5AStay of execution of decree appealed from

5A Stay of execution of decree appealed from (1) If an application has been instituted under rule 2: (a) the Judge or Federal Magistrate who made the decree; or (b) if that Judge or Federal Magistrate is not reasonably available — another Judge or Federal Magistrate; may make an order, on such terms as the Judge or Federal Magistrate thinks fit, staying the execution or operation of the decree wholly, or in part, until the application is determined. (2) If an order under subrule (1) has been made, a court having jurisdiction under the Act must not enforce the decree, or entertain proceedings for its enforcement, in so far as its execution or operation has been stayed, until the application is determined. 6 Directions (1) Before the hearing of an application, the application must be listed for directions before a Judge of the Appeal Division, unless otherwise directed by the Chief Justice. (2) A Judge of the Appeal Division may make directions in relation to the conduct of an application, including a direction that an application be dealt with by the Full Court without an oral hearing. 7 Supporting submissions (1) If an applicant is directed, under rule 6, to prepare a supporting submission, the applicant must prepare, within 14 days, a supporting submission and: (a) lodge 3 copies of the submission with the Regional Appeal Registrar; and (b) serve 3 copies of the submission on each other party to the application. (2) A supporting submission must state concisely: (a) the circumstances in which the application arises; and (b) the matters on which the application is based; and (c) the reasons why leave to appeal should be granted. (3) As far as practicable, a supporting submission must refer to material in a document filed in connection with the application by the page number of the document and should not extract the text of that material. (4) The paragraphs of a supporting submission must be numbered consecutively. (5) A supporting submission must be signed: (a) by the lawyer who prepared the submission; or (b) if the submission was not prepared by a lawyer — by, or on behalf of, the party for whom it was prepared. (6) A supporting submission must include the signatory’s name and telephone number, and a fax number (if any) or central document exchange number (if any) at which the signatory can be contacted. (7) Within 7 days after a copy of a supporting submission is served on a party, the party: (a) may lodge with the Regional Appeal Registrar a concise response to the matters raised in the submission; and (b) if paragraph (a) is acted on — must serve a copy of the response on each other party to the application. 8 Hearing of application On the hearing of an application the Full Court may, with the consent of the parties or of its own motion: (a) hear and determine the application; or (c) hear and determine the appeal. 9 Leave to appeal may be on terms The Full Court may grant leave to appeal on terms. Order 32B Appeal for hearing by a single judge 1 Application of Order 32B This Order applies to an appeal from a decree of the Federal Magistrates Court. > appeal means an appeal from a decree of the Federal Magistrates Court, including a decree mentioned in subsection 102A (1) of the Assessment Act or subsection 107A (1) of the Registration Act, for which the jurisdiction of the court is exercised by a single Judge. > Appeal Registrar has the same meaning as in Order 32. > Appeal Registry has the same meaning as in Order 32. > Regional Appeal Registry means: (a) if the appeal is from an order made in proceedings heard in the Northern Territory or Queensland — the Brisbane Registry; and (b) if the appeal is from an order made in proceedings heard in the Australian Capital Territory or New South Wales — the Sydney Registry; and (c) if the appeal is from an order made in proceedings heard in South Australia, Tasmania or Victoria — the Melbourne Registry; and (d) if the appeal is from an order made in proceedings heard in Western Australia — the Perth Registry. (i) a notice of appeal in accordance with Form 42; and (b) by sending to the Regional Appeal Registry, by fax or e‑mail, a copy of the notice of appeal. (2) If an appeal is instituted in accordance with paragraph (1) (b), the notice of appeal, and 2 copies, must be filed in the Regional Appeal Registry within 3 days after the copy of the notice was sent under paragraph (1) (b). (3) If a notice of appeal is sent by fax, it must be sent with a cover sheet that clearly states: (4) If a notice of appeal is sent by e‑mail, the sender must: (b) state clearly, in the notice, his or her name, postal address, document exchange number (if any), telephone number, fax number and e‑mail address. (5) If a notice of appeal sent by fax or e‑mail is accepted for filing, it is taken to be filed: (a) if the notice is received by 4.30 pm on a day when the Regional Appeal Registry is open for business — on that day; and > Note A Registrar must not accept a notice of appeal for filing unless the court fee has been paid, exempted or waived: see subregulations 16 (2A) and (3) of the Family Law Regulations 1984. (6) An appeal must be instituted within 28 days after the day on which the order appealed from was made. (7) A notice of appeal must: (a) state whether the appeal is from the whole or part of the order; and (b) if the appeal is from part of the order — specify the part appealed from; and (c) set out briefly but specifically the grounds relied on in support of the appeal; and (d) specify the order sought in the appeal in place of the order appealed from. (1) This rule applies if an appeal under subsection 94AAA (1) of the Act, subsection 102A (1) of the Assessment Act or subsection 107A (1) of the Registration Act is instituted under rule 3. (2) As soon as practicable after the appeal is instituted, the Regional Appeal Registrar must refer it to the Chief Justice to determine whether the jurisdiction of the Family Court in relation to the appeal should be exercised by a Full Court or a single Judge. (3) If the jurisdiction of the Family Court in relation to the appeal is to be exercised: (a) by a Full Court — Order 32 applies to the appeal; and (b) by a single Judge — this Order applies to the appeal. 5 Documents filed with appeal — Form 41C (1) Unless otherwise specified, a document filed for an appeal must be headed in accordance with Form 41C. (2) Subrule (1) does not apply to a document prepared in accordance with Form 41B, 42, 42A or 42B. 6 Service of notice of appeal (1) Within 14 days after instituting an appeal, an appellant must serve, in accordance with Order 18, a sealed copy of the notice of appeal on: (b) the Registrar of the Federal Magistrates Court. (2) If an appeal has been instituted, the Federal Magistrate who made the decree appealed from, or if that Magistrate is not reasonably available, another Federal Magistrate, may, on application by a party to the appeal, direct the appellant to serve a sealed copy of the notice of appeal on a person other than a party to the appeal. 7 Child welfare appeals — child’s representative (1) If an appellant files a notice of appeal in relation to proceedings in which a child was separately represented, the appellant must serve, in accordance with Order 18, a sealed copy of the notice of appeal on the child’s representative, within 14 days after the appellant files the notice. (2) The child’s representative may appear at the hearing of the appeal. 8 Stay of proceedings (1) An appeal does not operate as a stay of proceedings. (2) If an appeal has been instituted: (a) the Federal Magistrate who made the decree appealed from (or, if that Magistrate is not reasonably available, another Federal Magistrate); or (b) the Judge conducting a directions hearing in relation to the appeal; may make an order, on such terms as the Federal Magistrate or Judge thinks fit, staying the execution or operation of the decree wholly or in part until the appeal is decided. (3) If an order under subrule (2) has been made, a court having jurisdiction under the Act must not enforce the decree or entertain proceedings for the enforcement of the decree, in so far as its execution or operation has been stayed, until the appeal is decided. 9 Security for costs If an appeal has been instituted, a Judge may make an order, on terms that the Judge considers appropriate, for security for costs. 10 Amendment of notice of appeal (1) An appellant may amend a notice of appeal: (a) by filing in the Regional Appeal Registry 3 copies of the notice with the amendments clearly marked; or (b) by sending to the Regional Appeal Registry, by fax or e‑mail, a copy of the notice with the amendments clearly marked. (2) If a copy of an amended notice is sent by fax or e-mail: (a) the sender must comply with subrule 3 (2), and subrule 3 (3) or (4), as appropriate, as if the amended notice were a notice of appeal without amendments; and (b) subrule 3 (5) (except the note) applies to the amended notice in the same way as it applies to a notice of appeal without amendments. (3) An appellant may amend a notice of appeal: (a) if the amendment is made before the date fixed for the directions hearing — without leave; and (b) if the amendment is made on or after the date fixed for the directions hearing — with the leave of a Judge. (4) As soon as practicable after making an amendment of a notice of appeal, the appellant must serve, in accordance with Order 18, a sealed copy of the amended notice, with the amendments clearly marked, on: 11 Cross-appeals (1) A party to an appeal may institute a cross-appeal: (i) a notice of appeal in accordance with Form 42 endorsed as a notice of cross-appeal; and (b) by sending to the Regional Appeal Registry, by fax or e‑mail, a copy of a notice of appeal endorsed as a notice of cross-appeal. (2) A cross-appeal must be instituted: (a) within 14 days after the day on which a sealed copy of the notice instituting the appeal was served on the party instituting the cross-appeal; or (b) within a further time directed by a Judge of a court having jurisdiction under the Act. (3) Subrules 3 (2), (3), (4), (5) and (7) and rules 6 and 10 apply to a notice of cross-appeal as if it were a notice of appeal. (4) Rules 8, 9 and 19 to 25 apply to a cross-appeal as if it were an appeal. 12 Exhibits etc (1) As soon as practicable after an appeal has been instituted, the Appeal Registrar must arrange to acquire: (a) the exhibits in the proceedings in which the decree appealed from was made; and (b) all other documents that were before the court in those proceedings and a list of those documents. (2) If an exhibit mentioned in paragraph (1) (a) is not immediately available, the Appeal Registrar must find out where it is and arrange to acquire it as soon as practicable. (3) The Appeal Registrar must keep the documents and exhibits received under subrule (1) until the appeal is decided and then return them to the officer or person from whom they were acquired. 13 Notifying parties about appeal etc If an appeal has been instituted, the Regional Appeal Registrar must give written notice to each party to the appeal: (a) identifying the registry that is to be the Appeal Registry; and (b) setting out the time and place fixed for a directions hearing in relation to the appeal. 14 Directions hearing (1) The Judge conducting a directions hearing in relation to an appeal: (a) must give any directions necessary to enable the appeal to be heard, including a direction that: (i) the appellant serve a sealed copy of the notice of appeal, and the order appealed from, on a person who is not a party to the appeal; or (ii) the respondent serve a sealed copy of the notice of cross-appeal, and the order appealed from, on a person who is not a party to the cross-appeal; and (b) must decide: (i) which applications, responses, affidavits and other documents are to be before the court at the hearing of the appeal; and (ii) the date by which the documents mentioned in subparagraph (i) are to be before the court; and (iii) which parts of the transcript of the proceedings from which the appeal has arisen are relevant to the appeal; and (iv) who is to acquire the transcript; and (c) must direct the party who is to acquire the transcript to do so and direct that party to serve a copy of the transcript on each other party to the appeal and file a copy of the transcript in the Appeal Registry by the date specified by the Judge; and (d) must fix the dates by which each party to the appeal must file and serve a summary of the arguments to be presented at the hearing of the appeal or cross-appeal and a list of the authorities that party will be relying on; and (e) must, as far as practicable, fix the date for the hearing of the appeal; and (f) may adjourn the directions hearing from time to time. (2) The Regional Appeal Registrar must give written notice to each party to the appeal: (a) directing the appellant to attend the directions hearing; and (b) if the respondent has instituted a cross-appeal, directing the respondent to attend the directions hearing. (3) The following people must attend the directions hearing unless a Judge of the Appeal Division or the Judge conducting the directions hearing otherwise orders: (a) the appellant and the appellant’s lawyer (if any); (b) if a respondent has instituted a cross-appeal — that respondent and the respondent’s lawyer (if any). (4) A respondent who has not instituted a cross-appeal, and the respondent’s lawyer (if any), may attend the directions hearing. (5) However, if the Judge conducting the directions hearing decides to conduct a settlement conference, the respondent mentioned in subrule (4) must attend that conference. 15 Filing and service of reasons for judgment An appellant must acquire, file and serve on each other party to an appeal, by the date specified by the Judge conducting the directions hearing for the appeal, the reasons for the Federal Magistrate’s judgment. 16 Settlement conference (1) The Judge conducting a directions hearing may: (b) direct that an Appeal Registrar conduct a settlement conference. (2) If a settlement conference is conducted, the Judge or Appeal Registrar may adjourn it from time to time. 17 Conduct of directions hearing or settlement conference by electronic means A Judge or Appeal Registrar conducting a directions hearing or settlement conference may order that the directions hearing or settlement conference be conducted by electronic means. 18 Transcript of proceedings If a party is directed, under paragraph 14 (1) (c), to acquire a transcript of the proceedings in which the decree appealed from was made, the transcript must be prepared by the contractor providing transcription services to the Federal Magistrates Court. 19 Further evidence on appeal (1) The provisions of this rule apply unless otherwise ordered by a Judge. (2) An application to the court to receive evidence on the hearing of an appeal, additional to evidence in the court below, must: (a) be made in accordance with Form 42A, subject to any alterations that are necessary; and (b) have attached to it an affidavit stating the grounds for the application; and (c) be filed, with any related affidavit, in the Regional Appeal Registry at least 14 days before date of commencement of the sittings in which the appeal is listed for hearing or as determined by the Judge conducting the directions hearing or hearing the appeal. (3) Any evidence necessary to establish the grounds for the application and any other evidence that the applicant wants the court to receive must be given by affidavit. (4) The evidence of any other party to the appeal must be given by affidavit filed at least 7 days before the hearing of the appeal. (5) A party to the appeal must, within the time allowed for that party to file an application or affidavit under this rule: (a) lodge as many copies of the application or affidavit as the Regional Appeal Registrar directs; and (b) serve a copy of the application or affidavit on each other party to the appeal. 20 Expediting an appeal A Judge of the Appeal Division may at any time make an order that seems just for expediting an appeal. 21 Certain applications may proceed without oral hearing (1) A Judge may order that an application for an order mentioned in subsection 94AAA (8) or (10) of the Act, subsection 102A (7) or (9) of the Assessment Act or subsection 107A (7) or (9) of the Registration Act may be dealt with without an oral hearing. (2) The order may include conditions in relation to: (a) the time for filing affidavits; and (b) the length of, and time for filing, written submissions; and (c) any other matter that the Judge considers fit in the interests of justice. 22 Dismissal of appeal (1) If an appellant has not met a requirement of these Rules or the Regulations, or in some other way has not shown reasonable diligence in proceeding with the appeal, a Judge may, of his or her own motion or on application by a party to the appeal: (a) dismiss the appeal; or (b) make: (i) an order fixing a time at which, or within which, the requirement is to be met; and (ii) at the same time, an order that the appeal will be dismissed if the requirement is not met at or within the time fixed; or (c) make any other order as appears just. (2) However, the Judge may make an order under this rule only if, at least 14 days before he or she intends making the order, an Appeal Registrar has given notice to the appellant of the date and time at which the Judge will consider whether to make the order. (3) Subrule (2) does not apply to an order arising from an application. (4) The Judge may vary an order at any time before the dismissal of the appeal to which the order relates and, in special circumstances, may vary or revoke the order after that time. 23 Procedures on application for dismissal (1) If a respondent or another party applies for an order under subrule 22 (1), then, unless a Judge orders otherwise, a copy of each of: (a) an application in accordance with Form 42A; and (b) an affidavit setting out concisely the matters relied on in support of the application; must be filed in the Regional Appeal Registry by or for the applicant at least 14 days before the return day for the application. (2) As soon as practicable after the application and supporting affidavit are filed, the applicant must serve, in accordance with Order 18, a sealed copy of the application and supporting affidavit on: 24 Short reasons for decision A Judge, when exercising the power under subsection 94AAA (7) of the Act, subsection 102A (6) of the Assessment Act or subsection 107A (6) of the Registration Act, to give reasons in short form for a decision to dismiss an appeal, must do so by stating them in accordance with Form 42C. 25 Withdrawal of appeal (1) An appellant may, at any time, file in the Regional Appeal Registry, and serve, a notice of withdrawal of an appeal in accordance with Form 42B. (2) On the filing of a notice, the appeal to which the notice relates is taken to be abandoned. (3) The filing of a notice does not affect any other appellant in the appeal. (4) An appellant filing a notice must pay the costs of each other party occasioned by the appeal, unless otherwise fixed or ordered by the court. 26 Application for certificate to appeal to High Court (1) An application for a certificate mentioned in paragraph 95 (b) of the Act must, unless the court making the decree orders otherwise, be filed in the Regional Appeal Registry: (a) within 21 days after the day on which the decree was made; or (b) within a further time directed by a Judge of a court having jurisdiction under the Act. (2) Within 7 days after filing the application, the applicant must serve, in accordance with Order 18, a sealed copy of the application on each other party to the proceedings in which the decree was made. 27 Application to court (1) This rule applies to an application in relation to an appeal, including an application under subsection 94AAA (10) of the Act, subsection 102A (9) of the Assessment Act or subsection 107A (9) of the Registration Act. (2) An application to the court in relation to an appeal may be instituted: (a) by filing in the Regional Appeal Registry an application in accordance with Form 42A with an affidavit in support and 2 copies of the application and affidavit; or (b) by sending to the Regional Appeal Registry, by fax or e‑mail, a copy of the application and affidavit in support. (3) If a copy of an application and affidavit in support is sent by fax or e-mail: (a) the sender must comply with subrule 3 (2), and subrule 3 (3) or (4), as appropriate, as if the application and affidavit in support were a notice of appeal; and (b) subrule 3 (5) (except the note) applies to the application and affidavit in support in the same way as it applies to a notice of appeal.