44AATransfer of appeals from Federal Court to Federal Circuit and Family Court of Australia (Division 2)

#### 44AA Transfer of appeals from Federal Court to Federal Circuit and Family Court of Australia (Division 2) Transfer of appeals (1) If an appeal under subsection 44(1) or (2) is pending in the Federal Court of Australia, the Federal Court of Australia may, by order, transfer the appeal from the Federal Court of Australia to the Federal Circuit and Family Court of Australia (Division 2). (2) However, the Federal Court of Australia must not transfer an appeal to the Federal Circuit and Family Court of Australia (Division 2) if the appeal: (a) relates to a decision given by the Tribunal constituted by a member who was, or by members at least one of whom was, a presidential member; or (c) is of a kind specified in the regulations. (3) The Federal Court of Australia may transfer an appeal under subsection (1): (a) on the application of a party to the appeal; or (b) on its own initiative. Federal Court Rules (4) Rules of Court made under the Federal Court of Australia Act 1976 may make provision in relation to transfers of appeals to the Federal Circuit and Family Court of Australia (Division 2) under subsection (1). (5) In particular, Rules of Court made under the Federal Court of Australia Act 1976 may set out factors that are to be taken into account by the Federal Court of Australia in deciding whether to transfer appeals to the Federal Circuit and Family Court of Australia (Division 2) under subsection (1). (6) Before Rules of Court are made for the purposes of subsection (4) or (5), the Federal Court of Australia must consult the Federal Circuit and Family Court of Australia (Division 2). Matters to which the Federal Court must have regard in transferring appeal (7) In deciding whether to transfer an appeal to the Federal Circuit and Family Court of Australia (Division 2) under subsection (1), the Federal Court of Australia must have regard to: (a) any Rules of Court made for the purposes of subsection (5); and (b) whether proceedings in respect of an associated matter are pending in the Federal Circuit and Family Court of Australia (Division 2); and (c) whether the resources of the Federal Circuit and Family Court of Australia (Division 2) are sufficient to hear and determine the appeal; and (d) the interests of the administration of justice. Jurisdiction (8) The Federal Circuit and Family Court of Australia (Division 2) has jurisdiction to hear and determine appeals transferred to it under subsection (1). Powers etc. (9) Subsections 44(4), (5) and (6) apply in relation to the hearing and determination of an appeal transferred to the Federal Circuit and Family Court of Australia (Division 2) under subsection (1) of this section in a corresponding way to the way in which they apply to the hearing and determination of an appeal by the Federal Court of Australia. No appeal from decision of Federal Court (10) An appeal does not lie from a decision of the Federal Court of Australia in relation to the transfer of an appeal under subsection (1). Federal Circuit and Family Court of Australia (Division 2) may make findings of fact (11) If an appeal under subsection 44(1) is transferred to the Federal Circuit and Family Court of Australia (Division 2) under subsection (1) of this section, subsections 44(7), (8) and (9) apply in relation to the making of findings of fact by the Federal Circuit and Family Court of Australia (Division 2) in a corresponding way to the way in which they apply to the making of findings of fact by the Federal Court of Australia. (12) The jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) under subsection (8) of this section includes jurisdiction to make findings of fact under subsection 44(7) (as applied by subsection (11) of this section).