' and replaces it with reference to 'made by Judges' in subclause 217(4) of the FCFC Bill (which will have commenced). This amendment reflects the policy intention that two years after the commencement of the FCFC Bill the power to make Rules of Court for the FCFC (Division 2) will be vested in the in the Judges or a majority of Judges of the FCFC (Division 2).

Item 269 - Section 218

586. Item 269 repeals clause 218 of the FCFC Bill (which will have commenced). Clause 218 provides that before making the Rules of Court, the Chief Judge must be satisfied that there has been appropriate consultation with other Judges. As Judges of the FCFC (Division 2) will be responsible for making the Rules of Court two years after the commencement of the FCFC Bill, this provision would no longer be required on the commencement of this Part.

Item 270 - Subsection 249(2)

587. Item 270 repeals subclause 249(2) of the FCFC Bill (which will have commenced) and replaces it with new subclause 249(2). Clause 249 relates to Advisory Committees, which may be appointed for the purposes of advising the Chief Judge in relation to the making of the Rules of Court and the management of the administrative affairs of the FCFC (Division 2). The amendment updates the provision so that committees may be appointed for the purposes of advising the Judges of the FCFC (Division 2) in relation to the making of Rules of Court.

Item 271 Subsection 254(1)

588. Item 271 omits reference to 'the Chief Judge' and replaces it with reference to 'Judges, or a majority of them' in subclause 254(1) of the FCFC Bill (which will have commenced). This amendment reflects the policy intention that two years after the commencement of the FCFC Bill the power to make Rules of Court for the FCFC (Division 2) will be vested in the Judges or a majority of Judges of the FCFC (Division 2).

Plant Breeder's Rights Act 1994

Item 272 - Subsection 56A(5)

589. Item 272 omits the reference to 'of the Chief Judge of the Federal Circuit and Family Court of Australia (Division 2)' in subsection 56A(5) of the Plant Breeder's Rights Act 1994. This amendment reflects the policy intention that two years after the commencement of the FCFC Bill the power to make Rules of Court for the FCFC (Division 2) will be vested in the Judges or a majority of Judges of the FCFC (Division 2).

Item 273 -Application of amendments

590. Item 273 provides that the amendments by Part 4 apply in relation to rules of court made after the Part commences.

Item 274 - Continuity of rules of court

591. Item 274 provides that the amendments made by Part 4 do not affect the continuity of any rules of court that are in force immediately before Part 4 commences and, to avoid doubt, do not prevent the amendment or repeal of those rules of court.