House of Representatives

Explanatory Memorandum

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

Schedule 5 - Transitional provisions

Part 1 - Introduction

Item 1 - Definitions

1503. Item 1 provides definitions relevant to Schedule 5:

•

commencement day - the day Schedule 5 commences.

•

Family Court of a State - a court to which section 41 of the Family Law Act, as amended by the Bill, applies

•

Family Court of Australia - the federal court, known immediately before commencement day, as the Family Court of Australia

•

Federal Circuit Court of Australia - has the same meaning as in the new law (also defined in item 1)

•

Federal Court - the Federal Court of Australia

•

Full Court (in relation to the FCFC (Division 1)) - 2 or more Judges of the Court

•

new law - the FCFC Bill

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

1504. Part 2 provides a framework to preserve and transition the appointments of the Chief Justice of the Family Court, the Deputy Chief Justice of the Family Court, Senior Judges of the Family Court and Judges of the Family Court and certain other personnel of the Family Court to the FCFC (Division 1).

Item 2 - Change in title of judicial offices

1505. Item 2 provides for the change in title of the offices of the Chief Justice, Deputy Chief Justice, Senior Judges and Judges of the Family Court.

1506. Subitem 2(1), when read with subitem 2(5), provides that the office of Chief Justice of the Family Court under Part IV of the Family Law Act, as in force immediately before the commencement day, is the same office as the office of Chief Justice of the FCFC (Division 1) under the FCFC Bill.

1507. Subitem 2(2), when read with subitem 2(5), provides that the office of Deputy Chief Justice of the Family Court under Part IV of the Family Law Act, as in force immediately before the commencement day, is the same office as the office of Deputy Chief Justice of the FCFC (Division 1) under the FCFC Bill.

1508. Subitem 2(3), when read with subitem 2(5), provides that the office of Senior Judge of the Family Court under Part IV of the Family Law Act, as in force immediately before the commencement day, is the same office as the office of Senior Judge of the FCFC (Division 1) under the FCFC Bill.

1509. Subitem 2(4), when read with subitem 2(5), provides that the office of Judge of the Family Court under Part IV of the Family Law Act, as in force immediately before the commencement day, is the same office as the office of Judge of the FCFC (Division 1) under the FCFC Bill.

1510. Subitem 2(5) provides that in item 2, 'old law' means Part IV of the Family Law Act, as in force immediately before the commencement day. This is relevant to the interpretation of the previous subitems under item 2.

Item 3 - Appointments to judicial offices

1511. Item 3 provides for the transition and continuation of appointments to judicial offices held by the Chief Justice, Deputy Chief Justice, Senior Judges and Judges of the Family Court to the FCFC (Division 1).

1512. Subitem 3(1) provides that the person holding office as Chief Justice of the Family Court immediately before the commencement day continues to hold that office under the title of Chief Justice of the FCFC (Division 1) under FCFC Bill.

1513. Subitem 3(2) provides that the person holding office as Deputy Chief Justice of the Family Court immediately before the commencement day continues to hold that office under the title of Deputy Chief Justice of the FCFC (Division 1) under the FCFC Bill.

1514. Subitem 3(3) provides that a person holding office as a Senior Judge of the Family Court immediately before the commencement day continues to hold that office under the title of Senior Judge of the FCFC (Division 1) under the FCFC Bill.

1515. Subitem 3(4) provides that a person holding office as a Judge of the Family Court immediately before the commencement day continues to hold that office under the title of Judge of the FCFC (Division 1) under the FCFC Bill.

1516. Subitem 3(5) provides that despite the repeal of Part IV of the Family Law Act, section 23 of that Act continues to apply to preserve the seniority of all persons who held office as a Judge of the Family Court immediately before the commencement day. This provision preserves existing seniority of Judges of the Family Court prior to the restructure.

Item 4 - Chief Executive Officer of the Family Court of Australia

1517. Item 4 provides for the transition and continuation of the appointment to the office of Chief Executive Officer and Principal Registrar of the Family Court to the FCFC (Division 1).

1518. Subitem 4(1) provides that a person holding office as the Chief Executive Officer and Principal Registrar of the Family Court of Australia immediately before the commencement day continues to hold that office under the title of Chief Executive Officer and Principal Registrar of the FCFC (Division 1).

1519. Subitem 4(2) provides that the person holds office, on and after the commencement day, on the terms and conditions that were applicable to the person immediately before that day, and for the balance of the person's term of appointment that remained immediately before that day.

Item 5 - Officers and staff of the Family Court of Australia

1520. Item 5 provides for the transition and continuation of officers and staff of the Registries of the Family Court of Australia as officers and staff of the FCFC (Division 1).

1521. Subitem 5(1), when read with subitem 5(3), provides that people who are officers of the Family Court (including Registrars, Deputy Registrars, Registry Managers, family consultants, the Marshal and Deputy Marshals) immediately before the commencement day, as identified in subsection 38N(1) of Part IVA of the Family Law Act, will continue on and after that day as officers of the FCFC (Division 1).

1522. Subitem 5(2), when read with subitem 5(3), provides that people who are staff of the Registries of the Family Court immediately before the commencement day, as identified in subsection 38N(7) of the Part IVA of the Family Law Act, will continue on and after the commencement day as staff of Registries of the FCFC (Division 1).

Item 6 - Application of subsection 25B(1) of the Acts Interpretation Act 1901

1523. Item 6 provides that subsection 25B(1) of the Acts Interpretation Act 1901 applies for the purposes of alterations made by this Act, as if the Family Court of Australia were a body and the offices of Chief Justice, Deputy Chief Justice, Senior Judge and Judge of the Family Court were offices.

1524. Subsection 25B(1) of the Acts Interpretation Act provides that where an Act alters the name of a body or an office, then the office continues in existence under the new name so that its identity is not affected; and that in any Act, instrument under an Act, award or other industrial determination, other order, contract, legal or other proceedings, or other instrument, a reference to the office under the former name shall, except in relation to matters that occurred before the alteration took place, be construed as a reference to the office under the new name.

Item 7 - Things done by the Family Court of Australia or Judges of the Court

1525. Item 7 applies to anything done by or in relation to the Family Court or Judges of the Family Court before the commencement day.

1526. Item 7 clarifies that the amendments made by this Act do not affect the validity of anything done before the commencement day by or in relation to: the Family Court; a Full Court of the Family Court; the Chief Justice, Deputy Chief Justice, a Senior Judge or a Judge of the Family Court; or a Judge of the Family Court when performing functions or exercising powers under an Act, in that Judge's personal capacity. For example, the validity of an order made by a Judge of the Family Court or the Full Court of the Family Court is not affected by the amendments contained in this Act.

1527. Further, item 7 puts beyond doubt that nothing in this Bill, or any of the amendments in the FCFC Bill, of themselves, constitute a significant change in circumstances or new factor that would enable a decided family law matter to be reopened or a matter reinstituted. (That is, these reforms do not of themselves meet the test of Rice and Asplund (1979) FLC 90-725).

Item 8 - Things done by, or in relation to, the Chief Executive Officer

1528. Subitem 8(1) provides that anything done by, or in relation, to the Chief Executive Officer of the Family Court will be taken to be done by, or in relation to, the Chief Executive Officer of the FCFC (Division 1) for the purposes of the operation of any law on and after the commencement day.

1529. However, under subitems 8(2) and (3), the Minister may determine in writing that subitem 8(1) does not apply in relation to a specified thing done by the Chief Executive Officer of the Family Court, including making an instrument.

1530. Subitem 8(4) clarifies that a determination made by the Minister is not a legislative instrument. Subitem 8(4) is included to assist readers, as a determination made by the Minister under subitem 8(2) is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003. Determinations made under subitem 8(2) will only apply to a single person, the Chief Executive Officer of the Family Court. Further, a determination under subitem 8(2) will only determine particular circumstances in which the law applies, rather than determining or altering the law more generally.

Item 9 - Things done by, or in relation to, a Registrar or Deputy Registrar

1531. Subitem 9(1) provides that anything done by, or in relation to, a Registrar of the Family Court will be taken to be done by, or in relation to, a Senior Registrar of the FCFC (Division 1) for the purposes of the operation of any law on and after the commencement day.

1532. However, under subitems 9(2) and (5), the Minister may determine in writing that subitem 9(1) does not apply in relation to a specified thing done by a Registrar of the Family Court, including making an instrument.

1533. Subitem 9(3) provides that anything done by, or in relation to, a Deputy Registrar of the Family Court will be taken to be done by, or in relation to, a Registrar of the FCFC (Division 1) for the purposes of the operation of any law on and after the commencement day.

1534. However, under subitems 9(4) and (5), the Minister may determine in writing that subitem 9(3) does not apply in relation to a specified thing done by a Registrar of the Family Court, including making an instrument.

1535. Subitem 9(6) clarifies that a determination made by a Minister under subitems 9(2) or 9(4) are not legislative instruments. Subitem 9(6) is included to assist readers, as a determination made by the Minister under subitems 9(2) or 9(4) is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003. Determinations made under subitem 9(2) and 9(4) will only apply to a Registrar or Deputy Registrar of the Family Court. Further, a determination under subitem 9(2) or 9(4) will only determine particular circumstances in which the law applies, rather than determining or altering the law more generally

Item 10 - Things done by, or in relation to, a Registry Manager

1536. Subitem 10(1) provides that anything done by, or in relation to, the Registry Manager of a Family Court Registry will be taken to be done by, or in relation to, the Registry Manager of a Registry of the FCFC (Division 1) for the purposes of the operation of any law on and after the commencement day.

1537. However, under subitems 10(2) and (3), the Minister may determine in writing that subitem 9(1) does not apply in relation to a specified thing done by the Registry Manager of a Family Court Registry, including making an instrument.

1538. Subitem 10(4) clarifies that a determination made by a Minister is not a legislative instrument. Subitem 10(4) is included to assist readers, as a determination made by the Minister under subitem 10(2) is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003. Determinations made under subitem 10(2) will only apply to the Registry Manager of a Family Court Registry. Further, a determination under subitem 10(2) will only determine particular circumstances in which the law applies, rather than determining or altering the law more generally.

Item 11 - Things done by, or in relation to, the Marshal or a Deputy Marshal

1539. Subitem 11(1) provides that anything done by, or in relation to, the Marshal or a Deputy Marshal of the Family Court will be taken to be done by, or in relation to, Marshal or a Deputy Marshal of the FCFC (Division 1) for the purposes of the operation of any law on and after the commencement day.

1540. However, under subitems 11(2) and (3), the Minister may determine in writing that subitem 10(1) does not apply in relation to a specified thing done by the Marshal or a Deputy Marshal of the Family Court, including making an instrument.

1541. Subitem 11(4) clarifies that a determination made by a Minister is not a legislative instrument. Subitem 11(4) is included to assist readers, as a determination made by the Minister under subitem 11(2) is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003. Determinations made under subitem 11(2) will only apply to the Marshal or a Deputy Marshal of the Family Court. Further, a determination under subitem 10(2) will only determine particular circumstances in which the law applies, rather than determining or altering the law more generally.

Item 12 - Registries

1542. Item 12 provides that notwithstanding the repeal of Part IV of the Family Law Act, a Registry of the Family Court which exists immediately before the commencement day will continue in existence on and after the commencement day as a Registry of the FCFC (Division 1).

Item 13 - Complaints

1543. Item 13 provides that if in relation to a Judge of the Family Court, a complaint is made about the Judge on or after the commencement day and the circumstances that gave rise to the complaint occurred before the commencement day, then the Chief Justice of the FCFC (Division 1) may deal with the complaint under clause 48 of the FCFC Bill. The reference to the FCFC (Division 1) in subparagraph 32(4)(b)(ii) of that Act is taken to include a reference to the Family Court for the purposes of dealing with the complaint under this item.

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

1544. Part 3 provides a framework to preserve and transition the appointments of the Chief Judge of the Federal Circuit Court and Judges of the Federal Circuit Court and certain other personnel of the Federal Circuit Court to the FCFC (Division 2).

Item 14 - Change in title of judicial offices

1545. Item 14 provides for the change in title of the offices of the Chief Judge of the Federal Circuit Court and Judges of the Federal Circuit Court.

1546. Subitem 14(1), when read with subitem 14(3), provides that the office of Chief Judge of the Federal Circuit Court under the Federal Circuit Court Act, as in force immediately before the commencement day, is the same office as the office of Chief Judge of the FCFC (Division 2) under the FCFC Bill

1547. Subitem 13(2), when read with subitem 13(3), provides that the office of Judge (other than the Chief Judge) of the Federal Circuit Court under the Federal Circuit Court Act, as in force immediately before the commencement day, is the same office as the office of Judge of the FCFC (Division 2) under the FCFC Bill.

Item 15 - Appointments to judicial offices

1548. Item 15 provides for the transition and continuation of appointments to judicial offices held by the Chief Judge and Judges of the Federal Circuit Court to the FCFC (Division 2) and saving of assignments of judges of the Federal Circuit Court to particular locations or registries.

1549. Subitem 15(1) provides that the person holding office as the Chief Judge of the Federal Circuit Court immediately before the commencement day continues to hold that office under the title of Chief Judge of the FCFC (Division 2) under the FCFC Bill.

1550. Subitem 15(2) provides that a person holding office as a Judge (other than the Chief Judge) of the Federal Circuit Court immediately before the commencement day continues to hold that office under the title of Judge of the FCFC (Division 2) under the FCFC Bill.

1551. Subitem 15(3) provides for the saving and transition of any instruments of assignment of Judges to particular locations or registries that were issued by the Chief Judge of the Federal Circuit Court under subsection 12(4) of the Federal Circuit Court Act, to continue in force after the commencement day as if that instrument had been made under subclause 147(1) of the FCFC Bill.

1552. Subitem 15(4) provides that any approval of an instrument of assignment given by the Minister under subsection 12(5) of the Federal Circuit Court Act will continue as if given under subclause 147(2) of the FCFC Bill.

Item 16 - Officers and staff of the Federal Circuit Court of Australia

1553. Item 16 provides that officers of the Federal Circuit Court (including Registrars, the Sheriff and Deputy Sheriffs, the Marshal and Deputy Marshals, and family consultants) immediately before the commencement day, as identified in subsection 99(1) of the Federal Circuit Court Act, will continue on and after the commencement day as officers of the FCFC (Division 2).

1554. Item 16 also provides that staff of Registries of the Federal Circuit Court before the commencement day, as identified in section 112 of the Federal Circuit Court Act, continue on and after the commencement day as staff of Registries of the FCFC (Division 2).

Item 17 - Application of subsection 25B(1) of the Acts Interpretation Act 1901

1555. Item 17 provides that subsection 25B(1) of the Acts Interpretation Act applies for the purposes of alterations made by this Act, as if the Federal Circuit Court of Australia were a body, and the offices of Chief Judge and Judges of the Federal Circuit Court were offices.

1556. Subsection 25B(1) of the Acts Interpretation Act provides that where an Act alters the name of a body or an office, then the office continues in existence under the new name so that its identity is not affected; and that in any Act, instrument under an Act, award or other industrial determination, other order, contract, legal or other proceedings, or other instrument, a reference to the office under the former name shall, except in relation to matters that occurred before the alteration took place, be construed as a reference to the office under the new name.

Item 18 - Things done by, or in relation to, the Federal Circuit Court of Australia or Judges of the Court

1557. Item 18 applies to anything done by or in relation to the Federal Circuit Court or Judges of the Federal Circuit Court before the commencement day.

1558. Item 18 clarifies that the repeal of the Federal Circuit Court Act and the amendments made by Act do not affect the validity of anything done before the commencement day by, or in relation to: the Federal Circuit Court; the Chief Judge or a Judge of the Federal Circuit Court; a Judge of the Federal Circuit Court while a Federal Magistrate; or a Judge of the Federal Circuit Court when performing functions or exercising powers under an Act, in that Judge's personal capacity. For example, the validity of an order made by a Judge of the Federal Circuit Court is not affected by the repeal of the Federal Circuit Court Act, the amendments contained in this Bill or the FCFC Bill.

1559. Further, item 18 puts beyond doubt that nothing in this Bill, or any of the amendments in the FCFC Bill, of themselves, constitute a significant change in circumstances or new factor that would enable a decided family law matter to be reopened or a matter reinstituted. (That is, these reforms do not of themselves meet the test of Rice and Asplund (1979) FLC 90-725).

Item 19 - Things done by, or in relation to, the Chief Executive Officer

1560. Subitem 19(1) provides that anything done by, or in relation to, the Chief Executive Officer of the Federal Circuit Court will be taken, despite the repeal of the Federal Circuit Court Act, to be done by, or in relation to, the Chief Executive Officer of the FCFC for the purposes of any law as in force on and after the commencement day.

1561. However, under subitems 19(2) and (3), the Minister may determine in writing that subitem 18(1) does not apply in relation to a specified thing done by the Chief Executive Officer of the Federal Circuit Court, including making an instrument.

1562. Subitem 19(4) clarifies that a determination made by a Minister is not a legislative instrument. Subitem 19(4) is included to assist readers, as a determination made by the Minister under subitem 19(2) is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003. Determinations made under subitem 19(2) will only apply to a single person, the Chief Executive Officer of the Federal Circuit Court. Further, a determination under subitem 19(2) will only determine particular circumstances in which the law applies, rather than determining or altering the law more generally.

Item 20 - Things done by, or in relation to, a Registrar

1563. Subitem 20 (1) provides that anything done by, or in relation to a Registrar of the Federal Circuit Court will be taken, despite the repeal of the Federal Circuit Court Act, to be done by, or in relation to, a Registrar of the FCFC (Division 2) for the purposes of any law as in force on and after the commencement day.

1564. However, under subitems 20(2) and (3), the Minister may determine in writing that subitem 20(1) does not apply in relation to a specified thing done by a Registrar of the Federal Circuit Court, including making an instrument.

1565. Subitem 20(4) clarifies that a determination made by a Minister is not a legislative instrument. Subitem 20(4) is included to assist readers, as a determination made by the Minister under subitem 20(2) is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003. Determinations made under subitem 20(2) will only apply to a Registrar of the Federal Circuit Court. Further, a determination under subitem 20(2) will only determine particular circumstances in which the law applies, rather than determining or altering the law more generally.

Item 21 - Things done by, or in relation to, the Sheriff or a Deputy Sheriff

1566. Subitem 21(1) provides that anything done by, or in relation to the Sheriff or a Deputy Sheriff of the Federal Circuit Court will be taken, despite the repeal of the Federal Circuit Court Act, to be done by, or in relation to, the Sheriff or a Deputy Sheriff of the FCFC (Division 2) for the purposes of any law as in force on and after the commencement day.

1567. However, under subitems 21(2) and (3), the Minister may determine in writing that subitem 20(1) does not apply in relation to a specified thing done by the Sheriff or a Deputy Sheriff of the Federal Circuit Court, including making an instrument.

1568. Subitem 21(4) clarifies that a determination made by a Minister is not a legislative instrument. Subitem 21(4) is included to assist readers, as a determination made by the Minister under subitem 21(2) is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003. Determinations made under subitem 21(2) will only apply to the Sheriff or a Deputy Sheriff of the Federal Circuit Court. Further, a determination under subitem 21(2) will only determine particular circumstances in which the law applies, rather than determining or altering the law more generally.

Item 22 - Things done by, or in relation to, the Marshal or a Deputy Marshal

1569. Subitem 22(1) provides that anything done by, or in relation to the Marshal or a Deputy Marshal Sheriff of the Federal Circuit Court will be taken, despite the repeal of the Federal Circuit Court Act, to be done by, or in relation to, the Marshal or a Deputy Marshal of the FCFC (Division 2) for the purposes of any law as in force on and after the commencement day.

1570. However, under subitems 22(2) and (3), the Minister may determine in writing that subitem 21(1) does not apply in relation to a specified thing done by the Marshal or a Deputy Marshal of the Federal Circuit Court, including making an instrument.

1571. Subitem 22(4) clarifies that a determination made by a Minister is not a legislative instrument. Subitem 22(4) is included to assist readers, as a determination made by the Minister under subitem 22(2) is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003. Determinations made under subitem 22(2) will only apply to the Marshal or a Deputy Marshal of the Federal Circuit Court. Further, a determination under subitem 22(2) will only determine particular circumstances in which the law applies, rather than determining or altering the law more generally.

Item 23 - Registries

1572. Item 23 provides that notwithstanding the repeal of the Federal Circuit Court Act, a Registry of the Federal Circuit Court which exists before the commencement day, will continue in existence on and after the commencement day as a Registry of the FCFC (Division 2).

Item 24 - Complaints

1573. Item 24 provides that if in relation to a Judge of the Federal Circuit Court, a complaint is made about the Judge on or after the commencement day and the circumstances that gave rise to the complaint occurred before the commencement day, then the Chief Judge of the FCFC (Division 2) may deal with the complaint under clause 145 of the FCFC Bill. The reference to the FCFC (Division 2) in subparagraph 145(4)(b)(ii) of that Act is taken to include a reference to the Federal Circuit Court for the purposes of dealing with the complaint under this item.

Part 4-Transitional arrangements for appeals

1574. Part 4 provides transitional arrangements for family law appeals which are on foot as at the commencement day, as well as appeals which are eligible to be filed as at the commencement day and appeals which could otherwise be impacted as a result of the changes to the Family Court's appellate jurisdiction in the FCFC (Division 1).

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

Item 25 - Appeals to the High Court

1575. Item 25 clarifies that the time limits applicable to applications for special leave to appeal to the High Court under section 95 of the Family Law Act are not impacted by the amendments to the Family Law Act made by this Act.

Item 26 - Appeals to Federal Circuit and Family Court of Australia (Division 1)

1576. Subitem 25(1) provides that where the time for instituting an appeal under Part X of the Family Law Act, or an application for leave to appeal under section 94AA of that Act has not ended on the commencement day, a party may institute an appeal or application for leave to appeal in the FCFC (Division 1).

1577. Subitem 25(2) provides that for the purposes of subitem 25(1), any appeal or application for leave to appeal to the FCFC (Division 1) must be made in accordance with the Rules of Court to be made under Chapter 3 of the FCFC Bill.

1578. Subitem 25(3) provides, for the avoidance of doubt, that these appeals are to be heard and determined by the FCFC (Division 1) in accordance with the FCFC Act, the Family Law Act (as amended) and any other law of the Commonwealth as relevant, rather than the law as in force at the time the right to institute an appeal or seek leave to appeal accrued.

Item 27 - Extensions of time to appeal or seek leave to appeal

1579. Subitem 27(1) provides that despite amendments to the Family Law Act made by this Act if, on the commencement day, a party could seek an extension of time:

•

to institute an appeal under the Family Law Act; or

•

seek leave to appeal under the Family Law Act

then, on or after the commencement day, a person may file that application for an extension of time in the FCFC (Division 1).

1580. Subitem 27(2) clarifies that the FCFC (Division 1) is to hear any application according to the Federal Court of Australia Act 1976 (as amended), the Family Law Act 1975 (as amended), and any other relevant law of the Commonwealth.

1581. Item 27 provides transitional arrangements for all appeals or applications for leave to appeal which would be covered by Part X of the Family Law Act.

Division 2-Matters not substantively heard before the commencement day

1582. Division 2 of Part 4, Schedule 5 provides a framework for the hearing and determination of family law appeals which are on foot in the Family Court before the commencement day and in relation to which a substantive hearing has not yet taken place.

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

1583. Subitem 28(1) provides transitional arrangements for applications for leave to appeal and appeals which have been instituted in the Family Court prior to the commencement day, where a substantive hearing has not taken place in the Family Court by that date. In such circumstances, the appeals and applications for leave to appeal of the kind described in subitem 27(1) will be dealt with and substantively heard in the FCFC (Division 1).

1584. In particular, subitem 28(1) provides that if prior to the commencement day any of the following occur:

•

an application for leave to appeal is instituted under section 94AA of the Family Law Act;

•

an appeal is instituted under Part X of that Act;

•

facts and a question of law are stated in the form of a special case for the opinion of the Full Court of the Family Court (under section 94AA of the Family Law Act); and

on the day before the commencement day a substantive hearing of

•

the application,

•

appeal, or

•

special case stated (in the form of a special case for the opinion of the Full Court of the Family Court)

has not occurred in the Full Court of the Family Court, or the application for leave to appeal under section 94AA has not been by a single Judge of the Family Court, then on or after the commencement day, the FCFC (Division 1) will hear the appeal, application or case stated as if it were instituted in the FCFC (Division 1).

1585. Subitem 28(2) clarifies that the FCFC (Division 1) is to hear and determine the application, appeal or special case according to the FCFC Bill, the Family Law Act (as amended), and any other relevant law of the Commonwealth. For the purposes of applying the Federal Court Act (as amended), any reference to the FCFC (Division 1) is taken to include a reference to the Family Court of Australia.

1586. Subitems 8(3), (4) and (5) provide that if, as at the day before the commencement day, the Family Court constituted by a single Judge or a Full Court, has reserved judgment following the hearing of a procedural application of the kind outlined in subsection 94(2D) or 94AAA(10) of the Family Law Act, then the FCFC (Division 1) must deliver judgment on the procedural application, before the proceeding can be dealt with by FCFC (Division 1) on or after the commencement day.

1587. Subitem 28(6) provides that in circumstances where subitems 28(3) or 28(4) do not apply, for example, where a procedural application of the kind described has been filed but not yet heard in the Family Court, then the FCFC (Division 1) must deal with the procedural application (of the kind outlined in subsection 94(2D) or 94AAA(10) of the Family Law Act), before dealing with the application or appeal mentioned in subitem 28(1), and that for this purpose, subitem (2) applies.

1588. Subitem 28(7) clarifies that if the opinion of the Judges constituting the Full Court of the FCFC (Division 1) is divided, the majority opinion will prevail. If however the Judges are equally divided in opinion, if the appeal was from a judgment of a single Judge of the Family Court, or of a State and Territory Supreme or Family Court, then the judgment appealed from is to be affirmed; and in any other case, the opinion of the most senior Judges constituting the Full Court is to prevail.

1589. Subitem 28(8) provides that to avoid doubt, a Full Court of the FCFC (Division 1) has jurisdiction to deal with an application of a procedural nature for the purposes of subitem 28(2) and a single Judge of the FCFC (Division 1) has jurisdiction to deal with an application of a procedural nature for the purposes of subitem 28(4).

Item 29 - Appeals from courts of summary jurisdiction

Appeals before a single Judge of the Family Court of Australia

1590. Subitem 29(1) provides transitional arrangements for appeals from courts of summary jurisdiction which have been instituted in the Family Court prior to the commencement day, and a substantive hearing has not taken place in the Family Court by that date. In such circumstances, the appeals instituted under section 96 of the Family Law Act will be dealt with and substantively heard in the FCFC by a single Judge.

1591. Subitem 29(1) provides that if, prior to the commencement day:

•

an appeal is instituted under section 96 of the Family Law Act, and

on the day before the commencement day:

•

there has not been a substantive hearing of the appeal by a single judge of the Family Court and,

•

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

then on or after the commencement day, a single Judge of the FCFC (Division 1) is to hear and determine the appeal.

1592. Subitem 29(2) clarifies that the Judge of the FCFC (Division 1) is to hear any application according to the Federal Court Act (as amended), the Family Law Act (as amended), and any other relevant law of the Commonwealth.

Appeals before a Full Court of the Family Court of Australia

1593. Subitem 29(3) provides that if, prior to the commencement day:

•

an appeal is instituted under section 96 of the Family Law Act, and

•

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

on the day before the commencement day:

•

there has not been a substantive hearing of the appeal by a single judge of the Family Court

then, on or after the commencement day, a Full Court of the FCFC (Division 1) is to hear and determine the appeal or application, despite the referral.

1594. Subitem 29(4) provides that to avoid doubt, the Full Court of the FCFC (Division 1) is to hear and determine the appeal under this item according to the Federal Court Act (as amended by this Act ), the Family Law Act (as amended by the Act), and any other Commonwealth law.

Division 3-Matters substantively heard, in whole or in part, before the commencement day

1595. Division 3 of Part 4, Schedule 5 provides a framework for the hearing and determination of family law appeals and applications in an appeal which are on foot in the Family Court before the commencement day and in relation to which a substantive hearing has either wholly or partly taken place in the Family Court by that date.

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

1596. Item 30(1) provides that if, prior to the commencement day, a Full Court of the Family Court has either fully or partly heard:

•

an application for leave to appeal is instituted under section 94AA of the Family Law Act,

•

an appeal allowed under Part X of that Act,

•

an appeal referred under subsection 96(5) or

•

a special case for the opinion of the Full Court; and

on the day before the commencement day, either:

•

a substantive hearing of the appeal, application or special case has not concluded, or

•

a substantive hearing of the appeal, application or special case has concluded, but judgment has not been delivered,

then, on or after the commencement day (and despite the amendments to the Family Law Act made by this Act), the Full Court of the FCFC (Division 1) must conclude the substantive hearing of the appeal, application or special case (if required) and deliver judgment.

1597. Subitem 30(2) provides that a Full Court of the FCFC (Division 1) may have regard to any evidence and arguments given, received or adduced by or before the Full Court of the Family Court, as constituted before the commencement day.

1598. Subitem 30(3) provides that except in the case of an appeal referred under subsection 96(5) of the Family Law Ac t, a Full Court of the FCFC (Division 1) may give reasons for a decision to dismiss an appeal in short form, if it is of the opinion that the appeal does not raise a question of general principle.

1599. Subitem 30(4) clarifies that if the opinion of the Judges constituting a Full Court of the FCFC (Division 1) is divided, the majority opinion will prevail. If, however, the Judges are equally divided in opinion, if the appeal was from a judgment of a single Judge of the Family Court, or of a State and Territory Supreme or Family Court, then the judgment appealed from is to be affirmed; and in any other case, the opinion of the most senior Judge of the Full Court is to prevail.

1600. Subitem 30(5) provides that to avoid doubt, a Full Court of the FCFC (Division 1) has appellate jurisdiction of the purposes of this item.

Item 31 - Matters before a Judge of the Family Court of Australia

1601. Item 31(1) provides that if, prior to the commencement day, a single Judge of the Family Court has either fully or partly heard:

•

an application for leave to appeal is instituted under section 94AA of the Family Law Act, or

•

an appeal allowed under Part X of that Act, and

on the day before the commencement day, either:

•

a substantive hearing of the appeal or application has not concluded, or

•

a substantive hearing of the appeal or application has concluded, but judgment has not been delivered,

then, on or after the commencement day (and despite the amendments to the Family Law Act made by this Act), the Judge, as a Judge of the FCFC (Division 1), must deliver the judgment.

1602. Subitem 31(2) provides that except in the case of an appeal referred under subsection 96(5) of the Family Law Ac t, the single Judge may give reasons for a decision to dismiss an appeal in short form, if the Judge is of the opinion that the appeal does not raise a question of general principle.

1603. Subitem 31(3) provides that to avoid doubt, a single Judge of the FCFC (Division 1) has appellate jurisdiction for the purposes of this item.

Division 4-Miscellaneous

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

1604. Subitem 32(1) provides that for the purposes of subitems 28(3) and 30(1) of this Bill, the Chief Justice must allocate another Judge of the FCFC (Division 1) to be a member of the Full Court if:

•

One or more of the Judges involved are not available to constitute a Full Court, and

•

The allocation of another judge is necessary to constitute a Full Court.

1605. Subitem 32(2) provides that provides that for the purposes of subitems 28(3) and 29(1) of this Bill, the Chief Justice may allocate another Judge of the FCFC (Division 1) to be a member of the Full Court if:

•

One or more of the Judges involved are not available to constitute a Full Court, and

•

The Chief Justice otherwise considers it necessary.

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

1606. Subitem 33(1) provides that for the purposes of subitems 28(4) and 31(1), if the single Judge of the FCFC (Division 1) is not available to deliver judgment, then Chief Justice must allocate another Judge of the Court to do so.

1607. Subitem 33(2) provides that a Judge allocated under subitem 32(1) may have regard to evidence and arguments given, received and adduced by or before the Judge of the Family Court before the commencement day and may receive further evidence or submissions or hear further argument, if required.

Item 34 - Other matters

1608. Item 34 provides discretion to the Chief Justice, in consultation with the Chief Judge of the FCFC (Division 2), to give any direction necessary to ensure that an application relating or incidental to a proceeding mentioned in this Part, and which is made before, on or after the commencement day, is heard and determined, and judgment is delivered, pending the disposal of the proceeding. The Chief Justice must consider the workload and resources of the FCFC in making such a direction.

Item 35 - Application of case management provisions

1609. Item 35 provides for the application of the case management provisions to proceedings which come before the FCFC (Division 1) or the FCFC before, on or after the commencement day, as a result of an item of this Part.

1610. Item 35 provides that the case management provisions in Part VB of the Federal Court Act will apply to all proceedings in the FCFC (Division 1), commenced before, on or after the commencement day.

Part 5-Miscellaneous

Item 36 - Prior judicial service

1611. Item 36 continues the existing position for the definition of 'prior judicial service'. Item 36 clarifies that paragraph 123(3)(b) of the FCFC Bill has effect, on and after the commencement day, as if paragraph (c) of the definition of 'prior judicial service' in subclause 7(1) of that Bill included a reference to a Federal Magistrate. The definition of 'prior judicial service' is relevant in calculating pensions for retired disabled Judges under subclause 123(3)(b) of the FCFC Bill.

1612. The note at item 36 clarifies for readers that the appointment of a Federal Magistrate under the former Federal Magistrates Act 1999 continued as an appointment of a Judge of the Federal Circuit Court.

Item 37 - Application

1613. Item 37 provides for the case management provisions contained in the FCFC Bill, Division 4 of Part 5 of Chapter 3 for the FCFC (Division 1) and Division 4 of Part 6 of Chapter 4 for the FCFC (Division 2), to apply to proceedings commenced before, on or after the commencement day.

1614. The case management provisions in the FCFC Bill provide that the overarching purpose of family law and civil practice and procedure provisions of the FCFC is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

Item 38 - Transitional rules

1615. Subitem 38(1) provides that the Minister may, by legislative instrument, make rules prescribing matters of a transitional nature related to the amendments or repeals made by this Act or the enactment of the Federal Circuit and Family Court of Australia Act 2019.

1616. Subitem 38(2) prescribes a limit on the transitional rules which may be made and provides the Minister may not make rules which: create an offence; provide powers of arrest or detention or entry, search or seizure; impose a tax; set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act or the FCFC Bill; or directly amend the text of this Act or the FCFC Bill.

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

1617. Item 39 confirms that this Schedule does not limit the operation of section 7 or subsection 25B(1) of the Acts Interpretation Act 1901.

1618. Item 5 of Schedule 10 of this Bill provides that subsection 25B(1) of the Acts Interpretation Act 1901 applies as if the Family Court were a body, and the offices of Chief Justice, Deputy Chief Justice, Senior Judge and Judge were offices. Item 16 of Schedule 10 also provides that subsection 25B(1) of the Acts Interpretation Act 1901 applies as if the Federal Circuit Court were a body, and the offices of Chief Judge and Judge were offices. Section 7 of the Acts Interpretation Act 1901 provides for the effect of repeal or amendment of an Act or part thereof.

1619. Item 39 clarifies that, where section 7 or subsection 25B(1) of the Acts Interpretation Act 1901 will apply, items in this Schedule are not intended to limit the operation of these provisions.